2005-133

George Burdick

Complainant

Franklin Township

Custodian of Record

Complaint No. 2005-133

At the July 25, 2007 public meeting, the Government Records Council (“Council”) considered the July 19, 2007 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. The Council, therefore, finds that this complaint is dismissed as the Complainant has voluntarily withdrawn his complaint in a letter to the GRC dated June 1, 2007.

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., P.O. Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, P.O. Box 819, Trenton, NJ 08625-0819.

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

Decision Distribution Date: August 2, 2007

Supplemental Findings and Recommendations of the Executive Director

Records Relevant to Complaint: The May 10, 2005 report of Wayne Hartmann

Request Made: May 13, 2005

Response Made: July 19, 2005

Custodian: Ursula Stryker

Background

Government Records Council’s (“Council” or “GRC”) Supplemental Findings and Recommendations. At its May 30, 2007 public meeting, the Council considered whether the Custodian complied with the Council’s March 28, 2007 Interim Order. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that:

Because the Custodian did not properly bear her burden of proving that the Denial of Access was authorized by law at the time of the denial, she is in violation of N.J.S.A. 47:1A-6.

The Custodian failed to comply with the Council’s March 28, 2007 Interim Order by failing to provide Complainant with a copy of the record and by failing to provide a certification of compliance to the Executive Director within the required timeframe.

Based on the Custodian’s actions in this matter, it is possible that the Custodian’s actions were intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional. As such, this complaint should be referred to the Office of Administrative Law for determination of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances.

Complainant’s letter to the GRC sent via facsimile. Complainant states that on April 30, 2007, he received a copy of the requested record in complete and unredacted form. The Complainant further states that he believes that the Custodian has complied with the spirit of OPRA in providing the complete and unredacted record, notwithstanding the fact that the date of compliance was later than that mandated by the Council’s March 28, 2007 Interim Order. The Complainant requests that the Council take no further action against the Custodian in regards to this matter.

Analysis

Whether the Custodian complied with the Council’s March 28, 2007 Interim Order?

The Complainant stated that he is satisfied with the resolution of this matter and requested no further action be taken against the Custodian in a letter to the GRC dated June 1, 2007, therefore no analysis is needed.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that this complaint should be dismissed as the Complainant has voluntarily withdrawn his complaint in a letter to the GRC dated June 1, 2007.

[1]No legal representative on record.

[2] The custodian is represented by William J. Caldwell, Esq. of Carter, Vann Rensselaer & Caldwell (Clinton, NJ).

INTERIM ORDER II

George Burdick, Jr.

Complainant

Franklin Township

Custodian of Record

Complaint No. 2005-133

At the May 30, 2007 public meeting, the Government Records Council ("Council") considered the May 23, 2007 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. The Council, therefore, finds that:

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

Supplemental Findings and Recommendations of the Executive Director

Background

Government Records Council's ("Council" or "GRC") Interim Order. At its March 28, 2007 public meeting, the Council considered the March 21, 2007 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, found that:

1. The Custodian has still not borne her burden of proving that the Hartmann Report is lawfully exempt from disclosure pursuant to N.J.S.A. 47:1A-6 as attorney work-product or attorney expert communications.

2. Given the legal standard for advisory, consultative or deliberative material discussed in the Findings and Recommendations of the executive Director, the custodian must disclose the Hartmann report with redactions, if any, consistent with this legal standard, as well as a redaction index detailing each redaction made with an explanation why such redacted information is exempt from disclosure as advisory, consultative or deliberative material pursuant to N.J.S.A. 47:1A-1.1

3. The Custodian should comply with item #2 above within ten (10) business days from receipt of the Council's Order and simultaneously provide certified confirmation of compliance, in accordance with N.J. Court Rule 1:4-4, to the Executive Director.

Complainant notifies the GRC by e-mail that he has not yet received the records which Custodian was required to release pursuant to the Council's March 28, 20007 Interim Order.

