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COMMITTEE ON OPINIONS JENNIFER BECK and …ogtf.lpcnj.org/2009/2009300iK/Beck v OHare - Trial Court...
Transcript of COMMITTEE ON OPINIONS JENNIFER BECK and …ogtf.lpcnj.org/2009/2009300iK/Beck v OHare - Trial Court...
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
JENNIFER BECK and SEAN T. KEAN, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION Plaintiffs, MERCER COUNTY DOCKET No.MER-L-2411-07 v. CIVIL ACTION BARBARA O’HARE, in her official capacity as Government Records OPINION Custodian for the New Jersey Department of the Treasury, Defendant.
Decided: November 26, 2007 Thomas H. Neff, co-counsel for the plaintiffs (Assembly Republican Office, attorneys; Mr. Neff of counsel and on the brief). Mark D. Sheridan, co-counsel for the plaintiffs (Drinker, Biddle & Reath, attorneys; Mr. Sheridan of counsel). Anne Milgram, Attorney General, for the defendant (Robert J. Gilson, Director, Division of Law, Assistant Attorney General, of counsel; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cynthia Hackett, Deputy Attorney General, on the brief). FEINBERG, A.J.S.C.
Currently, the State of New Jersey is exploring the
advantages and disadvantages of “monetizing” some of its
assets, particularly roads. “Asset monetization” refers to
transactions that realize the value of certain assets
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through leases, concessions, securitization or some other
type of mechanism to generate cash up-front or over a
period of time. The first phase of this exploration was the
engagement by the State of a financial advisor to prepare a
comprehensive study of the State’s assets that potentially
could be “monetized.” Next, the financial advisor prepared
an asset/liability study and substantive analysis of
various State assets.
Thereafter, the State undertook an evaluation of
“monetizing” certain roads. On October 12, 2006, the State
issued a request for qualifications (“RFQ”) to retain the
services of a traffic and revenue consultant. The scope of
work required the consultant to prepare an analysis of
traffic and revenue for the following New Jersey roads: the
New Jersey Turnpike, Garden State Parkway, Atlantic City
Expressway, Interstate 78, Interstate 80, a portion of
Route 440, the portion of Interstate 95 under New Jersey
Turnpike jurisdiction and the Pulaski Skyway.
On October 25, 2006, Steer Davies Gleave, Limited
(“SDG”) and two other firms submitted proposals to the
State in response to the RFQ. SDG was selected through a
competitive waiver process. The contract requires SDG to:
[M]ake traffic projections; review and update economic data including population, employment, gross state
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product, car ownership and gasoline prices; develop a traffic model based on data; collect data required to develop a traffic model that allows the State to establish views on the commercial value and revenue potential of the toll roads; develop annual traffic and toll revenue estimates for each toll road for a period of up to 99 years, based on date; assess and analyzes the traffic and revenue elasticity of toll roads under varying toll rate scenarios and with varying toll collecting technology; and assess the value of the competing routes as viable alternatives to the toll road . . . . [Compl. ¶ 9.]
Under the contract, the State limited the analysis to
four roads: the New Jersey Turnpike, Garden State Parkway,
Atlantic City Expressway, and a portion of Route 440. The
contract set forth four milestones for delivery of services
under the contract and corresponding payments. These
include: (1) a Phase I Report; (2) a Progress Report; (3) a
Final Report; and (4) acceptance of the Final Report. SDG
commenced work in December 2006.
On January 31, 2007, SDG delivered the first contract
deliverable, the Phase I Report (also referred to as a
Scoping Report). According to Nancy B. Feldman, Department
of the Treasury, Director, Office of Public Finance
(“Feldman”), this document contained initial traffic and
revenue forecasts based on limited preliminary data,
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available at this early stage of the process, as well as
unrefined assumptions imposed in lieu of more developed
data. Feldman characterized the forecasts generated for
inclusion in this Phase I, Scoping Report as highly
preliminary.
On March 14, 2007, SDG delivered the second contract
deliverable, a Progress Report. Feldman represents: (1) the
Progress Report was also a preliminary document and
included an updated Scoping Report that built on and
refined the initial forecasts; and (2) the due diligence
process remained on-going at the time the report was
delivered.
On April 2, 2007, SDG provided the State with an
initial draft of the Report for each of the four roadways
being studied. The front page of this document is stamped
“DRAFT” and also states it is a “Draft for Discussion.”1
(Certification of Nancy B. Feldman, ¶13.) Based on
additional representations offered by counsel during oral
argument: (1) the State has requested SDG to expand the
1 Subsequent to the filing of a brief by the State, the court requested copies of the “Draft Final Report.” The front page of each of the four reports, in large print across the front page, is marked “DRAFT.” Furthermore, the words consultative, deliberative and draft for discussion, appear on the left hand side of the front page of each of the four documents. According to counsel for the State, these words appeared on the documents at the time of delivery on April 2, 2007.
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Draft Final Report to include additional analyses, traffic
and revenue scenarios and projections; and (2) “the process
of reaching acceptance of the Final Report will involve
review and editing of the Draft Final Report based upon
continued discussion of its contents and the assumptions
employed therein.” (Def. Br. at 7.)
