August 27, 2012
STEVEN L. HYMAN, APPELLANT,
CITY OF JERSEY CITY AND GOVERNMENT RECORDS COUNCIL, RESPONDENTS.
On appeal from the Government Records Council, Complaint No. 2007-118.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2012
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Steven L. Hyman appeals from the final administrative agency decision rendered by respondent Government Records Council ("GRC") upholding respondent Jersey City's ("City") denial to him of access to certain government records. The City claimed that Hyman's request as to some records was overbroad and it withheld other records on the basis of attorney-client privilege or the advisory, consultative, or deliberative ("ACD") exception to disclosure of government records under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13. We reverse the denial of access to Item Nos. 2 through 15 and remand to the GRC for further proceedings related to the custodian's assertion of attorney-client privilege and the ACD exception.
Hyman is the general manager of eight limited liability companies, each of which individually owns eight properties (the "properties") in the City containing portions of the former Pennsylvania Railroad Stem Embankment ("Embankment"). The properties were acquired in 2005. Since that time, Hyman has been enmeshed in disputes and litigation concerning efforts to develop the properties, in both federal and state courts as well as before the Surface Transportation Board ("STB"). The City, which had earlier pursued purchasing the lots, abandoned that effort and subsequently joined with a citizens' group called the Pennsylvania Railroad Harsimus Stem Embankment Preservation Coalition (the "Coalition") to block Hyman's development efforts. The Coalition, formed around 1998, lobbied the City to halt any development of the Embankment and preserve it as a landmark. Maureen Crowley, a Jersey City resident, is the coordinator of the Coalition.
In January 2006, the City and the Coalition filed a joint petition with the STB seeking a declaration that the Embankment is a line of rail. While the STB matter was pending, Hyman submitted a request to the City's custodian of records seeking records related to the eight Embankment properties. The City agreed to release nearly 4000 pages of records but withheld 297 pages, claiming the request was overbroad and also citing attorney-client privilege or the ACD exception to disclosure. With respect to the privilege log, documents were designated as subject to attorney-client privilege or the ACD exception.
On May 11, 2007, Hyman filed a Denial of Access Complaint with the GRC. He submitted sixteen categories of records for which access had been denied:
1. All records identified in attached Privilege Log No. 2.
2. The McGuire Associates appraisal report for Block 247, Lot 50A.
3. The McGuire Associates appraisal report for Block 212, Lot M.
4. Council resolution(s) authorizing John Curley's legal services in the amount of $56,901.78.
5. All resolutions, contracts, and invoices for legal services performed by John Curley from June 2006 to the date of the request.
6. Invoices for Charles Montange legal services based on two resolutions authorizing a total of $40,000 in payments for services rendered by Charles Montange.
7. Council resolution authorizing McGuire Associates real estate appraisal services not to exceed $25,000.
8. Council resolution authorizing Value Research Group real estate appraisal services.
9. Council resolution authorizing Verne V. Watley professional services.
10. Council resolution authorizing Burns & Fiorina, Inc.[,] demolition services.
11. All resolutions, contracts and invoices pertaining to the railroad title search.
12. All resolutions, contracts and invoices pertaining to the services performed by Dresden Robin Environmental Management, Inc.
13. All resolutions, contracts and invoices pertaining to the services performed by MATRIX Environmental & Geological Services, Inc.
14. All resolutions, contracts and invoices pertaining to the services performed by EnviroTech Research, Inc.
15. All resolutions, contracts and invoices pertaining to the services performed by GEOD Corporation.
16. All additional resolutions, contracts, invoices, proposals, and other financial records pertaining to the Conrail Embankment that Jersey City has yet to provide.
On May 27, 2007, the GRC sent an Offer of Mediation to the parties. The parties participated in mediation but it proved unsuccessful. The complaint was referred back to the GRC. On March 18, 2009, the GRC's Executive Director issued findings and recommendations for an in-camera review, and the GRC subsequently issued an Interim Order finding that: (1) the custodian's failure to respond to Hyman's request constituted a violation of OPRA, and (2) the GRC must conduct an in-camera review of all disputed documents.
On May 27, 2010, following an in-camera review, the Executive Director recommended that: (1) the GRC find the custodian complied with the GRC's Interim Order by supplying a certification "reiterating that all the records are exempt from disclosure as attorney-client privileged or ACD material"; (2) the custodian be directed to disclose three documents, which were neither subject to the attorney-client privilege nor the ACD exception; and (3) the GRC designate the requests for documents in Item Nos. 2 through 16 as "overly broad" and "therefore invalid under OPRA[.]" On June 2, 2010, the GRC issued an Interim Order accepting these recommendations. After considering Hyman's application for reconsideration and the City's objection, the GRC issued its Final Decision adopting, in its entirety, the Executive Director's May 27, 2010, recommendations. The present appeal followed.
