What is an “Agenda”? Perhaps the Supreme Court Should Tell Us

Opderbeck v. Midland Park Bd. of Educ., 442 N.J. Super. 40 (App. Div. 2015).  The Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (“OPMA”), adopted in 1975, requires advance notice to the public of the “agenda, to the extent known” for a meeting of a public body covered by the OPMA.  In this case, the Law Division ruled that if the defendant Board of Education posts a meeting agenda on its website, the Board must also post “copies of any appendices, attachments, reports, and other documents referred to in the agenda,” unless some privilege or exemption applied.  The Board appealed, and the Appellate Division, applying the de novo standard of review to the purely legal issue presented, reversed in an opinion by Judge Fuentes.  The definition of “agenda,” the panel ruled, “does not impose a legal obligation on public bodies to provide copies of any appendices, attachments, reports, or other documents referred to in their agendas.”

Judge Fuentes observed that no statute requires the posting of an agenda or materials related to an agenda on a government agency’s website.  N.J.S.A. 10:4-9.1, adopted in 2002, says that “in addition to” the OPMA’s newspaper notice requirements, which are the fundamental basis of the OPMA scheme, a public body “may provide electronic notice of any meeting of the public body through the Internet.”  The question was whether, having chosen to post the agenda on its website, the defendant Board of Education was required also to post documents referred to in the agenda.

Judge Fuentes described at length the intention of the Legislature and the Governor to increase transparency of public agency proceedings that underlay the OPMA.  In deciding on the proper definition of the word “agenda” so as to implement that intention, however, Judge Fuentes found most persuasive a 1976 Formal Opinion of the Attorney General.  That Formal Opinion concluded, based in part on dictionary definitions, that an agenda “need only contain a listing of the items which will be before the Board at the meeting and need not include the supportive or explanatory materials and reports relative to such items.”

Judge Fuentes found that the OPMA to be “tethered to a world where daily newspapers were presumed to be the most reliable and efficacious means of providing the public with notice” regarding public meetings.  Other than the limited 2002 amendment that allows, but does not require, electronic notice, the OPMA “remains firmly rooted in 1975.”  The panel found it “tempting” to agree with the Law Division that documents supporting the list of items to be acted upon must be posted on a website if the listing of items is, since doing so requires only an additional “link” on the website, and “it is nearly impossible to imagine this approach would have been rejected by Assemblyman [Byron] Baer [the sponsor of the OPMA] if it had been available in 1975.”

But Judge Fuentes felt that “our role as judges in our tripartite system of government” required that they apply the settled meaning of “agenda,” rather than “amend[ing] statutes using our own notion of what is in the public’s best interest.”  The Attorney General’s Formal Opinion, though not binding on courts, is binding on State agencies.  That Formal Opinion had guided public bodies on this issues for nearly 40 years, and Judge Fuentes “discern[ed] no rational or legal basis to deviate” from that opinion.

Judge Fuentes noted that “changes in the law do not occur parallel with technological or scientific advancements.”  Thus, even though the “information technology revolution has transformed our lives in profound and irrevocable ways” in more recent years, and the Law Division’s approach was “facially sensible,” the court’s role was limited to enforcing the statute as adopted by the Legislature.  Judge Fuentes concluded by urging the other branches to consider amending the OPMA.

It is hard to fault the Appellate Division for this conclusion, since an intermediate appellate court cannot reinterpret the law.  The Supreme Court, however, has recognized in at least one other recent case that new technology calls for an updated interpretation of a statute designed to protect the public.  Shelton v. Restaurant.com, Inc., 214 N.J. 419 (2013) (Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 to -18, applied to “intangible” restaurant gift certificates generated electronically only).  Shelton is discussed here.  The Supreme Court might be persuaded to answer the plea of Judge Fuentes, take this case up, and rule that, given the lack of any real burden of adding a link to documents supporting a traditional agenda that is itself posted on a website, and the evident fact that the public is not fully informed about agenda items without access to the supporting documents, the Legislature’s intent, viewed in light of the current state of technology, calls for reinstatement of the Law Division’s “facially sensible” result.