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Education Law Center v. New Jersey Dep't of Education

December 11, 2007

EDUCATION LAW CENTER, ON BEHALF OF ABBOTT V. BURKE PLAINTIFF CHILDREN, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY DEPARTMENT OF EDUCATION, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, No. L-1789-06.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 24, 2007

Before Judges Wefing, Parker and R. B. Coleman.

Defendant, the New Jersey Department of Education ("the Department"), appeals from so much of the trial court's order of April 23, 2007, as directed it to release to plaintiff Education Law Center ("ELC") a certain document entitled "Alternative Funding Formula Simulations" which was prepared in October 2003 as an internal document of the Office of School Funding within the Department. Both parties have referred to this document as the "Simulation Memo," and we adopt that terminology for purposes of this opinion. The Department argues that the Simulation Memo is not subject to disclosure either under the Open Public Records Act, N.J.S.A. 47:1A-1, or the common law. After reviewing the record in light of the contentions advanced on appeal, we reject these arguments and affirm.

Plaintiff ELC represents the plaintiff children in the ongoing litigation involving the adequacy of school funding for the State's poorest school districts, conducted under the caption Abbott v. Burke, 100 N.J. 269 (1985) (Abbott I). The Department has been engaged for some time in the process of formulating recommendations to be submitted to the Legislature as part of proposed revisions to the manner in which funding is distributed among the more than six hundred school districts in the State, of which thirty-one are Abbott districts.*fn1

In May 2006 ELC filed a request with the Department under the Open Public Records Act ("OPRA") seeking the release of the Department's records "related to the . . . estimate, review and/or analyses of the cost of providing a thorough and efficient education undertaken by the Office of School Funding . . . ." In response to that request, the Department initially released more than nine hundred pages of documents, some of which had been partially redacted. Dissatisfied with the Department's response, ELC filed suit, alleging that the Department, by its redactions, had violated both OPRA and ELC's common law right of access to public documents.

ELC's filing of this complaint initiated extensive proceedings before the trial court, which issued a series of comprehensive, detailed letter opinions setting forth its findings and conclusions as to which portions of which documents should be released to ELC and which the Department could, at that juncture, properly withhold.

As we noted at the outset, this appeal focuses only upon one document out of the thousands that have been considered and released. A redacted copy of the Simulation Memo was released to ELC by the Department, and a copy of the Memo in that redacted form is included in the Department's appendix. In addition, the Department has provided a complete copy of the Memo to us in a confidential appendix, just as it provided a complete copy to the trial court for its in camera review. To the extent we refer to the body of this Memo within this opinion, we shall refer exclusively to the redacted version in recognition of the fact that the Department may seek further review of our determination.

The Memo is twelve pages in length and "outlines state aid simulation results for three funding formula structures." The redacted Memo identifies only one of the three structures, which it refers to as the State Share Percentage, defined as one wherein a district "receives a certain percent of the adequacy budget in the form of state aid based on their relative wealth." The following two paragraphs are redacted, as is the entire succeeding section, which contains nine bulleted items, all of which have been redacted and are identified only as "certain points [that] should be kept in mind." In its redacted version the Memo omits any description at all of the other two funding formula structures. If it were not for the introductory reference to three funding formula structures, the reader would be entirely unaware of the existence of any potential funding structure other than the State Share Percentage. The balance of the Memo in its redacted form consists primarily of various charts and tables purportedly addressing the cost and impact of the several structures. All substantive information has been redacted, however, from these charts and tables. The trial court ordered that the Memo be released in its entirety.

I.

We shall first analyze the Department's claims under OPRA and then under the common law. In enacting OPRA, the Legislature declared it to be the public policy of New Jersey that government records "be readily accessible for inspection, copying, or examination" and that "all government records shall be subject to public access unless exempt . . . ." N.J.S.A. 47:1A-1. The Department contends that the Memo does not fit within the parameters of OPRA's definition of a government record.

OPRA excludes from the definition of government records "inter-agency or intra-agency advisory, consultative, or deliberative material." N.J.S.A. 47:1A-1.1. The Department argues that the redacted portions of the Memo constitute "deliberative material" and are exempt from disclosure. It ...


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