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2006-56
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FINAL DECISION |
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In Camera Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
FINAL DECISIONFINAL DECISION
April 25, 2007 Government Records Council Meeting
At the April 25, 2007 public meeting, the Government Records Council (“Council”) considered the April 18, 2007 In Camera 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, finds that:
1. The Custodian has complied with the Council’s September 21, 2006 Interim Decision in supplying the Council with the requested Preliminary Draft Science Building Report and the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates within the required time period. 2. The Custodian bore her burden of proving that the denial of access to the Preliminary Draft Science Building Report was lawful under N.J.S.A. 47:1A-6 because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004). 3. The Custodian bore her burden of proving that the denial of access to the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates was lawful under N.J.S.A. 47:1A-6 because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004).
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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 25th Day of April, 2007
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Secretary
Decision Distribution Date: May 1, 2007
In Camera Findings and Recommendations of the Executive DirectorIn Camera Findings and Recommendations of the Executive DirectorApril 25, 2007 Council Meeting
Norman Berger[1] GRC Complaint No. 2006 - 56 Complainant
v.
Kean University[2] Custodian of Records
Records Relevant to Complaint:
Request Made: February 22, 2006[3] Response Made: February 22, 2006 Custodian: Tina Lisa GRC Complaint filed: March 6, 2006
Background
September 21, 2006 Interim Order of the Government Records Council. At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 2006 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council found that:
1. Additional information is required as follows: (a) Were RPFs issued for the construction of a road through the Liberty Hall Museum property located at 103 Morris Avenue, Union, NJ 07083? (b) were contracts entered for the same stated in (a) above? If so, please provide the contracts to the Council for review. (c) What entity/organization is paying for the construction of same stated in (a) above (Kean University or some other organization)? (d) Whose property is the road in question being constructed through (Kean University or Liberty Hall Museum) or is this property jointly owned and if so, by whom? 2.While the Custodian has provided facts in support of the legal conclusions asserted in support of withholding the records the Custodian asserts are exempt from disclosure, the Council must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders as well as whether the documents include inter-agency or intra-agency advisory, consultative, or deliberative material) are properly applied to the records withheld from the Complainant. Therefore, based on Council decisions in Boggia v. Borough of Oakland, GRC Complaint No. 2005-36 (April, 2006) and Burns v. Borough of Collingswood, GRC Complaint No. 2004-169 (September 2005), the Council must conduct an in camera inspection of the records the Custodian deems are exempt from disclosure.
3. Pursuant to Glenn v. NJ Department of Community Affairs, Division of Housing GRC Complaint No. 2005-47 (April, 2006), as well as the fact that the Custodian certified that she didn’t receive a proper OPRA request until February 22, 2006 (the first correspondence came via letter on February 14, 2006 to which the Custodian responded by faxing the Complainant the proper OPRA request form) and consequently responded that same day, she is not in violation of N.J.S.A. 47:1A-5.i. or N.J.S.A. 5.g. 4. Pursuant to the fact that the Custodian seemingly did research to find any and all records that might have been responsive to the OPRA request (and gave a thorough albeit inconclusive response to the records that are being denied), as well as the fact that the Custodian responded to the Complainant within the statutorily required seven (7) business days required by OPRA, there is no evidence that the Custodian’s actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey courts. Therefore, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a.
5. The Custodian shall comply with "1." and “2.” above within five (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director.
October 4, 2006 Interim Order and in camera letter requesting documents sent to both parties.
October 10, 2006 Upon request of the Custodian, the GRC grants an extension of time to the Custodian to submit the requested unredacted copies to October 19, 2006.
