OLD Borough On The Record

A discussion of open and efficient government

Delayed minutes and the DRAFT

Must minutes of public meetings be approved before being made public?

The Allendale Planning Board held a public meeting on October 20, 2016.  The subsequent November and December meetings were cancelled.

On January 9, 2017, 81 days from the original meeting, I made an OPRA request for the minutes of this meeting.  Seven days later, the Allendale Planning Board Secretary, with the advice of the Borough Attorney, notified me that my request was denied.  Why?  Because the minutes were not approved.

The minutes of October 20, 2016 meeting were finally approved at January 19, 2017 Planning Board meeting, 91 days after the original meeting.  They were later posted on the Borough web site on January 27, 2017, 99 days after the original meeting.

In summary, the minutes from this public meeting were not made available to the public for 99 days.  Is this legal?  Well, sort of … but there’s more …

The Open Public Meetings Act (OPMA) requires that minutes of public meetings be made promptly available, which has been interpreted by NJ Courts as less than 30 days.

Here are more details:

As the October 20, 2016 Planning Board meeting minutes had not been posted to the Allendale web site, AllendaleNJ.gov as of the end of 2016, I made an Open Public Records Act (OPRA) request for this document.

I was informed on 1/09/2017, by the Planning Board Secretary (acting on behalf of the Records Custodian) that my request for these minutes was DENIED.  The reason?  The minutes had not yet been approved by the Planning Board and, according to recent Court ruling, unapproved minutes are not considered government records and, therefore, not available to the public.  In legalese, unapproved minutes of public meetings are considered to be advisory, consultative, and deliberative.  As such, the Records Custodian can refuse to provide them – if they wish.

While meeting minutes, in actuality, are none of these, the law is the law – and the public will be denied access to these harmless documents that are simply the notes taken by the Planning Board’s Recording Secretary.  Nothing confidential. No contractual significance.  These minutes do not bind the Borough in any way.  Harmless.  But, DENIED.

And so, for some inexplicable reason, public bodies will use any available legal tool to avoid making unapproved minutes available to the public.

In most cases, this is not an issue as most public bodies (e.g. Mayor and Council, Board of Education) are scheduled to meet regularly.  However, some public bodies have a declining workload and unpredictably cancel scheduled meetings.

No approval required – mark the minutes DRAFT

What is not well known is that there is no law that requires that minutes be approved.

What is also not known is that the Records Custodian, according to their professional certification, is required to mark unapproved minutes as DRAFT and make them available to the public once they are prepared.

However, few will do this if the Governing Body encourages them not to.

Now you know the law.

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