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2004-93
Second Interim OrderSecond Interim OrderTo Not Oppose Complainant’s Motion to Settle Record April 11, 2006 Government Records Council Meeting
At the April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 10, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, does not oppose the Complainant’s Motion to Settle the Record. Please note that no opposition was filed with the Appellate Division of the Superior Court of New Jersey. Decision Distribution Date: April 17, 2006 Supplemental Findings and Recommendations of the Executive DirectorMartin O’Shea GRC Complaint No. 2004-93Complainant v. West Milford Board of Education Custodian of Records Records Relevant to Complaint:
Request Made: June 23, 2004 Background October 28, 2005 Government Records Council’s (“Council”) Revised Final Decision. At the October 28, 2005 public meeting, the Council, in Closed Session, conducted the in camera inspection of the unredacted Board Secretary’s handwritten notes, along with the “draft executive session minutes of June 22, 2004.” After completing the in camera inspection of the handwritten notes and review of the draft executive session minutes, the Council concluded by a unanimous vote that the Board Secretary’s handwritten notes taken during the June 22, 2004 executive session were exempt from disclosure under the “inter-agency, intra-agency advisory, consultative, or deliberative” privilege pursuant to N.J.S.A. 47:1A-1.1. This was a revised final administrative determination and any appeal of the Council’s determination was to be through the Superior Court of New Jersey – Appellate Division as they retained jurisdiction of this case. December 17, 2005 Notice of Complainant’s appeal to the Appellate Division of the Superior Court of New Jersey. February 10, 2006 Civil Case Information Sheet and Statement of Items Comprising the Record on Appeal filed by Deputy Attorney General Debra Allen on behalf of the Council. March 20, 2006 Amended Statement of Items Comprising the Record on Appeal filed by Deputy Attorney General Debra Allen on behalf of the Council April 5, 2006[1] Complainant’s Motion to Settle the Record. The Complainant filed a motion to include five (5) documents omitted from the February 10, 2006 and March 20, 2006 Statement of Items Comprising the Record on Appeal. Analysis The Complainant filed a motion to include five (5) documents omitted from the February 10, 2006 and March 20, 2006 Statement of Items Comprising the Record on Appeal. The records referenced in this motion were inadvertently omitted from the record. Therefore, the Council should accept the Complainant’s Motion to Settle the Record. Conclusions and Recommendations The Executive Director respectfully recommends that the Council agree with the Complainant’s Motion to Settle the Record. Prepared By: Gloria Luzzatto, Operations Manager Approved By: April 10, 2006 [1] Date Motion to Settle the Record was received by the Government Records Council from the Complainant Revised Final Decision
Procedural History The Government Records Council (“Council”) considered this complaint at the October 14, 2004 public meeting, in conjunction with all related documents submitted by the parties and the Findings and Recommendations of the Executive Director. By unanimous vote, the Council adopted the entirety of the Executive Director’s Findings and Recommendations and issued a Final Decision finding, in pertinent part, that:
On November 2, 2004, following the Council’s decision, the Custodian’s counsel entered a Notice of Appeal to the Superior Court of New Jersey - Appellate Division regarding the Council’s decision that the Board Secretary’s handwritten notes of the June 22, 2004 executive session meeting were not exempt from disclosure under the OPRA and requested that the Council grant a “Stay” of the Council’s ruling in this matter. At the November 9, 2004 public meeting, the Council granted the Custodian counsel’s request for a stay of the Council’s ruling concerning access to the handwritten notes. The Council concluded further that the Custodian satisfied #1 of the Council’s October 14, 2004 interim decision on the basis of the Custodian’s certification that the entirety of the requested resolution was contained in the June 22, 2004 Board Minutes received by the Complainant on July 9, 2004. An Amended Notice of Appeal was filed in the Superior Court of New Jersey – Appellate Division (“Court”) on November 15, 2004. On September 15, 2005 the Court ordered a remand of the case for the Council to conduct an in camera inspection of the unredacted Board Secretary’s handwritten notes taken during the June 22, 2004 executive session meeting. At the October 13, 2005 public meeting, the Council conducted the in camera inspection of said document in Closed Session pursuant to the Court’s order for remand. After conducting the in camera review and seeking legal advice, the Council concluded by unanimous vote that:
