Final Decision

At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 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:

1. Based on the legal standard set forth by the Courts and the certified statements of the Custodian, the Custodian properly denied access to the requested e-mail as it is advisory, consultative and deliberative in content and therefore, not a government record pursuant to N.J.S.A. 47:1A-1.1.
2. The Custodian’s failure to provide to the Complainant a lawful basis for a denial of access to the e-mail within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i.
3. The Custodian’s failure to provide a written response indicating a lawful denial to the e-mail at issue is a violation of N.J.S.A. 47:1A-5.g.  

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.  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, PO Box 819, Trenton, NJ 08625-0819. 

Final Decision Rendered by the

Government Records Council

On The 21^st Day of September, 2006

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Vice Chairman & Secretary
Government Records Council 

Decision Distribution Date:  October 3, 2006

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Findings and Recommendations of the Executive Director

Complainant

            v.

Department of Community Affairs, Bureau of Homeowner Protection

Custodian of Records

Records Relevant to Complaint:

Records of all communications, included but not limited to letters, memos, reports, faxes, e-mails, records of phone conversations, and of all meetings conferences, and all other contacts and interactions between employees, staff, supervisors, attorneys and any and all other agents of the Director William Connelly, Department of Community Affairs (“DCA”), Division of Codes and Standards, and any and all other agents, actual or apparent, of 931 Park Avenue Condominium Association (“Condominium Association”), located at 931 Park Avenue, Hoboken, NJ 07030, starting August 17, 2005 to present and excluding the records already provided to the Complainant in response to his August 16, 2005 request.

Request Made: January 29, 2006

Response Made: February 9, 2006

Custodian: Peter Desch, Chief, Bureau of Homeowner Protection 

GRC Complaint Filed: February 23, 2006

Background

January 29, 2006

            Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is requesting copies of all communications between the DCA, Division of Codes and Standards and the Condominium Association from August 17, 2006 to the time of the request.

February 9, 2006

            Custodian’s response to the OPRA request. The Custodian advises the Complainant in writing, eight (8) days after the request, that his payment of $8.00 for the requested records has been received. The Custodian states that the requested records are being released as an attachment to this correspondence.[2]

February 23, 2006

            Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:[3]

• January 29, 2006 Complainant’s OPRA request, and
• February 9, 2006 Custodian’s response to the OPRA request.

The Complainant states that he submitted two OPRA requests on January 29, 2006. The Complainant indicates that on February 9, 2006 he received a response to his requests releasing eleven (11) pages of documents which the Custodian stated were responsive to both of the requests filed on January 29, 2006. The Complainant states that the documents provided to him were responsive to one request but he has not received documents responsive to the request that is subject of this complaint.

March 2, 2006

            Offer of Mediation sent to both parties.

March 2, 2006

            Complainant’s signed Agreement to Mediate.

March 6, 2006

            Custodian’s signed Agreement to Mediate.

March 6, 2006

            Complaint forwarded to mediation.

April 10, 2006

            Complaint referred back from mediation.

April 12, 2006

            Request for Statement of Information sent to the Custodian.

April 12, 2006

            Custodian’s Statement of Information (“SOI”) with the following attachment:

• April 12, 2006 Custodian’s certification.

The Custodian states that the Complainant was provided with a complete copy of the file maintained by the DCA, Bureau of Homeowner Protection with the exception of one (1) e-mail which the Custodian asserts is exempt as advisory, consultative and deliberative material. The Custodian certifies that this document is an e-mail sent to staff in the Association Regulation Unit, in which the Custodian makes recommendations regarding the Complainant’s pending case with them. This e-mail is a follow-up to a telephone conversation between the President of the Condominium Association and the Custodian. The Custodian adds that while the Complainant seeks a record of the phone conversation as well, the Complainant was informed that there is no phone log registering that call.

April 26, 2006

            Custodian’s supplement to the SOI. The Custodian provides the following information:

Analysis

Whether the Custodian unlawfully denied access to the requested documents relating to the 931 Park Avenue Condominium Association?

OPRA provides that:

“…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” (Emphasis added.)  N.J.S.A. 47:1A-1.

Additionally, 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 … or that has been received in the course of his or its official business … The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (Emphasis added.) N.J.S.A. 47:1A-1.1.

