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2004-82
Final DecisionREVISED FINAL DECISION
August 10, 2006 Government Records Council Meeting
Procedural History The Government Records Council (“Council”) considered this complaint at the November 9, 2004 public meeting, in conjunction with all related documents submitted by the parties, and the November 3, 2004 Findings and Recommendations of the Executive Director. The Council voted unanimously to adopt the entirety of said findings and recommendations, changing only a few words of the conclusion. The Council therefore issued an Interim Decision on Access finding, in pertinent part, that:
At its December 9, 2004 public meeting, the Council considered the December 3, 2004 Supplemental 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 the amendment that the records responsive to the request shall be disclosed immediately to the Complainant without any redactions. Therefore, the Council issued a Final Decision on Access and found, in pertinent part, that:
At the January 13, 2005 public meeting, the Council considered the January 6, 2005 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties, including the January 12, 2005 supplemental submission from the Custodian. The Council voted unanimously to adopt the entirety of said findings and recommendations with an amendment to grant a stay of the Council’s decision on the basis that an appeal is filed to the Appellate Division of the Superior Court of New Jersey on or before January 28, 2005 and provide evidence of same to the Executive Director. Therefore, the Council issued an Interim Decision on Request for Stay and found that:
At the February 10, 2005 public meeting, the Council considered the February 3, 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 said findings and recommendations. Therefore, the Council issued an Interim Decision granting the Custodian’s request for stay and found that:
On May 8, 2006, the Council filed a motion with the Appellate Division seeking to remand the case back to the Council for further consideration. The Council’s motion was granted by the Appellate Division on June 5, 2006.
At the August 10, 2006 public meeting, the Council conducted an in camera inspection in closed session pursuant to the Appellate Division’s order of remand of the requested records (the e-mails of Division of Law attorneys and staff which detail how the Custodian determined the special service charge assessed in GRC Complaint No. 2004-55). Present during the in camera inspection were:
Council Members: Vincent Maltese, Chairman, Robin Berg Tabakin, Vice Chairman & Secretary, Kathryn Forsyth, and Michelle Richardson.
Council Staff: Catherine Starghill, Executive Director, Brigitte Hairston, and Barry Roy, Designated Outside Counsel.
After conducting an in camera inspection and seeking legal advice in closed session, the Council concluded that the redacted records responsive to the request are exempt from disclosure as advisory, consultative or deliberative material. Thus, the Council’s previous decision ordering that the documents responsive to the request be disclosed without redactions was erroneously made without the benefit of an in camera inspection of such documents. However, the Council notes that its prior decision in this matter was made before the Council routinely conducted in camera inspections.
Additionally, the Council concluded that the attorney-client privilege does not apply to exempt the redacted requested records in this complaint. The privilege does not apply because the redacted requested records are not communications between lawyers and a client made in the course of a professional relationship for which the lawyers are retained to provide legal advice. Rather, the redacted requested records are e-mails between intra-agency colleagues deliberating prior to making a decision on the amount of a special service charge to assess the Complainant.
Background
Records Relevant to this Complaint:
Copies of e-mails, notes or other written or recorded correspondences regarding the fees for reviewing documentation responsive to the OPRA request subject of GRC Complaint No. 2204-55.
Complainant’s Case Position The Complainant filed a Denial of Access Complaint with the Council on June 24, 2004 alleging that he was improperly denied access. The Complainant asserts that the Custodian withheld significant portions of the records pertaining to the special service charge calculation applied to his records request that is the subject of GRC Complaint No. 2004-55. The Complainant seeks the release of the requested documents in full for the records request relevant to this complaint. Additionally, the Complainant asserts that the Custodian has not explained the legal basis for the redactions on each of the documents released to the Complainant. The Complainant contends that the Custodian’s explanation that all the redactions were made because the information sought was exempt from disclosure as advisory, consultative or deliberative material and attorney-client privileged information was too broad without further explanation. Further, the Complainant asserts that the redactions on the records at issue appear to be construed against the public’s right of access. The Complainant asserts that if the information is factual, then such information should not be redacted. Public Agency’s Position The Custodian asserts that the redacted information is exempt from disclosure as inter-agency, intra-agency advisory, consultative or deliberative material and attorney–client privileged information pursuant to N.J.S.A. 47:1A-1.1. Additionally, the Custodian cites to case law to support these assertions of exemption from disclosure. Specifically, the Custodian cites to In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct 1504, 1516, 44 L.Ed. 2d 29 (1975)). Also, the Custodian cites Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); E.W. Bliss Co. v. United States, 203 F. Supp., 175, 176 (N.D. Ohio 1961) in support of these assertions of exemption from disclosure. Specifically, the Custodian asserts that the redacted information is pre-decisional and contain deliberative discussions concerning the special service charge to be charged in GRC Complaint No. 2004-55. The Custodian asserts that its agency had not previously imposed a special service charge in response to an OPRA request and engaged in much deliberative discussion before the amount of the special service charge was decided. Further, the Custodian asserts that the redacted information did not impede the Complainant from understanding how the special service charge was calculated. The Custodian asserts that this complaint is frivolous. Analysis
Whether the Custodian unlawfully denied access to the records requested by redacting information the Custodian asserts is exempt from disclosure as being advisory, consultative or deliberative material and subject to the attorney-client privilege?