On June 23, 2011, Hyman filed a motion before this court to supplement the record with documents he obtained in a separate OPRA request, which he alleges are the same as the records denied under the OPRA request that is the subject of this appeal. The GRC filed opposition to the motion on July 13, 2011. This motion remains pending.*fn1
On appeal, Hyman raises the following points for our consideration:
THE GRC ERRED IN EXPANDING THE ACD EXCEPTION TO INCLUDE PARTICIPANTS WHO ARE NOT GOVERNMENT OFFICIALS.
THE GRC ERRED IN FAILING TO REQUIRE THAT THE REQUESTED DOCUMENTS BE REDACTED.
THE GRC ERRED IN APPLYING THE ACD EXCEPTIONS SINCE THE DELIBERATIONS WERE NOT PREDECISIONAL IN NATURE.
THE GRC ARBITRARILY EXTENDED THE ATTORNEY-CLIENT PRIVILEGE BEYOND ITS INTENDED PURPOSE.
THE GRC ERRED IN FAILING TO PIERCE THE ACD EXCEPTION AND THE ATTORNEY-CLIENT PRIVILEGE BASED ON THE COMPELLING AND SUBSTANTIAL NEED FOR DISCLOSURE.
THE GRC WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE IN RULING THAT THE REQUESTS FOR INFORMATION WERE OVERBROAD.
Our standard of review of final administrative agency decisions is quite limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). This deference is appropriate in light of the specialized or technical expertise of the agency charged with administration of a regulatory system. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). As such, the determinations and findings of an administrative agency will not be set aside absent "a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citing In re Herrmann, 192 N.J. 19, 28 (2007)).
The administrative agency decision being challenged here is that of the GRC, which is statutorily authorized to adjudicate disputes pertaining to access to government records. N.J.S.A. 47:1A-7(b). Under OPRA, "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. OPRA defines "government records" as:
[A]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. [N.J.S.A. 47:1A-1.1.]
A party aggrieved by a denial of access to government records may seek relief directly before the Superior Court or in lieu thereof, file a complaint with the GRC, N.J.S.A. 47:1A-6, the "agency created to, among other things, adjudicate disputes concerning access to public records under OPRA." McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 613 (App. Div. 2010); see N.J.S.A. 47:1A-7(b). If the GRC is the forum selected to resolve a government records access dispute and it "is able to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed." N.J.S.A. 47:1A-7(e) (emphasis added). The reasons for its ruling must be set forth on each document. Paff v. N.J. Dep't of Labor, 379 N.J. Super. 346, 355 (App. Div. 2005) (citing MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 551 (App. Div. 2005)).
Moreover, in reaching its determinations, the GRC must require that the custodian do more than submit a conclusory recitation of the particular exception raised. Id. at 353. In other words, it is not enough for the custodian to merely state that the record is exempt because of an asserted privilege or exception. Rather, accompanying the privilege or exception category must be an explanation, which is sufficient, without revealing information itself privileged or protected, to "'enable other parties to assess the applicability of the privilege or protection.'" Id. at 354 (quoting Rule 4:10-2(e)).
Where, however, the GRC "is unable to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto," its enabling legislation mandates a hearing. N.J.S.A. 47:1A-7(e). Specifically, "the [GRC] shall conduct a hearing on the matter in conformity with the rules and regulations provided for hearings by a State agency in contested cases under the 'Administrative Procedure Act,' . . . insofar as they may be applicable and practicable." Ibid. This approach furthers the underlying purpose of OPRA, which "'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)).
Hyman challenges the designation of documents in the privilege log as attorney-client privilege and ACD. He urges that the record fails to support such designations. The GRC agreed with these classifications except with respect to ten documents. It ordered disclosure of three documents, but unilaterally re-classified seven documents, which the custodian designated as subject to attorney-client privilege, as subject to the ACD exception. In addition, there are a number of documents where the GRC, following the in-camera review, added the designation of ACD to documents that the custodian designated only as subject to the attorney-client privilege. We separately discuss each category.
N.J.S.A. 47:1A--1.1 specifically provides that "[a] government record shall not include the following information which is deemed to be confidential[:] . . . any record within the attorney-client privilege." To assert attorney-client privilege, a party must show that there was a confidential communication "between lawyer and his client in the course of that relationship and in professional confidence[.]" N.J.R.E. 504(1). "Confidential communications are only those 'communications which the client either expressly made confidential or which [one] could reasonably assume under the circumstances would be understood by the attorney as so intended.'" Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 375 (App. Div. 2010) (quoting State v. Schubert, 235 N.J. Super. 212, 221 (App. Div. 1989), certif. denied, 121 N.J. 597 (1990)). However, a "'mere showing . . . the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear.'" Ibid. (quoting Schubert, supra, 235 N.J. Super. at 220-21).