Furthermore, defendant argues: (1) despite what its
name may imply, the Final Report is, in fact, a draft
document subject to further alterations; (2) since SDG has
delivered the reports, the State expects SDG will make
revisions to comply with the contract; (3) before the State
certifies that SDG has completed stage four, acceptance of
the Final Report, and makes the final installment payment,
SDG will have responded to additional requests for
revisions and supplementations; and (4) the reports are
merely draft versions of what will be the final documents
that the contract requires.
On August 8, 2007, Thomas H. Neff submitted an Open
Public Records Act (“OPRA”) request to the Department of
Treasury on behalf of three Assembly members
(“plaintiffs”). The request included any and all vouchers
of requisitions for payments submitted by SDG for traffic
and revenue consultant services provided under the contract
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and a copy of any reports delivered, including delivery of
the Final Report on April 2, 2007.
The OPRA request specifically requested defendant to:
[P]lease provide a copy of any reports delivered to the Department of Treasury by Steer Davies Gleave pursuant to the terms of a contract. In particular, please be advised that we are particularly interested in reviewing a copy of a report delivered to the Department of Treasury by Steer Davies Gleave, the delivery of which resulted in Department of Treasury making a payment to Steer Davies Gleave for ‘delivery of Final Report’ under section 2.1 of the above mentioned contract. [Compl. Ex. A.]
On August 17, 2007, the State disclosed three SDG
invoices and three State payment vouchers corresponding to
the performance of the first three stages of the contract:
(1) the first invoice, in the amount of $221,960,
representing roughly 25% of the total contract amount of
$887,838; (2) the second invoice in the amount of
$221.959.50, representing 25% of the final amount; and (3)
the third voucher in the amount of $355,135.20,
representing 40% of the final amount. (Def. Ex. E.)
On the same date, the State denied disclosure of the
report on the basis that the document was exempt from
disclosure under OPRA as inter-agency or intra-agency
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advisory, consultative or deliberative material. In the
denial letter, defendant asserted the “document remains in
draft form and, therefore, is subject to the exemption for
advisory, consultative and deliberative material.”
(Certification of Cynthia Hackett, Esq., Ex. D.)
On September 27, 2007, plaintiffs filed a complaint
for declaratory judgment and order to show cause why
judgment should not be entered declaring that: (1)
defendant, Barbara O’Hare, in her official capacity as
Government Records Custodian for the New Jersey Department
of the Treasury, violated plaintiffs’ rights under the New
Jersey Right to Know Law, as amended by OPRA, N.J.S.A.
47:1A-1, et seq. and plaintiffs’ common law right of access
to public records; (2) requiring defendant to provide
plaintiffs with immediate access to the requested records;
(3) awarding plaintiffs reasonable attorneys’ fees and
costs pursuant to N.J.S.A. 47:1A-11; and (4) granting such
other relief as the court deems equitable and just.
On September 28, 2007, this court signed the order to
show cause, requiring defendant to show cause on November
16, 2007 why judgment should not be entered in favor of
plaintiffs. On October 26, 2007, defendant filed
opposition. Subsequently, on November 1, 2007, plaintiffs
filed a reply brief. In addition, on November 1, 2007, a
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Notice of Appearance was filed with the court listing the
firm of Drinker, Biddle & Reath, LLP, as co-counsel for
plaintiffs.
ANALYSIS
The court finds unpersuasive the argument by defendant
that the complaint should be dismissed based on
representational issues. First, defendant cites, and the
court knows of, no rule to bar counsel in this matter.
Second, staff attorneys frequently represent the interests
of legislators. See, e.g., State v. Gregorio, 186 N.J.
Super. 138 (Law Div. 1982); In the Matter of Advisory Comm.
on Prof’l Ethics Opinion 621, 128 N.J. 577 (1992); and
State v. Twp. of Lyndhurst, 278 N.J. Super. 192 (Ch. Div.
1994). Third, as a duly licensed attorney in good
standing, no professional bar prohibits counsel from
representing plaintiffs in this matter. Finally, the firm
of Drinker, Biddle & Reath, LLP, has entered an appearance
as co-counsel.2
OPRA is designed to enhance the transparency and
accountability of government, where key decisions often
must be made away from direct public scrutiny. By enacting
OPRA, the legislature has attempted to strike a balance
2 During oral argument, the State withdrew its objection to dismiss the complaint based on representational grounds.
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between the public’s interest in overseeing the actions of
government officials and the public’s interest in
maintaining the confidentiality of sensitive information.
OPRA provides that “government records shall be
readily accessible for inspection, copying or examination
by the citizens of this State.” N.J.S.A. 47:1A-1.
Moreover, the Legislature has provided access “for the
protection of the public interest,” and any exceptions or
limitations on the public’s rights “shall be construed in
favor of the public’s right of access.” Ibid.
Under OPRA, a “government record” is defined 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 in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. [N.J.S.A. 47:1A-1.1.]
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When a custodian of a record denies a request for a
document, OPRA requires the custodian of records to provide
an explanation. N.J.S.A. 47:1A-5(g). In such cases, the
requesting party may challenge the denial by filing an
action either with the Government Records Council (“GRC”)
or in the Superior Court. N.J.S.A. 47:1A-6. When an action
is filed, the custodian withholding the document bears the
“burden of proving that the denial of access is authorized
by law.” Ibid. If the requesting party prevails, the
court or agency head must order that the custodian grant
the document to the requesting party; moreover, in an OPRA
action, the court awards a prevailing plaintiff reasonable
attorney’s fees. Ibid.
