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2004-18

- Revised Final Decision
- Interim Decision on Access
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Findings and Recommendations of the Executive Director

Revised Final Decision

Anne Rademacher
   Complainant
      v.
Borough of Eatontown
   Custodian of Record

Complaint No. 2004-18

 

The Government Records Council ("Council") first considered this case at the June 10, 2004 public meeting in conjunction with the Executive Director's Findings and Recommendations and all related documents submitted by the parties.  By a unanimous vote the Council concluded that the requested report was prepared by an outside third party consultant and did meet the definition of the "inter-agency or intra-agency advisory, consultative, or deliberative" exemption under the Open Public Records Act ("OPRA"), and therefore the requested record was properly withheld.

On July 26, 2004 the Complainant appealed the case to the Superior Court of New Jersey, Appellate Division.  On July 21, 2005, by motion of the Council, the Superior Court of New Jersey, Appellate Division remanded the case to the Council to conduct an in camera review of the requested document.  

At its November 10, 2005 public meeting, the Council conducted the in camera inspection of the unredacted report prepared for the Borough of Eatontown by the New Jersey Professional Management Company sought in the OPRA request.  Present during the in camera review were: 

Council Members:                    Vincent Maltese – Chair
                                           DeAnna Minus-Vincent
                                           Robin Berg Tabakin

Government Records Staff:       Paul Dice, Executive Director
                                           Gloria Luzzatto, Assistant Executive Director
                                           Catherine Starghill, In-House Counsel
                                           Chris Malloy, Case Manager

Deputy Attorney General:         Debra Allen

After completing the in camera inspection of the unredacted document in closed session, the Council voted unanimously to order that the Custodian disclose the requested Management Study for the Borough of Eatontown – Task I Organizational Structure, except the information as specifically set forth below which is exempt from disclosure as “inter-agency or intra-agency advisory, consultative or deliberative material” pursuant to N.J.S.A. 47:1A-1.1.  

Management Study For the Borough of Eatontown (Study) – Task I Organizational Structure:

The Study, Task I consists of twenty-seven (27) total pages: 4 pages include the cover page, table of contents and Task II table of contents, the written report with numbered pages 1 through 16, and 7 pages identified as Appendix A through Appendix G.

  1. Page 2: Redact all sentences after the first sentence in paragraph one, the third sentence in paragraph two, the second and third sentences in paragraph three.
  2. Page 3: Redact the third and fourth sentences in paragraph one and all of paragraph three.
  3. Page 4: Redact paragraph one, the first, second and fourth sentences in paragraph two, and paragraph five.
  4. Page 5:  Redact paragraph two, the third and fourth sentences in paragraph three, the second sentence in paragraph five, and the second sentence in paragraph six.
  5. Page 6:  Redact the last sentence in paragraph one after “ADP” and the last sentence in paragraph four.
  6. Page 7:  Redact paragraph one, the fifth sentence in paragraph two and the second sentence in paragraph three.
  7. Page 8:  Redact the second, fifth, sixth, seventh and eighth sentences in paragraph two, the second sentence after “such” and the first four words in the fourth sentence in paragraph three.
  8. Page 9:  Redact the paragraph on this page.
  9. Page 10:  Redact paragraph five and the first sentence in paragraph six.
  10. Page 11 and 12:  Redact the third sentence in paragraph one, the second sentence in paragraph three, all of paragraph four, the sixth sentence in paragraph five on page 11 and ending on page 12.
  11. Page 13:  Redact paragraph three.
  12. Page 14:  Redact the two paragraphs on this page.
  13. Page 15:  Redact the second sentence in paragraph two, the second sentence in paragraph three and the last sentence in paragraph four.
  14. Page 16:  Redact the last sentence in paragraph two.
  15. Appendices A through G:  The Council concluded that it was unclear which charts are proposed or current tables of the organization referenced in Task I and therefore, the Custodian is to provide access to the current tables of the organization contained in Appendices A through G with redactions of proposed organization changes.

