2003-53

Final Decision

At its February 10, 2004 public meeting, the Government Records Council (“Council”) considered the February 4, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations. The Council dismissed the complaint finding that the Governor’s daily private meeting schedule between his inauguration and August 1, 2002 are exempt from disclosure pursuant to the Open Public Records Act on the grounds of executive privilege and deliberative process privilege.

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 Executive Director

Relevant Records Requested: “Governor’s entire daily schedules (not just public events) since his inauguration.”
Request made: August 1, 2002
Response made: April 2003
Custodian:  Mark Fleming, Depute Chief Counsel  
GRC Complaint filed: May 8, 2003

Executive Director’s Recommendation

The requestor is seeking paper or electronic copies of the Governor’s public and private schedules since his inauguration to August 1, 2002, the date of the request. By letter dated September 20, 2002, requestor’s counsel clarified that The Ledger did not seek nor would it object to the redaction of “wholly personal meetings and family engagements,” information protected by the Official Information Privilege, N.J.S.A. 2A:84A-27, N.J.R.E. 515, or material that was advisory consultative or deliberative (ACD) in nature.

The custodian alleged there was no factual basis for the claims in the complaint or the relief sought. In a letter-brief dated July 22, 2003, custodian’s counsel asserts that N.J.S.A. 47:1A-9b as well as EO#26 specifically preserved the governor’s executive privilege rendering deliberations and advice confidential and preserving grants of confidentiality established by New Jersey Supreme Court. Counsel observed that the New Jersey Supreme Court has acknowledged a gubernatorial executive privilege that renders confidential in their entirety both pre- and post-decisional communications related to the executive function. Counsel argued that privilege was necessary to ensure frank and candid discussion of contemplated government policies. Concerning the ACD privilege, counsel argued that revealing the names of those conferring privately with the governor would reveal the substance or direction of the governor’s judgment or mental processes and intrude into the deliberative process considered confidential under OPRA.

The custodian’s counsel indicated that the Governor’s calendar reflects both personal and business appointments of the Governor.  It indicates the names of people with whom the governor will meet at these appointments, as well as the Governor's transportation arrangements.  He indicated further that a portion of this schedule, showing public events, is released to the public.  The entire schedule, which includes the nonpublic appointments in question here, is distributed to a small group of individuals within the Governor's Office, including high-ranking advisors, advance staff and State Police members.

Representatives for both parties met on September 12, 2002 in an effort to resolve the matter. The custodian’s counsel indicates that the requestor consented to extend the time for a response to the request in order to obtain legal advice. An oral denial was given to the requestor in April 2003.

The Acting Executive Director respectfully recommends that the Council dismiss the case under N.J.S.A. 47:1A-9(b); Executive Order #26:

The Governor’s daily private meeting schedule between his inauguration and August 1, 2002 are exempt from disclosure pursuant to the Open Public Records Act on the grounds of executive privilege and deliberative process privilege.

Record 

August 1, 2002 – By Letter a Request for Records was made by The Star-Ledger

May 8, 2003 – Denial of Access Complaint Filed including a 9/20/02 Letter as an Attachment

May 13, 2003 – Offer of Mediation Letter to Requestor and Custodian

May 14, 2003 – Mediation Declined by Requestor’s Counsel on Requestor’s Behalf

July 23, 2003 – Custodian Counsel’s Statement of Information (SOI) on Behalf of Custodian Fleming

July 31, 2003 – Requestor Counsel’s Arguments in Response to Custodian’s SOI

January 26, 2004 – Letter Response to GRC from Custodian’s Counsel Supplying:

1. Copy of the OPRA Request
2. Date of Request
3. Explanation of Events Following Receipt of Request

Legal Issues and Considerations

The Council should affirm the custodian’s decision denying access the Governor’s daily private meeting schedule between his inauguration and August 1, 2002 on grounds of executive privilege and deliberative process privilege. N.J.S.A. 47:1A-9(b); Executive Order #26.  This, the complaint should be dismissed.

A reviewing court will likely afford the Governor the full benefit of the executive privilege afforded the gubernatorial office in Nero v. Hyland, 76 N.J. 213 (1978). In view of the Court’s recognition that a governor’s consultative responsibilities can be discharged effectively only “under a mantle to privacy and security,” Id. at 226, the Council has no legal basis to inquire of the purpose for each private appointment of the Governor and should, instead, consider the information subject to executive privilege and, therefore, confidential. This result is consistent with EO#26 as well as the Legislative mandate to interpret OPRA to neither “abrogate or erode” any executive privilege established or recognized by the Constitution or judicial case law. N.J.S.A. 47:1A-9b. This result also maintains the vitality and independence of the executive branch of government, a matter of constitutional imperative.