Defendant’s denial letter and Vaughn index assert the
Draft Final Report is a draft document exempt from
disclosure as an intra-agency deliberative record. While
OPRA provides access to a broad range of documents, OPRA
includes numerous exceptions that limit the meaning of
“government record.” N.J.S.A. 47:1A-1.1. Specifically,
OPRA provides that the term “government record” shall not
include “inter-agency or intra-agency advisory,
consultative, or deliberative material.” Ibid. This
exemption “shields from disclosure documents ‘deliberative
in nature, containing opinions, recommendations, or advice
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about agency policies,’ and ‘generated before the adoption
of an agency’s policy or decision.’” Bent v. Stafford
Police Dep’t, 38 N.J. Super. 30, 37 (App. Div.
2005)(quoting Gannett N.J. Partners, LP v. County of
Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005)).
Initially, the court must address two issues: (1)
whether the reports are inter-agency or intra-agency
documents; and (2) whether the reports are advisory,
consultative, or deliberative materials.
Plaintiffs argue the report prepared by SDG, a private
consultant, does not qualify as intra-agency. The court
disagrees. Clearly, reports prepared for a government
agency by a third party consultant are entitled to the same
protection for deliberative materials as if prepared by the
agency. See McClain v. Coll. Hosp., 99 N.J. 346 (1985). In
McClain, the State Board of Medical Examiners had conducted
an investigation into several deaths that occurred in the
OB-GYN unit of the defendant hospital. Plaintiff, the
personal representative of one of the deceased, sought
discovery of “confidential investigative records relating
to” the deaths. Id. at 351. The records contained the
“evaluation and recommendation” of the Board’s own
executive committee and a report of the executive
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committee’s consulting obstetrician-gynecologist. Id. at
352.
The court held the report as a government report: “[a]
consultant acts on behalf of the agency. To that extent
the consultant’s opinion is the opinion of the agency.”
Id. at 363. Similarly, in this case, the State hired SDG
to prepare reports to inform its decision of whether to
pursue monetizing state-owned roads. See also, Asbury Park
Press, Inc. v. State, Dept. of Health, 233 N.J. Super. 375,
383 (App. Div. 1989); Red Bank Register v. Bd. of Educ.,
206 N.J. Super. 1, 7 (App. Div. 1985).
The next issue is whether the document requested falls
within the deliberative process privilege exemption. The
deliberative process privilege applies to documents
generated before a governmental decision is made. As noted
in Gannett, the court in considering the deliberative
process privilege must first determine whether the reports
are pre-decisional, “meaning it was ‘generated before the
adoption of an agency’s policy or decision...’” Gannett,
supra, 379 N.J. Super. at 219 (quoting In re the
Liquidation of Integrity Ins. Co., 165 N.J. 75, 84-85
(2000)).
Based on this record, the court finds the Draft Final
Report, as a draft, is pre-decisional and deliberative. The
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Draft Final Report represents the third stage of a contract
that consists of four parts. During the fourth and final
stage, SDG must respond to present requests and possible
future requests from the State to “perform additional
analyses and projections.” (Def. Br. at 15.) The contract
between the parties clearly states SDG will not fulfill its
obligation to the State until the reports are completed to
the “satisfaction of the State.” (Compl. Ex. B.)
As noted by the defendant, while the contract refers
to each document currently on file with the State as a
Final Report, a stamp clearly marks each report with
“DRAFT.”3 Although that fact does not conclusively establish
the reports as drafts, it does suggest that going forward
the State and SDG will alter the reports according to the
requirements of the contract. Suffice it to say, the
defendant argues draft reports are presumptively not
subject to disclosure under OPRA.
In response to questions during oral argument on
November 16, 2007, counsel for the plaintiffs did not
3 At the request of the court, the defendant has produced the four documents: (1) one report for the Garden State Parkway; (2) one report for the New Jersey Turnpike and Route 440; (3) one report for the Atlantic City Expressway; and (4) one report entitled Background Report. Across each report in large bold letters is the word “DRAFT.” Furthermore, each report has the words, “Confidential and Deliberative, Trade Secrets/Proprietary and Commercial or Financial Information.”
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oppose the court’s reference to the “Final Report” as a
draft document. Rather, counsel argued plaintiffs have an
interest in disclosure that outweighs the State’s interest
in non-disclosure. In their brief and comments during oral
argument, plaintiffs assert the nature of the contract
between SDG and the defendants, namely the collection of
data and information, suggests that these kinds of
materials are not, under OPRA, characterized as
deliberative, consultative or advisory. Accordingly, even
if the reports do contain limited protected material as
deliberative, plaintiffs argue the court should conduct an
in camera review to identify factual information subject to
disclosure.
The court is satisfied the “Final Report” is, in fact,
a draft report and is pre-decisional. As long as the
Governor abstains from making a final determination to
monetize or not to monetize the toll roads, the reports
remain pre-decisional. As the plaintiffs concede,
“[w]ithout question, the Governor, his staff, and a team of
consultants will review mountains of relevant documents
before such a proposal is crafted and presented to the
public.” (Pls. Reply Br. at 5.)
Clearly, the Governor has not decided to make
monetization of toll roads the official policy of the
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State. Rather, the administration is still weighing the
merits of such a policy. During oral argument, in response
to a question from the court, counsel for the State
represented that the Governor anticipates reaching a final
resolution in the next few months.
