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O'Shea v. West Milford Board of Education

April 5, 2007

MARTIN O'SHEA, COMPLAINANT-APPELLANT,
v.
WEST MILFORD BOARD OF EDUCATION, CUSTODIAN OF RECORDS-RESPONDENT.



On appeal from a Revised Final Decision of the Government Records Council, Docket No. 2004-93.

The opinion of the court was delivered by: S.L. Reisner, J.A.D

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 5, 2007

Before Judges Lintner,*fn1 S.L. Reisner and Seltzer.

Complainant, Martin O'Shea, appeals from a revised final decision of the Government Records Council (GRC) dated October 28, 2005, denying O'Shea's request for a copy of handwritten notes taken by the Secretary of the West Milford Board of Education (Board) during an executive session of the Board. We affirm.

I.

The dispute in this case concerns a Board meeting conducted on June 22, 2004. O'Shea requested four types of records relating to the meeting: collective bargaining agreements approved by the Board during the meeting; the resolution passed by the Board prior to going into closed session during the meeting; a copy of a letter referenced during the meeting; and the minutes of the executive session held during the meeting. In connection with this latter request, O'Shea asked that "[i]f the minutes of the executive session are not [on] audio tape, I am requesting a copy of the original handwritten notes." The Board Secretary advised O'Shea that there were no audiotapes and provided him with the unapproved but typed formal minutes of the executive session, as prepared by the Secretary and submitted to the Board. The Secretary declined to provide the handwritten notes "because they are not government records."

In response to O'Shea's complaint under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, on October 14, 2004, the GRC directed the Board to provide O'Shea a copy of the handwritten notes, "subject to appropriate redactions in accordance with OPRA." The Board appealed, and we granted the GRC's motion to remand the matter so that the agency could review the notes in camera to determine whether they fell within the statutory exemptions or privileges claimed by the Board under OPRA.

After conducting an in camera review of the handwritten notes, the GRC concluded that they were not a public record:

The in camera inspection disclosed a page of cryptically written notes, punctuated by the frequent use of initials and abbreviations, apparently intended to serve as a memory aid for the Board Secretary. Without further explication from the Board Secretary, the notes cannot be relied on as a factual account of board proceedings. For that reason, the Council has determined that the statutory exemption for advisory, consultative and deliberative material applies. Alternatively, the notes constitute a work-in-progress, as opposed to a completed draft, and therefore cannot fairly be characterized as a "government record" under OPRA. The requestor - who has both the approved and unapproved draft minutes - has no discernable interest in obtaining the handwritten notes such that it would be appropriate to override the statutory exemption; consequently, the notes need not be released.

The Board withdrew its appeal of the GRC's original decision, and O'Shea filed an appeal of the GRC's order on reconsideration.

II.

Having canvassed the record, including the handwritten notes which we reviewed in camera, we conclude that the GRC reached the correct result. The Open Public Records Act defines a "[g]overnment record" as a document "made, maintained or kept on file in the course of his or its official business by any [governmental] officer, commission, [or] agency." N.J.S.A. 47:1A-1.1 (emphasis added). Government records do not include "inter-agency or intra-agency advisory, consultative, or deliberative material." Ibid. The term also shall not include the following information which is deemed to be confidential . . . information generated by or on behalf of public employers or public employees in connection with . ...


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