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
Government Records Council
On The 10th Day of November, 2005

Vincent Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  December 2, 2005

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Interim Decision on Access

Anne Rademacher
  Complainant
      v.
Borough of Eatontown
  Custodian of Record

Complaint No. 2004-18

 

At the September 8, 2005 public meeting, the Government Records Council ("Council") considered the September 2, 2005 Executive Director's Supplemental Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of the Executive Director's Conclusions. Therefore, the Council hereby finds that in accordance with the Superior Court’s decision on the Council's motion to remand the case, the Council will conduct an in camera inspection of the requested documents in this case at its October 28, 2005 meeting.

Interim Decision Rendered by the
Government Records Council
On The 8th Day of September, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  September 19, 2005

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Supplemental Findings and Recommendations of the Executive Director

Anne Rademacher,                                     GRC Complaint No. 2004-18
Complainant
v.
Borough of Eatontown,
Custodian of Record

Relevant Records Requested: A copy of the Borough of Eatontown Council minutes discussing Jersey Professional Management Study. A copy of the original Jersey Professional Management Study, subsequent drafts, and additions or changes to the study. A copy of the purchase orders to show fees paid to complete the report.
Request Made:  January 30, 2004
Response Made: February 5, 2004
Custodian: Karen Siano
GRC Complaint Filed: February 13, 2004

Background

June 10, 2004

At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 9, 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 found that the requested report was prepared by an outside third party consultant and does meet the definition of “inter-agency or intra-agency advisory, consultative, or deliberative material” exemption under Open Public Records Act.

July 26, 2004

The Complainant appealed the case to the Superior Court of New Jersey, Appellate Division.

July 21, 2005

By motion of the Council, the Superior Court of New Jersey, Appellate Division remanded the case to the Council to conduct an in camera review of the requested document.

Analysis

No analysis is needed at this time

Conclusions

In accordance with the Superior Court’s decision on the Council’s motion to remand the case, the Council will conduct an in camera inspection of the requested documents in this case at its October 13, 2005 meeting.

Prepared By: Chris Malloy, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council

September 2, 2005

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Final Decision

Anne Rademacher,                                     GRC Complaint No. 2004-18
Complainant
v.
Borough of Eatontown,
Custodian of Record

At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 9, 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, dismissed the case on the basis that the requested report was prepared by an outside third party consultant and does meet the definition of “inter-agency or intra-agency advisory, consultative, or deliberative” exemption under Open Public Records Act.

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
Government Records Council
On The 10th Day of June, 2004

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 Executive Director

Anne Rademacher,                                     GRC Complaint No. 2004-18
Complainant
v.
Borough of Eatontown,
Custodian of Record

Relevant Records Requested: A copy of the Borough of Eatontown Council minutes discussing Jersey Professional Management study. A copy of the original Jersey Professional Management Study, subsequent drafts, and additions or changes to the study. A copy of the purchase orders to show fees paid to complete the report.
Custodian: Karen Siano
Request Made:  January 30, 2004
Response Made: February 5, 2004
GRC Complaint Filed: February 13, 2004

Recommendations of  the Executive Director

This OPRA complaint filed February 13, 2004 alleges denial of access concerning:

"A copy of Borough of Eatontown Council minutes discussing Jersey Professional Management study. A copy of the original Jersey Professional Management Study, subsequent drafts, and additions or changes to the study. A copy of the purchase orders to show fees paid to complete the report."

In the Denial of Access Complaint the requestor states that she has received a copy of the Borough of Eatontown Council minutes discussing Jersey Professional Management study. The requestor also states that she has received a copy of the purchase orders to show fees paid to complete the report. And, in regard to the Jersey Professional Management Study, the requestor documents that she has received part of the study, but not all of it.

The Custodian's counsel certifies in the Statement of Information that the proposed organizational structure of the study was not provided due to the fact that such information is “inter-agency or advisory, consultative or deliberative.” They have also provided an Affidavit explaining their position at length.

At issue in the case is the denial of access to the proposed organizational structure study prepared by Jersey Professional Management Study consulting group.

The Executive Director respectfully recommends that the Council dismiss the case based on the fact that the requested report was prepared by an outside third party consultant and does meet the definition of "inter-agency or intra-agency advisory, consultative, or deliberative" exemption under OPRA.