October 19, 2006 Certification of the Custodian with the following attachments:
The Custodian’s certification states that the records provided are those requested by the Council for in camera inspection. The Custodian did not include a redaction index because the Custodian argues that both documents are preliminary pre-decisional and reflective of the deliberative process in their entirety and thus exempt from disclosure. Analysis
An in camera inspection was conducted on the Preliminary Draft Science Building Report and the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates. PreliminaryDraft Science BuildingReport The Preliminary Draft Science Building Report consists of fifty-two (52) total pages. This document was prepared by the Associate Vice President and University Architect under the auspices of the Kean University Office of Facilities and Campus Planning. The Custodian certifies that this document is a preliminary draft which was never finalized or adopted by the University. Moreover, the Custodian certifies that no such science building has been constructed as proposed in the Draft Science Building Report. OPRA provides that “…[t]he terms [government record or record] shall not include inter-agency or intra-agency advisory, consultative, or deliberative material…” (Emphasis added.) N.J.S.A. 47:1A-1.1. As a general matter, draft documents are advisory, consultative and deliberative communications. Although OPRA broadly defines a “government record” as information either “made, maintained or kept on file in the course of [an agency’s] official business,” or “received” by an agency in the course of its official business, N.J.S.A. 47:1A-l.l, the statute also excludes from this definition a variety of documents and information. Ibid. See Bergen County Improvement Auth. v. North Jersey Media, 370 N.J. Super. 504, 516 (App. Div. 2004). The statute expressly provides that “inter-agency or intra-agency advisory, consultative, or deliberative material” is not included within the definition of a government record. N.J.S.A. 47: 1A-1 .1. This exemption is equivalent to the deliberative process privilege, which protects from disclosure pre-decisional records that reflect an agency’s deliberations. In re Readoption of N.J.A.C. 10A:23, 367 N.J. Super. 61, 73-74 (App. Div. 2004), certif. den. 182 N.J. 149 (2004); see also In re Liq. Of Integrity Ins. Co., 165 N.J. 75 (2000). As a result, OPRA “shields from disclosure documents ‘deliberative in nature, containing opinions, recommendations, or advice about agency policies,’ and ‘generated before the adoption of an agency’s policy or decision.’” Bent v. Stafford Police Department, 381 N.J. Super. 30, 37 (App. Div. 2005), quoting Gannet New Jersey Partners LP v. County of Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005). The courts have consistently held that draft records of a public agency fall within the deliberative process privilege. See U.S. v. Farley, 11 F.3d 1385 (7th Cir. 1993); Pies v. U.S. Internal Rev. Serv., 668 F.2d 1350 (D.C. Cir. 1981); N.Y.C. Managerial Employee Ass’n v. Dinkins, 807 F.Supp. 955 (S.D.N.Y. 1992); Archer v. Cirrincione, 722 F.Supp. 1118 (S.D. N.Y. 1989); Coalition to Save Horsebarn Hill v. Freedom of Info. Comm., 73 Conn.App. 89, 806 A.2d 1130 (Conn. App. Ct. 2002); pet. for cert. den. 262 Conn. 932, 815 A.2d 132 (2003). As explained in Coalition, the entire draft document is deliberative because in draft form, it “‘reflect[s] that aspect of the agency’s function that precedes formal and informed decision making.’”Id. at 95, quoting Wilson v. Freedom of Info. Comm., 181 Conn. 324, 332-33, 435 A.2d 353 (1980). The New Jersey Appellate Division has also reached this conclusion with regard to draft documents. In the unreported section of In re Readoption, supra, the court reviewed an OPRA request to the Department of Corrections (DOC) for draft regulations and draft statutory revisions. The court stated that these drafts were “all clearly pre-decisional and reflective of the deliberative process.” Id. at 18. It further held: The trial judge ruled that while appellant had not overcome the presumption of non-disclosure as to the entire draft, it was nevertheless entitled to those portions which were eventually adopted. Appellant appeals from the portions withheld and DOC appeals from the portions required to be disclosed. We think it plain that all these drafts, in their entirety, are reflective of the deliberative process. On the other hand, appellant certainly has full access to all regulations and statutory revisions ultimately adopted. We see, therefore, no basis justifying a conclusion that the presumption of nondisclosure has been overcome. Id. (Emphasis