Following the Council’s decision, the Custodian provided the Executive Director with a copy of the “draft executive minutes of June 22, 2004” and his certification. At the October 28, 2005 public meeting, the Council, in Closed Session, continued the in camera inspection of the unredacted Board Secretary’s handwritten notes, along with the “draft executive session minutes of June 22, 2004.” Present during the in camera review were: Council Members: Diane Schonyers Government Records Staff: Paul Dice, Executive Director After completing the in camera inspection of the handwritten notes and review of the draft executive session minutes, the Council concluded by a unanimous vote that the handwritten notes are exempt from disclosure under the “inter-agency, intra-agency advisory, consultative, or deliberative” privilege pursuant to N.J.S.A. 47:1A-1.1 Background Relevant Records Requested:
Complainant’s Case Position The Complainant filed a Denial of Access Complaint with the Government Records Council on July 13, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian did not disclose the Board’s Secretary’s handwritten notes from the June 22, 2004 meeting; the Custodian did not provide a response in a timely manner and the Custodian did not provide a copy of the resolution allowing the Board to enter into executive session. The Complainant took issue with only those records requested in items #2 and #3 listed above under “Records Requested.” On June 23, 2004, the Complainant confirmed receiving a response from the Custodian stating that records pertaining to #1 above were immediately available to pick up at the Board of Education office and that no audiotapes of the executive session were available as requested in item #3 above. The Complainant further asserted that the Custodian contacted him again on June 25, 2004 to inform him that in response to request #3, the draft minutes of the executive session would be available in two weeks. The Custodian also stated, according to the Complainant, that the executive session minutes would be available when the Board Attorney determines that confidentiality is no longer an issue. The Custodian then notified the Complainant on July 7, 2004, that the minutes of the Board’s public meeting were available for him to pick up at the Board of Education office. On July 12, 2004, the Complainant asserted that he received an e-mail from the Custodian stating that the draft unapproved minutes for the executive session were available and that his request for the handwritten notes was denied because they are not considered a government record. The Complainant asserted that the Custodian never addressed the resolution for executive session, which is required under N.J.S.A. 10:4-13, but instead provided a copy of draft unapproved minutes from the June 22, 2004 meeting, which he did not request. The Complainant argued further that the resolution should have been provided to him within the statutory seven day time period set forth under OPRA, however, it was never provided to him. The Complainant contended that on June 23, 2004, the Custodian stated that no audiotape was available from the executive session of the June 22, 2004 meeting. Therefore, the Complainant asserted that he should have received the Board Secretary’s handwritten notes as he requested since they are considered “made, maintained and kept on file” pursuant to OPRA. The Complainant also states that the Custodian’s handling of his request is a violation of OPRA because he did not consider that redactions could be made to the handwritten notes or justify the rationale for denying the request. As the Council determined in Gober v. City of Burlington, GRC Complaint No. 2003-139, the Complainant argued that the Custodian cannot be vague in claiming a record is exempt. The Complainant further asserted a violation of OPRA because the Custodian did not respond to this portion of his request until July 12, 2004, which is after the statutory seven day time period. Public Agency’s Case Position In response to the Complainant’s allegations, the Custodian contended that records responsive to items #1 and #4 were immediately provided for the Complainant to pick up on June 23, 2004. The Custodian asserted that records responsive to item #2 were available on July 7, 2004 and in response to item #3, the draft unapproved minutes of the executive session were available upon completion on July 12, 2004. The Custodian additionally asserted that the Complainant was notified that his request for the Board Secretary’s handwritten notes was denied on the basis that they were not considered government records under OPRA. The Custodian, in reference to item #2, asked the Complainant if he would like the “motion” associated with the resolution. The Custodian