GRC's telephone conversation with Custodian's Counsel. Custodian's Counsel states that the Hartmann Report will be released in its entirety within a few days.

GRC receives Custodian's response to the Council's Interim Order. The Custodian notes that it has been determined to release the Hartmann Report in its entirety. The Custodian encloses a copy of the record requested.

GRC's telephone conversation with Custodian's Counsel. Custodian's Counsel states that the Custodian has not sent a copy of the Hartmann Report to the Complainant. Custodian's Counsel further states that Complainant will have to make arrangements with the Custodian to obtain a copy of the Hartmann Report.

GRC telephones Custodian and arranges to have Complainant pick up a copy of the Hartmann Report at the Custodian's office.

Analysis

Whether the Custodian complied with the Council's March 28, 2007 Interim Order?

"[t]he Legislature finds and declares it to be the public policy of this State that … government records shall be readily available for inspection, copying or examination by citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by [OPRA] … shall be construed in favor of the public's right of access…." N.J.S.A. 47:1A-1.

"The custodian of a government record shall permit the record to be inspected, examined and copied by any person … unless a government record is exempt from public access by: [OPRA]…; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Rules of Court: any federal law; federal regulation; or federal order." N.J.S.A. 47:1A-5.a.

"The public agency shall have the burden of proving that the denial of access is authorized by law." N.J.S.A. 47:1A-6.

The Custodian failed to comply with the Council's March 28, 2007 Interim Order within the required timeframe. Pursuant to the Council's Interim Order, the Custodian was required to provide a copy of the Hartmann Report to the Complainant within ten (10) business days of the receipt of the Interim Order. The Custodian was also required to submit to the Council a certified confirmation of compliance in accordance with N.J. Court Rule 1:4-4.

The Custodian submitted a copy of the Hartmann Report to the Council, but not to the Complainant. Moreover, the Custodian failed to submit to the Council a certified confirmation of compliance in accordance with N.J. Court Rule 1:4-4. Even though Complainant eventually obtained a copy of the requested record, the Complainant was required to go to the Custodian's offices and pick up a copy of the Hartmann Report in order to do so. These actions directly contravene the Council's March 28, 2007 Interim Order, as well as the spirit and the letter of OPRA.

Whether the Custodian's actions rise to the level of a knowing and willful violation OPRA and unlawfully denial of access to the requested record under the totality of the circumstances?

"[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA], as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…" N.J.S.A. 47:1A-11.a.

OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically, OPRA states:

"…[i]f the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…" N.J.S.A. 47:1A-7.e.

A custodian, public official, officer or employee who knowingly and willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. N.J.S.A. 47:1A-11.

OPRA does not contain a definition of what constitutes a "knowing and willful" violation. New Jersey courts have noted that "knowingly" is defined in Black's Law Dictionary (4^th ed. 1968) at 1012, as: "[w]ith knowledge; consciously; intelligently, willfully; intentionally." Woodcock v. Calabrese, 148 N.J. Super. 526, 537 (Cty. Ct. 1977), citations omitted.

However, the concept of "willful" misconduct is a familiar one in New Jersey law. The Supreme Court has observed:

Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use. While its general contours, given its language, are similar in all contexts, it may differ depending on the common-law rule or the statute to which it is relevant, and perhaps even within such rule or statute different depending on the facts. Fielder v. Stonack, 141 N.J. 101, 124 (1995).

Although the contours of what constitutes willful misconduct may differ depending on the situation, the case law concerning willful misconduct establishes certain basic principles. It is clear that the phrase involves "much more" than negligent conduct. Alston v. City of Camden, 168 N.J. 170, 185 (2001), citing Fielder, supra. It is also settled that "there must be some knowledge that the act is wrongful." Fielder, supra, 141 N.J. at 124. While there need not be the actual intent to cause harm, the action must exhibit a "positive element of conscious wrongdoing." Id., quoting Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962). The Supreme Court in Fielder summarized the definition of willful misconduct as "the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden." Id., citation omitted.

