Exception to OPRA- The Deliberative Process Privilege

The New Jersey Open Public Records Act (“OPRA” or the “Act”) guarantees that government records are readily accessible for inspection, copying and examination by citizens of this State with certain limited exceptions. One such exception is the deliberative process privilege which includes inter – or intra-agency material that is advisory, consultative, or deliberative in nature1. This privilege allows draft documents or documents prepared during the formulation of governmental decisions to be withheld from public disclosure.

The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated2.” The purpose of the privilege is to ensure “free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.”3

In response to an OPRA request, the burden is on the governmental body or agency to disclose the nature of any documents which purportedly satisfy the privilege. For a document to meet the requirements of the privilege, “(1) it must have been generated before the adoption of an agency’s policy or decision, and (2) the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies.”4 However, “if a claim of privilege is disputed, an in camera review by the court of the allegedly privileged material is ordinarily the first step in determining the issue.”5 Moreover, the privilege is not absolute. “A litigant may obtain deliberative process materials if his or her need for the materials and the need for accurate fact-finding override the government’s significant interest in non-disclosure.” 6In analyzing whether this burden has been met, the Court must consider “the relevance of the evidence, availability of other evidence, government’s role in the litigation, and the extent to which disclosure would hinder frank and independent discussion regarding new policies and decisions.”7

Courts have historically taken the position that factual information that is not subject to the deliberative process privilege, can “be separated out and disclosed, without impinging on the policymaking decisional processes intended to be protected by this exemption.“However, a government record which contains factual components (e.g., a memo prepared by the Department of Education that outlines state aid simulation results for different funding formulas) is subject to the deliberative process exception to OPRA when it is used in the decision-making process and its disclosure would reveal the nature of the deliberations that occurred during the process.9 The initial focus must be upon the nature of the materials sought, while taking into consideration the interest of the parties in relation to the material sought.10 For the deliberative process privilege to apply, “’the governmental entity claiming the privilege bears the burden of establishing that the document in question was in fact pre-decisional and that it is deliberative in nature, containing opinions, recommendations, or advice about agency policies.’” . . . Moreover, “[p]urely factual material that does not reflect deliberative processes is not protected.’ 11 Thus, property appraisals performed by a private appraiser at the behest of a township governing body are not subject to the deliberative process exemption under OPRA “because (1) they have not been used in the ‘decision making process’ and (2) their disclosure will not ‘reveal deliberations that occurred during the decision making process.”12

In Tucker Dev.. & Acquisition Fund, L.P. v. Borough of Fort Lee,13 the Court performed an in camera review of documents which were subject to the deliberative process privilege. Plaintiffs challenged the defendants’ “denial of access to minutes of closed meetings of the Fort Lee Council, correspondence and letters, and requests for information for proposals relating to a development project and from the other proposed developers.”14 The Court reviewed the documents in camera and determined that certain documents were covered by the deliberating process privilege, however, other items were not. In ruling, the Court held that those portions relating to a privilege should be redacted while the remainder of the document should be produced. Thus, a party requesting documents should challenge claims of privilege under the deliberative process to ensure complete and full compliance with the Act.

The deliberative process privilege was established to protect internal opinions and recommendations involving agency policies. While this privilege applies in some circumstances, it may be overcome if the interest of disclosure outweighs the governmental interest in maintaining the confidentiality of information.

1. Reports prepared for a governmental agency by a third party consultant are entitled to the same protection for deliberative materials as if prepared by the agency. Beck v. O’Hare, MER-L-2411-07 (Nov. 26, 2007)
2. In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83, 754 A.2d 1177 (2000).
3. Education Law Center v. New Jersey Dept of Educ., 198 N.J. 274, 286, 966 A.2d 1054, 1061, 2009 N.J. LEXIS 92, *19, 37 Media L. Rep. 1523 (N.J. 2009).
4. Tucker Dev. & Acquisition Fund, L.P. v. Borough of Fort Lee, 2010 N.J. Super. Unpub. LEXIS 3089, *43-45 (Law Div. Aug. 20, 2010).
5. Pressler & Verniero, Current N.J. Court Rules, Comment 6 to R. 4:10-2 (2015) (citing Loigman v. Kimmelman, 102 N.J. 98 (1986)).
6. In the Matter of the Liquidation of Integrity Ins. Co., 165 N.J. 75, 85, 754 A.2d 1177 (2000).
7. Id. at 86.
8. Envtl. Prot. Agency v. Mink, 410 U.S. 73, 78 S.Ct. 827, 837, 35 L. Ed. 2d 119 (1973).
9.Education Law Center v. New Jersey Department of Education, supra, 198 N.J. 274 (2009)
10. Lagerkvist v. New Jersey Dep’t of Envtl. Prot., 2011 N.J. Super. Unpub. LEXIS 1912, *76-78 (Law Div. July 12, 2011).
11. Paff v. Office of the Prosecutor, County of Warren, A-2426-13T3 (Dec. 9, 2015) https://scholar.google.com/scholar_case?case=8255607844028306591&q=A-2426-13T3&hl=en&as_sdt=4,31
12. Tractenberg v. Township of West Orange, 416 N.J. Super. 354 (App. Div. 2010)
13. 2010 N.J. Super. Unpub. LEXIS 3089, 47 (Law Div. Aug. 20, 2010).
14. Id.