asserted that the Complainant responded that he did want the motion and arranged to pick up the items on Thursday, July 9, 2004. The Custodian asserted in an e-mail to the Council’s staff on September 3, 2004 that the draft Board minutes reflect the motion and the resolution, therefore, fulfilling the request for item #2. The Custodian’s counsel claimed that the handwritten notes were not disclosable under N.J.S.A. 47:1A-1.1 because the information contained in the record was considered “advisory, consultative and deliberative” and the Board secretary interjects personal opinions into the draft record. The Custodian’s counsel also stated that the handwritten notes were not “accessible under common law right of access” and cited that “it is axiomatic that statutory interpretations that lead to absurd or unreasonable results are to be avoided.” State of NJ v. Haliski, 140 N.J. 1, 9 (1995) (citation omitted). The Custodian’s counsel also provided that an agency claiming that records are advisory, consultative and deliberative “bears the burden of establishing that the document in question was in fact pre-decisional and that it is ‘deliberative in nature, containing opinions, recommendations or advice about agency policies.’” In the Matter of Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (app. Div. 2004). The Custodian’s counsel contended that the handwritten notes were pre-decisional and reflect the personal thoughts and opinions of the Board Secretary; therefore, they are privileged. The Custodian’s counsel lastly, argued that the handwritten notes are protected under the common law right of access and by using the “balance test,” which clearly indicates that if these records are disclosable, it shall impede public agency functions and prohibit public officials to make personal notes of their opinions. The Custodian’s counsel also contended that the Custodian did provide a timely response to the Complainant’s OPRA request. On June 25, 2004, the Custodian’s counsel asserted that the Complainant was notified that the June 22, 2004 Board minutes were not yet prepared and would be done in approximately two weeks. The Custodian’s counsel further instructed that the executive session meeting minutes would be available to the Complainant after confidentiality was no longer an issue. The Custodian’s counsel asserted that the Complainant thanked the Custodian for a speedy response to his request in response to this information. According to the Custodian’s counsel, it has been established that a Board may reasonably take two weeks to make minutes available to the public. Matawan Regional Teachers Assoc. v. Matawan-Aberdeen Regional Board of Educ., 212 N.J. Super. 328, 334 (Law Div. 1986). Further, the Custodian’s counsel stated that the board minutes were made available on July 7, 2004 and July 12, 2004 approximately two weeks after the request was made. Analysis The Custodian responded to the Complainant’s June 23, 2004 request by providing access to the documentation responsive to requested items #1 and #4. Additionally, the Custodian satisfied requested item #2, as indicated in the Council’s November 9, 2004 Supplemental Findings and Recommendations to the October 14, 2004 Final Decision of the Council. These points are not in dispute. Therefore, Point #3 of the Complaint will now be addressed. Complaint Item #3 – “A copy of the minutes of the executive session held by the board of education during its meeting of June 22, 2004. If the minutes of the executive session are not on audiotape, I am requesting a copy of the original handwritten notes.” The Custodian, advised the Complainant in a June 25, 2004 e-mail that “[t]he draft minutes of the executive session minutes will be made available when confidentiality is no longer an issue.” Further, the Custodian stated that there are no audiotapes of the executive session. On July 12, 2004, the Custodian advised the Complainant that Township counsel had determined the handwritten notes are “not a public document,” and that access would not be granted. The Custodian did, however, grant access to the unapproved executive session minutes on that date. The Complainant accepted the Custodian’s statement that the audiotapes did not exist. The timing of the disclosure of the minutes, also, is not at issue. Complainant did take issue with the lack of access to the handwritten notes and the length of time it took to respond to the request for access to the handwritten notes, as well as the Complainant’s lack of justification for the denied access. The Custodian’s counsel stated that the Board Secretary’s handwritten notes contained advisory, consultative and deliberative (ACD) information and should not be considered a government record. Counsel asserted that the notes were memory aids and reflect the personal opinions and recommendations of the Board Secretary and the Board Members present