The parties strongly disagree as to whether a draft
document, which is pre-decisional and deliberative,
requires the court to undertake an in camera review to
release purely factual information. A review of cases in
this State and other State and Federal Courts, support the
conclusion that a draft document, as deliberative, is not
subject to an in camera review for the purpose of
identifying purely factual information subject to release.
An in camera review may, however, be appropriate for
the limited purpose of determining whether the document is,
in fact, a draft document. Archer v. Cirrincione, 722
F.Supp. 1118, 1121 (S.D.N.Y. 1989). In this case, there
are several factors to support the conclusion that the
document requested is a draft: (1) the terms and conditions
of the contract between the State and SDG; (2) the
representations by the State that work is on-going; and (3)
the “DRAFT” markings and advisory, consultative and
deliberative words listed on the cover of each of the
reports.
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This court addressed the release of internal
memoranda, capital sentence minutes, draft regulations and
a myriad of other documents in the case of In re Readoption
of N.J.A.C. 10A:23, 367 N.J. Super. 61 (App. Div. 2004). In
this case, appellants challenged final regulations that
established procedures for imposing the death penalty. Id.
at 66. Before the Appellate Division, appellants sought
nearly one thousand documents, including draft regulations.
Id. at 66, 75. Opposing release, the Department of
Corrections argued three independent grounds protected
background documents for New Jersey’s death penalty
regulations: the common law deliberative process privilege,
the common law right of access and the OPRA exemption for
“inter-agency or intra-agency advisory, consultative, or
deliberative material.” Id. at 73.
While the appeal challenging the final regulations was
pending, the Appellate Division remanded the OPRA portion
of the litigation to the Superior Court, Law Division in
Mercer County. Id. at 74. As the trial judge, this court
reviewed several hundred pages of documents. Final
regulations had already been adopted by the agency at the
time plaintiff sought access to the draft regulations.
Nonetheless, this court and the Appellate Division held
that draft regulations were not subject to release. Ibid.
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In the unreported section of In re Readoption, the
Appellate Division reviewed the OPRA request to the
Department of Corrections for draft regulations and draft
statutory revisions. The court held, “we think it plain
that all these drafts, in their entirety, are reflective of
the deliberative process.” Dina Parave-Fogg v. Lower
Alloways Creek Twp., GRC Complaint No. 2006-51 (August
2006)(quoting the unreported section of In re Readoption,
supra, 367 N.J. Super. at 75).
Finally, the court noted, although Integrity Ins. did
not involve the interpretation of OPRA, we are satisfied
that the deliberative process exemption incorporated in
N.J.S.A. 47:1A-1.1 adopted the principles set forth in that
opinion.” In re Readoption, supra, 367 N.J. Super. at 73-
75.
In Home News v. Bd. of Educ. of Borough of Spotswood,
286 N.J. Super. 380 (App. Div. 1996), plaintiff sought
access to “copies of the proposed school district budget
and supporting documentation.” Id. at 383. In this case,
plaintiff was never denied access to the proposed school
district budget, but was denied access to supporting
documentation and budget projections used by Board members
and officers in the budget planning process. Similar to our
case, the projections and supporting materials were
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utilized by Board of Education personnel to finalize a
final budget. The final budget was released. Ibid.
The court held “we are unaware of any requirement of
law that mandates the preparation or use of a working
document such as a green book in the budget planning
process that boards of education must undertake. While the
end result of the process is mandated, i.e., the
preparation and submission of a proposed budget, individual
boards of education and their members and officers are free
to develop whatever mechanisms they wish to aid in the
process of developing the budget.” Id. at 386.
Additionally, the court held the supporting documents
were not public records under the Right to Know Law.
Furthermore, the court held plaintiff failed to meet the
test for common law access to the records. The court
noted: “no disclosure rule yet articulated requires the
release of drafts and other tentative formulations created
in the process of developing a document that, in its final
form, will unquestionably be a record to which the public
will be entitled to access.” Id. at 388 (emphasis added).
Interestingly, in Home News, each school district is
required to propose and adopt a school budget. Therefore,
at some juncture, the public will have access to this
information. In the case at bar, the report requested is
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preliminary but nevertheless near the end of the completion
process. What remains is stage four. Stage four permits
the Governor to request additional work of SDG and to
change or modify assumptions in the report. The “true”
final report is when the document prepared by SDG is
finally accepted.
In Asbury Park Press, Inc., plaintiff sought access
to a spreadsheet analysis that was compiled by employees of
the State of New Jersey Department of Health. Asbury Park
Press, Inc., supra, 233 N.J. Super. at 378. The spreadsheet
analyzed data from various sources that concerned the
financial status of New Jersey hospitals. It appears that
as part of an investigative review, the Department had
examined the state hospital’s audited financial statements
and retained a consultant who had prepared a computer
spreadsheet as part of his work in analyzing data derived
from the audited financial statements. Ibid.
The trial court affirmed the denial of the request and
agreed with the Department that factual data utilized by
the consultant and the Department staff to prepare the
computerized spread sheet were public records available for
inspection. Id. at 380. However, the court determined that
the internal analysis or work product of the analysis (the
spreadsheet itself) was not a public record. Ibid.