added.) The court similarly held that memos containing draft procedures and protocols were entirely protected from disclosure. Id. at 19. See also Edwards v. City of Jersey City, GRC Complaint No. 2002-71 (February 27, 2004) (noting that in general, drafts are deliberative materials). The Appellate Division has suggested that the confidentiality accorded to deliberative records may be overcome if the requestor asserts and is able to demonstrate an overriding need for the record in question. See In re Readoption, supra, 367 N.J.Super. at 73. Resolution of such a claim, if raised by the requestor, will depend upon the particular circumstances of the case in question. In Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004), the Council found that the Custodian met the burden of proving that financial information regarding a proposed early retirement program that the township had discussed at a public meeting was advisory, consultative or deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1. In Toth, the Custodian explained that the requested documents were pre-decisional to the Township Council’s adoption of an early retirement program. It was further explained that the requested documents were deliberative materials created for the Township Council to assist in their decision-making process and contained opinions of the Chief Financial Officer and the Administration on the fiscal impact of early retirements, replacements and estimated salaries for replacements. Also, the Chief Financial Officer certified that any factual information contained in the requested documents was based on estimations, assumptions and analysis of the Administration and was inextricably intertwined and could not be separated from the opinions and conclusions contained therein. Like in the Toth case, the Preliminary Draft Science Building Report is a pre-decisional document created within Kean University to assist the University in its decision-making process. The report contains estimates and projections by the Associate Vice President and University Architect as well as recommendations for future University action which were never finalized. The University has constructed no such science building as proposed in the draft report. Finally, the factual information contained in the Preliminary Draft Science Building Report was based upon certain assumptions and analysis which was inextricably intertwined with and could not be separated from the opinions and conclusions contained in the report. Therefore, the Preliminary Draft Science Building Report dated December 29, 2003, is exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004) because it is a pre-decisional, advisory, consultative and deliberative draft document. The Custodian, therefore, bore her burden of proving that the denial of access to the Preliminary Draft Science Building Report was lawful under N.J.S.A. 47:1A-6 because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth. 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates The 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates consists of two (2) total pages. The Custodian certifies that this document represents preliminary information and estimates compiled for interagency consultation. The Custodian also certifies that final information regarding these projects was set forth in the bond documents adopted by the Educational Facilities Authority Board, which documents were provided to the Complainant. OPRA provides that “…[t]he terms [government record or record] shall not include inter-agency or intra-agency advisory, consultative, or deliberative material…” (Emphasis added.) N.J.S.A. 47:1A-1.1. As in Toth, supra, the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates is a pre-decisional document containing estimates and projections which may or may not be reflected in the final bond documents adopted by the Educational Facilities Board. As a preliminary draft, the Bond Fund Project Estimates was ‘generated before the adoption of an agency’s policy or decision.’” Bent v. Stafford Police Department, 381 N.J. Super. 30, 37 (App. Div. 2005), quoting Gannet New Jersey Partners LP v. County of Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005). Therefore, the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates is exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004) because it is a pre-decisional, advisory, consultative and deliberative draft document. The Custodian, therefore, bore her burden of proving that the denial of access to the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates was lawful under N.J.S.A. 47:1A-6 because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth.
