2004-71

Final Decision

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 12^th Day of August, 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 Executive Director

Records Requested: 1. Copy of letter written to Atlantic City Government
Custodian: Dean H. Wyks
Request Made:   May 17, 2004
Response Made: May 18, 2004
GRC Complaint filed: June 4, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on June 4, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following:

1. The requested letter written to the Atlantic City Government officials concerning needle exchange program fails to fall under the “inter-agency or intra-agency advisory, consultative or deliberative materials.”
2. The Complainant believes that the letter is a factual statement, and there is nothing advisory or consultative about the letter.

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts the following:

1. Based upon the nature of the letter, the Custodian does not believe it meets the definition of a “government record” available for public inspection. The Custodian cites N.J.S.A. 47:1A-1 that states, the term “government record” shall not “include inter-agency or intra-agency advisory, consultative or deliberative materials.”
2. On June 22, 2004 the Custodian’s counsel submitted a Statement of Facts explaining why the document in question is, exempt under N.J.S.A. 47:1A-1 that states, the term “government record” shall not “include inter-agency or intra-agency advisory, consultative or deliberative materials.”
   In addition to the above-mentioned Statement of Facts, the Custodian also submitted a July 14, 2004 certification explaining why the document is exempt. The Custodian certifies that the document in question consists of a single page containing three typewritten paragraphs with six sentences, comprising an approximate total of 146 words. The document is addressed to the Attorney for the City of Atlantic City and is not factual in nature as it does not discuss or address specific details of an existing or adopted needle exchange plan. Rather, this document is deliberative, consultative, and advisory, as it addresses the legality of needle exchange programs in general.

Analysis

The following corresponds directly with the Findings and Recommendations of the Executive Director:

1. The Custodian’s counsel submitted a letter brief as to why the document can be characterized as “inter-agency or intra-agency advisory, consultative or deliberative materials.”

   In the letter brief submitted by custodian’s counsel, the document requested is described as advisory consultative or deliberative.  Custodian’s counsel explains that the document is pre-decisional in nature as it was created prior to the governing body’s decision-making process.  Furthermore, the document is deliberative in nature as it is advise or an opinion shared with the governing body’s decision makers. 

2. Regarding a claim by the Complainant that all or part of the document is factual was addressed in a certification. The Custodian certifies that the document in question consists of a single page containing three typewritten paragraphs with six sentences, comprising an approximate total of 146 words. The document is addressed to the Attorney for the City of Atlantic City as is not factual in nature as it does not discuss or address specific details of an existing or adopted needle exchange plan. Rather, this document is deliberative, consultative, and advisory, as it addresses the legality of needle exchange programs in general.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

1. June 4, 2004 –Denial of Access Complaint (w/attachments)
   1. Letter from complainant to the GRC detailing request
2. June 10, 2004 – Offer of mediation to the Custodian
3. June 10, 2004 – Offer of mediation to the Complainant
4. June 16, 2004 – Letter from the Custodian to the GRC
5. June 22, 2004 – Custodian’s Statement of Information (w/attachments)
   1. Complainant’s records request
   2. Custodian’s response to the Complainant’s request
   3. Custodian’s reason for denial of access
   4. Custodian’s counsel’s legal analysis of denial
6. July 14, 2004 – Custodian’s certification for reason of denial

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis that the requested document is inter-agency or intra-agency advisory, consultative or deliberative materials and not subject to disclosure under OPRA.

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

August 4, 2004

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