Exemption from Disclosure for Advisory, Consultative or Deliberative Material
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 Ins. Co., 165 N.J. 75 (2000).
The judiciary set forth the legal standard for applying the deliberative process privilege as follows:
The initial burden falls on the government agency to establish that matters are both pre-decisional and deliberative.
Pre-decisional means that the records were generated before an agency adopted or reached its decision or policy.
Deliberative means that the record contains opinions, recommendations, or advice about agency policies or decisions.
Deliberative materials do not include purely factual materials.
Where factual information is contained in a record that is deliberative, such information must be produced so long as the factual material can be separated from its deliberative context.
The exemption covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.
Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is only a personal position.
To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communications within the agency.
Thus, to the extent that the requested records qualify as advisory, consultative or deliberative material as is outlined above, such records or information contained therein must be redacted pursuant to OPRA. After conducting an in camera inspection of the requested records, the Council concluded that the information contained in the requested records are exemption from disclosure as advisory, consultative or deliberative material pursuant to N.J.S.A. 47:1A-1.1.
Attorney-Client Privileged Information OPRA provides that “… a government record shall not include the following information which is deemed to be confidential … any record within the attorney-client privilege…” N.J.S.A. 47:1A-1.1. The attorney-client privilege is one of the oldest of the privileges for confidential communications.[1] It is intended to encourage a client’s free and full disclosure of information to the client’s attorney to facilitate the attorney’s best advice in return.[2] Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel.[3] In general, the attorney client privilege renders confidential communications between a lawyer and a client made in the course of that professional relationship.[4] Discussion of litigation strategy, evaluation of liability, potential monetary exposure and settlement recommendations (and documents in which such matters are discussed) are generally considered privileged.[5] Mental impressions, legal conclusions, opinions or theories of attorneys and communications between clients and their attorneys are also confidential.[6]
After conducting an in camera inspection of the requested documents, the Council concluded that the attorney-client privilege does not apply to exempt the requested records in this complaint. The privilege does not apply because the requested records are not communications between lawyers and a client made in the course of a professional relationship for which the lawyers are retained to provide legal advice. Rather, the requested records are e-mails between intra-agency colleagues deliberating prior to making a decision on the amount of a special service charge to assess the Complainant.
Documents Reviewed
Conclusion and Order
After conducting an in camera inspection and seeking legal advice in closed session, the Council concluded that the redacted records responsive to the request are exempt from disclosure as advisory, consultative or deliberative material. Thus, the Council’s previous decision ordering that the documents responsive to the request be disclosed without redactions was erroneously made without the benefit of an in camera inspection of such documents. However, the Council notes that its prior decision in this matter was made before the Council routinely conducted in camera inspections.
Additionally, the Council concluded that the attorney-client privilege does not apply to exempt the redacted requested records in this complaint. The privilege does not apply because the redacted requested records are not communications between lawyers and a client made in the course of a professional relationship for which the lawyers are retained to provide legal advice. Rather, the redacted requested records are e-mails between intra-agency colleagues deliberating prior to making a decision on the amount of a special service charge to assess the Complainant.