for the June 22, 2004 executive session rather than final policy. N.J.S.A. 47:1A-1.1. Custodian’s Counsel also asserted that the handwritten notes were protected by the deliberative process privilege as the notes are pre-decisional and reflect personal thoughts. In the Matter of Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (App. Div. 2004). Neither the statute nor the courts have defined the terms “intra-agency” or “advisory, consultative, or deliberative” in the context of the public records law. The Council looks to an analogous concept, the deliberative process privilege, for guidance in the implementation of OPRA’s ACD exemption. Both the ACD exemption and the deliberative process privilege enable a governmental entity to shield from disclosure material that is pre-decisional and deliberative in nature. Deliberative material contains opinions, recommendations, or advice about agency policies. Strictly factual segments of an otherwise deliberative document are not exempted from disclosure. In re the Liquidation of Integrity Insurance Company, 165 N.J. 75, 88 (2000); In re Readoption With Amendments of Death Penalty Regulations, supra at 73 (App. Div. 2004). However, simply declaring a communication ACD does not automatically make it so. Thus, the Council determined that an in camera review of the handwritten notes was necessary in order to verify if the Custodian’s claimed ACD exemption was valid. Paff v. Department of Labor, 379 N.J. Super. 346, 354-355 (App. Div. 2005). The in camera inspection disclosed a page of cryptically written notes, punctuated by the frequent use of initials and abbreviations, apparently intended to serve as a memory aid for the Board Secretary. Without further explication from the Board Secretary, the notes cannot be relied on as a factual account of board proceedings. For that reason, the Council has determined that the statutory exemption for advisory, consultative and deliberative material applies. Alternatively, the notes constitute a work-in-progress, as opposed to a completed draft, and therefore cannot fairly be characterized as a “government record" under OPRA. The requestor - who has both the approved and unapproved draft minutes - has no discernable interest in obtaining the handwritten notes such that it would be appropriate to override the statutory exemption; consequently, the notes need not be released. Lastly, the Custodian did not provide the Complainant with a timely response as to why the handwritten notes would not be disclosed. N.J.S.A. 47:1A-5(g). However, given that the Custodian was reasonably acting under the advice of legal counsel, the ensuing delay should not be considered a knowing and willful violation in the totality of the circumstances. N.J.S.A.47:11. Documents Reviewed The following records were reviewed in preparation for this “Findings and Recommendations of the Executive Director”
Conclusion and Order Based on the foregoing, the Council concluded that the Board Secretary’s handwritten notes taken during the June 22, 2004 executive session meeting are exempt from disclosure under the “inter-agency, intra-agency advisory, consultative, or deliberative” privilege pursuant to N.J.S.A. 47:1A-1.1. This is a revised final administrative determination and any appeal of the Council’s determination should be to contact the Superior Court of New Jersey – Appellate Division as they retain jurisdiction of this case. Decision Distribution Date: November 29, 2005 Interim Decision on Access
At the October 13, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the document not disclosed to the Complainant in response to his OPRA request for the “Board Secretary’s handwritten notes of the June 22, 2004 closed session.” The Council conducted said review pursuant to the order for remand to the Council by the Superior Court of New Jersey-Appellate Division dated September 12, 2005. Present during the in camera review were: Council Members: Vincent Maltese Government Records Staff: Paul Dice, Executive Director After conducting the in camera review in Closed Session of the requested handwritten notes and seeking legal advice, the Council concluded by a unanimous vote that:
Interim Decision Rendered by the Decision Distribution Date: October 18, 2005 Interim Decision on Access
At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 2, 2004 written submissions from the Custodian and the Custodian’s Counsel pertaining to the Council’s October 14, 2004 interim decision. The Council voted unanimously to:
Interim Decision Rendered by the Final Decision
At its October 14, 2004 public meeting, the Government Records Council (Council) considered the October 7, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, hereby orders that:
