On appeal from the Government Records Council, Complaint No. 2007-274.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Fuentes and Gilroy.
One day after the July 7, 2002 effective date of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, Governor McGreevey issued an executive order, which provided that any government record a state agency proposed to exempt from disclosure by administrative rule published after enactment of OPRA that had not yet been adopted in accordance with the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, would be exempt from disclosure. The issue presented by this appeal is whether that exemption remains in effect. We conclude that the part of the executive order establishing this exemption from disclosure under OPRA was intended to be temporary only, pending state agencies' determinations of whether to adopt their proposed rules providing for exemptions from OPRA, and therefore the exemption provided by the executive order is no longer in effect.
Appellant was convicted of a criminal offense in January 2004. Although the record before us does not indicate what offense appellant was found to have committed or whether he is still incarcerated, appellant's brief states that evidence of a blood test analysis conducted by a "State Forensic Scientist" was introduced into evidence at his trial. Appellant asserts that this test was not properly performed and that an examination of documents relating to the "New Jersey State Police Forensic Science Laboratory's policies and procedures on blood test analysis for testing swabs and smears for blood, DNA comparisons, semen and saliva, specifically records concerning presumptive and confirmative testing" could be useful in exonerating him.
Appellant attempted to obtain a copy of this document by submitting a request for its production under OPRA to the Department of Law and Public Safety's custodian of records. The Department denied this request. Appellant filed a complaint with the respondent Government Records Council challenging this denial. The Department certified in its response that "there is one . . . document . . . responsive to [appellant's] request: the New Jersey Forensic Science Laboratory's Biochemistry Analysis Manual[,] . . . [which] represents the standard operating procedure for laboratory analysis of, among other things, DNA analysis of biological evidence as well as presumptive and confirmative testing."
The Council's Executive Director, respondent Catherine Starghill, recommended that the Council find that the document requested by appellant is exempt from disclosure under a rule proposed by the Department of Law and Public Safety in 2002, which would exempt "Standard Operating Procedures" from disclosure under OPRA, and two executive orders issued by Governor McGreevey in 2002, which directed state agencies to handle requests for disclosure of government records under OPRA in accordance with administrative rules that had been proposed but not yet adopted. The Council accepted its Executive Director's recommendation and upheld the Department's denial of access to the document. Appellant appeals this administrative decision.
The appeal was originally calendared before a panel of this court last summer. However, that panel concluded that the appeal should not be heard without the participation of the Attorney General because it involved a question that could significantly impact upon consideration of OPRA requests by not only the Department of Law and Public Safety, of which the Attorney General is the department head, N.J.S.A. 52:17B-2, but also other state agencies. Accordingly, we entered an order on August 14, 2009, requesting the filing of an amicus curiae brief by the Attorney General. That brief was filed, and the parties submitted supplemental briefs responding to the Attorney General's submission.
OPRA was enacted on January 8, 2002, with an effective date of July 7, 2002. L. 2001, c. 404, § 18. In anticipation of OPRA going into effect, a number of State agencies published rule proposals in the New Jersey Register on July 1, 2002, which identified certain government records that would be exempt from disclosure under OPRA. See, e.g., 34 N.J.R. 2267(a) (July 1, 2002) (Department of Law & Public Safety); 34 N.J.R. 2175(a) (July 1, 2002) (Department of Community Affairs); 34 N.J.R. 2169(a) (July 1, 2002) (Department of Agriculture).
On July 8, 2002, the day after OPRA went into effect, Governor McGreevey issued Executive Order 21 for the purpose of implementing this new legislation. Executive Order 21 exempted certain specific categories of government records from disclosure under OPRA, such as documents whose disclosure would substantially interfere with the State's ability to protect against acts of terrorism. In addition, Executive Order 21 included an omnibus provision that exempted any government record a State agency had proposed to exempt from disclosure by a rule that had been published for public comment but could not be adopted in accordance with the APA prior to the effective date of OPRA. This provision, which was paragraph 4 of Executive Order 21, stated:
In light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order. Once those regulations have been adopted, they shall govern all government records requests filed thereafter.
One of the proposed rules covered by paragraph 4 of Executive Order 21 was proposed N.J.A.C. 13:1E-3.2(a)(2), which would exempt any "Standard Operating Procedures" of the Department of Law and Public Safety from disclosure under OPRA. The Department published this proposed rule in the Register on July 1, 2002, 34 N.J.R. at 2270, but for ...