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On appeal, the court affirmed and held: (1) the
spreadsheet was not a public record within the meaning of
the Right to Know Law, N.J.S.A. 47:1A-1 et seq., because it
was not required by law to be made, maintained or kept on
file; (2) the spreadsheet was not a public record within
the meaning of the common law; and (3) even if it was,
plaintiff’s need for the information was outweighed by the
public interest in maintaining the document’s
confidentiality. Id. at 381.
On appeal, in deciding that the spreadsheet was not a
common law document, the court held the Commissioner had no
duty to prepare or keep it as a memorial or evidence of
something written, said or done; it is not a written
memorial made by a public officer “authorized to perform
that function.” Id. at 383. Furthermore, while the court
rejected the notion that the consultant who prepared the
report was a public officer, contra, Red Bank Register,
supra, 206 N.J. Super. at 7, the court reinforced the
notion from McClain that opinions of consultants acting on
behalf of an agency, are the opinions of the agency and
that consultant’s opinions are entitled to a high degree of
confidentiality. Ibid.
Finally, even assuming for purposes of argument that
the computer spreadsheet of this type of preliminary
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analysis of incomplete data was a public record under the
common law definition, the court agreed with the trial
judge and held, “the spreadsheet involved here is merely a
portion of the analytical process of the consultant’s
efforts. It constitutes nothing more than a basis for
preliminary and tentative conclusions and opinions of the
Commissioner drawn from documents which have been made
available to the press.” Id. at 384.
Most importantly, the court held “the Department’s
continuing investigation into the financial status of New
Jersey’s hospitals could be hindered by such disclosure
. . . . Hence, the basic interests of the Department, the
public, the HRSC [Hospital Rate Setting Commission] and
each hospital in the confidentiality of the preliminary
spreadsheet analysis outweighs any inconvenience which
might be caused by the Press having to examine the raw data
which was available to the consultant and the Department
staff . . . . It is free on its own to review and analyze
the underlying data that has been made available.” Id. at
385.
While Asbury Park Press and Home News predate OPRA,
both cases support the notion that preliminary or draft
reports are exempt from disclosure. In both cases, the
courts noted that the premature release of information can
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mislead the public. This rationale is especially relevant
in this case, because the release of inaccurate and/or
incomplete information in the Draft Final Report could lead
participants in the potential transaction to draw erroneous
conclusions about the value of the assets. Importantly,
once inaccurate and/or incomplete information is introduced
into the marketplace, it could be difficult, if not
impossible, to correct or retract such information.
Other States and the Federal Courts have addressed the
release of draft report, regulations and documents.
Furthermore, all of the cases support the position that an
in camera review to identify and release purely factual
information in drafts is not warranted. Rather, an in
camera review to identify factual information applies to
final reports, internal memoranda or minutes that may
contain deliberative material. That is exactly the type of
task this court has performed in many other OPRA cases.
This court finds the redaction methodology utilized for
deliberative process privilege, when addressing internal
memoranda or other agency communications, does not equally
apply to drafts. A limited in camera review may be
warranted, however, to verify the accuracy of
representations advanced by the government, i.e., that a
document is, in fact, a draft.
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In Coalition to Save Horsebarn Hill v. Freedom of
Info. Comm., 73 Conn. App. 89 (Conn. App. Ct. 2002), the
court addressed the obligation of defendant, the University
of Connecticut, to disclose, under Connecticut’s General
Statutes § 1-210(b), drafts of a proposed agreement between
a university and a pharmaceutical company “for the
construction of a joint development project.” Id. at 91.
Plaintiffs sought access to documents relating to
construction of a now cancelled joint project of the
University and Pfizer, Inc. (Pfizer). Ibid. It is
undisputed that the University Board of Trustees authorized
the administration to enter into agreements with Pfizer on
April 3, 1998 and that the parties exchanged various drafts
of the proposed agreements until the project was canceled
sometime in 1999. Id. at 94. The request for documents
was denied. Id. at 92.
On appeal, plaintiffs challenged the finding that the
documents sought were preliminary drafts. Id. at 93.
Furthermore, plaintiffs argued that the public interest in
access to these documents outweighed any interest by the
agency in nondisclosure. Id. at 96. The court concluded
that “any and all public records consisting of preliminary
draft documents are eligible for nondisclosure as
preliminary drafts regardless of their provenance.” Id. at
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97. Having determined that the documents were “preliminary
drafts” the court affirmed the decision to withhold the
documents. Id. at 103. Importantly, in the State of
Connecticut, preliminary drafts are considered documents
properly withheld from public scrutiny. Id. at 101.
The case did not discuss inter-agency or intra-agency
communications or deliberative process privilege. Quite
simply, in Connecticut preliminary drafts are withheld
absent a sufficient showing by an applicant that their
interest in disclosure outweighs the interest of the
government in nondisclosure. Id. at 98. Furthermore, the
court noted that documents properly may be characterized as
preliminary even when they are not “subject to further
alteration.” Id. at 100. Inasmuch as the documents were
drafts, the court did not undertake an in camera review to
identify purely factual information subject to potential
release.
Further evidence to support the proposition that draft
documents are not subject to public scrutiny is found in
United States v. Farley, 11 F.3d 1385 (7th Cir. 1993). In
Farley, the Seventh Circuit was faced with the Government’s
application to protect documents under the deliberative
process privilege. Id. at 1387. The documents consisted of
drafts by members of the Federal Trade Commission for
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future action that may or may not have been implemented.
