2005-57

Final Decision

At its September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 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 the requested record is not disclosable, because it is attorney-client privilege and is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

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 8^th 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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Findings and Recommendations of the Executive Director

Records Requested: (As stated by the Complainant)
“Report of an investigation of Councilwoman Raline Smith-Reid.”
Request Made:  March 1, 2005
Response Made: March 9, 2005
Custodian:  Matthew Stechauner
GRC Complaint filed: March 23, 2005

Background

March 1, 2005
Written Open Public Records Act (OPRA) Request - Complainant seeks the report of an investigation of Councilwoman Raline Smith-Reid.

March 23, 2005
Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant stated that he was denied access to the requested record based upon legal advice from the town’s private counsel to the business administrator. The response to the request cited that the record was exempt from disclosure under the OPRA.  Specifically, it was cited that the requested record was exempt from disclosure because it was attorney-client privilege and it was protected under the “criminal investigatory records” under OPRA.

March 29, 2005
GRC staff sent an offer of mediation to both parties.

April 4, 2005
E-mail from the town’s legal counsel to GRC staff stating that he did not feel that mediation would settle their case due to the fact that the requested record was attorney-client privilege.

May 2, 2005
GRC staff sent a fax to the Custodian’s legal counsel requesting a Statement of Information.

May 6, 2005
Statement of Information submitted by the Custodian and Counsel stating that the requested record is exempt from disclosure because the document is attorney-client privilege and a criminal investigatory record. The document was created as a result of the town hiring special counsel to render advice on how the town should proceed, and to act as a special prosecutor if charges needed to be filed.

Upon the recommendation of legal counsel, there were no charges filed in the investigation and the town made a public statement that they would not pursue any further action.

The Custodian’s and Counsel further state that the requested record gave counsel’s opinions and recommendations regarding a matter for which the town sought legal advice, therefore, it falls under attorney-client privilege as defined in the OPRA. Due to the nature of the requested record and its exemption status under OPRA, they did not release the record.

The Custodian and Counsel stated that the public statement made by the mayor was released regarding this request, however the actual report was not released. 

Analysis

WHETHER the Custodian unlawfully denied access to the requested records?

OPRA provides that:

“all 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

OPRA also states:

“A government record shall not include the following information which is deemed to be confidential…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 further states:

“… [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 released the town’s public statement regarding the investigation. The Counsel has provided a specific citation that the requested document is attorney-client privilege and exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. Custodian and Counsel has stated that:

1. The requested record is from independent counsel hired to investigate and report on a specific matter.
2. The information contained in the report was regarding an allegation of civil misconduct against a Councilwoman.
3. The report was created for the purpose of rendering advice as to how the Council should proceed and for this counsel to act as special prosecutor in this matter.
4. The report was given to the town’s governing body setting forth the independent counsel’s conclusions, recommendations, and advice regarding the appropriate course of action for the town to follow.

Therefore, after review of the certification, GRC staff concludes that the Custodian and Counsel has borne their burden of proving that the contents of this document are not disclosable in its entirety or in part because the contents of the document are attorney-client privilege and exempt under OPRA.

The Custodian and their Counsel have provided a certification that included the reason for the creation of the document and the lawful explanation of why the document has not been disclosed. Therefore, the Council should find that requested record is not disclosable, because it is attorney-client privilege and is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find thatthe requested record is not disclosable, because it is attorney-client privilege and is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

Prepared By:  Kimberly Gardner, Case Manager

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

September 2, 2005

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