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:
1. The Custodian has complied with the Council’s September 21, 2006 Interim Decision in supplying the Council with the requested Preliminary Draft Science Building Report and the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates within the required time period. 2. The Custodian bore her burden of proving that the denial of access to the Preliminary Draft Science Building Report was lawful under N.J.S.A. 47:1A-6 because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004). 3. The Custodian bore her burden of proving that the denial of access to the 2005 New Jersey Educational Facilities Authority Bond Fund Project Estimates was lawful under N.J.S.A. 47:1A-6 because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004). Prepared By: In House Counsel
Approved By: Catherine Starghill Executive Director
April 18, 2007 [1] No legal representation listed. [2] Represented by DAG Sarah T. Darrow on behalf of the NJ Attorney General. [3] In his Denial of Access Complaint, the Complainant listed February 7, 2006 as the date of his OPRA request. However, pursuant to the Council’s decision in Glenn v. NJ Department of Community Affairs, Division of Housing GRC Complaint No. 2005-47 (April, 2006), an OPRA request must be made on an official form. Based on that, the Complainant’s OPRA request was made on February 22, 2006. Interim Order
At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 2006 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 with amendments regarding access to the requested contracts and request for purchases (“RFPs”). The Council, therefore, finds that:
Interim Order Rendered by the Government Records Council On The 21st Day of September, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council. Robin Berg Tabakin, Vice Chairman & Secretary
Findings and Recommendations of the Executive DirectorNorman Berger[1] GRC Complaint No. 2006 - 56Complainant
v.
Kean University[2] Custodian of Records
Records Relevant to Complaint:
Request Made: February 22, 2006[3] Response Made: February 22, 2006 Custodian: Tina Lisa GRC Complaint filed: March 6, 2006
Background
February 7, 2006 Complainant’s letter of request asking for the records enumerated above.
February 22, 2006 Letter from the Custodian to the Complainant. The Custodian advises the Complainant that all OPRA requests must be received by the Custodian on the enclosed OPRA form.
February 22, 2006 Complainant’s Open Public Records Act (“OPRA”) request asking for the records enumerated above.
February 22, 2006 Custodian’s response to the Complainant’s OPRA request. The Custodian informs the Complainant that in reference to the first category of requested records (copies of any letter of Intent, Memorandum of Understanding, or agreement between Kean University and the Liberty Hall Family Foundation or the related entities pertaining to the construction of a road through the Liberty Hall Museum property, located at 103 Morris Ave., Union, NJ 07083), the document is not a government record available under OPRA because it is deliberative material. The Custodian informs the Complainant that in reference to items two (2), three (3), and four (4), there are no government records maintained by the Custodian that meet his request.
March 6, 2006 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant states that the proposed roadway will connect the Main Campus located along Morris Avenue. He states that the roadway will come within feet of the property line of homes located on Mary Alice Court.
The Complainant alleges that there is no pending litigation in reference to this matter. He states that it is our contention (Liberty Hall Village Homeowners Association) that the requested documents are necessary in order to prove the effectiveness and efficiency of the overall project.
March 10, 2006 Offer of Mediation sent to both parties.
Custodian’s Agreement to Mediate. The Complainant did not agree to mediate this case.
March 28, 2006 Request for Statement of Information sent to the Custodian.
April 20, 2006 E-mail from the Custodian to the GRC staff. The Custodian states that additional documents have been located within the scope of this request, and have now been provided to the Complainant. The Custodian goes on to state; however, that a few documents that were located are confidential pursuant to OPRA and the Complainant has not agreed to withdraw his complaint.
April 27, 2006 Custodian’s Statement of Information (“SOI”) with the following attachments:
Custodian’s Counsel states that the Complainant made his request to Kean University by letter to the University Counsel on February 7, 2006, which was received by Kean University’s Custodian on February 14, 2006. Counsel goes on to state that the Custodian faxed the necessary OPRA request form to the Complainant on February 22, 2006 and received the completed form back on the same day. Counsel states that the Custodian responded to the request that same day.
Counsel states that the request sought first, a copy of any Letter of Intent, Memorandum of Understanding, or agreement between Kean University and the Liberty Hall Family Foundation pertaining to construction of a road through the Liberty Hall Museum property. Counsel states that the “Liberty Hall Memorandum of Understanding” (“MOU”) on the Proposed East Campus Shuttle Bus Link, executed by the President of Kean University as a second party, on June 22, 2005, was within the scope of this request and a copy was provided to the Complainant on March 31, 2006. Custodian’s Counsel states that the Custodian initially denied the request opining that the document was deliberative. She states that the Custodian’s response was made in good faith on advice of University Counsel.