Ibid. The Court accepted the Government’s characterization
of the drafts and identified those recommendations as
“clearly part of the FTC’s deliberations.” Id. at 1389.
Also, Russell v. Dep’t of the Air Force, 682 F.2d 1045
(D.C. Cir 1982) supports the withholding of preliminary
draft materials. In Russell, plaintiff requested portions
of a draft Air Force historical document regarding the use
of herbicides in Vietnam. Id. at 1046-47. The District
Court granted summary judgment holding those portions were
exempt from disclosure. Id. at 1046. The Air Force had
already disclosed the entire final manuscript and all but
twenty pages of a preliminary draft, which were not
included in the final manuscript. Ibid.
In Russell, the court reviewed a complex system of
editorial reviews. This included reviews by agencies
within the Air Force and other agencies. Id. at 1047. While
the court noted that agency communications containing
purely factual material are generally not protected, the
court concluded that where disclosure of even purely
factual information would reveal an agency’s decision-
making process, the exemption applied. Id. at 1048. While
the court recognized the deliberative process privilege and
the availability of factual information, the court appeared
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to take a more conservative approach when addressing drafts
that ultimately become final documents subject to
disclosure.
Furthermore, the court addressed several public policy
considerations in favor of nondisclosure. These include:
(1) disclosure of the draft manuscript could lead to
confusion of the public; (2) the material sought would
violate the integrity of the decision making process; (3)
release of pages from the draft manuscript that were edited
out of the final version would reveal what material
supplied by subordinates senior officials judged
appropriate for the history and what material they judged
inappropriate; (4) if the segment appeared in the final
version, it is already on the public record and need not be
disclosed; and (5) a preliminary draft falls within the
scope of Exemption (b)(5). Russell, supra, 682 F.2d at
1048-49.
Following the same line of reasoning, in Pies v. U.S.
Internal Rev. Serv., 668 F.2d 1350 (D.C. Cir. 1981), the
court ruled that draft documents for a proposed regulation
should not be disclosed under the Freedom Of Information
Act. The court reasoned draft documents were developed to
provide recommendations and advice pertaining to a proposed
- 27 -
regulation to a discarded section of the Internal Revenue
Code. Id. at 1355.
N.Y.C. Managerial Employee Ass’n v. Dinkins, 807
F.Supp. 955 (S.D.N.Y. 1992) and Archer, supra, 722 F.Supp.
1118, further support the withholding of drafts. In
Dinkins, the court addressed whether defendants were
justified in withholding or redacting the requested
documents on the grounds of deliberative process privilege
and/or attorney-client privilege. Dinkins, supra, 807
F.Supp. at 956. The court held the drafts were protected
by the deliberative process privilege since they embodied
the ideas that went into the final draft. Id. at 957.
While the court addressed the issue of redaction, it
appears five of the twelve items in issue had been withheld
or redacted on the ground of the attorney-client privilege.
Id. at 958. There is no evidence that the court redacted
documents in draft form that were considered protected from
disclosure by the deliberative process privilege.
In Archer, plaintiff sought to compel defendants to
disclose documents related to the administration of Part B
of the Medicare Program. Archer, supra, 722 F.Supp. at
1119. Plaintiff had challenged the propriety of a decision
by Department of Health and Human Services (“HHS”) to cut
benefits in half. Ibid. Plaintiff requested copies of all
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public comments received and all minutes, memoranda, notes
and other documents relating to the consideration by the
agency to modify benefits. Id. at 1120. Defendants
described the withheld documents as “internal drafts of a
regulation that contained suggested changes, marginal
notes, and analyses of public comments, constituting
opinions, conclusions and advice on preparing the Final
Rule.” Id. at 1123.
The court elected to conduct an in camera review of
the documents to determine whether their contents conformed
to the brief description given by defendants. Id. at 1121.
While the court recognized that non-privileged information
was not protected, the case suggests that the release of
purely factual information pertained to memoranda and notes
and not to internal draft regulations or reports. Id. at
1120. Furthermore, in the end, the court determined the
documents were protected and that the documents contained
no severable factual material. Id. at 1121.
Most importantly, in concluding the documents were
pre-decisional and protected from disclosure, the court
held: (1) the release of unfinished drafts either before or
after the agency’s final decision could easily mislead the
public as to the reality of agency policy; (2) the drafts
never had binding force; and (3) any real significance
- 29 -
contained therein was encapsulated in the Final Rule. Id.
at 1123.
In another case, not cited by either party, Scott v.
PPG Indus. Inc., 142 F.R.D. 291 (N.D.W.Va. 1992), the
district court was faced with the question of whether EEOC
draft letters of a determination made in connection with
discrimination claims the Commission was investigating were
discoverable. Id. at 293. While the issue of disclosure
turned on waiver, it was conceded by the party seeking
disclosure, and accepted by the Court for purposes of its
decision, that the draft letters of determination were
deliberative in nature. Id. See also, Boeing Airplane
Co. v. Coggeshall, 280 F.2d 654 (D.C. Cir. 1960)(holding
that investigative and other factual reports in the files
of the Renegotiation Board were subject to disclosure,
whereas policy recommendations were held to be privileged);
and Kaiser Alum. & Chem. Corp. v. United States, 157 F.
Supp. 939 (1958)(holding that prior drafts of a GSA
[General Services Administration] contract with agency
interpretation and justification thereof need not be
disclosed under the privilege).