The Supreme Court reaffirmed this definition in Alston, supra. Alston involved a police officer who was entitled to immunity from a tort claim unless his actions constituted willful misconduct. During its deliberations, the jury asked the trial court to clarify the definition of "willful misconduct." The trial court instructed the jury that:

[t]o satisfy the requirement of willfulness, there must be a positive element of conscious wrongdoing and another way of looking at it is willful misconduct is the commission of a forbidden act with actual knowledge that the act is forbidden…. Id. at 184.

The Appellate Division also has spoken as to the definition of willful misconduct. In ECES v. Salmon, 295 N.J. Super. 86 (App. Div. 1996), the Appellate Division reviewed the question of what constituted a willful violation of the New Jersey Conflicts of Interest Law. It found the Fielder definition of willfulness to be particularly apt. Fielder concerned the potential tort liability resulting from the failure of a police officer to follow orders in a chase situation. The Appellate Division noted that this scenario, similar to the Conflicts of Interest Law, involved "the possible malfeasance of a personal charged with the protection of the public." Id. at 106. Accordingly, the court relied upon the language in Fielder, discussed above, and determined that willful misconduct under the Conflicts Law's penalty provision "must be intentional and deliberate, with knowledge of its wrongfulness, and not merely negligent, heedless or unintentional." Id. at 107.

Nothing suggests that the Legislature, in enacting OPRA, intended to establish a definition of willfulness that is different from that set forth in the foregoing cases. As in Alston, Fielder, and ECES v. Salmon, the OPRA penalty provision is directed at misconduct committed by public employees.

In the matter before the Council, the Custodian has failed to prove that the denial of access to the Hartmann Report was authorized by law as required by N.J.S.A. 47:1A-6. Throughout the course of this matter, the Custodian alleged that the Hartmann Report was exempt from disclosure as attorney client privilege/attorney work product. However, the Custodian failed to support this contention with any proof. The Council found, instead, that the record was exempt, in part, as advisory, consultative and deliberative material. The Custodian failed to comply with the Council's March 28, 2007 Interim Order requiring release of the redacted Hartmann Report to the Complainant within ten (10) business days of the receipt of the Interim Order and failed to provide a certification of compliance to the Executive Director as required by the Interim Order.

Based on the Custodian's actions in this matter, it is possible that the Custodian's actions were intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless, or unintentional. As such, this complaint should be referred to the Office of Administrative Law for determination of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances.

[1]No legal representative on record.

[2] The custodian is represented by William J. Caldwell, Esq. of Carter, Vann Rensselaer & Caldwell (Clinton, NJ).

Interim Order1

At the March 28, 2007 public meeting, the Government Records Council ("Council") considered the March 21, 2007 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 amendments. The Council, therefore, finds that:

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

Supplemental Findings and Recommendations of the Executive Director

Government Records Council's ("Council") Interim Order. At its August 10, 2006 public meeting, the Council considered the August 3, 2006 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, found that:

Custodian's response to the Council's Interim Order. The Custodian requests a stay of the Council's August 15, 2006 Interim Order. Specifically, the Custodian asserts that the reason the stay is needed relates to the GRC's determination that "the Custodian's claim that the Hartmann Report is attorney-client privilege as defined in N.J.S.A. 47:1A-1.1 is unsubstantiated because the report was not prepared by an attorney for the Township" which is unsubstantiated and fundamentally at odds with prevailing laws of New Jersey. Additionally, the Custodian states that the attorney-client privilege applies to the Hartmann Report because it was prepared in anticipation of litigation and is an attorney-expert communication. This is the first time that the Custodian mentions that the report was prepared by an expert at the request of their attorney in anticipation of litigation.