In response to the request for copies of traffic studies or traffic counts of university shuttle buses between the Main Campus and the East Campus the Custodian’s February 22, 2006 response stated accurately that no such record existed because at that time the University had not received any such traffic study from its consultants. Counsel states that after the GRC Complaint was filed, the traffic study dated March 6, 2006 was received by Special Counsel to the University and a copy was provided for the Complainant’s inspection on April 7, 2006.
In response to the third request for the proposed cost of the road construction project through the Liberty Hall Museum property and whether contracts have been made or executed, the Custodian’s February 22, 2006 response stated that no such record exist because the request was for specific information, rather than a request for any identifiable government record. However, Counsel states that upon consideration, the University determined to read this request very broadly as expressing intent by the Homeowners Association to request copies of any contracts awarded by the University related to the East Campus Shuttle Bus Link road/bridge construction project. Upon that broad reading, Counsel states that Kean University provided the Complainant an opportunity to inspect and request copies of three documents which relate to the contract awarded for Architectural/Engineering Design of the East Campus Link.
With respect to the initial phrasing of the request for the “estimated cost of the East Campus Shuttle Bus Link construction project,” the University has identified one intra-agency document which contains an estimated cost. Custodian’s Counsel goes on to state that this document lists very preliminary estimates of costs of various proposed capital projects, and was compiled by the University as internal preliminary and deliberative financial information used in consultation with the New Jersey Educational Facilities Authority in preparation for the 2005 issuance of publicly traded securities on behalf of Kean University. Counsel goes on to state that this document, which lists estimated allocations of the bond proceeds, is very preliminary information compiled for interagency consultation, and not for inclusion in the public record with respect to the issuance of these public securities. Counsel states that the list is preliminary in that the actual allocation of bond proceeds among the various projects approved for bond funding is subject to change at any time until the bond proceeds are fully expanded. Counsel goes on to state that public disclosure of the cost estimates would inappropriately reveal the total amount of bond proceeds which the University currently estimates to be necessary for this project, and the allocations available for the other capital projects described in the Official Statement. Counsel states that public disclosure of the list of preliminary estimate of total project construction costs for the East Campus Shuttle Bus Link now, prior to the advertisement for and award of construction contracts, could afford a competitive advantage to bidders and could increase the cost of these capital projects to the citizens of the State of New Jersey, contrary to the public interest.
Further, Custodian’s Counsel respectfully submits that the release of the list redacting the dollar estimates of project costs, while eliminating the competitive advantage to bidders, would still not be in the public interest. Counsel states that the extremely limited “factual” information included on the document describing each project on this interagency consultative document was very preliminary and, in some cases, proved to be inaccurate upon investigation and verification during the due diligence proceeding of the bond issuance. Counsel states that preliminary and unverified “factual” portions of the document, even in redacted form would only create confusion rather than serve the public interest as protected by OPRA. For those reasons, the Custodian respectfully submits that it has met its burden of proving that the list of cost estimates is not a “government record” as defined by OPRA and asks that the GRC uphold the University’s denial of this request for access to it.
In response to the fourth request of “whether there are additional construction projects on the horizon, going out ten (10) years which will impact the residents of Mary Alice Court…the Custodian’s February 22, 2006 response states that no such government record exists because the request asks for information, and is not a request for government records. Custodian’s Counsel goes on to state that reading this request very broadly, the University has now provided the requestor with an opportunity to inspect its government records which describe the University’s capital construction plans for the future (regardless of their subjective potential impact upon the Homeowners Association’s members.) Custodian’s Counsel states that on April 3, 2006, the University afforded the requestor the opportunity to inspect two responsive documents regarding the 2003 and 2005 New Jersey Educational Facilities Authority (NJEFA) bond issues which describe those capital construction projects which the University anticipates will be financed through NJEFA.
