On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1297-07.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 13, 2008
Before Judges Cuff, Fisher and Baxter.
In these appeals,*fn1 we review an order requiring an in camera inspection of electronic mail communications (e-mail) between Governor Jon Corzine and Carla Katz and another order requiring disclosure of all e-mails other than communications concerning issues of general State policy and purely personal communications. We hold that the Governor properly asserted executive privilege and plaintiff did not articulate or identify a sufficient reason to overcome the privilege. Moreover, the interest articulated by plaintiff was insufficient to warrant even an in camera inspection of the documents. Accordingly, the August 21, 2007 order requiring an in camera inspection of the documents and the June 27, 2008 order requiring disclosure of these communications are reversed.
On March 27, 2007, plaintiff Thomas Wilson, the Chairman of the New Jersey Republican State Committee, citing the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, requested copies of "any and all documents, correspondence, and/or email communications between the Governor and/or any member of the Governor's staff and . . . Katz . . . discussing or addressing official State business which were sent to the official State email addresses of the Governor and/or his staff [and] . . . to a personal email address of the Governor or any member of his staff." Wilson submitted this request soon after the Governor announced the resolution of negotiations on a new collective negotiations agreement governing State employee members of the Communications Workers of America (CWA).
Before the collective negotiations process began, the Governor stated his commitment to achieve State employee pension and health benefit reforms through the collective negotiations process. From September 20, 2006 to February 21, 2007, the Corzine administration engaged in collective negotiations with representatives of the CWA. Seven CWA Locals represent the State non-uniformed employees. Local 1034, the largest of the CWA Locals, represents approximately 8000 State employees. Katz is the president of this Local. The Governor and Katz had a close personal relationship that ceased before his inauguration. They remained friends, however, and communicated with each other by e-mail and telephone.
At the commencement of the collective negotiations process, the bargaining committee unanimously adopted a resolution barring "ex parte discussions between individual members of the committee and the administration re: bargaining issues." The lead negotiators for the CWA were Christopher Shelton, Area Vice President; Robert Masters, Regional Political Director; and Steven Weissman, counsel. Although not a member of the bargaining team, Katz and other Local presidents played a supporting role during the process. She personally advocated several positions, including resisting a change in the retirement age, opposing increased worker contributions to the pension system and employee contribution for health benefits, and championing worker friendly programs such as flex-time.
On February 21, 2007, the Corzine administration and the CWA reached a tentative agreement that provided for general wage increases but also some benefit concessions. For example, employees would contribute to the cost of health insurance and contribute an increased amount to their pension. In addition, the retirement age for new employees would increase from fifty-five to sixty years of age.
Approximately four weeks later, Wilson submitted his OPRA request. On April 5, 2007, William Brown, Senior Associate Counsel to the Governor and the designated Custodian of Records for the Office of the Governor, responded that searches undertaken at his direction revealed no documents or correspondence responsive to Wilson's request. He noted, however, that he had discovered e-mail communications responsive to the request but denied Wilson's request to inspect and copy these documents. He asserted "the long-recognized judicial protection afforded non-public communications between senior public officials and those with whom they communicate[,]" and paragraph 2(c) of Governor McGreevey's Executive Order No. 26, 34 N.J.R. 3043(b) (Sept. 3, 2002). Executive Order No. 26 shields from disclosure, pursuant to OPRA, those records of the Office of the Governor that contain "information provided by an identifiable natural person outside the Office of the Governor which contains information that the sender is not required by law to transmit and which would constitute a clearly unwarranted invasion of personal privacy if disclosed." Wilson's request for reconsideration was denied on May 10, 2007.
Meanwhile, at the request of the Governor and a private citizen, the Governor's Advisory Ethics Panel (Advisory Panel)*fn2 conducted a review of whether the Governor's and Katz's personal contacts during and concerning the collective negotiations created an impermissible conflict of interest under the Governor's Code of Conduct. The Advisory Panel, composed of retired Associate Justice Daniel J. O'Hern and former Attorney General John Farmer, is an advisory, not an investigative, body. The Advisory Panel members interviewed the Governor, Katz, and others, and reviewed the e-mails and other documents relating to the CWA labor negotiations. The Advisory Panel concluded that the close ties between the Governor and Katz did not create an illegal conflict of interest, no appearance of impropriety arose from the Governor's ties with Katz, but the "personal conversations and contacts concerning negotiations were inadvisable."
