August 3, 2009
NORTH JERSEY MEDIA GROUP INC., D/B/A THE RECORD, PLAINTIFF-APPELLANT,
BOROUGH OF PARAMUS AND IAN SHORE, BOROUGH CLERK & CUSTODIAN OF RECORDS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8373-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2009
Before Judges Reisner and Alvarez.
Plaintiff North Jersey Media Group Inc., doing business as The Record, appeals the denial of a motion for reconsideration of an order refusing them access to a Paramus Police Department (the Department) internal report (the Poole Report). For the reasons that follow, we affirm.
Plaintiff's request for the Poole Report was made pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access to public records. The Poole Report was authored by an outside consultant who conducted an anonymous survey of the Department's officers as a first step in a multi-year internal review process designed to improve the Department's operations.
Plaintiff's request, addressed to defendants Borough of Paramus (the Borough) and Ian Shore, Borough Clerk and Custodian of Records (the Borough Clerk), was first filed on February 27, 2007, by a reporter for The Record. On April 2, 2007, the Borough Clerk denied the request, attaching a letter from the Borough's counsel explaining the reasons for the refusal. Months later, on September 26, 2007, a second request was made via e-mail by The Record's counsel. The Borough again declined to release the Poole Report.
The Record subsequently filed a complaint and order to show cause on November 14, 2007, requesting that the court conduct an in-camera inspection of the Poole Report. On the December 21, 2007 return date of the order to show cause, counsel for The Record conceded that the Poole Report was "pre-decisional." On January 2, 2008, Judge Moses granted the application for in camera review, and on February 6, 2008, she denied access to the Poole Report, with one exception. The Borough was required to disclose the blank questionnaire form used in conducting the survey. On March 6, 2008, Judge Moses entered an order memorializing her decision.
On April 1, 2008, The Record filed a notice of motion for reconsideration pursuant to Rule 4:49-2, contending that reconsideration was appropriate because Judge Moses failed to rule on whether disclosure was required under the common law right of access to public records. Judge Polifroni, who had been assigned the matter, heard oral argument on May 9, 2008. He determined that the motion was untimely, pursuant to Rule 4:49-2, because it was filed fifty-four days after Judge Moses' written opinion was mailed and twenty-one days after service of the ensuing order.
Judge Polifroni nonetheless addressed the substantive issues, opining that The Record did not establish that Judge Moses either based her decision on a palpably incorrect or irrational basis or failed to consider the significance of probative, competent evidence. He further found that Judge Moses' decision included consideration of whether the common law right of access to public records compelled disclosure. His decision was memorialized in an order dated May 21, 2008, from which plaintiff appeals.
The Poole Report, the product of research conducted by Les Poole, a retired Scotland Yard detective and management consultant, included in-person interviews in addition to the written questionnaires completed by members of the Department. The focus of the Poole Report was to obtain the opinion of the Department's employees as to the effectiveness of its current operations and regarding ways in which policies and procedures could be improved. The Department intended to rely upon the survey results, along with other information, to create a long-term plan to improve the Department's effectiveness, including changes to staffing, scheduling and evaluative processes. Survey participants had been promised anonymity. The report included not only their opinions and advice concerning departmental policies, but Poole's own recommendations as well.
The Record is a daily newspaper circulated throughout the Borough and Bergen County. The Record has previously published several stories pertaining to the Department, including a sexual harassment claim against a former police chief, a hostile work environment lawsuit, and allegations that promotions hinge upon political affiliations.
An appellate court reviews de novo "the issue of whether access to public records under OPRA and the manner of its effectuation are warranted." MAG Entm't, LLC v. Div. of Alcohol Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Record first contends that the court erred in finding virtually the entire Poole Report subject to the intra-agency advisory, consultative, or deliberative privilege under OPRA. The Record further argues that the court erred by failing to order the production of a redacted report, which would have protected the anonymity of survey participants.
Pursuant to OPRA, government records must be accessible to the public. N.J.S.A. 47:1A-1. The statutory definition of a "government record" specifically excludes "intra-agency advisory, consultative, or deliberative material." N.J.S.A. 47:1A-1.1. This language, which has come to be known as the "ACD exception" or the "deliberative process privilege," allows for the withholding of "documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000). The purpose of the exception is to "protect the quality of government decisions by shielding the communications received by a decision maker from public disclosure." Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005).
To qualify for the privilege:
(1) the document must be predecisional, meaning it was "generated before the adoption of an agency's policy or decision," and (2) it "must be deliberative in nature, containing opinions, recommendations, or advice about agency policies." [Ibid. (quoting Integrity, supra, 165 N.J. at 84-85).]
When a document contains both deliberative and factual materials, to which the privilege does not extend, the deliberative materials must be redacted and the factual materials disclosed. Gannett, supra, 379 N.J. Super. at 219.
In her thoughtful, well-written and cogent decision, Judge Moses found that the Poole Report fell squarely within the ACD exception because it satisfied the two requirements for application of the privilege. First, the document was stipulated to be predecisional. Integrity, supra, 165 N.J. at 84. Second, the document was "deliberative in nature, containing opinions, recommendations, or advice about agency policies." Id. at 84-85. The latter conclusion was based on the survey responses themselves, which Judge Moses found to be "subjective opinions and concerns of the participants solicited in order to advise the Police Department on a course of action," rather than factual material.