Revised Final Decision Rendered by the Government Records Council On The 10th Day of August, 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
Decision Distribution Date: November 17, 2006
[1] In re Advisory Opinion No. 544, 103 N.J. 399, 405 (1986) (quoting 8 J. Wigmore, Evidence §2290, at 542) (McNaughton rev. 1961); Fellerman v. Bradley, 99 N.J. 493, 498 (1985). [2] In re Advisory Opinion No. 544, 103 N.J. 399, 405 (1986); In re Selser, 15 N.J. 393, 405 (1954); Hannan v. St. Joseph’s Hosp. and Med. Ctr., 318 N.J. Super. 22, 27 (App.Div. 1999); United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 561 (App.Div. 1984). [3] Swidler & Berlin v. United States, 524 U.S. 399, 407, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). [4] N.J.S.A. 2A:84A-20; Fellerman, supra, 99 N.J. at 499; Wolosoff, supra, 196 N.J. Super. at 562 (noting that “the privilege accords the shield of secrecy only with respect to confidential communications made within the context of the strict relation of attorney and client.”). [5] Press of Atlantic City v. Ocean County Joint Ins. Fund, 337 N.J. Super. 480, 487 (Law Div. 2000) [Serpentelli, J.]. [6] In Re Environmental Ins. Actions, 259 N.J. Super. 308, 317 (App.Div. 1992). Interim Decision
At the February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 3, 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 said findings and recommendations. Therefore, the Council hereby finds that:
Interim Decision Rendered by the Supplemental Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-82Complainant v. Department of Law and Public Safety, Division of Law, Custodian of Records Records Requested: Background At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 5, 2005 Supplemental Findings and Recommendations of the Executive Director Regarding the Division of Law’s Motion for a Stay and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that:
The Council confirmed its decision in a January 21, 2005 Interim Decision on Request for Stay that was circulated to all parties. On January 27, 2005, Custodian’s counsel provided the Council with a copy of the DOL’s Notice of Appeal filed in this case with the Superior Court of New Jersey – Appellate Division. Therefore, the DOL has complied with the Council’s January 21, 2005 Interim Decision. Analysis WHETHER the Council now has any jurisdiction over this Complaint The Open Public Records Act (OPRA) states that the Council does not have jurisdiction over the Judicial branch of State Government or any of its agencies, officers or employees. N.J.S.A. 47:1A-7(g). The DOL’s Notice of Appeal to the Superior Court of New Jersey – Appellate Division (Court), clearly establishes that the court now has jurisdiction of this Open Public Records Act (OPRA) complaint. The Council now does not have any jurisdiction of this complaint and should forego any further action pending the outcome of the appeal. Document Reviewed January 27, 2005 Notice of Appeal to the Court Conclusions and Recommendations of the Executive Director For the reasons stated in the Analysis above, the Executive Director respectfully recommends that the Council find that:
By: February 3, 2005 Interim Decision on Request for Stay
At the January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 6, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties, including the January 12, 2005 supplemental submission from the Division of Law. The Council voted unanimously to adopt the entirety of said findings and recommendations with an amendment to grant a Stay of the Council’s decision on the basis that an appeal is filed to the Appellate Division of the Superior Court of New Jersey on or before January 28, 2005 and provide evidence of same to the Executive Director. Therefore, the Council hereby finds that:
Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Supplemental Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-82Complainant v. Department of Law and Public Safety, Division of Law, Custodian of Records Records Requested: “Copies of e-mails, notes or other written or recorded correspondences regarding the fees for reviewing documentation responsive to OPRA request W8252. Please include correspondence between Division of Law records custodian Bob Sanguinetti and attorneys handling W8252. I also request copies of correspondence between the attorneys (as yet unknown) who handled this request. Please do not include correspondence between Mr. Sanguinetti and myself.” Background At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 3, 2004 Supplemental 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 the amendment that the records responsive to the request shall be disclosed immediately to the Complainant without any redactions. The Council, therefore, found that:
The Custodian of record was given ten (10) business days from receipt of this Final Decision to provide Executive Director Paul Dice with written confirmation of compliance with #2 directly above. The custodian did not comply as directed. Analysis The Division of Law requests a stay of the December 9, 2004 decision of the Government Records Council, which demanded that the Division of Law disclose all of the information redacted in the documents responsive to the subject OPRA request. The Division claims that a stay is warranted because: 1) the Division asserts a likelihood of success on the merits; 2) the Division asserts irreparable injury if a stay is not granted; and 3) the harm to the public interest in releasing the documents, outweighs the benefit to the individual requesting disclosure.