In the context of public entities, the privilege not only extends to communications between the public body, the attorney retained to represent it, necessary intermediaries and agents through whom communications are conveyed, id. 376, but to colitigants who have employed a lawyer to act for them in a common interest. In re Envtl. Ins. Declaratory Judgment Actions, 259 N.J. Super. 308, 313 (App. Div. 1992). Thus, "[c]ommunications between counsel for a party and an individual representative of a party with a common interest are also protected." Laporta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J. Super. 254, 262 (App. Div. 2001); see also United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)(recognizing that the common interest rule "serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel"), cert. denied, 493 U.S. 1071, 110 S. Ct. 1114, 107 L. Ed. 2d 1021 (1990); In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990) (acknowledging that the attorney-client privilege extends to "potential co-parties to prospective litigation" when the attorney is involved in the communications).
Here, the GRC determined the privilege applied to numerous records contained in the privilege logs referencing members of the Coalition, City officials, and attorneys. The description of the privileged documents provided by the GRC in its final decision essentially mirrors the privilege log provided by the custodian and is limited to designating the privileged document as "attorney-client privilege" or "[ACD]," or both, with no further explanation as to why the privilege or exception applies.
The record indicates the City and the Coalition have been co-litigants against Hyman in one action, proceedings before the STB to have the Embankment declared a line of rail, and subsequent proceedings before the District of Columbia Court of Appeals. The City retained Charles Montange, an attorney who specializes in railroad abandonment and who was already representing the Coalition, to represent the City, in addition to the Coalition, before the STB. There is, however, no indication that the Coalition and the City or the City and any other party have been co-litigants in other proceedings or disputes involving the properties over the years.
In upholding the custodian's attorney-client privilege designation, the GRC did so notwithstanding that the custodian failed to provide more details, such as the name of the case, docket number, nature of proceeding or other identifying information. We consider this omission particularly significant given the history of the controversy surrounding the Embankment and the properties. Thus, for example, the STB complaint, in which the Coalition and City were named as joint litigants and represented by the same attorney, was filed in October 2006. There is, however, a document withheld from disclosure on the basis of attorney-client privilege that dates back to 2004. The document identified in the privilege log as #3169 is a letter from Crowley to the City's in-house attorney and copied to outside counsel regarding the "6th Street Embankment Project." Crowley is identified as "co-petitioner." Yet, there is no indication with whom she is a co-petitioner and in what matter.
According to the record, however, in September 2005, at a City planning board meeting, the board received and considered a letter from the City's Assistant Corporation Counsel, Joanne Monahan, requesting that the board deny the application for subdivision and site plan approval filed by one of the eight properties, Brunswick, LLC, along with its co-applicant. Monahan indicated in her letter that the City believed the applicant had not secured approval from the STB to abandon the rails and that the City intended to retain the services of an attorney who specialized in railroad abandonment. That attorney turned out to be Montange. The record does not actually reveal when Montange was retained.*fn2 Thus, there is nothing in the record to support the conclusion that in January 2004, Crowley or the Coalition was a co-petitioner in any proceeding for which the attorney-client privilege designation applied. Nor does the privilege log prepared by the custodian identify her as a necessary intermediary or agent of the City at that time. Tractenberg, supra, 416 N.J. Super. at 376.
In short, the blanket designation of certain documents as subject to attorney-client privilege solely because they relate to the Embankment is erroneous. Evidence of the inadequacy of this global characterization provided by the custodian and upheld by the GRC is reflected in the GRC's own actions following its in-camera review. It re-classified seven documents the custodian had designated as subject to the "attorney-client privilege" as subject to the "ACD" exception. This unilateral action by the GRC, which we question and address below, illustrates that simply classifying the withheld documents with designations such as "Embankment," "Sixth Street Embankment," or "Conrail Embankment" does not mean the privilege applies. Finally, this generalized designation by the custodian failed to provide a description of the nature of the withheld documents "in a manner that, without revealing information itself privileged or protected," would enable Hyman "to assess the applicability of the privilege[.]" R. 4:10-2(e). More importantly, it prevented meaningful adjudication by the GRC. See Paff, supra, 379 N.J. Super. at 354 (noting "OPRA contemplates the GRC's meaningful review of the basis for an agency's decision to withhold government records"). The generalized designations also stymie meaningful review by us.
