On appeal from the Superior Court, Appellate Division, whose opinion is reported at 396 N.J. Super. 634 (2007).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Court must determine the appropriate test for when a government record, which contains both factual data and allegedly deliberative material, may be withheld from public release based on the "deliberative process" exemption in the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), and under a balancing of interests based on common law right-of-access principles.
Plaintiff, Education Law Center (ELC), represents children in ongoing litigation focused on funding for education to the State's poorest school districts. The State enacted a revised funding formula in the School Funding Reform Act of 2008 (SFRA), which is under current challenge by the litigants represented by ELC. Defendant, the State Department of Education (DOE), was instrumental in the development of the new formula. DOE created several versions of a funding formula before providing recommendations to the Legislature. In 2006, ELC filed an OPRA request for the disclosure of records related to the analyses of education costs undertaken by the Office of School Funding, which is part of DOE. DOE provided many documents, albeit some partially redacted. ELC filed a complaint, claiming that the redactions violated OPRA and the common law right of access to government records.
This appeal involves a 2003 memorandum, referred to as the "Simulation Memo," which served as an internal document for the Office of School Funding. After outlining three possible funding options, the Memo details statistical data run through each formula to determine certain costs for each alternative. The redacted version released to ELC omits that statistical information for two of the three alternatives discussed in the Memo.
The trial court ordered DOE to release an un-redacted copy of the Simulation Memo. DOE appealed, arguing that the Memo merited exemption under OPRA as deliberative process material. DOE also argued that the court incorrectly weighed DOE's interest in nondisclosure of the material, resulting in an improper balancing of the interests under the common law. In a published opinion, the Appellate Division affirmed. Educ. Law Ctr. v. N.J. Dep't of Educ., 396 N.J. Super. 634 (2007). The panel held that the Simulation Memo, which contains factual material, is not "deliberative," and therefore does not qualify for OPRA's exemption of deliberative process material. The panel also ordered the document's release under the common law.
The Supreme Court granted DOE's motion for leave to appeal. 194 N.J. 258 (2008).
HELD: A government record, which contains factual components, is subject to the deliberative process privilege when it was used in the decision-making process and its disclosure would reveal the nature of the deliberations that occurred during that process.
1. New Jersey's well-established common law protection of a citizen's right to access is complemented by the Legislature's enactment of OPRA to insure that government records, unless exempted, are readily accessible to ensure an informed citizenry. OPRA excludes certain information from disclosure, including intra-agency advisory or deliberative material. That exemption, like exemption five to OPRA's federal counterpart, the Freedom of Information Act (FOIA), encompasses the common law deliberative process privilege. Thus, our courts have turned to federal case law for guidance in ascertaining the scope of OPRA's deliberative process exemption. (pp. 7-10)
2. The deliberative process privilege allows the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which its decisions and policies are formulated. The privilege is necessary to ensure free and uninhibited communication within governmental agencies so they can reach the best possible decisions. (pp. 10-12)
3. In In re Liquidation of Integrity Ins. Co., 165 N.J. 75 (2000), this Court set standards for applying the deliberative process privilege. One requirement is that the document be deliberative, containing opinions about agency policies. The Court stated that purely factual material is not protected because its disclosure would not chill free deliberation. Integrity did not address how to determine whether material is deliberative when it has factual components, but may expose agency deliberations. To answer that question, the Court again turns to federal law. (pp. 12-14)
4. In Envtl. Prot. Agency v. Mink, 410 U.S. 73 (1973), the United States Supreme Court stated that during legislative deliberations on exemption five to FOIA, it was emphasized that frank discussion would be impossible if agencies were prematurely forced to "operate in a fish bowl" on policy matters. The Court found that the documents at issue were a blend of factual presentations and policy recommendations that were "inextricably intertwined with policymaking processes," and that the purpose of the deliberative process privilege could be impaired by requiring disclosure. In another case, the Court explained that the privilege protects the decision-making process, and those who expect their remarks to be made public "may temper candor with concern for appearances" to the detriment of that process. Since those cases, federal courts have disagreed over what exactly is "deliberative," and they have developed different tests, including a "fact/opinion test." The D.C. Circuit rejected a simplistic "fact/opinion test" as inadequate because the privilege protects the deliberative process itself, not merely deliberative material. The court stated that when an agency claims that disclosing factual material will reveal its deliberative processes, a court must examine the information in light of the policies and goals that underlie the deliberative process privilege. (pp. 14-24)
5. This Court finds the D.C. Circuit Court's approach, and reasoning, persuasive. The key to identifying deliberative material must be how closely the material relates to the formulation or exercise of policy-oriented judgment or to the process by which policy is formulated. The deliberative process privilege was intended to protect not simply deliberative material, but also the deliberative process of agencies. Thus, the question of what is protected under the privilege must depend, first, on whether the information sought is part of the process leading to formulation of an agency's decision, and, second, on the material's ability to expose the deliberative aspects of that process. If disclosure of material containing factual components would reveal the nature of the agency's deliberations, the material is entitled to the protection of the privilege. By avoiding "fact" or "opinion" labels, the aim is to keep sight of the key reason for the deliberative process privilege: to protect the process of decision-making itself so that the best possible decisions may emanate from government. (pp. 24-32)
6. Here, the Simulation Memo uses a series of hypothetical assumptions and different potential formulas to make statistical projections of local share contributions for school funding. DOE could have chosen any or none of the alternatives when composing a new funding structure to recommend to the Governor and to the Legislature as the best course of action. The Memo clearly was created and used during the DOE's deliberative process. (pp. 32-33)
7. Although the Simulation Memo used raw facts, the formatted data provided a means of illustrating the results of alternative hypothetical options. The document was plainly integral to the agency's process of deliberation. That none of those options was chosen and a new formula has been disclosed does not obviate the need for confidentiality. If communication that formed part of an agency's pre-decisional process could be disclosed after a decision is released, it would chill, in the future, the robust examination of governmental courses of action. (pp. 33-34)
8. In sum, the Simulation Memo contained factual data manipulated to provide information useful to the DOE, specifically for the purpose of aiding the agency in deciding on a new funding scheme. It plainly was created during, and used as part of, DOE's deliberative process. The Memo also shows that persons were using the formatted data for the purposes of ascertaining something to be decided. It is, therefore, reflective of DOE's deliberations. As such, it is entitled to protection under the deliberative process privilege and is exempt from release under OPRA. (p. 35)
9. Finally, ELC's claim under the common law right of access fails because ELC's generalized interest in the document does not outweigh DOE's interest in non-disclosure. The Simulation Memo was an essential part of DOE's deliberative activities and is reflective of persons' thinking during decision-making deliberations. Disclosure presents the danger of chilling future program improvement and other agency decision-making. (pp. 35-40)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for the entry of an Order consistent with the Court's opinion.