The information sought is also confidential under the deliberative process privilege. While the identity of persons consulting privately with the governor can be regarded superficially as a mere fact subject to disclosure, closer reflection leads to the conclusion that the privacy due the executive’s consultations under the deliberative process privilege is compromised by revealing the identities of persons consulted, coupled with the time and date of the consultation. The presence and sequence of persons consulted, coincident with a legislative session or a proposed bill, inevitably reveals the substance or direction of the Governor’s judgment or mental processes and, therefore, intrudes to a significant degree into the deliberative processes of the executive. Conversely, the “frank discussions” indispensable to the gubernatorial deliberative or policy-making process cannot occur at all if individuals shun meetings to avoid publicizing their presence with the executive.

It is noteworthy that the Supreme Court has acknowledged a legitimate need for the executive branch of county government to maintain confidential the identities of persons consulted by telephone. It is a short and reasonable step for the Court to acknowledge that same need for confidentiality applies to the identities of persons consulting personally and privately with the highest official in state government.

Facts and Procedural History

The Open Public Records Act, N.J.S.A. 47:1A-1 et seq., was enacted in 2001, effective July 8, 2002. On August 1, 2002, a staff member of the Star-Ledger submitted a written OPRA request to the Office of the Governor seeking paper or electronic copies of “the Governor's entire daily schedules (not just public events) since his inauguration." By letter dated September 20, 2002, requestor’s counsel clarified that The Ledger did not seek nor would it object to the redaction of “wholly personal meetings and family engagements,” information protected by the Official Information Privilege, N.J.S.A. 2A:84A-27, N.J.R.E. 515, or material that was advisory consultative or deliberative (ACD) in nature.

The Governor’s office maintains a schedule showing the Governor’s daily appointments. [July 22, 2003 letter, Scheindlin to Pfeiffer, p.2]. This calendar reflects both personal and business appointments of the Governor. It indicates the names of people with whom the governor will meet at these appointments, as well as the Governor's transportation arrangements. A portion of this schedule, showing public events, is released to the public. The entire schedule, which includes the nonpublic appointments in question here, is distributed to a small group of individuals within the Governor's Office, including high-ranking advisors, advance staff and State Police members. [Id.]

Representatives for both parties met on September 12, 2002 in an effort to resolve the matter. Id. At the meeting, James M. Davy, Chief of Management and Operations, Office of the Governor and counsel Mark Fleming advised requestor’s attorney, Thomas Cafferty, that access would be denied based upon the “deliberative process privilege” and the “executive privilege.”

By letter to James Davy dated September 20, 2002, Cafferty argued that although N.J.S.A. 47:1A-1 exempted ACD material from access, OPRA also provided that such exemptions were to be construed narrowly. Counsel argued that material associated with the deliberative process would be accessible if not ACD in nature and that factual material was not privileged. Counsel acknowledged the Governor’s executive privilege pursuant to Nero v. Hyland, 76 N.J. 213 (1978) but alleged that the names of persons meeting with the governor did not comprise a “consultation or deliberation” protected by that privilege.

An OPRA complaint was filed May 8, 2003. A Statement of Information was filed on behalf of custodian Mark Fleming, Deputy Chief Counsel, on July 23, 2003. The custodian alleged there was no factual basis for the claims in the complaint or the relief sought. In a letter-brief dated July 22, 2003, custodian’s counsel asserts that N.J.S.A. 47:1A-9b as well as EO#26 specifically preserved the governor’s executive privilege  rendering deliberations and advice confidential and preserving grants of confidentiality established by judicial case law. Counsel observed that the New Jersey Supreme Court has acknowledged a gubernatorial executive privilege that renders confidential in their entirety both pre- and post-decisional communications related to the executive function. Counsel argued that privilege was necessary to ensure frank and candid discussion of contemplated government policies. Concerning the ACD privilege, counsel argued that revealing the names of those conferring privately with the governor would reveal the substance or direction of the governor’s judgment or mental processes and intrude into the deliberative process considered confidential under OPRA. Both parties declined mediation.

Analysis

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 in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” [N.J.S.A. 47:1A-1.1; emphasis supplied].