Turning to the ACD exception, the definition of a "government record" under OPRA does not include "inter-agency or intra-agency advisory, consultative, or deliberative material." N.J.S.A. 47:1A-1.1. When this exception is invoked, a governmental entity may "withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Educ. Law Center v. N.J. Dep't of Educ., 198 N.J. 274, 285 (2009) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29, 47 (1975)). The custodian claiming an exception to the disclosure requirements under OPRA on this basis must initially satisfy two conditions: (1) the document must be pre-decisional, meaning that the document was generated prior to the adoption of the governmental entity's policy or decision; and (2) the document must reflect the deliberative process, which means that it must contain opinions, recommendations, or advice about agency policies. Id. at 286 (internal citations and quotations omitted). The key factor in this determination is whether the contents of the document reflect "'formulation or exercise of . . . policy-oriented judgment or the process by which policy is formulated.'" Id. at 295 (adopting the federal standard for determining whether material is "deliberative" and quoting Mapother v. Dep't of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993)). Once the governmental entity satisfies these two threshold requirements, a presumption of confidentiality is established, which the requester may rebut by showing that the need for the materials overrides the government's interest in confidentiality. Id. at 286-87.
The privilege log identifying documents as subject to the ACD exception prepared by the custodian fails to satisfy either condition. Other than a description of the withheld document, there is no additional information regarding whether the document is pre-decisional. Nor do any of the ACD designations identify what policy or pre-decision was at issue in relation to each document withheld. Finally, there is no explanation as to why any of the withheld documents are considered deliberative.
The City bears the burden of establishing the deliberative nature of the withheld documents in a manner that affords Hyman a meaningful opportunity to refute this claim. In Re Liquidation of Integrity Ins. Co., 165 N.J. 75, 92 (2000) (holding the "State must establish the deliberative nature of the documents and, thereafter, each side will advance its claims"). Because the City fell short of its burden here, Hyman was deprived of the opportunity to challenge the decision before the GRC in a meaningful way and the GRC was also hampered in its meaningful review. Paff, supra, 379 N.J. Super. at 354. Our review is limited as well.
Further, we also find no authority under OPRA or the GRC's enabling legislation and implementing regulations that empowers it to in-camera unilaterally reclassify the designation proffered by the City. N.J.A.C. 5:105-2.1(h) authorizes the GRC "[i]n response to the complaint before it," to "raise issues and defenses pertaining to that complaint on a sua sponte basis if it deems such action appropriate or necessary and if said action on behalf of the [GRC] would be in the interest of furthering the provisions and intent of [OPRA]."
The GRC functions in an adjudicative capacity and is statutorily charged, if it is able to do so, to "make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto[.]" N.J.S.A. 47:1A-7(e) (emphasis added). If the custodian's response to the complaint does not justify the denial of access based upon the claimed privilege or exception, the GRC has a number of options available to it, none of which include in-camera unilateral reclassification of a document. It may conclude the proffered privilege does not apply and order the release of the document. Ibid. It may, through its Executive Director, require the custodian to submit, within prescribed time limits, additional information deemed necessary for the GRC to adjudicate the complaint. N.J.S.A. 47:1A-7(c); see also Paff, supra, 379 N.J. Super. at 354. Additionally, it may "conduct a hearing on the matter in conformity with the rules and regulations provided for hearings by a state agency in contested cases under the 'Administrative Procedure Act,' . . . insofar as they may be applicable and practicable." N.J.S.A. 47:1A-7(e). We therefore conclude the GRC exceeded the scope of its authority when it in- camera unilaterally reclassified seven of the withheld documents following its in-camera review.
Finally, the GRC upheld the custodian's decision to withhold documents, identified in Hyman's "Denial of Access Complaint" as Item Nos. 2 through 16, on the basis that the request was overly broad. The GRC found Hyman failed to "specify with reasonable clarity identifiable government records" and would therefore require the "Custodian to research all appraisal reports, resolutions and invoices in his possession to locate and identify these records which may be responsive to the request[.]" With the exception of Item No. 16, which we agree, for the reasons expressed by the GRC, was overly broad, the record does not support this finding.
The request for appraisal reports identified the appraiser and the block and lot number of the property appraised (Item Nos. 2 and 3). The resolutions, contracts and invoices for legal services and other professional services rendered on behalf of the City identified the attorney or other professionals by name (Item Nos. 3 to 16). In finding that the requests related to Item Nos. 2 to 16 were overly broad, the GRC relied upon MAG, supra, where we held that "[u]nder OPRA, agencies are required to disclose only 'identifiable' governmental records not otherwise exempt. Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein. In short, OPRA does not countenance open-ended searches of an agency's files." 375 N.J. Super. at 549.
The requests contained in Item Nos. 2 through 15 contained far more specificity than that which was presented to the custodian in MAG. Ibid. There, the requester failed "to identify with any specificity or particularity the governmental records sought." Ibid. The requester "provided neither names nor any identifiers other than a broad generic description of a brand or type of case prosecuted by the agency in the past." Ibid. Thus, the denial of access to Item Nos. 2 through 15 on the basis that the request was overly broad was not supported by the substantial evidence.
Affirmed as to the denial of access to Item No. 16. Reversed as to the denial of access to Item Nos. 2 through 15. Remanded for further proceedings related to the custodian's assertion of attorney-client privilege or the ACD exception, consistent with this opinion. We do not retain jurisdiction.