Legal Analysis

The central issue raised by this Denial of Access Complaint is the accessibility of a report compiled for the Borough of Eatontown by an independent consultant.  The Borough hired the Jersey Professional Management Company to perform a management study to assist the municipality in determining if organizational changes might increase the efficiency of its operations.  The custodian denied the requestor access to the consultant’s report on the grounds that it constitutes deliberative, consultative or advisory material exempt from disclosure under N.J.S.A.  47:1A-1.1.

The Open Public Records Act ("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....

{N.J.S.A. 47:1A-1].

This definition of a government record explicitly "does not include inter-agency or intra-agency advisory, consultative, or deliberative material."  Id. 

Neither the statute nor the courts have defined the terms "intra-agency" or "advisory, consultative, or deliberative" ("ACD") 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). 

A showing that material is pre-decisional and deliberative creates a presumption of non-disclosure.  The purpose of the privilege, and the ACD exemption, is to protect the recognized government interest in promoting frank and independent discussion of contemplated policies and decisions.  In re Readoption With Amendments of Death Penalty Regulations, supra, 367 N.J. Super. at 73-74.  The presumption of non-disclosure can be rebutted by a demonstration by the requestor of a need for disclosure that overrides the government interest in non-disclosure.  Id. 

Whether a government entity may claim the deliberative process privilege, or the OPRA ACD exemption, for pre-decisional, deliberative material produced by an independent consultant has not been resolved in this jurisdiction.  Both the United States Supreme Court and the New Jersey Supreme Court have considered matters in which government officials asserted the deliberative process privilege for pre-decisional, deliberative material that was produced on behalf of the agency by an independent consultant.  Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 523 U.S. 1, 2-3 (2001); In re the Liquidation of Integrity Insurance Company, 165 N.J. at 81.  In both of those cases, however, the courts found that the deliberative process privilege was inapplicable because either the consultant was not, in fact, independent, or because the public official was acting in a quasi-private capacity. 

While explicitly declining to rule on whether or not a deliberative process exemption or privilege could ever be applied to documents produced by an independent consultant for a government entity, the United States Supreme Court recognized that some courts have held that reports by independent consultants may qualify as intra-agency deliberative material.  Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 523 U.S. at 2-3.  The Justices acknowledged that consultants without an interest that might be affected by the government action under consideration “may be enough like the agency’s own personnel to justify calling their communications ‘intra-agency.’” Id. at 3. See Hoover v. United States Department of the Interior, 611 F.2d 1132, 1138 (5th Cir. 19890); Lead Industries Association, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 83 (2nd Cir. 1979).

The record before the GRC shows that the report prepared for the Borough of Eatontown by the New Jersey Professional Management Company was compiled prior to the decision on whether or not to change the municipal structure.  The report contained advice on the efficacy of current operations, and recommendation for possible organizational changes.  The record contains no evidence that the consultant had any interest in the results of the Borough’s decision on reorganization.  The ACD exemption is asserted by the municipality to preclude disclosure of deliberative material acquired for the purpose of assisting the decision-making process.  The requestor has shown no need for the document compelling enough to overcome the presumption of non-disclosure.  In this context, the GRC finds no reason to treat the deliberative material produced by the municipality’s consultant any differently from deliberative material produced by the municipality’s employees.  Accordingly, the report prepared for the Borough by the Jersey Professional Management Company is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1, and the Denial of Access Complaint should be dismissed.

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

  • January 30, 2004 – Records Request
  • February 4, 2004 – Letter from Custodian to the GRC
  • February 5, 2004 – Custodians Response to Request
  • February 13, 2004 – Denial of Access Complaint and supplemental
  • February 26, 2004 – Offer of Mediation sent to the Requestor
  • February 26, 2004 – Offer of Mediation sent to the Custodian
  • March 16, 2004 – GRC Request for Statement of Information
  • March 19, 2004 – Custodian’s Statement of Information

________________________

Paul F. Dice
Executive Director
Government Records Council

June 9, 2004

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