Date: Tue, 28 Jul 2020 16:06:00 +0000 Subject: Internal review of OPRA request - New Nutley Public Affairs director creates a Cultural Inclusion and Diversity Council From: Rory Moore <[OPRA #15387 email]> To: Ceci Tramontana <[email address]> Dear Ceci Tramontana, Ceci, I will submit for mediation. Do not waist your time. Rpry Yours sincerely, Rory Moore -----Original Message----- Mr. Moore,   This correspondence shall serve as Nutley Township (the “Township”)’s response to your request for access to government records pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1.1, et seq. (“OPRA”), which was sent on July 17, 2020 at 8:25 PM and received by the Township on July 20, 2020 during normal business hours. Below is a list of each request for access and the Township’s response to the same:   “I seek the zoom link for the next meeting”. The OPRA request did not specify for which meeting the Zoom link was requested, nor did it identify which body or board of the Township was meeting. On July 20, 2020, the Custodian requested clarification to which you responded, in part, “[l]ets try this very, very slowly,  here we go.  At the kast [sic] BOC meeting, John Kelly stated, he appointed all of the members of the diversity and inclusion committee. They will have the first public meeting, in August, via zoom. No date was given by the commissioner. I seek the zoom link for the public right to attend a meeting via zoom”.   Pursuant to the Open Public Meetings Act (Sunshine Law), N.J.S.A. 10:4-9(a) (“OPMA”) , no public body shall hold a meeting unless adequate notice thereof has been provided to the public. OPMA defines a “public body" as “a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature”. N.J.S.A. 10:4-8(a). The diversity and inclusion subcommittee is not a governing body, board or official committee organized under the laws of the State or the Township of Nutley.  Rather, it is an ad hoc subcommittee that serves in an advisory capacity at the pleasure of the Board of Commissioners. The subcommittee is neither a voting body, as defined in the statute, nor is it empowered to “perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature”.  Therefore, the subcommittee does not meet the definition of a “public body” under OPMA, its meetings, if any, are not open to the public, and no public notice of such meetings is required. Lacking any requirement to provide public notice of the subcommittee’s meetings, Zoom virtual meeting information for such meetings does not exist.  Accordingly, your OPRA request is denied.   To the extent that you have also requested access to the above government records under the common law, your stated interest in obtaining the records must be balanced against the Township of Nutley’s interest in nondisclosure. See Loigman v. Kimmelman, 102 N.J. 98 (1986).  The foregoing response to your request for access to government records incorporates the aforementioned balancing test. Please note that "a party's status as a litigant does not enlarge its access to government records under OPRA”.  MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 545-46 (App. Div. 2005). The Township of Nutley reserves the right to raise any other grounds for denial not raised in this response.  Failure of the Township of Nutley to assert an exemption or privilege does not act as a waiver of any grounds for denial. Furthermore, a reviewing Court or the Government Records Council ("GRC") may deem a denial of access to be authorized on grounds other that those advanced by a custodian. See Paff v. Twp. of Plainsboro, A-2122-05T2, 2007 WL 957289, at *2 (App. Div., Apr. 2, 2007), affirming, Paff v. Township of Plainsboro, GRC Complaint No. 2005-29 (March 2006). If your request for access to a government record has been denied or unfilled, you have a right to challenge the decision by the Township of Nutley to deny access. At your option, you may either initiate a proceeding in the Superior Court of New Jersey or file a complaint with the GRC by completing the Denial of Access Complaint Form. You may contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O. Box 819, Trenton, NJ, 08625, by e-mail at [1][email address], or on its website at [2]www.state.nj.us/grc. The GRC can also answer other questions about the law. All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County.   Sincerely,   Ceci Tramontana, RMC Deputy Municipal Clerk Municipal Clerk’s Office Township of Nutley, NJ (973) 284-4951 x2233 Office (973) 284-5668 Fax [3]www.nutleynj.org   References Visible links 1. mailto:[email address] 2. http://www.state.nj.us/grc 3. http://www.nutleynj.org/ ------------------------------------------------------------------- Please use this UNIQUE email address for all replies to this request and no other: [OPRA #15387 email] Disclaimer: This message and any reply that you make will be published on the internet. 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