Additionally, the Custodian asserts that the Complainant will not suffer any substantial injury if the stay is granted since the undisclosed report is not the basis of, nor is it related to, any ongoing dispute between the Complainant and the Township. The Custodian further asserts that the release of the report, conversely, will disclose techniques and methodologies employed by the Township in fulfillment of its statutory duty to review a failed school budget.

Lastly, the Custodian asserts that the public interest is best served by the ability of the Township to reservedly be able to fulfill its statutory function. The Custodian states that the report assisted the Township to achieve a reduction in the total expenditures of the school budget, thereby saving all the taxpayers in the Township unnecessary expense.

The Custodian did not address the danger of irreparable harm if the stay is not granted. Thus, this application for stay is incomplete.

Letter from the GRC to the Custodian. The GRC granted the Custodian's stay, despite the incomplete application, contingent on the Custodian providing unredacted copies of the Hartmann Report so that the GRC may conduct an in camera review of the report and because the GRC was never previously informed that the report was prepared by an expert at the request of the Custodian's attorney in anticipation of litigation. The GRC directed the Custodian to redact the report as the Custodian determined necessary and provide a redaction index providing the legal justification for each redaction.

Letter from the Complainant to the GRC. The Complainant asserts that he was not copied on the Custodian's request for stay submitted to the GRC and desired a copy of same. The GRC forwarded a copy of same to the Complainant.

The Custodian asserts that all the redactions involve opinion, interpretation or analysis that were intended to assist the Township in its review of the voter defeated school budget and the negotiations that followed with the School Board.

The Custodian now asserts that the Hartmann Report was prepared for the Township's negotiations with the local School Board following the voters' defeat of the school budget and possibly in any further administrative proceedings if the matter was not settled at the Township level. The Custodian previously asserted that the report was prepared by an expert in anticipation of litigation.

The Custodian also asserts that every year there is always the prospect of a defeated school budget and that the methods and techniques of analysis utilized by the Township's expert were and remains of ongoing importance. The Custodian further asserts that the disclosure of the Hartmann Report would jeopardize the Township's ability to fulfill its statutory mandated function of review over any failed school budget.

Letter from the Complainant to the GRC. The Complainant asserts that the Custodian's Counsel had no communication with Mr. Hartmann according to Counsel's billing statements submitted to the Township. The Complainant also asserts that Counsel did not likely review the defeated school board budget as indicated on the billing statements. Further, the Complainant asserts that Counsel's statement to the GRC that Counsel hired Mr. Hartmann to prepare this requested report on behalf of the Township is fraudulent in violation of the Attorney Rules of Professional Conduct.

Letter from the Complainant to the GRC. The Complainant asserts that the Township's Resolution #2006-73 and the closed session minutes which this resolution releases from confidentiality status provide evidence that the requested report is no longer confidential. Specifically, the Complainant asserts that this resolution states that "the Municipal Attorney has advised the Township Committee that the confidentiality of the discussions [contained in closed session minutes of May 10, 2005 in which the Committee discussed strategy for resolving the defeated school budget] no longer requires that confidentiality." Therefore, the Complainant asks the GRC to now reject any and all claims offered by the Custodian's Counsel relative to the confidentiality of the requested report.

Letter from the Custodian's Counsel to the GRC. The Custodian acknowledges the Complainant's two most recent letters to the GRC and asserts that the requested report was prepared in anticipation of potential litigation and requires confidentiality as attorney-client communication. The Custodian further states that the release of the closed session minutes is not conclusive in this matter.

Letter from the Complainant to the GRC. The Complainant asserts that the Custodian's Counsel has only offered "bare assertions" in support of the Custodian's denial of access to the requested report. Specifically, the Complainant challenges that any litigation strategy was discussed in closed session since there is no record in the minutes reflecting such strategic discussions. Further, the Complainant asserted that Counsel has offered no written evidence or documentation to prove their position that there was any litigation at issue. The Complainant requests that the requested report be released to him in unredacted form. The Complainant also asserts that Counsel has made numerous fraudulent statements in violation of the Attorney Rules of Professional Conduct.