Finally, Custodian’s Counsel respectfully submits that the release of the list redacting the dollar estimates of project costs, while eliminating the competitive advantage to bidders, would still not be in the public interest. Counsel states that the extremely limited “factual” information included on the document describing each project on this interagency consultative document was very preliminary and, in some cases, proved to be inaccurate upon investigation and verification during the due diligence proceeding of the bond issuance. Counsel states that preliminary and unverified “factual” portions of the document, even in redacted form would only create confusion rather than serve the public interest as protected by OPRA. For those reasons, the Custodian respectfully submits that it has met its burden of proving that the list of cost estimates is not a “government record” as defined by OPRA and asks that the GRC uphold the University’s denial of this request for access to it.
Analysis
Whether the Custodian unlawfully denied access to any of the requested records?
OPRA provides that:
“…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” (Emphasis added.) N.J.S.A. 47:1A-1.
Additionally, OPRA defines a government record as:
“… any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received in the course of his or its official business …The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (Emphasis added.) N.J.S.A. 47:1A-1.1.”
OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:
“…[t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.
The Complainant alleges that there is no pending litigation in reference to this matter. He states that it is the contention of the Liberty Hall Village Homeowners Association that the requested documents are necessary in order to prove the effectiveness and efficiency of the overall project.
With respect to the initial phrasing of the request for the “estimated cost of the East Campus Shuttle Bus Link construction project,” the Custodian states that the University has identified one intra-agency document which contains an estimated cost. Custodian’s Counsel goes on to state that this document lists very preliminary estimates of costs of various proposed capital projects, and was compiled by the University as internal preliminary and deliberative financial information used in consultation with NJEFA in preparation for the 2005 issuance of publicly traded securities on behalf of Kean University. Counsel goes on to state that this document, which lists estimated allocations of the bond proceeds, is very preliminary information compiled for inter-agency consultation, and not for inclusion in the public record with respect to the issuance of these public securities. Counsel states that the list is preliminary in that the actual allocation of bond proceeds among the various projects approved for bond funding is subject to change at any time until the bond proceeds are fully expanded. Counsel goes on to state that public disclosure of the cost estimates would inappropriately reveal the total amount of bond proceeds which the University currently estimates to be necessary for this project, and the allocations available for the other capital projects described in the Official Statement. Counsel states that public disclosure of the list of preliminary estimate of total project construction costs for the East Campus Shuttle Bus Link now, prior to the advertisement for and award of construction contracts, could afford a competitive advantage to bidders and could increase the cost of these capital projects to the citizens of the State of New Jersey, contrary to the public interest.
Custodian’s Counsel respectfully submits that the release of the list redacting the dollar estimates of project costs, while eliminating the competitive advantage to bidders, would still not be in the public interest. Counsel states that the extremely limited “factual” information included in the document describing each project on this inter-agency consultative document was very preliminary and, in some cases, proved to be inaccurate upon investigation and verification during the due diligence proceeding of the bond issuance. Counsel states that preliminary and unverified “factual” portions of the document, even in redacted form would only create confusion rather than serve the public interest as protected by OPRA. For those reasons, the Custodian respectfully submits that it has met its burden of proving that the list of cost estimates is not a “government record” as defined by OPRA and asks that the GRC uphold the University’s denial of this request for access to it.
OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt. Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.
OPRA excludes from the definition of a government record “inter-agency or intra-agency advisory, consultative or deliberative material.” N.J.S.A. 47:1A-1.1.
It is evident that this phrase is intended to exclude, from the definition of a government record, the types of documents that are the subject of the “deliberative process privilege.” That privilege has long been recognized by federal courts. See Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958); NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 150 (1975). It has also been codified in the federal Freedom of Information Act (“FOIA”). 5 U.S.C. §552(b)(5). Most recently, the New Jersey Supreme Court adopted the privilege. In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000).
The judiciary set forth the legal standard for applying the deliberative process privilege as follows:
(1) The initial burden falls on the government agency to establish that matters are both pre-decisional and deliberative.