State and Federal cases all support the conclusion
that draft regulations and draft reports, as pre-decisional
and deliberative, are not subject to release. The cases
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that require an in camera review to determine the presence
of purely factual information, all relate to internal
memoranda and other inter-agency or intra-agency
communications. The court has found no case that requires
an in camera review for purely factual information as it
relates to draft regulations or draft reports.
Finally, the GRC has consistently held that draft
reports and draft minutes are protected from disclosure.
N.J.S.A. 47:1A-7. To support nondisclosure, the GRC has
determined that these documents are: (1) pre-decisional;
and (2) inter-agency/intra-agency, advisory, consultative
or deliberative pursuant to N.J.S.A. 47:1A-1.1. See Robert
Blau v. Union County, GRC Complaint No. 2003-75 (January
2005); Edwards v. City of Jersey City, GRC Complaint No.
2002-71 (February 27, 2004); O’Shea v. West Milford Bd. of
Educ., GRC Complaint No. 2004-93 (April 2006); and Dina
Parave-Fogg v. Lower Alloways Creek Twp., GRC Complaint No.
2006-51 (August 2006). A careful review of each of the
cases discloses that the GRC did not undertake an in camera
review in an effort to identify and release purely factual
information. While an in camera review approach to
ascertain purely factual information subject to release may
apply to internal memoranda or other type of intra-agency
or inter-agency communications, it appears that neither
- 31 -
courts nor the GRC have followed that approach as it
applies to drafts.
To summarize, the draft report is pre-decisional
inasmuch as the final stage of the process has not
occurred. Significantly, the fourth stage of the contract
anticipates on-going discussions between the parties,
additional work, revisions and, ultimately, the completion
of a final report to be accepted by the defendant.
Moreover, the Draft Final Report reflects the on-going
deliberative and consultative process by which government
staff and officials, at all levels of government, engage in
the give and take exchange of information and ideas
designed to formulate policy and finalize decision-making.
The Draft Final Report, prepared by the consultant and
subject to review and modification by staff, agency
representatives and officials is not the kind of document
where the author has an expectation that it will be subject
to public review. Rather, a draft is an internal document
circulated among agency personnel that is intended to
stimulate frank and open discussion about policy,
procedures and rule-making provisions. The Draft Final
Report, unlike a draft proposal prepared for public
distribution and open to public comment, is specifically
- 32 -
intended to remain within the confines of the agency to
foster the free and open exchange of ideas.
A draft document is the epitome of deliberative
material because such a document may be changed any number
of times before the agency finalizes its decision.
Comparison of various iterations of a government document
will reveal the thought process behind the revisions, which
is exactly what the privilege is intended to protect. See
Russell, supra, 682 F.2d at 1048 (portions of draft
manuscript not subject to disclosure because comparison of
draft manuscript and final document would show what
material government found appropriate to include in final
version). See also, Lead Indus. Assoc. v. Occupational
Safety and Health Admin., 610 F.2d 70, 85 (2d Cir. 1979)
(citing United States v. Morgan, 313 U.S. 409, 422 (1941))
(portions of draft preamble to regulation should be
protected because “[i]f the segment did not appear in the
final version, its omission reveals an agency deliberative
process . . . [and] disclosure of the internal workings of
the agency is exactly what the law forbids.”); Montrose
Chem. Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir.
1974)(“[W]e . . . recognize that in some cases selection of
facts or summaries may reflect a deliberative process which
- 33 -
[the deliberative process privilege] was intended to
shelter.”)
C. COMMON LAW REQUEST
What remains, is whether plaintiffs are entitled to
the deliberative process material; in other words, the
opinions, recommendations and consultative materials,
albeit falling within the protected deliberative process
privilege. Defendants argue that, given the draft status of
the report, the common law test does not apply. While that
argument is somewhat persuasive, given the highly
deliberative status of a draft, clearly OPRA preserves a
citizen’s opportunity to seek access pursuant to the common
law. N.J.S.A. 47:1A-8.
Under the common law, plaintiffs must establish: (1)
the requested reports are “public records”; (2) that they
have an interest in the requested reports; and (3) that,
balanced against the government’s interest in
confidentiality, their interest in disclosure of the
reports is greater. Keddie v. Rutgers, 148 N.J. 36, 50
(1997). Under the common law a public record is simply one
that may be kept on file in the course of a public official
exercising his or her public function. Id. at 49.
In this case, plaintiffs argue, and defendant does not
dispute, that the requested reports are public records.
- 34 -
The second issue is whether plaintiffs have an interest in
the subject matter of the material they seek.
Under the common law, as a threshold condition for access to public records, a citizen must establish an interest in the subject matter of the material that he or she is seeking. The interest does not have to be purely personal, but rather may be one citizen or taxpayer out of many, concerned with a public problem or issue. For example, a newspaper's interest in keeping a watchful eye on the workings of public agencies is sufficient to accord standing under the common law. [S. N.J. Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 71 (1995) (internal citations and quotations omitted).]
Once the government establishes the existence of the
privilege, a party seeking to pierce the privilege may
overcome the presumption against disclosure only if the
“need for fact-finding override[s] the government’s
significant interest in non-disclosure.” Integrity Ins.,
supra, 165 N.J. at 85. The standard for overcoming the
burden against the party seeking the documents is
“substantial and compelling.” Ibid. It is against the
public interest “in all but exceptional cases” to allow
disclosure if the privilege exists.” Ibid. (quoting E.W.