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Final Decision Rendered by the I attest the foregoing is a true and accurate record of the Government Records Council. Findings and Recommendations of the Executive DirectorMartin O’Shea GRC Complaint No. 2004-93Complainant v. West Milford Township Board of Education Custodian of Records Relevant Records Requested:
Request Made: June 23, 2004 Background The Complainant filed a Denial of Access Complaint with the Government Records Council on July 13, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian did not disclose the Board’s Secretary’s handwritten notes from the June 22, 2004 meeting; the Custodian did not provide a response in a timely manner and the Custodian did not provide a copy of the resolution allowing the Board to enter into executive session. The Complainant takes issue with only those records requested in items #2 and #3 listed above under “Records Requested.” On June 23, 2004, the Complainant confirms receiving a response from the Custodian stating that records pertaining to #1 above were immediately available to pick up at the Board of Education office and that no audiotapes of the executive session were available as requested in item #3 above. The Complainant further asserts that the Custodian contacted him again on June 25, 2004 to inform him that in response to request #3, the draft minutes of the executive session would be available in two weeks. The Custodian also stated, according to the Complainant, that the executive session minutes would be available when the Board Attorney determines that confidentiality is no longer an issue. The Custodian then notified the Complainant on July 7, 2004, that the minutes of the Board’s public meeting were available for him to pick up at the Board of Education office. On July 12, 2004, the Complainant asserts that he received an e-mail from the Custodian stating that the draft unapproved minutes for the executive session were available and that his request for the handwritten notes was denied because they are not considered a government record. The Complainant asserts that the Custodian never addressed the resolution for executive session, which is required under N.J.S.A. 10:4-13, but instead provided a copy of draft unapproved minutes from the June 22, 2004 meeting, which he did not request. The Complainant argues further that the resolution should have been provided to him within the statutory seven day time period set forth under the Open Public Records Act (OPRA), however, it was never provided to him. The Complainant contends that on June 23, 2004, the Custodian stated that no audiotape was available from the executive session of the June 22, 2004 meeting. Therefore, the Complainant asserts that he should have received the Board Secretary’s handwritten notes as he requested since they are considered “made, maintained and kept on file” pursuant to OPRA. The Complainant also states that the Custodian’s handling of his request is a violation of OPRA because he did not consider that redactions could be made to the handwritten notes or justify the rationale for denying the request. As the Council determined in Gober v. City of Burlington, GRC Complaint No. 2003-139, the Complainant argues that the Custodian cannot be vague in claiming a record is exempt. The Complainant further asserts a violation of OPRA because the Custodian did not respond to this portion of his request until July 12, 2004, which is after the statutory seven day time period. Public Agency’s Case Position In response to the Complainant’s allegations, the Custodian contends that records responsive to items #1 and #4 were immediately provided for the Complainant to pick up on June 23, 2004. The Custodian asserts that records responsive to item #2 were available on July 7, 2004 and in response to item #3, the draft unapproved minutes of the executive session were available upon completion on July 12, 2004. The Custodian additionally asserts that the Complainant was notified that his request for the Board Secretary’s handwritten notes is denied on the basis that they are not considered government records under OPRA. The Custodian, in reference to item #2, asked the Complainant if he would like the “motion” associated with the resolution. The Custodian asserts that the Complainant responded that he did want the motion and arranged to pick up the items on Thursday, July 9, 2004. The Custodian asserts in an e-mail to the Council’s staff on September 3, 2004 that the draft Board minutes reflect the motion and the resolution, therefore, fulfilling the request for item #2. The Custodian’s counsel claims that the handwritten notes are not disclosable under N.J.S.A. 47:1A-1.1 because the information contained in the record is considered “advisory, consultative and deliberative” and the Board secretary interjects personal opinions into the draft record. The Custodian’s counsel also stated that the handwritten notes are not “accessible under common law right of access” and cites that “it is axiomatic