In Boggia v. Borough of Oakland, GRC Case No. 2005-36 (April, 2006), the Council held that although the Custodian provided facts in support of the legal conclusions asserted, they (the Council) must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders) were properly applied to the redacted Morris Land Conservancy reports by conducting an in camera inspection of those reports.
Also, in Burns v. Borough of Collingswood, GRC Case No. 2004-169 (September 2005) the Council held that while the Custodian’s arguments and legal conclusions are persuasive, it can not be determined whether the Custodian has met the burden of proving that the requested document(s) are exempt from disclosure without actually reviewing the document(s) to confirm the Custodian’s legal conclusions. Therefore, the Council held that they would conduct an in camera inspection of all the marketing studies to determine whether the document is exempt from disclosure, in whole or in part, because it is “information which, if disclosed, would give an advantage to competitors or bidders” pursuant to N.J.S.A. 47:1A-1.1.
While the Custodian has provided facts in support of the legal conclusions asserted in support of withholding the two (2) documents, the Council must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders, as well as whether the documents include inter-agency or intra-agency advisory, consultative, or deliberative material) are properly applied to the two (2) documents withheld from the Complainant. Therefore, based on Council decisions in Boggia and Burns, the Council must conduct an in camera inspection of the two (2) documents the Custodian deems non-disclosable. Whether the Custodian responded to the February 7, 2006 OPRA request within the statutorily required seven (7) business days? OPRA provides that: “[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i. Additionally, OPRA provides that: “...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof …” N.J.S.A. 47:1A-5.g
The Custodian certifies that the Complainant made his request to Kean University by letter to the University Counsel on February 7, 2006, which was received by Kean University’s Custodian on February 14, 2006. Counsel goes on to state that the Custodian faxed the necessary OPRA request form to the Complainant on February 22, 2006 and received the completed form back on the same day. Counsel states that the Custodian responded to the request that same day.
OPRA requires a Custodian to grant or deny access to a government record in writing, as soon as possible, but not later than seven (7) business days after receiving the request.
In Glenn v. NJ Department of Community Affairs, Division of Housing GRC Case No. 2005-47 (April, 2006) the Council determined that the statute requires all requestors to submit OPRA requests on an agency’s official OPRA records request form. OPRA’s provisions come into play only where a request for records is submitted on an agency’s official OPRA records request form.
Pursuant to Glenn as well as the fact that the Custodian certified that she didn’t receive an official OPRA request until February 22, 2006 (the first correspondence came via letter on February 14, 2006 to which the Custodian responded by faxing the Complainant the official OPRA request form) and consequently responded that same day, she is not in violation of N.J.S.A. 47:1A-5.i. or N.J.S.A. 5.g.
Whether the delay in access to the requested records rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?
OPRA states that:
“[a] public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…” N.J.S.A. 47:1A-11.a.
OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states:
“…[i]f the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e.
In his Denial of Access Complaint, the Complainant listed February 7, 2006 as the date of his OPRA request. However, pursuant to the Council’s decision in Glenn v. NJ Department of Community Affairs, Division of Housing GRC Case No. 2005-47 (April, 2006), an OPRA request must be made on an official form. Based on the foregoing case law, the Complainant’s OPRA request wasn’t officially made until February 22, 2006.
Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).
Pursuant to the fact that the Custodian seemingly did research to find any and all records that might have been responsive to the OPRA request (and gave a thorough albeit inconclusive response to the records that are being denied), as well as the fact that the Custodian responded to the Complainant within the statutorily required seven (7) business days required by OPRA, there is no evidence that the Custodian’s actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey courts. Therefore, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a.
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:
Prepared By: Christopher Malloy Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation listed. [2] Represented by the Division of Law (DOL). [3] In his Denial of Access Complaint, the Complainant listed February 7, 2006 as the date of his OPRA request. However, pursuant to the Council’s decision in Glenn v. NJ Department of Community Affairs, Division of Housing GRC Case No. 2005-47 (April, 2006) an OPRA request must be made on an official form. Based on that, the Complainant’s OPRA request was made on February 22, 2006. |
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