JUSTICES LONG, ALBIN, WALLACE and HOENS join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE RABNER and JUSTICE RIVERA-SOTO did not participate.
The opinion of the court was delivered by: Justice LaVECCHIA
This case began with a demand for the production of documents held by the State Department of Education (DOE). The requesting party was the Education Law Center (ELC), the representative of pupils in the State's poorest school districts who are involved in litigation with DOE over a revised state funding formula for public education. Although thousands of documents were released, an issue remains as to whether a single document containing allegedly deliberative material may be withheld by DOE from public release based on the deliberative process exemption in the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and under a balancing of interests based on common law right-of-access principles.
The document is a memorandum prepared by DOE that outlines state aid simulation results for three school funding formula structures. DOE generated the memorandum during the process that culminated in the enactment of the "School Funding Reform Act of 2008" (SFRA), L. 2007, c. 260. DOE has claimed that OPRA's express exemption for "deliberative materials" authorizes the withholding of the memorandum. DOE also contends that its interest in maintaining confidentiality over this material used during DOE's deliberative policy-making activities outweighs the requestor's common law interest in access.
Rejecting DOE's arguments, both the trial court and the Appellate Division ordered the memorandum's release. See Education Law Center v. N.J. Dep't of Educ., 396 N.J. Super. 634, 639, 644 (App. Div. 2007). The Appellate Division held that the memorandum, which contains factual material, is not "deliberative," id. at 640-42, and therefore does not qualify for OPRA's exemption of deliberative process material, ibid. The panel also ordered the document's release under a common law right-of-access balancing of the interests. Id. at 644. We granted DOE's motion for leave to appeal, 194 N.J. 258 (2008), to consider the appropriate test for examining the application of deliberative process protection, under OPRA and under a right-of-access analysis, for a document that contains a presentation of data. Specifically, we address the privilege as applied in the context of a document containing factual data that has been formatted to create scenarios to assist in an agency's consideration of policy options.
We hold that a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process. By that standard, an individual document may not be capable of being determined to be, necessarily, deliberative material, or not, standing alone. A court must assess such fact-based documents against the backdrop of an agency's deliberative efforts in order to determine a document's nexus to that process and its capacity to expose the agency's deliberative processes.
The plaintiff-requestor, ELC, represents children who are plaintiffs in related, ongoing litigation focused on the adequacy of State funding for education to the poorest of New Jersey's school districts. See Abbott v. Burke, 196 N.J. 544 (2008). Recently, the State enacted the revised school funding formula contained in SFRA, which is under current challenge by the litigants represented by plaintiff. See ibid. The defendant DOE was instrumental in the development of the new formula codified in SFRA. DOE engaged in a lengthy process to develop a revised scheme of funding distribution to school districts, during which it created several iterations of a formula for funding distribution before providing recommendations to the Legislature.
In May 2006, ELC filed its OPRA request for the disclosure of 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, DOE released more than 900 pages of documents, albeit some partially redacted. ELC thereafter filed a complaint in the Law Division, claiming that the redactions violated OPRA and the common law right of access to government documents.
In light of the narrowness of the present appeal, focusing as it does on a single memorandum, there is no need to detail the numerous rulings by the trial court presiding over this dispute. Suffice it to say that a series of letter opinions demonstrates that the court painstakingly waded through the documents. One document that the trial court reviewed, and concluded should be released, is the disputed memorandum, which is titled "Alternative Funding Formula Simulations." The document was prepared in October 2003, and served as an internal document for the Office of School Funding, which is part of DOE. A redacted copy of that document had been released to ELC. The document, twelve pages in length, outlines three school funding options. After describing the options in outline form, the memorandum details statistical data run through each of the formulas to determine what certain costs would be for each alternative. The redacted version of the document omits that statistical information for two of the three alternatives outlined and discussed in the memorandum. Since the beginning of this litigation, that particular document has been referred to as the "Simulation Memo," which we will use hereinafter.
When ordered to release an un-redacted copy of the Simulation Memo, DOE appealed. The appeal focused on whether the Simulation Memo was sufficiently "deliberative process" material to have merited exemption under OPRA's deliberative process carve-out. Similarly, DOE argued that the trial court incorrectly weighed DOE's interest in nondisclosure of that asserted deliberative process material, resulting in an improper balancing of the interests under the common law.
In respect of OPRA, the panel observed that the document must meet two criteria. First, it must have been "generated before the adoption of an agency's policy or decision." Education Law Center, supra, 396 N.J. Super. at 640 (citing Gannett N.J. Partners v. Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005)). Finding that prong of the analysis clearly to have been met, the panel turned to the second ...