Whether the Custodian complied with the Council's August 10, 2006 Interim Order?

The Custodian complied with the Interim Order by providing redacting and unredacted copies of the Hartmann Report in question so that the GRC may conduct an in camera inspection to verify that the asserted exemptions from disclosure (attorney client privilege originally asserted and attorney-expert communication prepared in anticipation of litigation as was subsequently asserted after the Interim Order was rendered) apply to this record. The Custodian provided the documents for the in camera inspection only after the Custodian's Counsel submitted an incomplete stay request on August 22, 2006 (five business days after the Interim Order was disseminated to the parties).

To garner an understanding of how anticipated litigation might be at issue as it relates to the failed school budget, the GRC researched the process required of Townships with regards to failed school budgets. Specifically, the GRC contacted the New Jersey Department of Education and consulted the relevant regulations. Such research revealed that when a school budget fails to pass by a vote of taxpayers, the Township may negotiate with the School Board to make changes to the budget in hopes of the revised budget passing by a vote of taxpayers. If such negotiations fail, the budget is submitted to the Commissioner of the New Jersey Department of Education for approval pursuant to N.J.A.C. 18A:7F-6. The Commissioner's approval is appealable to the State Board of Education and subsequently to Superior Court.

Given the statutory process for review, revision and approval of failed school budgets, and the possible appeal of the Commissioner's approval, there is the potential (although very slight per officials at the New Jersey Department of Education) for anticipated litigation.

The attorney-client privilege "recognizes that sound legal advice or advocacy serves public ends and that the confidentiality of communications between client and attorney constitutes an indispensable ingredient of our legal system." Matter of Grand Jury Subpoenas, 241 N.J. Super. 18, 27-8 (App.Div.1989). The attorney-client privilege protects communications between a lawyer and the client made in the course of that professional relationship, and particularly protects information which, if disclosed, would jeopardize the legal position of the client. N.J.S.A. 2A:84A-20; RPC 1.6. The New Jersey Supreme Court has observed that RPC 1.6 "expands the scope of protected information to include all information relating to the representation, regardless of the source or whether the client has requested it be kept confidential or whether disclosure of the information would be embarrassing or detrimental to the client." In re Advisory Opinion No. 544 of N.J. Sup. Court, 103 N.J. 399, 406 (1986).

Redaction of otherwise public documents is appropriate where protection of privileged or confidential subject matter is a concern. South Jersey Publishing Co., Inc. v. N. J. Expressway Authority, 124 N.J. 478, 488-9 (1991). Moreover, whether the matter contained in the requested documents pertains to pending or closed cases is important, because the need for confidentiality is greater in pending matters. Keddie v. Rutgers, State University, 148 N.J. 36, 54 (1997). Nevertheless, "[e]ven in closed cases. . .attorney work-product and documents containing legal strategies may be entitled to protection from disclosure." Id.

Based on the Complainant's submissions asserting that the bills of the Custodian's Counsel suggest that the Hartmann Report was not commissioned by Counsel but was actually commissioned by the Township, the Custodian has still not borne her burden of proving that the Hartmann Report is lawfully exempt from disclosure pursuant to N.J.S.A. 47:1A-6 as attorney work-product or attorney expert communications.

However, the report is exempt from disclosure as advisory, consultative or deliberative material pursuant to N.J.S.A. 47:1A-1.1. 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."

The deliberative process privilege is a doctrine that permits government agencies to withhold documents that reflect advisory opinions, recommendations and deliberations submitted as part of a process by which governmental decisions and policies are formulated. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29, 47 (1975). This long-recognized privilege is rooted in the concept that the sovereign has an interest in protecting the integrity of its deliberations. The earliest federal case adopting the privilege is Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958). Federal district courts and circuit courts of appeal subsequently adopted the privilege and its rationale. United Statesv. Farley, 11 F.3d 1385, 1389 (7th Cir.1993).

