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O'Shea v. West Milford Bd. of Ed.
APRIL 2005

II
IN THIS ISSUE

SUPERIOR COURT APPELLATE DIVISION

Are notes taken at a public meeting and used as a memory aid accessible as public records under the New Jersey Open Public Records Act ? That question is poised to be addressed by the Appellate Division of N.J. Superior Court in O’Shea v. West Milford Board of Education, No. A-1094-04T5.
    Martin O’Shea, a citizen, sought copies of the following documents from the West Milford School District on June 23, 2004:
1. Four employment contracts approved by the Board of Education (Board) during its meeting of June 22, 2004;
      2. A copy of the resolution passed by the Board prior to going into closed executive session during its meeting of June 22, 2004;
  3. A copy of the minutes of the executive session held by the Board during its meeting of June 22, 2004, or, should the minutes of the executive session not be on audiotape, a copy of the original handwritten notes; and,
4. A copy of the letter regarding a board member, which letter had been read at the meeting.
    On July 13, 2004, after not receiving satisfactory responses to the above requests, the citizen filed a complaint with the Government Records Council (GRC). The GRC investigated and issued a decision on November 9, 2004. Case No. 2004-93. The GRC determined that items #1 and #4 above had been disclosed to the requestor in a timely fashion. With regard to item #2, the GRC determined that access was provided in the minutes from the meeting that were given to the requestor.
    Regarding item #3 above, the GRC also determined that the Board did not have an audiotape of the meeting as it is not the board’s policy to tape its meetings. The GRC also determined that the board had provided a copy of the unapproved minutes of the meeting to the requestor. The GRC determined, however, that the Board improperly withheld the board secretary’s handwritten notes of the executive session meeting. The GRC determined that the handwritten notes of the minutes were a government record and did not fall under any exception to disclosure. The Board, however, maintained that the handwritten notes were excepted from disclosure as they were memory aids, were pre-decisional, and contained advisory, consultative or deliberative materials.
    The GRC determined that the Board failed to show that the handwritten notes fell under any exception. The GRC reasoned that, should the Board release the unapproved draft minutes of the executive session, there should be no reason why the Board should not disclose the handwritten notes upon which the unapproved draft minutes were based. Accordingly, the GRC ordered the release of the handwritten notes subject to redaction.
    The Board filed an appeal with the Appellate Division seeking a review of the order requiring the release of the handwritten notes. The NJSBA, at the Board's request, sought leave to participate in this case, a request that was granted by the Court in February 2005. NJSBA’s brief will be due in April 2005.
    The NJSBA will assert that the handwritten notes in this case are not disclosable because they are not government records, and will bring the Court’s attention to the similar matter of Home News v. Spotswood Bd. of Ed., 286 N.J. Super. 380 (App. Div. 1996). In Home News, a newspaper sought access to “budget workbooks” that a board of education used, in preparation for the budget that would be submitted to the public. The Court ruled that the newspaper did not have a right of access to the workbooks. The Court reasoned that while the citizen was not precluded from gaining access to any prior financial data or to published reports or recommendations for future development of the budget, the budget workbooks were “merely a tool provided for the use of those charged with the budget planning responsibility.” Home News at 389. NJSBA will argue that, similarly, the West Milford Board is not precluding the citizen’s access to the minutes of the executive session, but merely to the handwritten notes which were used as a tool of the board secretary in preparing the official minutes.
    In Home News, the court articulated the following public policy:
It is important, as a matter of public interest, that officials, in budget planning, be unhampered in their thought processes and in the discussions that result in a proposed budget, as well as in the development and use of resource materials they compile or that may be compiled for them in aid of that function. (citation omitted) To articulate a rule that might result in imposing limitations on the development of evolving documents and working positions as the budget planning process proceeds, even in the cause of maximizing public access to public business, is to risk rendering ineffectual the best efforts of those charged with the responsibility of promoting the public interest in this regard. Id. 388-389
    The NJSBA believes that similar policy concerns are present in the case at bar. During the course of any school board meeting, the school official charged with preparation of the official minutes must try to record on paper a dynamic and evolving series of events. The official, in an effort to record that which takes place, may use his notes as a memory aid that may only have meaning to the school official. To grant access to the public to this memory aid may have a chilling effect on what school officials record in their notes, having a deleterious effect on the preparation of the official minutes.
    Will this argument prevail? Read future editions of Amicus Watch to find out!