January 29, 2020
New Jersey passed the Open Public Records Act (“OPRA”) to provide its citizens with access to government records, in order to ensure an informed citizenry. A common law right to access public records has also existed parallel to, and unrestricted by, OPRA. Both the statutory right to public records under OPRA, as well as the common law right to know, recognize an exception in the form of the deliberative process privilege, which permits governmental entities to withhold certain documents and information from the public, which detail the process by which the entity’s decisions and policies are made.
On January 13, 2020, New Jersey’s Appellate Division, in an unpublished decision, Freeswick v. Wayne Twp. Bd. of Educ., No. A-0039-18T3, 2020 N.J. Super. Unpub. LEXIS 79, at *1 (App. Div. Jan. 13, 2020), provided guidance on the interplay between the mandates of OPRA and that deliberative process privilege. The information at issue in Freeswick involved the reinstated eligibility of two student-athletes who transferred to Wayne Hills High School and were on its football team. After a championship season had ended, the Wayne Township Board of Education retained special counsel to advise it regarding possible changes to its policies and procedures regarding residency and eligibility requirements for transfer student-athletes to the district. Plaintiff Freeswick made two OPRA requests seeking release of the documents related to counsel’s investigation. He sought copies of the special counsel’s: (1) unredacted itemized legal bill; (2) typewritten summaries of interviews with the Board Superintendent, Wayne Hills High School Principal, and two unidentified school district witnesses; and (3) a single-page of handwritten notes taken during the interview of an unidentified person from Wayne Valley High School, another high school in the district.
After various hearings and telephone conferences, the trial court required the Board to turn over unredacted copies of several of counsel’s legal bills, and to turn over typewritten notes of an interview with the school principal. The trial court denied Plaintiff’s request for unredacted copies of an interview with the board superintendent, and two other employees and an unredacted copy of a single-page handwritten note of an interview with an unidentified Wayne Valley High School official.
On appeal, the court found the legal bills to be government records under OPRA and subject to public access. The legal bills did not contain any information to support their non-disclosure under the deliberative process privilege. Other than redacting several names from the legal bills based on the panel’s other rulings, the legal bills were subject to disclosure under OPRA.Most of the interview summary of the school principal was also deemed not protected because it related to the two transfer students, and not specifically to residency policy and procedures. A portion of the interview summary contained recommendations on procedure and other people to interview, which was found to be protected by the deliberative process privilege.The appellate panel found that the interview summaries of the superintendent and two other employees were protected by the deliberative process privilege because the summaries related to a new resident policy and were not related to the two transfer students above. The single-page handwritten was found to be protected by the deliberative process privilege because it was part of the investigative process to aid the Board in developing new policies and procedures.
This case suggests that OPRA and the common law, both of which favor public access of government records, will be balanced against the government entity’s right to prevent disclosure of government records that should be protected by the deliberative process privilege. For a government entity, it must demonstrate that the record contains information as part of a process by which its policies and procedures are formulated. To the extent those records contain factual information not related to a process by which policies and procedures are formulated, such records may be disclosed under OPRA with redactions of material protected by the deliberative process privilege.
For further information, contact Joe Gallo in our Florham Park office at (973) 822-1110 or at Jgallo@mkcilaw.us.com.