On Monday, April 7, 2008, the Appellate Division issued a Open Public Meetings Act (OPMA) decision in Mountain Hill LLC v. Middletown and then on March 31, 2008, the Appellate Division's decided an Open Public Records Act (OPRA case) in Mason v. Hoboken.

I. OPMA DECISION (Mountain Hill LLC v. Middletown)

This case dealt with the provision in the OPMA (N.J.S.A. 10:4-7) that exempts "typical partisan caucus meetings" from the general rule that meetings must be open to the public.

Since all of the members of the Township Committee were of the same political party, the Plaintiff asserted that local political caucuses, were "really 'secret' Township Committee meetings."

The court held, however, that "the group of Republicans that attended the political caucus meetings did not intend to discuss or act on the Township Committee's business [rather] the group met to discuss the political ramifications of events that were occurring in Middletown." 

So, apparently, if one party controls a town, it can hold a "political caucus" of its municipal council members and as long as the conversation is restricted to the political ramifications of the council's actions instead of merits of the question that the council needs to decide, the secret "political caucus" meeting is legal.

This is a disturbing decision because nobody but the partisans themselves are fact witnesses to the private, "caucus" discussions.  Accordingly, if the partisans agree in advance that certain aspects of the discussions are to be kept confidential--even from the court--then nobody could prove to the contrary.

II. OPRA DECISION (Mason v. Hoboken)

In response to Beth Mason's request for city employee cell phone records, Hoboken provided heavily redacted cell phone bills.  The City redacted not only the phone numbers that were called by City employees, but it also redacted other information, such as the date and time a call was made, but failed to explain the nature of the redacted material and the legal basis that justified the redactions.  Mason sued in Hudson County Superior Court and the trial court dismissed her complaint. 

In its March 31, 2008 unpublished opinion, the Appellate Division, following its 2005 published decision in Gannett N.J. Partners v. County of Middlesex, acknowledged that Mason wasn't permitted to access the specific telephone numbers called by City employees.  But, the Appellate Division found that it was improper for the trial court to have dismissed Mason's claims for the rest of the redacted information because the City hadn't satisfied its burden of proving that the redacted information was exempt.  Indeed, the court found that the City had made NO attempt to explain or justify those redactions.

Accordingly, the Appellate Division sent the case back to the trial court to "permit the City to attempt to meet its burden of establishing that its redactions of these bills are authorized by law."

What disturbs me about this holding is that gives the City too many chances to satisfy its burden of proof.  It seems to me that the City, in its initial response to Mason's request, should have carefully explained and justified each redaction.  Had Mason known the nature of the redacted material, and the City's reasons for redacting it, she may have not filed suit or narrowed the scope of her suit.

If records are overly redacted, and the redactions are such that the requestor cannot determine, and is not informed of, the nature of the redacted material, the court should simply find that the custodian, having failed to meet its burden of proof, must give the unredacted records to the requestor and pay the requestor's court costs and attorney fees. 

To hold otherwise is unfair to the requestor because it allows the custodian to keep the requestor completely in the dark and reveal the nature of the redacted information and the custodian's reasons for redacting it only AFTER the requestor has filed suit.  Then, if the court agrees that the redactions were proper, it will probably deny the requestor's demand for court costs and attorney fees, even though the redactions were not properly explained and justified BEFORE the suit was filed.

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