Three weeks later, Wilson filed a verified complaint and order to show cause against the Governor in which he alleged that the denial of his request to view the communications between the Governor and Katz violated his statutory and common law right to view public documents. Wilson sought access to these communications, attorneys' fees and costs. Katz, individually and as President of Local 1034, filed a motion to intervene, which the trial court granted.*fn3 In response to the motion to dismiss filed by Brown and Katz, the judge noted that plaintiff was "looking for communications that deal with the government process" rather than personal communications between the Governor and Katz. He found that the requested communications are government records as defined by OPRA. The judge also held that, in the context of a motion to dismiss, an assertion of privilege cannot be determined without an in camera inspection of the documents. By order dated August 21, 2007, the judge directed Brown to prepare a supplemental affidavit describing his investigation to identify the communications responsive to Wilson's OPRA request, to prepare a privilege log, and to submit all responsive documents for in camera review, except "any documents, emails, or written communications which contain only personal discussions" between the Governor and Katz.
In a written decision dated May 29, 2008, the judge found that the requested documents were government records as defined by OPRA, and the majority of the documents were not exempt from disclosure under OPRA by either Executive Order No. 26 or executive privilege. With regard to the Executive Order, the judge found:
The public has a right to know whether the relationship between the Governor and Ms. Katz had any improper influence or effect on the Governor's paramount obligation to serve the interest of the citizens of New Jersey first. This is the very question which led the Governor and the citizen to request the investigation by the Panel in the first place and the very inquiry undertaken by the Panel. The court finds that the defendant has failed to sustain his burden to establish that the records are exempt from disclosure pursuant to Paragraph 2(c) of Executive Order No. 26.
Addressing executive privilege, the judge held that "[t]here is no question that executive privilege is firmly established in New Jersey." Executive privilege, the judge noted, "has historically been found to attach to communications between the executive and the executive's senior advisors." But that privilege "is limited," and serves to protect only those communications relating to the executive function. The court found that
[t]here can be no debate that the critical position occupied by Ms. Katz in the union hierarchy generally placed her in an adversarial position to the governor and the executive branch, most especially regarding public employee issues. In point of fact, a decision on nearly any issue of state government would have had an impact on at least some of the membership of Ms. Katz's union. The relationship created a clear potential for conflict. The Ethics Advisory Panel recognized the potential for such a conflict in its report, although the Panel did conclude that no actual conflict infected the negotiations or the agreement.
The judge reasoned that the adversarial relationship between Katz's union and the Governor in the collective negotiations process negated any protection afforded by executive privilege to "back channel" communications between the two. The judge stated:
[I]t may well be that Ms. Katz, despite her position in the public employee union, was also an advisor to the Governor. But, any role she may have had as advisor would not serve to protect all her communications with the Governor under the doctrine of executive privilege. Such communications would enjoy only limited protection. . . . [F]or example, it is clear that any back channel communications between the Governor and Ms. Katz on issues directly affecting public employees not otherwise excluded from disclosure by an exception under OPRA would not be protected by executive privilege.
These types of communications would be the sort of communications the Supreme Court felt the public had the right of access "to understand and evaluate the reasonableness of the public body's action." South Jersey Publishing Co. [v. N.J. Expressway], 124 N.J. [478,] at 494-495 [(1991)].
The judge also addressed Wilson's common law right of access to the requested documents. He found that Wilson had established an interest in the subject matter, and that a balance of the factors weighed in favor of disclosure. He explained that disclosure would not impede any agency action by discouraging citizens from providing information to the public. The fact will remain that information provided in a proper and lawful manner during recognized collective negotiations will continue to remain protected. In addition, the information communicated by Ms. Katz, the Governor and his representatives during the period of collective negotiations over subjects which were properly the responsibility of the bargaining units was exchanged without any supportable belief that the information would be protected from disclosure to others. . . . [T]hese persons were on opposite sides of the issues, representing competing interests. There could have been no reasonable expectation by any of these individuals that their communications were protected from disclosure.
In addition, the court rejected Katz's claims that because the documents were prepared "in connection with collective negotiations," as set forth in N.J.S.A. 47:1A-1.1, they were not government records as defined by OPRA. The court found Brown did not claim that Katz had engaged in collective negotiations with the Governor, and that the Governor had denied engaging in such negotiations. Moreover, any communications between the Governor and Katz "would have been outside the authorized bargaining process and would not have been protected by the collective negotiation exception contained in OPRA."
The judge also held that conversations between the Governor and Katz that concerned issues of general statewide policy were protected by executive privilege and not subject to disclosure. However, any communications between the Governor and Katz concerning State employees, their unions or collective negotiations are not protected by executive privilege. Ultimately, the judge protected from disclosure communications that discussed matters of general statewide policy or interest unrelated to the on-going collective negotiations process. He said:
[T]he documents provided to the court are to be released to the plaintiff with the exception of those documents which this court finds are protected by executive privilege. The discussions in these communications relate to topics which do not directly touch upon Ms. Katz's position as president of the union or state employees, but upon issues of general statewide policy. Accepting the assertion that, although an outsider to government, Ms. Katz can still operate as an advisor to the Governor on topics which do not concern state employees, ...