Final Decision
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James Edwards,
Complainant
v.
City of Jersey City,
Custodian of Record
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Complaint No. 2002-71
Decision Issued: February 27 2004
Decision Effective: March 11, 2004
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At its February 27, 2004 public meeting, the Government Records Council (“Council”) considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations and added revision as follows.
- The Kallen memorandum created by the City Law Department and conveyed to the MUA is the only document at issue in this case and is exempt from disclosure under N.J.S.A. 47:1A-1.1 because it constitutes “inter –agency or intra-agency advisory, consultative, or deliberative material.”
- Based on certification from the custodian, all documents responsive to the request were provided to the requestor.
Based on the above, the Council voted unanimously to dismiss this complaint.
Vincent P. Maltese, Chairman
Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.
Virginia Hook, Secretary
Government Records Council
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Findings and Recommendations of the Acting Executive Director
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James Edwards,
Complainant
v.
City of Jersey City,
Custodian of Record
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Complaint No. 2002-71
Decision Issued: February 27 2004
Decision Effective: March 11, 2004
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Relevant Records Requested: All records in the custody of Jersey City and Jersey City Municipal Utilities Authority relating to the proposed sewer hookup fee controversy.
Custodian: Raymond Reddington, Jersey City Corporate Counsel
Request Made: September 6, 2002, October 23, 2002 (corrected request faxed)
Response Made: March 5, 2003
GRC Complaint filed: October 22, 2002
Recommendations of Acting Executive Director
The requestor is seeking copies of a memorandum prepared by Assistant Corporation Counsel Nora Kallen addressed to former Corporation counsel Alexander Booth, Jr.; an April 2002 memorandum advising the Jersey City Municipal Utilities Authority ("MUA"), and the City's construction code official, that the mayor’s rescinding of MUA fees was illegal; and any correspondence between Booth and Jersey City Building Official Michael Regan. Certifications from various current and former City officials establish that the April 2002 advice concerning the legality of the mayor's rescinding of the MUA fees was communicated verbally, and does not exist in written form. In addition, the certifications allege that with the exception of the Kallen memorandum, all documents requested by Mr. Edwards were either provided to him or do not exist or are not maintained by the City.
The Acting Executive Director respectfully recommends the Council dismiss the case for the following reason:
- The Kallen memorandum created by the City Law Department and conveyed to the MUA is the only document at issue in this case and is exempt from disclosure under N.J.S.A. 47:1A-1.1 because it constitutes "inter-agency or intra-agency advisory, consultative, or deliberative material."
Legal Analysis
The custodian asserts that the Kallen memorandum does not fall within the definition of a government record under N.J.S.A. 47:1A-1.1 because it constitutes “inter-agency or intra-agency advisory, consultative, or deliberative material.” The exemption in OPRA for "advisory, consultative, or deliberative material" ("ADC exemption") reflects the deliberative process privilege already recognized in the federal Freedom of Information Act ("FOIA"), and in federal and State case law. Eg., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975); In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000). The plain language of OPRA, and its similarity to the language used by Congress and the federal courts, strongly suggest that in excluding from the definition of government records "inter-agency and intra-agency advisory, consultative, or deliberative material," the New Jersey Legislature intended to codify the deliberative process privilege.
The purpose of the deliberative process privilege is to protect from disclosure "documents that reflect advisory opinions, recommendations, and deliberations." Integrity Insurance, supra, 165 N.J. at 83. The privilege applies to "predecisional and deliberative" materials "reflecting the advisory and consultative process by which decisions and policies are formulated." Army Times Publishing Co. v. Department of the Air Force, 998 F.2d 1067, 1069 (1993). A deliberative document must contain "opinions, recommendations or advice," and cannot be “purely factual.” Integrity Insurance, supra, 165 N.J. at 84-85. Generally, materials that are deliberative include drafts, recommendations, proposals and suggestions.
According to the certifications submitted by the City, the Kallen memorandum was compiled by an attorney in the City's Law Department at the direction of then Corporation Counsel Booth in response to suggestions that raising sewer hook-up fees might ameliorate the City's financial problems. The memorandum was subsequently provided to counsel for the MUA, which is an autonomous agency of the City. The City certifies that the Kallen memorandum was an inter-agency communication provided by the City to advise the MUA of the opinion of the City Law Department concerning the legality of issues raised by the proposed sewer hook-up plan.
Documents Reviewed
September 6, 2002 - Records Request
October 22, 2002 - Denial of Access Form Filed
October 23, 2002 - Requestor Faxed to the Custodian's Counsel Corrected Version of Request
December 30, 2002 - Mediation Declined by Requestor (Later Accepted)
March 5, 2003 - Letter from Custodian to GRC and Requestor
March 7, 2003 - Letter to Custodian from Requestor
March 12, 2003 - Requestor's Mediation Email to GRC
March 19, 2003 - GRC Request for the Statement of Information (SOI)
March 20, 2003 - GRC Request for a Supplemental
March 26, 2003 - Letter #2 from Custodian to Requestor
March 26, 2003 - Denial of Access Submitted with Detailed Supplemental
March 27, 2003 - Submission of Statement of Information
March 27, 2003 - Request for an Extension
March 28, 2003 - GRC Phone Consultation Log
March 28, 2003 - Emails between GRC and Requestor Regarding Extension
April 2, 2003 - Acceptance of Requestor’s Extension by Custodian
April 10, 2003 - Letter to GRC from Custodian
April 10, 2003 - Email from Requestor to GRC
April 11, 2003 - Email Response from GRC
April 16, 2003 - Custodian Letter to Requestor
May 6, 2003 - Response by Requestor
January 12, 2004 - GRC Request for Additional Information from Custodian's Counsel
January 13, 2004 - Custodian's Counsel Verified Receipt of GRC Letter
January 23, 2004 - Response by Custodian's Counsel to GRC Letter with Certifications
Conclusion
The Acting Executive Director respectfully recommends the Council dismiss the case for the following reason:
- The Kallen memorandum created by the City Law Department and conveyed to the MUA is the only document at issue in this case and is exempt from disclosure under N.J.S.A. 47:1a-1.1 because it constitutes "inter -agency or intra-agency advisory, consultative, or deliberative material."
________________________
Paul F. Dice
Acting Executive Director
Government Records Council
Dated: February 23, 2003
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