Bliss Co. v. United States, 203 F. Supp. 175, 176 (N.D.Ohio
1961).
- 35 -
Applying the second factor, plaintiffs argue, as
members of the New Jersey General Assembly Transportation
and Public Works Committee, they have the responsibility to
take “informed and educated” positions when called upon to
comment or craft policy proposals regarding the State’s
transportation infrastructure. (Pls.’ Br. at 15.)
Plaintiffs cite a number of bills for which the current
reports might serve an informative purpose.4 Also,
plaintiffs argue, as representatives of the public, they
have an obligation to: (1) oversee the expenditure of funds
on behalf of taxpayers; (2) effectively debate the merits
of the monetization policy currently being discussed by the
executive branch; and (3) enrich public discussion of the
monetization plan and even craft legislation to restrict
the Governor’s power to monetize toll roads.
In response, defendant argues the concerns expressed
are unfounded because: (1) the parties have yet to fully
4 Assembly Bill No. 685 repealing the Turnpike Authority’s power to build a certain roadway in Middlesex County; Assembly Bill No. 688 reducing tolls for trucks on the New Jersey Turnpike; Assembly Bill No. 862 directing the New Jersey Highway Authority to remove toll booths at Irvington exit and entry ramps; Assembly Bill No. 1058 requiring the Turnpike Authority to collect tolls only in southbound direction at certain toll plazas; Assembly Bill No. 1994 increasing motor fuels tax by three cents per gallon and earmarking increase for abolishment of Garden State Parkway tolls; and Assembly Bill No. 2933 suspending certain tolls during evacuation of coastal areas.
- 36 -
perform the contract; stage four, which requires further
drafting from SDG and an additional payment from the State
is outstanding; (2) there is at this time no monetization
proposal; (3) the executive has yet to issue a final
decision regarding the monetization of state-owned roads;
(4) when and if the executive chooses to do so there will
be adequate public airing of the proposal; (5) the Governor
has stated should a monetization proposal be put forth
there will be substantial public discussion concerning it,
including the Governor’s holding of town meetings in all
counties; and (6) since legislation will be needed to
effectuate any monetization transaction, members of the
legislative branch will have ample opportunity to
participate in the discussion.
Clearly, as noted by the court during oral argument,
members of the legislative branch have both an individual
and representational interest in the disclosure of
information. Against this backdrop, the court must still
determine whether that interest outweighs the government’s
interest in keeping the reports confidential. In Loigman
v. Kimmelman, 102 N.J. 98 (1996), the Court provided the
general rule:
[T]he focus must always be on the character of the materials sought to be disclosed. Armed with a qualitative
- 37 -
description by the agency, the trial court will be in a position preliminarily to balance the need for confidentiality exhibited by the description of the materials with the citizen's interest in the information and the potential adverse consequences of disclosure. In this determination, the trial court will want to consider whether the demand for inspection is premised upon a purpose which tends to advance or further a wholesome public interest or a legitimate private interest. [Loigman, 102 N.J. at 112 (internal quotations and citations omitted).]
Six factors apply when performing what has been called
“an exquisite weighing process by the trial judge.” Beck v.
Bluestein, 194 N.J. Super. 247, 263 (App.Div. 1984). They
are:
(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary
- 38 -
or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. [Loigman, supra, 102 N.J. at 113.]
Together, they essentially restate the deliberative
process privilege, which, if first established by the state
agency, places a heavy burden upon its adversary to
overcome.
As with any privilege, the party seeking such documents bears the burden of showing a substantial or compelling need for them. Deuterium Corp., supra, 4 Cl. Ct. 361, 364 (1984)(requiring compelling need); Scott, supra, 142 F.R.D. at 293 (same); Burka, supra, 110 F.R.D. at 663 (requiring substantial need). "[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions." E.W. Bliss Co., supra, 203 F. Supp. 175, 176 (N.D.Ohio 1961). Integrity Ins., supra, 165 N.J. at 85.
In this case, the court finds the interest of the
defendant in nondisclosure outweighs the interest of the
plaintiffs in disclosure. First, the release of incomplete
information in the Draft Final Report could diminish
competition among potential participants in the
monetization program; (2) at this time, the Governor has
not decided whether to propose proceeding with a
monetization program or, if such a program is deemed
- 39 -
desirable, how to structure the program; (3) the forecasts
generated for inclusion remain preliminary; (4) it is
anticipated SDG will revise the Draft Final Report once the
additional work is finished to reflect additional
information and any other feedback from the State and
submit another draft; (5) the process of reaching
acceptance of the Final Report will involve review and
editing of the Draft Final Report based upon continued
discussion of its contents and the assumptions employed;
and (6) disclosure of the withheld materials could lead to
confusion of the public. As noted in Russell, nevertheless,
we recognize the tendency of the public to assume that a
memorandum generated within an agency of the government
reflects the position of the agency, regardless of whether
the memorandum is designated as an “official document.”
Russell, supra, 682 F.2d at 1049.
As noted heretofore, the contract provides that SDG
shall be paid 10% of the total contract price upon
acceptance of the final report. The Draft Final Report was
filed with the State on April 2, 2007. More than seven
months have passed since that date. During oral argument,
the State estimated acceptance of the final report could
occur as early as January 2008. While the court understands
this date is merely an estimate, it appears that a period