Judge Moses went on to find that the first section, a summary of the report's findings, was "advisory in nature" and deliberative because it discussed those "matters which could be improved upon to achieve a more effective and cohesive agency." The second section, forty-four recommendations for the Department chief's consideration, was also clearly deliberative in content, not factual. The third section of the report, Poole's comments on survey responses, was consultative and intended to assist the chief in reaching a better understanding of the survey results. The fifth section, survey participants' responses, was deliberative material because it consisted of "opinions offered as part of a deliberative process." Similarly, the PowerPoint slides found in section six were found to be advisory as they were submitted to assist the Department as it deliberated upon changes to its organization.
The only section that Judge Moses characterized as purely factual and entirely lacking in "analysis, recommendations or other deliberative thought" was the fourth section, the blank questionnaire itself. This section she ordered to be disclosed to The Record.
We concur with Judge Moses' reasoning and analysis. Merely because these predecisional documents contain what can be characterized as some quantitative information, they are not stripped of their protection from unwarranted public scrutiny. See Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 294-95 (2009). "The mere use of the word 'process' in the name of the privilege suggests that the material can include factual components and still be protected from disclosure if it was used in the agency's efforts to reason through to an ultimate decision." Id. at 296. Material that contains factual components is protected by the deliberative process privilege if it is used in decision-making and its disclosure would reveal the nature of the deliberations that occurred. Id. at 299.
The Poole Report is inextricably intertwined with the Department's reflective process intended to lead to reform and restructuring. It was to serve as one of several sources of information upon which the Department would rely in improving operations. Accordingly, the report qualified as advisory, consultative, or deliberative material. We therefore concur in Judge Moses' conclusion that the Poole Report was privileged.
The Record contends that Judge Moses erred in failing to analyze its common law claim for access. We do not agree. Judge Moses and Judge Polifroni both relied upon Integrity, supra, 165 N.J. 75, for more than its definition of deliberative content. Integrity is a pure common law case, which stands for the proposition that once a document meets the threshold requirements for the deliberative process privilege, the privilege is invoked, along with its presumption against disclosure. Id. at 85. The opinion goes on to consider the factors to be weighed in deciding whether a plaintiff has established a need that overrides the privilege, including "the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions." Id. at 86.
In her analysis, Judge Moses relied greatly upon that highly relevant Integrity factor, namely, that survey participants were assured confidentiality by the Department in order to encourage "frank and independent discussion." She considered this anonymity essential. Although not stated in these precise terms, she understood the importance of encouraging "open and frank discussion and recommendations from agency employees to those higher up." Educ. Law Ctr., supra, 198 N.J. at 304.
The Record's contention that the court did not consider its common law claim is therefore unpersuasive. The court did not rely on Integrity merely to define "deliberative materials." Rather, the court's finding that the Poole Report was deliberative mandated that it analyze the demand for disclosure pursuant to the balancing test set forth in Integrity, and the court did so.
Finally, The Record alleges that the balance weighs in favor of disclosure under the common law. It asserts that the report is a "public record" as defined by the common law, that it has the requisite interest to obtain the report, and that the public interest in disclosure far outweighs any interest in confidentiality. We consider those arguments in the order in which they are made.
The common law right of access reaches a broader class of documents than its statutory counterpart. Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995). Nonetheless, that right must be balanced against the State's interest. Ibid. In order to prevail, a litigant must establish an interest in the public record, and that the interest in disclosure outweighs the need for confidentiality. Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582 (App. Div.), certif. denied, 133 N.J. 429 (1992) (quoting Home News Publ'g Co. v. State, 224 N.J. Super. 7, 16 (App. Div. 1988)).
It is undisputed that the full Poole Report fits within the definition of "public record" under the common law, and that newspapers have a strong public interest in policing the workings of public entities and agencies. Where we part company with The Record is in our determination that the public interest in confidentiality outweighs The Record's interest in disclosure.
We considered and weighed the following factors in making that determination:
(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmaking will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials.
[Loigman v. Kimmelman, 102 N.J. 98, 113 (1986).]
As we have already discussed, the first three Loigman factors are satisfied because disclosure of the Poole Report would discourage future survey participants from providing information, potentially violate the anonymity of those who participated in this survey, and chill agency self-evaluation. Redaction would not be sufficient to protect a participant's identity where the substance of the specific responses could readily lead to the discovery of his or her identity. As to the fourth factor, the report does not contain mere numerical or factual data. The fifth factor is not relevant because the report pre-dated any disciplinary action against Department members. Disclosure of the report might adversely affect pending litigation, which is a significant consideration when weighing the sixth factor.
When a document is deliberative, as is the case here, the first four Loigman factors weigh more heavily in favor of non-disclosure. Educ. Law Ctr., supra, 198 N.J. at 304. Disclosure of the Poole Report, resulting in breached assurances of confidentiality, would obviously discourage "open and frank discussion" and also present "the danger of chilling future program improvement and other agency decision-making." Ibid. It bears reiterating that the preparation of the report was only the first step in a multi-year evaluative process. In the balance, neither The Record's "generalized citizen's interest" nor its commercial interest, given its prior coverage of the Department outweighs the government's interest in non-disclosure. See ibid.
The Borough asks that we dismiss the appeal on the basis that The Record's complaint and initial OPRA request itself were both untimely pursuant to Mason v. City of Hoboken, 196 N.J. 51, 69-70 (2008). We do not reach this contention in light of our decision; however, we note that the Borough did not raise this issue before the trial court. We only consider questions on appeal not previously presented to the trial court if they involve jurisdiction or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). In our view, the questions raised by the Borough neither present issues related to jurisdiction nor concern matters of great public interest. Therefore, the defense of untimeliness will not be considered.
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