The deliberative process privilege was discussed at length in In Re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000). There, the court addressed the question of whether the Commissioner of Insurance, acting in the capacity of Liquidator of a regulated entity, could protect certain records from disclosure which she claimed contained opinions, recommendations or advice regarding agency policy. Id. at 81. The court adopted a qualified deliberative process privilege based upon the holding of McClain v. College Hospital, 99 N.J. 346 (1985), Liquidation of Integrity, supra, 165 N.J. at 88. In doing so, the court noted that:

"[a] document must meet two requirements for the deliberative process privilege to apply. First, it must have been generated before the adoption of an agency's policy or decision. In other words, it must be pre-decisional. ... Second, the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies. ... Purely factual material that does not reflect deliberative processes is not protected. ... Once the government demonstrates that the subject materials meet those threshold requirements, the privilege comes into play. In such circumstances, the government's interest in candor is the "preponderating policy" and, prior to considering specific questions of application, the balance is said to have been struck in favor of non-disclosure." (Citations omitted.) Id. at 84-85.

The court further set out procedural guidelines based upon those discussed in McClain:

"[t]he initial burden falls on the state agency to show that the documents it seeks to shield are pre-decisional and deliberative in nature (containing opinions, recommendations, or advice about agency policies). Once the deliberative nature of the documents is established, there is a presumption against disclosure. The burden then falls on the party seeking discovery to show that his or her compelling or substantial need for the materials overrides the government's interest in non-disclosure. Among the considerations are the importance of the evidence to the movant, its availability from other sources, and the effect of disclosure on frank and independent discussion of contemplated government policies." In Re Liquidation of Integrity, supra, 165 N.J. at 88, citing McClain, supra, 99 N.J. at 361-62, 492 A.2d 991.

In In Re Liquidation of Integrity, supra, 165 N.J. at 84-5, 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.

Given the legal standard for advisory, consultative or deliberative material discussed above, the custodian should disclose the Hartmann report with redactions, if any, consistent with this legal standard, as well as a redaction index detailing each redaction made with an explanation why such redacted information is exempt from disclosure as advisory, consultative or deliberative material pursuant to N.J.S.A. 47:1A-1.1.

[1]No legal representative on record.

[2] The custodian is represented by William J. Caldwell of Carter, Vann Rensselaer & Caldwell (Clinton, NJ).

Interim Order

At the August 10, 2006 public meeting, the Government Records Council ("Council") considered the August 3, 2006 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, finds that:

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

Findings and Recommendations of the Executive Director

Complainant's Open Public Records Act ("OPRA") request. Complainant seeks a copy of the May 10, 2005 report of Wayne Hartmann (Hartmann Report).

Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachments:

The Complainant asserts that he was denied access to the Hartmann Report referenced in the May 10, 2005 public meeting of Franklin Township. The Hartmann Report was recognized by the Mayor as a submission of no cost to the citizens of Franklin Township that was created voluntarily by Mr. Wayne Hartmann (a citizen of Franklin Township). The Mayor stated that the Hartmann Report is an analysis of the school's financial information. In the public meeting, the Mayor also stated that a copy of the report was given to all members of the Township Committee. The Mayor further asserted that the Hartmann Report had not yet been reviewed by the Committee and therefore, would not be distributed to the public at the meeting. However, throughout the meeting, the Mayor made reference to the report and asked questions about the report.

The Complainant alleges that at a May 12, 2005 meeting, the Franklin Township Committee adopted a resolution to cut $105,000 from the budget as a result of the information contained in the Hartmann Report. As a result of public action being taken by the governing body, the Complainant made an OPRA request for a copy of the Hartmann Report.

