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McGee v. Township of East Amwell

November 16, 2010

JOAN MCGEE, APPELLANT,
v.
TOWNSHIP OF EAST AMWELL (HUNTERDON), RESPONDENT.



On appeal from the State of New Jersey Government Records Council, Complaint No. 2007-305.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 5, 2010

Before Judges Carchman, Graves and Messano.

On this appeal from a final decision of the Government Records Council (GRC or the Council) under Open Public Records Act (OPRA or the Act), N.J.S.A. 47:1A-1 to -13, we conclude that records created by a former public official are subject to the "deliberative process privilege" under OPRA. In addition, where an employee now claims that she has waived her privilege as to her "personnel records" but did not raise the issue before the Council, we remand this matter to the Council to determine whether the employee waived the confidentiality under the "personnel records" exception or whether there are countervailing concerns or policies that would preclude release of such records. We affirm in part, and reverse and remand in part.

Complainant Joan McGee appeals from a final decision of respondent Council of September 30, 2009, denying her request for reconsideration of the Council's determination that certain records of custodian Township of East Amwell (East Amwell) were exempt from disclosure under OPRA. Specifically, McGee seeks access to twelve e-mails circulated among a group of individuals affiliated with the East Amwell municipal government.

These are the relevant facts. East Amwell Township is organized as a township with a five-member Township Committee pursuant to N.J.S.A. 40A:63-1 to -9. By ordinance, East Amwell created the position of Township Administrator, who manages the township's personnel, and a Planning Board, which oversees the township's "physical development." E. Amwell, N.J. Code §§ 24-20 (creating and detailing the duties of the Township Administrator), 92-14 (creating and explaining the duties of the Planning Board). The term of a Planning Board member runs from January 1 of the year in which the appointment was made. E. Amwell N.J. Code § 92-14(B)(2); see also N.J.S.A. 40:55D-23(c). McGee was employed by East Amwell as "planning board administrator."

Apparently McGee has had an ongoing dispute with various individuals who were office holders or appointees in East Amwell in 2006. The specific nature of the dispute and the facts relevant to the friction between the parties are not a part of the record. We do glean from the facts a dissatisfaction with McGee's conduct; however, the details of the dispute are not relevant to our ultimate determination.

McGee filed work-related complaints with both the Equal Employment Opportunity Commission (EEOC) and the courts of New Jersey. As a result, certain e-mails were circulated among various township officials, employees or appointees. These emails form the gravamen of the dispute on appeal. The individuals who either authored, were the recipients of or were the subjects of these emails include Richard Cushing, the township attorney; Tim Matheny, the township administrator; Donald Reilly, a member of both the Township Committee and the Planning Board; Larry Tatsch, a member of the Township Committee*fn1 ; and Barbara Wolfe, the chair of the Planning Board.

On October 23, 2007, McGee filed a "request for access to government records" with East Amwell demanding the record of a Township Committee meeting in October 2007 and all e-mails sent after December 31, 2006, "between/among Barbara Wolfe . . . and Tim Matheny, Don Reilly, Larry Tatsch and any other member of [the Township Committee] and Richard Cushing, Esq." Theresa Stahl, East Amwell's municipal clerk, responded to McGee's request by telephone on November 1, 2007, and informed her that the requested records were ready for review. Several days later, on November 6, 2007, McGee met with Stahl to view and obtain copies of the approved correspondence. Stahl confirmed this meeting in a letter dated November 9, 2007, reiterating that she informed McGee at their meeting that some of the requested e-mails were protected by the attorney-client privilege. On November 27, 2007, Stahl issued a written "government records request response" granting access to seven additional e-mails and denying McGee access to any privileged attorney-client communications.

Following this rejection, on December 6, 2007, McGee filed a "denial of access complaint" with the GRC requesting review of East Amwell's decision. McGee alleged that (1) Cushing, Matheny and Reilly were "willfully withholding" their communications with Wolfe and should be sanctioned; (2) Wolfe's communications were not protected because she was not a township official after December 31, 2006; (3) no privilege existed between Wolfe and Cushing because they never shared an attorney-client relationship; (4) no attorney-client privilege protected communications between Wolfe and Matheny because neither was an attorney; (5) any privilege between township officials and Cushing was waived by the inclusion of Wolfe on their e-mails; and (6) Reilly violated state law by failing to maintain copies of all documents pertaining to official township business.

Responding to these claims, Cushing, as township attorney, asserted that he had been designated to advise township officials, including those specified in McGee's request, regarding a lawsuit that McGee had filed against the municipal government and several individuals therein. As a result, Cushing claimed to represent all parties designated in the requested e-mails. In addition, Cushing contended that the undisclosed e-mails were protected under the OPRA's "advisory, consultative, and deliberative exemption."

On April 29, 2009, the GRC's executive director, Catherine Starghill, issued her findings and recommendations. Starghill found that the custodian's failure to provide McGee with a written response within seven business days was "deemed" a denial. More importantly, Starghill recommended that the GRC conduct an in camera review of the twenty remaining undisclosed e-mails to determine whether any privilege applied. That same day, the GRC voted unanimously to adopt Starghill's findings and recommendations, ordering East Amwell to deliver the withheld e-mails for review.

Starghill completed her findings and recommendations on nineteen*fn2 undisclosed e-mails on August 4, 2009. In an interim order dated August 11, 2009, the GRC unanimously adopted these findings, making the determinations below.

1. The first e-mail was sent by Wolfe to Cushing at 10:04 a.m. on January 2, 2007. The Council ordered disclosure of this message with all personal information redacted.

2. The second e-mail was sent by Wolfe to Cushing at 9:40 p.m. on January 12, 2007.

The GRC exempted the message from disclosure based on the exceptions for "advisory, consultative, or deliberative material" and "personnel records."

3. The third e-mail was sent by Wolfe to Cushing and Eric Harrison at 9:40 a.m. on January 12, 2007. The GRC exempted the message from disclosure based on the exceptions for "advisory, consultative, or deliberative material" and "personnel records."

4. The fourth e-mail was sent by Matheny to Wolfe, with copies to Cushing, Reilly, Tatsch and Gardner, at 9:38 p.m. on January 15, 2007. The GRC exempted the message from disclosure based on the exceptions for "advisory, consultative, or deliberative material" and "personnel records."

5. The fifth e-mail was sent by Reilly to Matheny, with copies to Tatsch, Gardner, Wolfe and Cushing, at 8:46 a.m. on January 16, 2007. The GRC exempted the message from disclosure based on attorney-client privilege.

6. The sixth e-mail was sent by Wolfe to Matheny, with copies to Cushing, Reilly, Tatsch and Gardner, at 9:56 a.m. on January 16, 2007. The GRC exempted the message from disclosure based on the exceptions for "advisory, consultative, or deliberative material" and "personnel records."

7. The seventh e-mail was sent by Gardner to Wolfe, Matheny and Cushing, with copies to Reilly and Tatsch, at 6:50 p.m. on January 16, 2007. The GRC exempted the message from disclosure based on the exceptions for "advisory, consultative, or deliberative material" and "personnel records."

8. The eighth e-mail was sent by Wolfe to Gardner, Matheny and Cushing, with copies to Reilly and Tatsch, at 7:23 p.m. on January 16, 2007. The GRC exempted the message from disclosure based on the exceptions for "advisory, consultative, or deliberative material" and "personnel records."

9. The ninth e-mail was sent by Gardner to Wolfe, Cushing, Tatsch, Reilly and Matheny, at 9:46 p.m. on January 16, 2007. The GRC exempted the message from disclosure based on the exceptions for "advisory, ...


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