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

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

OPRA also provides that:

“[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

Additionally, OPRA states that:

“...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy thereof …” N.J.S.A. 47:1A-5.g

The Complainant indicates that he received eleven (11) pages of documents responsive to one of his requests but he has not received documents responsive to the request that is subject of this complaint. The Custodian states that the Complainant was provided with a complete copy of the file maintained by the DCA, Bureau of Homeowner Protection with the exception of one (1) e-mail, which the Custodian asserts is not a government record pursuant to N.J.S.A. 47:1A-1.1 because it is advisory, consultative and deliberative material. 

OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt.  Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6. However, 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. 

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 Insurance Co., 165 N.J. 75 (2000). 

The judiciary set forth the legal standard for applying the deliberative process privilege as follows:

1. 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.
  

Once it has been determined that a record is deliberative, there is a presumption against disclosure and the party seeking the document has the burden of establishing his or her compelling or substantial need for the record.

• That burden can be met by a showing of the importance of the   information to the requesting party, its availability from other sources and the effect of disclosure on frank and independent discussion of contemplated government policies.
  
  

The Custodian claims that the entirety of the subject e-mail is advisory, consultative and deliberative in nature. The Custodian asserts that the requested e-mail is predecisional, as it was generated before a decision was made by the agency in the Complainant’s complaint against the Condominium Association and deliberative, in that it offers recommendations for further action and contains what were unsubstantiated claims made by President of the Condominium Association. Additionally, the Custodian states that the e-mail contains a preliminary view that suggests an agency decision that had not yet been made for lack of facts or definitive proof. The Custodian also states that the e-mail attributes statements to a third party and is hearsay. Based on the legal standard set forth by the Courts and the certified statements of the Custodian, the Custodian properly denied access to the requested e-mail as it is advisory, consultative and deliberative in content and therefore not a government record pursuant to N.J.S.A. 47:1A-1.1.
 

However, OPRA also mandates that a custodian must either grant or deny access to requested records within seven (7) business days from receipt of said request.  Also indicated in N.J.S.A. 47:1A-5.i., a custodian’s failure to respond within the required seven (7) business days results in a “deemed” denial. OPRA allows the Custodian to deny access to records under those circumstances in which the records requested are exempt from access, under OPRA or any other law. If a Custodian asserts an exemption under the law the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. In Gober v. City of Burlington, GRC Case No. 2003-139 (April 2004), the Council found that “[b]ecause the OPRA presumes that a government record is subject to public access unless an exemption exists, it is appropriate to order that access be granted unless an appropriate exemption is clearly identified by the Custodian.” The onus rests on the Custodian to prove that the denial of access is authorized by law pursuant to N.J.S.A. 47:1A-6.
 

  In this case, the Custodian did not provide any indication to the Complainant that a portion of his request was being denied, nor did he provide a reason for denying access to the requested record. While the Custodian’s assertion that the records not provided are advisory, consultative and deliberative and therefore not government records, the Custodian failed to provide the Complainant with a written lawful basis for denial of access to this document. Therefore, the Custodian’s failure to provide to the Complainant a lawful basis for a denial of access to the e-mail within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i. Additionally, as the Custodian failed to provide a written response indicating a denial to the e-mail at issue, the Custodian violated N.J.S.A. 47:1A-5.g. 

In summary, based on the legal standard set forth by the Courts and the certified statements of the Custodian, the Custodian properly denied access to the requested e-mail as it is advisory, consultative and deliberative in content and therefore not a government record pursuant to N.J.S.A. 47:1A-1.1. However, the Custodian’s failure to provide to the Complainant a lawful basis for a denial of access to the e-mail within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i. Additionally, since the Custodian failed to provide a written response indicating a denial to the e-mail at issue, the Custodian violated N.J.S.A. 47:1A-5.g. 

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that:

1. Based on the legal standard set forth by the Courts and the certified statements of the Custodian, the Custodian properly denied access to the requested e-mail as it is advisory, consultative and deliberative in content and therefore, not a government record pursuant to N.J.S.A. 47:1A-1.1.
2. The Custodian’s failure to provide to the Complainant a lawful basis for a denial of access to the e-mail within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i.
3. The Custodian’s failure to provide a written response indicating a lawful denial to the e-mail at issue is a violation of N.J.S.A. 47:1A-5.g.  

Prepared By: 

Colleen C. McGann

Case Manager

Approved By:

Catherine Starghill, Esq.

Executive Director

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