that statutory interpretations that lead to absurd or unreasonable results are to be avoided.” State of NJ v. Haliski, 140 N.J. 1, 9 (1995) (citation omitted). The Custodian’s counsel also provides that an agency claiming that records are advisory, consultative and deliberative “bears the burden of establishing that the document in question was in fact pre-decisional and that it is ‘deliberative in nature, containing opinions, recommendations or advice about agency policies.’” In the Matter of Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (app. Div. 2004). The Custodian’s counsel contends that the handwritten notes are pre-decisional and reflect the personal thoughts and opinions of the Board Secretary; therefore, they are privileged. The Custodian’s counsel lastly, argues that the handwritten notes are protected under the common law right of access and by using the “balance test,” which clearly indicates that if these records are disclosable, it shall impede public agency functions and prohibit public officials to make personal notes of their opinions. The Custodian’s counsel also contends that the Custodian did provide a timely response to the Complainant’s OPRA request. On June 25, 2004, the Custodian’s counsel asserts that the Complainant was notified that the June 22, 2004 Board minutes were not yet prepared and would be done in approximately two weeks. The Custodian’s counsel further instructed that the executive session meeting minutes would be available to the Complainant after confidentiality was no longer an issue. The Custodian’s counsel asserts that the Complainant thanked the Custodian for a speedy response to his request in response to this information. According to the Custodian’s counsel, it has been established that a Board may reasonable take two weeks to make minutes available to the public. Matawan Regional Teachers Assoc. v. Matawan-Aberdeen Regional Board of Educ., 212 N.J. Super. 328, 334 (Law Div. 1986). Further, the Custodian’s counsel states that the board minutes were made available on July 7, 2004 and July 12, 2004 approximately two weeks after the request was made. Analysis The Custodian responded to the Complainant’s June 23, 2004 request by providing access to the documentation responsive to requested items #1 and #4. These points are not in dispute. Points #2 and #3 will now be addressed. Complaint Item #2 – “A copy of the resolution passed by the board of education prior to going into closed executive session during its meeting of June 22, 2004.” The Custodian states in a July 7, 2004 e-mail to the Complainant that “In regard to #2, I have prepared unapproved draft minutes for the June 22, workshop meeting. Do you want the page the motion appears or just the motion itself? In either case it is available. Let me know which you prefer and when you would like to pick it up.” The Complainant responds, “1.) I’ll take the entire draft minutes. 2.) Alternatively, I’ll take the page that includes the motion…I’ll make some arrangement to get to the board office to pick it up on Thursday.” The Custodian’s counsel clarifies his client’s reference to a “motion” in a September 7, 2004 letter to the Government Records Council. Counsel states that the Custodian is referencing the requested resolution when speaking of the “motion.” Custodian’s counsel also states that the board minutes made available to the Complainant on July 7, 2004 included the requested resolution. The Custodian then writes to the Complainant on July 12, 2004 and states that the unapproved draft minutes of the executive session are ready to be picked up. By July 12, 2004, the Custodian has stated twice that meeting minutes are ready to be picked up and that the resolution is included in at least one of the sets of said minutes. Clearly, the Custodian has not offered the Complainant the resolution as a stand-alone document. The Custodian offered it as a document that was allegedly incorporated into a set of meeting minutes. The Complainant maintains that he has not received the resolution and that the resolution was “necessarily reduced to writing” pursuant to statutory requirements by the time of the Township’s June 22, 2004 closed session meeting. The Complainant’s submissions raise the question of whether the subject closed session resolution existed as government record prior to the Custodian’s incorporating same into meeting minutes. That question remains unanswered. As such, the Council should order the Custodian to provide a certification explaining whether the resolution, alone and separate from meeting minutes, ever stood as “Government Record” pursuant to N.J.S.A. 47:1A-1.1 on June 23, 2004, or any date thereafter. If the resolution, in its entirety, was incorporated into the minutes, then the Council should find that access is not at issue and the custodian properly. If the resolution was not incorporated into meeting