The Complainant further alleges that after he made the request, he received a response stating that he was being denied access to the Hartmann Report because this document was requested by the Township from Mr. Hartmann in anticipation of litigation, it is not a public record as defined by statute. After receiving the Custodian's response, the Complainant filed a second OPRA request for all tort claims notices or claims in reference to Mr. Hartmann's report. The Complainant asserts that the Custodian's response to this OPRA request was that no real, specific, identifiable threat of litigation exists to the Township.

The Complainant further asserts that parts of the Hartmann Report were read to the public at the May 10, 2005 public meeting. The Complainant alleges that Mr. Hartmann is not an attorney or officer of the Township, nor is he a member or appointee of any board or commission in Franklin Township and he voluntarily created the report as a resident of the Franklin Township.

The Complainant alleges that the Hartmann Report is not a privileged work product. It was not prepared in defense of a specific and real threat of litigation. The Complainant further alleges that release of the Hartmann Report would not disclose or reveal any legal analysis, strategy, judgments, or opinions relative to any actual or pending matters of real litigation against the Township.

GRC staff received a letter from the Complainant withdrawing from the mediation process.

Statement of Information submitted by the Records Custodian. The Custodian alleges that the document being requested is not a government record. The record requested is a document prepared at the request of the municipal attorney for litigation.

GRC staff sent a letter to the Custodian's Counsel requesting further clarification of the information contained in the Statement of Information. GRC staff requested that Counsel provide a legal explanation for the denial of access to the requested Hartmann Report pursuant to N.J.S.A. 47:1A-6.

GRC staff received a response from the Custodian's Counsel regarding the legal explanation requested. Counsel alleges that he is not an employee of the municipality and therefore he serves at the pleasure of the Township Committee to provide legal service. He further asserts that with regard to the requested record, according to New Jersey Court Rules, "adversary parties are entitled to discovery of matters that are "not privileged"." Rule 4:10-2.

Counsel further alleges that the document at issue in the complaint is privileged. Counsel asserts that this document is privileged because it was prepared in anticipation of litigation and therefore falls under attorney work product. He goes on to assert that protection of attorney work product has been construed in the context of OPRA. Counsel asserts that this document was not prepared in the ordinary course of business.

Counsel concludes that according to the Rules of Professional Conduct, specifically R.P.C. 1.6, he must maintain confidentiality of information relating to representation of a client. Counsel further states that he is bound by the provision of New Jersey Court Rule 4:10-2(e), which permits him on behalf of his client to claim a privilege to describe the nature of the document. Paff v. N.J. Department of Labor Board of Review, 379 N.J. Super. 346, 878 A.2d 31 (August 2, 2005)

Letter from the Complainant to GRC staff. The Complainant alleges that the submission of the Custodian's Counsel does not prove that the document is not disclosable pursuant to OPRA. The Complainant asserts that Counsel has failed to provide the lawful basis of non-disclosure. The Complainant further asserts that the Hartmann Report cannot be deemed attorney-client privileged because it was created by a resident of the Township with regard to public financial information about the school's budget in the Township.

The Complainant further asserts that Counsel would have had to prove that the Hartmann Report was done in anticipation of litigation. The Complainant states that he requested any documents pertaining to tort claims or claims filed against or with the Township regarding the Hartmann Report and he was told that nothing regarding this matter was in existence. Therefore, the Complainant asserts that the requested Hartmann Report is a public document and should be disclosed.

"... government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions..." N.J.S.A. 47:1A-1.

"...any paper, written or printed book, document, drawing, map, plan...document...that has been made, maintained or kept on file in the course of his or its official business...or that has been received in the course of his or its official business..." (Emphasis added.) N.J.S.A. 47:1A-1.1.

"...[a] government record shall not include the following information which is deemed confidential for the purposes of [OPRA]:

...any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege..." N.J.S.A. 47:1A-1.1.

OPRA places the onus on the Custodian to prove that a denial of access is lawful.

"... [t]he public agency shall have the burden or proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6.

