NJASA

Conducting Public Business During a State of Emergency:

Compliance with the Open Public Meetings Act and

Open Public Records Act

As most readers are likely aware, Governor Murphy issued multiple Executive Orders declaring a State of Emergency in response to the Covid-19 Pandemic.1 As part of the process of limiting gatherings and to ensure compliance with social distancing guidelines, the Governor and Legislature enacted several laws, and the Governor issued additional Executive Orders, to enable public entities to continue to conduct business remotely.

On March 21, 2020, the Governor ordered all residents of the State to stay at home, and to telework where possible.2  To make compliance with this Order possible, the Governor signed into law a statute amending the Open Public Meetings Act (“OPMA”).3 That statute provides that, during a period of a “state of emergency, a public health emergency, or state of local disaster emergency,” a public body shall be able to conduct meetings by alternate communication or electronic equipment. Under the law, a public body may use alternate means to conduct public business during a public meeting, open the meeting to the public, vote, and receive public comment. In addition, during such emergencies, public bodies may elect to provide electronic notice. The law also notes that “to the extent practicable, a public body providing only electronic notice of a meeting shall limit public business discussed or effectuated thereat to matters necessary for the continuing operation of government and which relate to the emergency declaration.”4

To effectuate the law, the Department of Community Affairs, Division of Local Government Services (“DLGS”), issued Operational Guidance on the conduct of remote meetings.5 The DLGS has urged public entities to utilize telephonic conference call-in connections, or internet streaming services, to conduct remote meetings. The Operational Guidance provides detailed instructions on using a designated conference phone line and access code, and utilizing existing office equipment. In the alternative, the Operational Guidance also suggests the entity may use web-based conference calls such as Skype, Zoom, Google Hangouts and others. It notes the downside of conducting meetings using these methods include potential additional expense, and a lack of capacity to meet demand. In addition, some public entities may choose to stream via social media platforms, such as through Facebook or Twitter, as the Governor has done himself.

The Operational Guidance also indicates multiple ways in which public comments can be received during remote meetings. For example, when using Facebook streaming, there is a comment option; members of the public can also submit comments by tweeting a comment to the local entity’s Twitter account. The DLGS also provides that, when using another method, public comments can be received audibly through the platform, or via text message that would be read aloud during the meeting.

In addition to providing for alternate means to conduct meetings, the Governor signed a bill which provided for relaxation of the deadlines to respond to requests filed for records under the Open Public Records Act (“OPRA”).6 That law provides that, during a period of emergency, “the deadlines by which to respond to a request for, or grant or deny access to a government record … shall not apply, provided, however, that the custodian of a government record shall make a reasonable effort, as circumstances permit, to respond to a request for access to a government record within seven business days or as soon thereafter as possible.”7

In an effort to provide guidance to custodians of records, the Government Records Council (“GRC”) has disseminated a “Special Statement.”8 In addition, on April 8, 2020, the GRC issued via email, an additional Special Statement (“Email Statement”). Under the original Special Statement, the GRC noted that custodians must make a “reasonable effort” to respond to any request for records within the existing deadlines, and any custodian with the ability to respond to a request within the deadlines should do so. Even if working remotely, custodians are obligated to respond to such requests in due course. However, if a custodian is unable to respond within existing deadlines, s/he must respond in writing that s/he will take an extension until a date certain. If there is an objection to such an extension, the dispute will be reviewed by the GRC, which acknowledged that it has the authority to consider “extenuating circumstances” that require the extension of time.

Subsequently, in its Email Statement, the GRC recommended that, when responding to OPRA requests, custodians should document, in writing, any emergency-related barriers to providing the requestor with a final response within the standard timeframe. The GRC provides that “[e]xamples of such barriers can include building access restrictions, or a delay in availability of personnel needed to provide responsive records to the custodian or review responsive records to determine necessary redactions.”9 When there is a delay, the GRC recommends that the custodian “inform the requestor in writing of the specific reasons for the delay, as well as soonest possible date after the normal statutory deadline by which the custodian reasonably expects to respond under the circumstances.”10 However, the GRC cautioned that “[t]o the greatest extent possible, the custodian’s initial response to the requestor should adhere to the standard timeline for an OPRA request response.”11

Given the urgent and frequent nature of Executive Orders, directives, and laws being passed from both the state and federal governments, confusion as to the best way to effectuate school district operations is inevitable. The State has attempted to alleviate this confusion by issuing guidance in response to new laws and Executive Orders. Because it is likely that additional Executive Orders, laws, and guidance will be issued after the publication of this Legal Corner, NJASA recommends contacting an NJASA attorney, or the board attorney, for additional assistance in implementing district practices during the public health emergency.

1  See, e.g., Governor Murphy Executive Orders 103 (March 9, 2020) and EO 119 (April 7, 2020).

2  EO 107 (March 21, 2020).

3  N.J.S.A. 10:4-6 et seq. P.L. 2020, c.11 (codified as N.J.S.A. 10:4-8.

4  N.J.S.A. 10:4-8.

5  The Operational Guidance can be found at https://nj.gov/dca/divisions/dlgs/pdf/GovConnectNotice-NewRemotePublicMeetingsGuidance.pdf

6  P.L. 2020, c.10 (codified as N.J.S.A. 47:1A-5(i)(2)).

7  N.J.S.A. 47:1A-5(i)(2)(as amended).

8  The GRC Special Statement, dated March 26, 2020, can be found at https://www.state.nj.us/grc/news/alerts/GRC%20Special%20Statement%202020-01%20(Final).pdf

9  GRC Special Statement – P.L. 2020, c.10 and COVID-19 Impacts on OPRA, email update.  (April 8, 2020).

10  Id. 

11  Id.