On appeal from the Government Records Council, Complaint No. 2010-38.
The opinion of the court was delivered by: Sabatino, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2012
Before Judges Sabatino, Fasciale and Maven.
The opinion of the court was delivered by SABATINO, J.A.D.
We consider in this appeal a denial by the Government Records Council ("the GRC" or "the Council") of a request made under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, to obtain a draft report prepared by staff within the New Jersey Department of Health ("the Department") concerning a hospital's application for a certificate of need.
For the reasons that follow, we affirm the GRC's ruling because the draft report is fully protected from disclosure under OPRA as "deliberative material" excluded from the statute's definition of a potentially obtainable "government record." We further hold that, as the GRC itself maintains, its statutory authority is confined to the resolution of OPRA-based requests, and therefore the GRC lacks jurisdiction to resolve common-law claims for records access. Applying our original jurisdiction over the common-law claims presented here, we conclude that appellant's interest in obtaining the draft report does not sufficiently outweigh the strong public policy that promotes robust and confidential internal advice to a governmental decision-maker. Consequently, the draft report is insulated from compelled disclosure under both OPRA and the common law.
This dispute over access to a draft governmental report grows out of a regulatory matter involving efforts by Hackensack University Medical Center ("HUMC") to re-establish a hospital in Westwood at the former site of Pascack Valley Hospital ("PVH"). Owing to severe financial problems, PVH plunged into bankruptcy and closed its doors in November 2007. In authorizing PVH's closure, the Commissioner of the Department stipulated that PVH's owners would be allowed to retain its license through December 2009. During that interval a purchaser of PVH's assets could seek the Department's approval to reopen the hospital.
This would require the issuance of a certificate of need ("CN"), pursuant to N.J.S.A. 26:2H-7.
HUMC and a business partner acquired the assets of PVH at an auction in early 2008. Thereafter, in July 2008, HUMC filed a CN application with the Department, seeking a transfer of PVH's license and permission to reopen the hospital. In May 2009, the Department deemed the CN application complete, and submitted the matter to the State Health Planning Board ("SHPB") for its consideration. The SHPB scheduled a public hearing on the CN application for July 23, 2009. In the meantime, staff at the Department analyzed the application and internally developed a recommendation on whether it should be approved. However, on July 7, 2009, HUMC asked to defer the hearing on its application, a request which the SHPB granted.*fn2
Ultimately, HUMC withdrew the license transfer application and instead pursued an alternative plan to create a smaller community hospital at PVH's former site. To carry out that plan, HUMC filed an application with the Department in June 2011 to obtain a new CN for the proposed scaled-back facility. The application was opposed by two competing Bergen County hospitals: The Valley Hospital, Inc. ("Valley") of Ridgewood, and Englewood Hospital and Medical Center ("Englewood"). The Department's new Commissioner approved the CN application in February 2012.*fn3
In the midst of these events, in January 2010, appellant Frank R. Ciesla, an attorney for Valley, submitted a request to the Department seeking a copy of the 2009 staff report concerning HUMC's 2008 CN application. The records custodian for the Department advised Ciesla that no document satisfied his request since the report had never been distributed to the SHPB.
Ciesla subsequently clarified that he understood that the report had not been distributed, but nevertheless wanted a copy. The custodian responded to Ciesla that the report existed only in draft form and was not subject to public disclosure, since it was "advisory, consultative or deliberative material."
Still desirous of obtaining the report, Ciesla filed a denial of access complaint with the GRC in February 2010, invoking both OPRA and the common law. The Department opposed the complaint. In its opposition, the Department submitted a supporting certification from John A. Calabria, Director of the Certificate of Need and Healthcare Facilities Licensing program. Calabria explained that the analysis and recommendations that his staff prepared within the Department were not final and could be revised at any time prior to their transmittal to the SHPB. He noted that it was "not uncommon for the staff recommendations to undergo multiple revisions during the internal staff review process[.]" Calabria further indicated that the staff recommendations for HUMC's 2008 CN application were never finalized because the application was deferred.
After reviewing the parties' submissions,*fn4 the GRC's executive director recommended that Ciesla's complaint be denied. On May 24, 2011, the GRC voted unanimously to adopt the executive director's findings and her recommendation. The GRC issued a corresponding final agency decision on June 2, 2011.
Ciesla appealed the GRC's denial of access to the draft report. Counsel for the GRC and the Department each filed briefs with this court opposing the appeal. In addition, HUMC intervened in the matter, likewise opposing Ciesla's demands for access. Meanwhile, the related consolidated appeals (A-3155-11 and A-3238-11) were respectively filed by Englewood and Valley contesting the merits of the CN issuance.
Englewood moved to settle the record in the merits appeals to include the unreleased 2009 draft report. In May 2012, a panel of this court denied that motion without prejudice to its renewal following briefing in the Ciesla appeal. At the same time, we directed that Ciesla's appeal be calendared back-to-back with the consolidated merits appeals. We also temporarily remanded the Ciesla appeal to the GRC for reconsideration, in light of a recently published opinion addressing the deliberative process privilege, Correctional Medical Services, Inc. v. State, 426 N.J. Super. 106 (App. Div. 2012). As part of the remand, the Department furnished the GRC with a supplemental certification*fn5 from Calabria in which he amplified the factual grounds for treating the draft report as deliberative material.
On June 26, 2012, the GRC issued a remand decision reaffirming its prior ruling to deny Ciesla access to the draft report. In the course of its remand decision, the GRC distinguished our recent opinion in Correctional Medical Services, which had found that certain Department of Corrections documents did not comprise protected deliberative material. Id. at 123. In particular, the GRC noted that the documents in Correctional Medical Services had been sought in civil discovery and not pursuant to an OPRA request. The GRC also noted that the documents in that other case were not generated in connection with an agency policy decision but rather concerned actions by the agency in terminating a private contractor, which had prompted that contractor to file a lawsuit for breach of contract.
On appeal, Ciesla argues that the GRC's denial of access to the draft report, pursuant to the deliberative process privilege, was arbitrary and capricious. Alternatively, he maintains that the GRC's decision should be reversed because he and his client, Valley, have a right to obtain the draft report ...