Sunshine Week: Your rights and the New Jersey Open Public Meetings Act

In New Jersey, two major laws protect your right to know – The state’s Open Public Meetings Act (OPMA) and the state’s Open Public Records Act (OPRA). Both laws place significant compliance obligations on municipalities, school boards, counties, and state government in terms of accessibility, record keeping, and responding to requests. Litigation involving both is common, and the increased use of social media and text messaging both by government employees and elected officials continues to add new twists to what is considered a meeting or a record.

The Open Public Meetings Act, commonly known as the Sunshine Law, ensures the right of all citizens to have advance notice of and attend all meetings of public bodies at which any business affecting the public is discussed or acted upon, with certain limited exceptions to protect the public interest and to preserve personal privacy.

The Sunshine Law requires public bodies to provide the public with adequate advance notice of all its meetings, the right to attend meetings, and reasonably comprehensive minutes of all meetings. The law applies to any public body at the state, county, or municipal level. A public body is defined as any commission, authority, board, council, committee or group of two or more people that is collectively empowered as a voting body and performs a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or is collectively authorized to spend public funds. A public body’s meeting is subject to the law if it is open to all the body’s members, is attended by an effective majority of the members of that body (regardless of whether they attend in person, via phone, or via video or other means), and is held with the intent to discuss or act upon public business. A portion of each meeting must be set aside for public comment.

A public body can exclude the public from portions of a meeting, commonly referred to as “executive” or “closed” sessions, under certain circumstances. Before going into a closed session, a public body must first adopt a resolution at a meeting that is open to the public stating the general nature of what will be discussed in the closed session and the time when the information discussed in private will be disclosed to the public. The body can then move to go into closed session. Virtual meetings are not exempt from the need to begin and end the meeting in open session.

The Sunshine Law allows public bodies to exclude the public when discussing matters considered confidential by law or court rule, matters that would diminish the chances of receiving federal funds if released to the public, material that would constitute an unwarranted invasion of individual privacy, the discussion of collective bargaining agreements, the discussion of real estate transactions, the setting of banking rates, the discussion of tactics and techniques used in protecting the safety and property of the public and investigations of violations or possible violations of the law, as well as pending or anticipated litigation or contract negotiations involving the public body, and matters covered by the attorney-client privilege, including personnel matters (unless affected individuals request for the matter be discussed), and deliberations that could result in a fine or the suspension or loss of a license or permit.

Public bodies are required to provide the public with adequate notice of all their meetings. Adequate notice may be provided on an annual basis, or at least 48 hours prior to each meeting. Public bodies providing annual notice must provide the time, date, and location (if known) of each meeting, within seven days of the annual organization or reorganization meeting of the public body. If there is no organization or reorganization meeting, such a notice must be provided by Jan. 10.

If a public body’s members want to reschedule a meeting or convene a meeting not listed on the annual notice, 48 hours notice must be provided. The notice must contain the time, date, location and, to the extent known, the specific agenda of the meeting. All notices must be posted in at least one public place reserved for public announcements, published in two newspapers, filed with the appropriate municipal or county clerk or the Secretary of State if the public body has statewide authority, and the notice must be mailed to any person upon request. If an urgent matter arises, a public body should provide adequate notice of all meetings but may convene without notice if three-quarters of the members who are present vote in favor of conducting a meeting without notice, if the meeting is required to deal with urgent or important matters and a delay for the purpose of providing adequate notice would likely result in substantial harm to the public interest, the meeting is limited to only the urgent and important matters, a notice of the meeting is provided as soon as possible, and the need for such a meeting could not have been reasonably foreseen at a time when adequate notice could have been provided, or such need could have been foreseen and the public body subsequently provides reasons why the adequate notice was not provided. Public bodies are required to provide a statement in the meeting minutes detailing the urgent matters, as well as the time, place, and manner, that notice was provided.