minutes in its entirety, then the Custodian should provide an explanation why. Complaint Item #3 – “A copy of the minutes of the executive session held by the board of education during its meeting of June 22, 2004. If the minutes of the executive session are not on audiotape, I am requesting a copy of the original handwritten notes.” The Custodian, advised the Complainant in a June 25, 2004 e-mail that “[t]he draft minutes of the executive session minutes will be made available when confidentiality is no longer an issue.” Further, the Custodian stated that there are no audiotapes of the executive session. On July 12, 2004, the Custodian advised the Complainant that Township counsel had determined the handwritten notes are “not a public document,” and that access would not be granted. The Custodian did, however, grant access to the unapproved executive session minutes on that date. The Complainant accepts the Custodian’s statement that the audiotapes do not exist. The timing of the disclosure of the minutes, also, is not at issue. Complainant does take issue with the lack of access to the handwritten notes and the length of time it took to respond to the request for access to the handwritten notes as well as the Complainant’s lack of justification for the denied access. The Custodian’s counsel states that the Board Secretary’s handwritten notes contain Advisory Consultative and Deliberative (ACD) information and should not be considered a government record. Counsel asserts that the notes are memory aids and reflect the personal opinions and recommendations of the Board Secretary and the Board Members present for the June 22, 2004 executive session rather than final policy. N.J.S.A. 47:1A-1.1, Custodian’s Counsel also asserts that the handwritten notes are protected by the Deliberative Process privilege as the notes are pre-decisional and reflect personal thoughts. In the Matter of Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (App. Div. 2004). Neither the statute nor the courts have defined the terms “intra-agency” or “advisory, consultative, or deliberative” in the context of the public records law. The Government Records Council (GRC) looks to an analogous concept, the deliberative process privilege, for guidance in the implementation of the OPRA ACD exemption. Both the ACD exemption and the deliberative process privilege enable a governmental entity to shield from disclosure material that is pre-decisional and deliberative in nature. Deliberative material contains opinions, recommendations, or advice about agency policies. Strictly factual segments of an otherwise deliberative document are not exempted from disclosure. In re the Liquidation of Integrity Insurance Company, 165 N.J. 75, 88 (2000); In re Readoption With Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (App. Div. 2004). However, simply declaring a communication ACD does not automatically make it so. As with all privileges, application of the ACD privilege is limited to those circumstances that support its underlying policies. It is here that the Township position fails. The Township has failed to provide to prove that the handwritten notes are protected by the ACD and Deliberative Process exemptions. It has not provided a general nature explanation of what the alleged opinions, recommendations and pre-decisional issues are or relate to. Nor has the Township explained if any part(s) of the notes are factual and if the notes could be disclosed in a redacted fashion. Township Counsel also states that the notes are protected under the Common Law Right of Access. He argues that the common law balancing test weighs in favor of the Board as “efforts by public entities to evaluate programs and other facts of their operations would be chilled by disclosure.” In light of the fact that the Township has already released the unapproved draft minutes of the subject executive session, this is not a persuasive argument. If the minutes, or parts thereof, are disclosable, it does not stand to reason that the source documentation from which they were written would not be disclosable. The Township should disclose the handwritten notes of the June 22, 2004 executive session pursuant to redactions in keeping with N.J.S.A. 47:1A-1 et seq. The Custodian did not provide the Complainant with a timely response as to why the handwritten notes would not be disclosed. N.J.S.A. 47:1A-5(g). However, given that the custodian was reasonably acting under the advice of legal counsel, the ensuing delay should not be considered a knowing and willful violation in the totality of the circumstances. N.J.S.A. 47:11. Documents Reviewed The following records were reviewed in preparation for this “Findings and Recommendations of the Executive Director”
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council find that:
Paul F. Dice |
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