In addition to the exception for ACD material, OPRA also states that its provisions “shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.” N.J.S.A. 47:1A-9b.

Additionally, OPRA provides that government records may be exempted from access by Executive Order of the Governor. N.J.S.A. 47:1A-1;-9a. Executive Order No. 26  (August 13, 2002), Paragraph 2a, shields from disclosure those documents in the governor’s office which are “subject to an executive privilege or grant of confidentiality established or recognized by the Constitution of this state, statute, court rules or judicial case law.” It also exempts “[a]ll portions of records, including electronic communications, that contain advisory, consultative or deliberative information or other records protected by a recognized privilege.” Para.2b.

New Jersey case law acknowledges the existence of an executive privilege belonging to the governor. In Nero v. Hyland, 76 N.J. 213 (1978), the Supreme Court rejected a request for disclosure of personal background investigatory materials received by the governor from the Attorney General concerning a potential candidate for appointment to the State Lottery Commission. The Court determined that the “governor, as chief executive, must be accorded a qualified power to protect the confidentiality of communications pertaining to the executive function…This executive privilege protects and insulates the sensitive decisional and consultative responsibilities of the governor which can only be discharged freely and effectively under a mantle of privacy and security.” Id. at 225.

In reaching this conclusion, the Court relied upon what it characterized as the “constitutionally based executive privilege” accorded the President of the United States described in United States v. Nixon, 418 U.S. 683 (1974).  Nero, at 225. The Court quoted Nixon with approval, stating that the executive privilege was “fundamental to the operation of government and inextricable related to the separation of powers…” Ibid. The Court also observed that the privilege ensured those assisting the executive freely explored alternatives in shaping of policies and permitted them to do so “in a way many would be unwilling to express except privately.” [Id. at 226, quoting 418 U.S. at 708]

The executive privilege is presumptive and applies when invoked by the executive. Nixon, 418 U.S. at 708. The privilege applies to documents in their entirety and covers final and post-decisional materials as well as pre-deliberative ones. In Re Sealed case, 121 F.3d 729, 745 (D.C.Cir.1997).

Standing apart from the executive privilege is the deliberative process privilege. While both privileges are designed to protect executive branch decision making, the deliberative process privilege is based upon the common law principle of the need to protect governmental deliberative processes.  In Re Liq. Of Integrity Ins.Co., 165 N.J. 75, 83-85 (2000). OPRA incorporates the deliberative process privilege in N.J.S.A. 47:1A-1.1 by exempting “advisory, consultative or deliberative material” from access.

The New Jersey Supreme Court has held that the deliberative process privilege protects “the integrity of [agency] deliberations.” Id. at 86. The privilege permits the government to withhold documents containing advisory opinions and recommendations or reflecting deliberations comprising the process by which government policy is formulated. Atlantic City Convention Center Authority v. South Jersey Pub. Co., Inc., 135 N.J. 53, 62 (1994). A federal court explained:

[The privilege] serves to assure that subordinates within an agency will feel free to provide the decision maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action. [Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir., 1980)].

The New Jersey Supreme Court has acknowledged there is a legitimate public interest in keeping confidential the identity of persons consulted by executive branch officials. In North Jersey Newspapers v. Passaic County, 127 N.J. 9 (1992), the Supreme Court held that the telephone numbers called by members of the county Board of Chosen Freeholders were not records under the Right To Know Law (OPRA’s predecessor).  Noting that there was not, at that time, compelling reason on record to reveal the numbers and, thus, the identity of the persons called, the court noted a variety of reasons why it was desirable to keep such information confidential, including

critical times--when a government official will have to make a telephone call that has an arguable claim to confidentiality--times when, for example, a mayor might need to call a city council member from an opposing political party on a most highly sensitive community issue to enlist that person's support; or times when a mayor might need to call a community activist to calm troubled waters, without causing disruption that might result from appearing to negotiate with a dissident who may, at the moment, be perceived as a lawbreaker. Id. at 17.

Conclusion

The Acting Executive Director respectfully recommends that the Council dismiss the case under N.J.S.A. 47:1A-9(b); Executive Order #26:

The Governor’s daily private meeting schedule between his inauguration and August 1, 2002 are exempt from disclosure pursuant to the Open Public Records Act on the grounds of executive privilege and deliberative process privilege.

______________________

Paul F. Dice
Acting Executive Director
Government Records Council

Dated:  February 4, 2004

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