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A Test of Public Records Stewardship (Released to the web January 21, 2009) (Editor's note: in a January 27, 2009 school board meeting, Steve Fogarty, the district's attorney, gave a presentation which was substantially in agreement with many of the points made below.) Recently a test was done by readingtonparents.org to determine how well the the Readington school board, district staff and legal counsel are handling the maintenance and retention of public records. The NJ Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA) impose requirements on local and state government in the way that they advertise and run meetings and in the way that they create and maintain documents related to their work. In order for citizens to keep tabs on their government and in order for government workers and elected officials to have a history of previous decision making, it is imperative that records be thorough and be easily available for review. Over the last few months, local headlines in Hunterdon County have included the results of similar test efforts by John Paff, who runs the NJ Libertarian party Open Government Advocacy Project. In the High Bridge School District, not long ago, a draft civil complaint was extended to the school board by Paff, specifying deficiencies in executive session minutes and in the way email was being handled. That district is now making changes in their procedures. Paff has also unearthed with OPRA requests previously unpublished settlements for police brutality lawsuits in Readington. Across the rest of the state, Paff has tested and/or taken to court numerous other local governments over their handling of public records, including municipal governments or school districts in Edison, Berkeley Heights, Ewing, Monroe, Rutherford, Paramus, Sparta, Buena Vista, Folsom, Keyport, White Township, Piscataway, Upper Freehold, Roselle, Washington, Watchung, Mount Holly and more. He has also invited the help of county prosecutors when appropriate. Readingtonparents.org, which has previously used the OPRA laws to learn more about school district operations, and which even went into state mediation over one instance in 2005, asked the Readington School District for the following information in a January 5, 2009 request:
This request of public records was intended to test three primary things. First, is the district recording executive session notes which are thorough and detailed enough? Second, does the district strike the correct balance when they redact information from records they release? Third, does the district have in place appropriate policies and practices for the control and archiving of email? Two other items were already known. For one, the school board has often failed to be detailed enough when publicly announcing the reason behind closed, executive sessions. Second, the school board has not made a practice of explicitly noting the time or triggering event for publishing executive session minutes and, indeed, has never volunteered to publish any of its executive session minutes. For this OPRA request, the district was given what time it desired to gather the documents. By statute, invoices, vouchers, minutes and similar documents which are ordinarily accessible to the records custodian are supposed to be available immediately. Other record requests must be made available as soon as possible, with a seven day period allowed for initial response. Readington supplied the executive session minutes (with redactions) for this January 5 request on January 15, and a listing of email headers (as opposed to the full content of the emails which was originally requested) on January 21. So, how did the Readington School District fare on this test in the three areas discussed above? In a 1998 NJ Attorney General opinion, it was described how all meeting minutes must be reasonably comprehensible: "N.J.S.A. 10:4-14 requires that the minutes of any meeting be 'reasonably comprehensible' and, at a minimum, contain information showing 'the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law.' The Supreme Court has construed this statutory provision as requiring 'sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination.' South Jersey Publishing Co., supra, 124 N.J. at 493. However, it is clear that such minutes do not need to be a verbatim transcript of the discussion." (Full statement here.) A review of the executive session minutes released under this OPRA request would indicate that the Readington Board of Education has some work to do when it comes to the thoroughness of minutes. One recurring example are minutes which simply read "the board discussed the superintendent's evaluation" to notate 30 to 45 minutes or more of meeting time! While personnel matters are not necessarily subject to public release or, more accurately, are subject to redaction before release, these notes hardly seem to meet the definition of "reasonably comprehensible" described above. If an existing board member were to review these notes at a later date, would he or she be able to determine what it was about the superintendent's evaluation which was discussed? Was it related to his policies, or his management of district resources, or was it his attendance record? Similarly, if a new board member were to review these official notes, would he or she be able to get any sense at all about the decisions made prior to their arrival? One two hour meeting in 2007 was explained with this single line: "Marie Bilik, school board representative, explained the superintendent evaluation process." That isn't much to describe two hours of executive session time, and is even less of an explanation as to why such information required a closed session in the first place. Interestingly, in September 2007 executive session notes about assistant superintendent Tami Crader's contract and the contract of business administrator Steffi DeCasas, at least some details are supplied about discussions of compensation, comparisons with other districts and similar specifics. Yet, in a November 2008 executive session to discuss the terms and renewal of the superintendent's contract, not a single detail is recorded for the one hour meeting--redacted or otherwise. Does the school board have a different interpretation about what should be recorded depending on which employee is being discussed? Are the executive meetings recorded very differently depending on who is writing down the notes? Other subjects, such as the June and July 2007 discussion of replacing the school board's architect of record, go into much greater detail and do provide a sense of the meeting discussion at the time. Since exempt matters not subject to release through OPRA can always be redacted, why do these executive session minutes appear to favor detail in some areas but secrecy in others? The second issue being tested was the balance struck between the public's right to know and the exemptions to disclosure allowed by law. In this area, it would also appear that there is work for Readington to do. For example, the March 19, 2008 minutes (and perhaps other minutes, too) appear to reference the parties to a filed lawsuit. If the names of those litigants are available at the courthouse, there is no reason to redact them here. The redactions for some minutes (such as February 26, 2008) are so substantial that a reader cannot even determine what the general subject matter might be. The redaction note for the February meeting only mentions "negotiations with associations." Which associations? Similarly, the April 22 redaction note only says "confidential negotiations information". It isn't clear why the public cannot at least know which collective bargaining agreement is being addressed. Or, on June 24, 2008, a "confidential personnel matter" was redacted, but no identifying case number or other anonymous device is used to help the public mark this discussion. How could the public refer to it in other information requests or examine the time spent on it previously or in the future? (On a side note, this same principle applies to announcements of executive session meetings. Readington, like other local government entities, has a habit of using generic language to describe executive sessions, instead of more precise language which would allow the public to know the case(s) being discussed in closed meetings.) In Paff v. Keyport, the Monmouth County Superior Court reminds us that public bodies must include sufficient facts and information to permit the public to assess the reasonableness of actions taken, and to identify any cognizable privacy interest that would be compromised with full disclosure of minutes. In that suit, the court determined that Keyport had not balanced the need for privacy with the public's right to know when it redacted the name of a police officer who was suspended for an unknown infraction. With that in mind, one wonders about the redactions Readington made for the executive session minutes of November 11, 2008, which also reference an employee suspension. At the very least, more detail is needed to identify the "cognizable privacy interest" at stake. Part of the redaction process exhibited by Readington to fulfill this OPRA request was to leave out entirely the executive session minutes of December 9, 2008. Presumably this omission was made on the premise that those minutes had not yet been approved by the school board when this OPRA request was made, and was therefore exempt. However, no mention was made of this at all. The third part of this test was about the maintenance and archiving of email correspondence in private accounts used for district or board business. It isn't only the OPRA law which guides schools in the way the handle email archiving--the Federal Rules of Civil Procedure (FRCP) also apply. The federal "e-discovery" rules put specific burdens on the IT staff of school districts, a fact which was pointed out to the Readington school board by readingtonparents.org some two plus years ago. Nonetheless, this recent OPRA test shows that changes in practice have not yet been implemented. Email correspondence, as well as other digital communication, is subject to the same rules as other means of communication under OPRA and under OPMA. There are still as yet unresolved legal questions about what constitutes a "meeting" and whether communication by group email is the same as a meeting in person. These issues are beyond the scope of this article, but what we will discuss is the use of private email accounts (such as bob-boardmember@aol.com, etc.) for public business. Since many emails related to public business must be archived or at least accounted for, and since they are also subject to review by the public or through legal channels during e-discovery, it complicates matters when private accounts are used. As it turns out, this recent OPRA test shows that Readington has been using private email accounts for school board business and, to a much lesser extent, administrative business. This test was only of the board president, but other board members also use private accounts. Readingtonparents.org did not press for the release of email content itself, although that is well within the right of the public and it was part of the original request. One problem with the use of private email accounts is that the school district is not able to apply its archiving strategy to these out-of-district emails. That transfers the burden onto individual board members, who could be subject to fines and significant headaches in the event they do not properly archive their private accounts. In Oceanport, NJ, a former councilman has been fined $1000 for failing to come up with email requested under OPRA. Another issue is that board members could potentially be conducting public business, including actual decisions based on a quorum, with private electronic communication unknown to the district. As a public relations matter alone, such a possibility would be difficult to defend against, even if it were not true. For example, there are many controversial subjects which have been decided in recent years by the Readington school board, even though no significant public discussion was held in open session and even though executive session minutes indicate nothing on the particular matter. How, then was the decision made? Were there private discussions between or among board members via private email accounts? Were the OPMA and OPRA rules followed? When the possibility of private email accounts is there, suspicions by the public are hard to tamp down even if they are not based in fact. The Readington school board has indicated that the subject of private email accounts will be an agenda item for the January 27, 2009 board meeting. Plus, initial reaction by some board members to this OPRA test show that there is favor toward making it standard practice to ban the use of private accounts for public business. (of course, private email accounts could and should still be used by board members--who are elected officials-- to correspond with private citizens about public matters.) It is a straightforward solution to supply web-based email accounts in the readington.k12.nj.us domain to individual board members. Such a solution would ensure that proper archiving would be handled by the district IT staff, that OPRA and OPMA violations are less likely, and that the burden of compliance shifts away from individual board members to the district. Based on this initial test of public records in the Readington school district, our observations and recommendations for change are that:
In addition, these recommendations should also become standard practice in the district:
This initial test of district compliance with rules regarding public records was intended by readingtonparents.org as a wake-up call. If, instead, this had been part of an actual legal suit or similarly serious event, the Readington district might already be in some trouble. Now is the time to address the issues raised here and to clean up our act. For the next test, or for the next real event, ignorance will not be an excuse. For more information:
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