Ciesla v. New Jersey Dep’t of Health & Senior Services, 429 N.J. Super. 127 (App. Div. 2012). This was an appeal of a decision of the Government Records Council (“GRC”), the state agency charged with resolving requests under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), for documents from state administrative agencies. Plaintiff requested a draft report prepared by the New Jersey Department of Health concerning a hospital’s application for a certificate of need. The GRC denied that request. Plaintiff appealed, but the Appellate Division affirmed in an opinion by Judge Sabatino.
Judge Sabatino observed that although OPRA defines “rather broadly” what is “government record” producible under OPRA, the statute expressly provides that the term “shall not include inter-agency or intra-agency advisory, consultative or deliberative material.” After discussing a number of prior cases, Judge Sabatino concluded that the draft report at issue fell within the “deliberative material” exception to disclosure. The draft was “pre-decisional,” and it contained “advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Those purely tentative findings and recommendations “may be reconsidered, qualified, supplemented, withdrawn, and even, in some instances, radically changed to reflect entirely opposite conclusions.” As a result, it made “eminent sense” to shield such a draft under the deliberative privilege. Judge Sabatino cited cases from New Jersey and elsewhere in support of that result and also analogized to the rules about draft expert reports.
Plaintiff asserted that the deliberative privilege is subject to countervailing interests that outweighed the Department’s need for confidentiality. Judge Sabatino rejected that argument. The statute does not contain any language to suggest such a balancing test. Judge Sabatino acknowledged that “some prior opinions have stated or presumed that the privilege covering deliberative materials under OPRA is subject to an offsetting balancing test under that statute,” but that in none of those cases did the State argue, as here, that OPRA in fact creates an absolute exemption for deliberative materials. To the extent that prior cases stated or presumed that the exemption was qualified, this panel “part[ed] company” with those cases.
Finally, the Appellate Division addressed the question of whether plaintiff had a common law right of access to the draft report, an issue that (unlike the deliberative material protection under OPRA) implicates a balancing test. The GRC did not address this issue, ruling that its jurisdiction was limited to OPRA issues. Judge Sabatino agreed with the GRC’s posture. OPRA expressly and repeatedly limits the GRC’s role to “government documents,” a term defined by OPRA, whereas the common law right of access affords “broader access to ‘public records,'” which can encompass records not covered by OPRA. The panel gave “substantial deference” to the GRC’s interpretation of the limits of the authority granted it under its own enabling statute, OPRA. The panel then exercised its original jurisdiction and decided that plaintiff had not overcome “the presumption of privilege customarily attached to deliberative materials.”
Given the panel’s ruling that OPRA’s protection of deliberative materials is absolute, a decision that apparently differs from the understanding of at least some prior cases, this case may find its way to the Supreme Court. Stay tuned.