The Custodian has asserted that the requested records are not government records because they are attorney work product that falls under the attorney-client privilege exemption listed in OPRA. Therefore, the Custodian's Counsel has asserted that the Hartmann Report is privileged and not disclosable pursuant to N.J.S.A. 47:1A-1.1. Counsel also asserts that the essential test of applicability of the work product privilege is whether the material sought was prepared in anticipation of litigation rather than the ordinary course of business. Miller v. J.B. Hunt Transport, 339 N.J. Super, 144, 148 (App. Div. 2001).

In general, the attorney-client privilege renders confidential communications between a lawyer and a client made in the course of that professional relationship (N.J.S.A. 2A:84A-20; Fellerman, 99 N.J. 499 (1985), Wolosoff, 196 N.J. Super. 553 (App. Div. 1984), 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). In New Jersey, the privilege has been extended to any person who is or may be the agent of either the attorney or the client.[2] This includes any "necessary intermediaries...through whom the communications are made."[3]

The Complainant asserts that a resident of Franklin Township voluntarily created the Hartmann Report. This document was not created by an attorney or an employee of the Township, nor was the creator under any employ of the Township. The Complanant also asserts that the Hartmann Report was created by a voluntary third party, which negates it of being an attorney-client privileged document. Furthermore, the Complainant states that Counsel's allegation that the test of applicability for work product privilege is whether the document was prepared in anticipation of litigation is inaccurate.

The Custodian's response to the original OPRA request was that the Hartmann Report was created in anticipation of litigation. Therefore, the Complainant submitted a second OPRA request seeking to obtain any tort claims and/or public legal notices filed with/against Franklin Township where Wayne Hartmann's May 10, 2005 report may be included. The Custodian's response to that OPRA request was that the Township has not received any tort claims nor claims with reference to the Hartmann Report. However, the Custodian certified that the Hartmann Report was created in anticipation of litigation.

The Complainant alleges that the document should have been released to the public when action was taken by the Committee in their public meeting regarding the report. Pursuant to the minutes of the meeting, the Committee did vote on issues concerning the finances of the schools in the Township that correlates to the information contained in the Hartmann Report. However, the Township continues to state that the report is attorney-client privileged. The Township has not produced any legal documents to GRC staff or the Complainant which would substantiate the assertion that the requested Hartmann Report was prepared by an attorney in anticipation of litigation. In fact, the Township has stated that they do not have any documents in existence regarding tort claims or claims involving the Hartmann Report. Therefore, the Township has unlawfully denied access to the Hartmann Report.

The Custodian has not borne her burden of proving that the Hartmann Report is lawfully exempt from disclosure pursuant to N.J.S.A. 47:1A-6. Furthermore, Counsel's claim that the Hartmann Report is attorney-client privilege as defined in OPRA is unsubstantiated because the report was not prepared by an attorney for the Township. Therefore, the Custodian should release the requested Hartmann Report to the Complainant. In the event that redactions are made, the legal basis for any such redactions must be explained pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-6 . The Custodian shall so comply within ten (10) business days from receipt of the Council's Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director

[1] Mediation was sent on this date at the request of the Complainant because he was going on vacation.

[2] State v. Tapia, 113 N.J.Super. 322, 330 (1971) (citing State v. Kociolek, 23 N.J. 400 (1957); State v. Loponio, 85 N.J.L. 357 (e. & A. 1913)).

[3] Kociolek, supra, 23 N.J. at 413.

2005-133

Final Decision

Decision Distribution Date: August 2, 2007

Supplemental Findings and Recommendations of the Executive Director

Records Relevant to Complaint: The May 10, 2005 report of Wayne Hartmann

Request Made: May 13, 2005

Response Made: July 19, 2005

Custodian: Ursula Stryker

Background

Analysis

Conclusions and Recommendations

INTERIM ORDER II

Supplemental Findings and Recommendations of the Executive Director

Background

Analysis

Interim Order1

Supplemental Findings and Recommendations of the Executive Director

Interim Order

Findings and Recommendations of the Executive Director