Documents Reviewed
Conclusions and Recommendations of the Executive Director For the reasons outlined in the Analysis above, the Executive Director respectfully recommends that the Council:
By: Paul F. Dice January 6, 2005 Final Decision on Access
At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 3, 2004 Supplemental 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 the amendment that the records responsive to the request shall be disclosed immediately to the Complainant without any redactions. The Council, therefore, found that:
The Custodian of record has ten (10) business days from receipt of this Final Decision to provide Executive Director Paul Dice with written confirmation of compliance with #2 directly above. 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 Decision Distribution Date: December 13, 2004 Supplemental Findings and Recommendations of the Executive Director
Records Requested: “Copies of e-mails, notes or other written or recorded correspondences regarding the fees for reviewing documentation responsive to OPRA request W8252. Please include correspondence between Division of Law records custodian Bob Sanguinetti and attorneys handling W8252. I also request copies of correspondence between the attorneys (as yet unknown) who handled this request. Please do not include correspondence between Mr. Sanguinetti and myself.” Background At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 3, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council concluded that:
On November 23, 2004, the Division of Law’s Counsel submitted a Vaughn Index for the documents subject to the OPRA request in response to the Council’s Interim Decision. The Vaughn Index provided by the Division of Law lacks specificity. For all indexed documents, which assert a privilege concerning the OPRA request, the counsel for the Custodian makes the same general statement about the privilege and offers no explanation to justify the privilege. Counsel contends the documents were in part exempt from disclosure because the “redacted information is pre-decisional in nature,” and falls under the “deliberative process privilege.” Analysis Pursuant to N.J.S.A. 47:1A-1, “all government records shall be subject to public access unless exempt from such access.” Public access is exempt when the information is deemed to be “inter-agency or intra-agency advisory, consultative, or deliberative material.” N.J.S.A. 47:1A-1.1. Also, pursuant to N.J.S.A. 47:1A-6, the “public agency shall have the burden of proving that the denial of access is authorized by law.” The Vaughn Index provided by the Division of Law lacks specificity regarding the basis for the redaction of information from the documents responsive to the OPRA request. In Vaughn v. Rosen, 523 F.2d 1136 “D.C. Cir. 1975” the court established procedures for “testing the classification of claims to exemptions.” These procedures required a “Detailed Justification” to assure the exemption is justified and the “courts will simply no longer accept conclusory and generalized allegations of exemptions… but will require a relatively detailed analysis in manageable segments.” Further, “An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document.” It also required “Specificity, Separation and Indexing” stating that “… [the] need for adequate specificity is closely related to assuring a proper justification … it is vital that the agency specify in detail which portions of the document are disclosable and which are allegedly exempt…” While the DOL indexed each document, they have generally stated a conclusory assertion that the redacted information is “pre-decisional” under the “deliberative process.” The Vaughn Index provided by the DOL is lacking in justifying the claimed exemptions. Therefore, the DOL has not meet the burden of showing that the requested documents are privileged and thereby exempt from disclosure under N.J.S.A. 47:1A-1, et seq. and the documents responsive to the April 12, 2004 OPRA request should be disclosed. Documents Reviewed The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director: November 23, 2004 – Letter response from Custodian’s Counsel and Vaughn Index Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends the Council find that:
Prepared by: Approved by: December 3, 2004 Interim Decision on Access
At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 3, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt said findings and recommendations with the following amendments to numbers “2” and “3” under “Conclusions and Recommendations of the Executive Director” to state: “The Custodian is to disclose all redacted information in the requested records unless the Executive Director is presented with a “Vaughn Index” explaining the basis for the asserted privilege within fifteen (15) calendar days from receipt of the Council’s decision.” Therefore, the Council hereby finds:
Interim Decision Rendered by the Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-82Complainant v. Department of Law and Public Safety, Division of Law, Custodian of Records Records Requested: Background Complainant’s Case Position The Complainant filed a Denial of Access Complaint with the Government Records Council on June 24, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that he was improperly denied access on the basis of the following:
Public Agency’s Case Position In response to the Complainant’s allegations, Custodian’s Counsel asserts the following in the Statement of Information and letter response dated September 8, 2004:
Analysis The central issue in the case is the information not disclosed in the requested documents that is alleged to contain “intra-agency, inter-agency advisory, consultative, or deliberative” (“ACD”) and attorney-client privilege material. N.J.S.A. 47:1A-1.1 states that a government record “does not include inter-agency or intra-agency advisory, consultative, or deliberative material” and N.J.S.A. 47:1A-1.1 states that “records” are exempt if they fall within “the attorney-client privilege.” The Custodian’s Counsel asserts that the information redacted from the requested documents contain “pre-decisional, deliberative discussion”[s] concerning the matter that the “DOL had never had cause to impose a special service charge in response to an OPRA request” and involved the discussions regarding how to assess the special service charge.” The Custodian also makes the assertion that the redacted information is attorney-client privilege material, but has not explained what information subject to the redactions falls within this privilege. N.J.S.A. 47:1A-6 states in relevant part: “…The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. Simply declaring a document contains ACD material does not automatically make it so. As with all privileges, application of the ACD privilege is limited to those circumstances that support its underlying policies. Neither the statute nor the courts have defined the terms “intra-agency” or “advisory, consultative, or deliberative” 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). The Custodian’s Council has not met the burden of proving that the denial of access to the redacted information was authorized by law pursuant to N.J.S.A.47:1A-6. There is insufficient information provided by the Custodian’s Counsel to determine whether the redacted information on each document falls within one of the asserted privileges. Therefore, the Council should order the Custodian to provide a “Vaughn Index” of the documents in question with a general nature description for each document, identify the portion of the each document having the asserted privilege, identify the asserted privilege for each document, and the basis for same. Documents Reviewed The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends the Council find that:
Prepared by: [1] OPRA request W8252 is the subject of the Denial of Access Complaint 2004-55 |
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