NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0039-18T3
JAMES R. FREESWICK,
Plaintiff-Appellant/ Cross-Respondent,
v.
WAYNE TOWNSHIP BOARD OF EDUCATION, WAYNE TOWNSHIP PUBLIC SCHOOL DISTRICT, and MICHAEL J. DONOW, in his official capacity as Interim Business Administrator and Custodian of Records of Wayne Township Board of Education and Wayne Township Public School District,
Defendants-Respondents/ Cross-Appellants. ______________________________
Argued October 15, 2019 – Decided January 13, 2020
Before Judges Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2506-17. James R. Freeswick, appellant/cross-respondent, argued the cause pro se.
John G. Geppert argued the cause for respondents/ cross-appellants (Scarinci & Hollenbeck, LLC, attorneys; John G. Geppert, of counsel and on the briefs; Laura M. Miller, on the briefs).
PER CURIAM
This appeal and cross-appeal stem from a well-publicized incident in
November 2016 regarding the reinstated eligibility of two transfer student-
athletes with the Wayne Hills High School (WHHS) sectional state champion
football team. Following the conclusion of the football season, defendant
Wayne Township Board of Education (the Board) retained special counsel to
advise the Board regarding possible changes to its policies and procedures on
residency and eligibility requirements for student-athletes transferring to
defendant Wayne Township Public School District (the District).
In the following spring and summer, plaintiff James R. Freeswick made
two requests under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to
-13, to defendant Michael J. Donow, Interim Business Administrator and
Custodian of Records for the Board, seeking release of documents related to
special counsel's investigation.
A-0039-18T3 2 Pertinent to this appeal, plaintiff sought copies of special counsel's: (1)
unredacted itemized legal bill; (2) typewritten summaries of interviews with
Board Superintendent Dr. Mark Toback, WHHS principal Dr. Maureen Weir,
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 (WVHS), another high school in the district. The
trial judge ordered defendants to provide plaintiff unredacted copies of the
itemized legal bills and Dr. Weir's interview summary. The remaining
documents were determined to be protected from disclosure under the
deliberative process privilege.
On appeal, plaintiff contends, under OPRA and the common law right of
access to public records, he is entitled to unredacted copies of the interview
summaries and handwritten notes. On cross-appeal, defendants contend the judge
erred in ordering the release of redacted interview summaries of Dr. Toback, Dr.
Weir, and the two Board employees and redacted itemized legal bills of special
counsel. We affirm in part, reverse and remand in part.
I.
On November 7, 2016, Dr. Toback sought guidance from the New Jersey
State Interscholastic Athletic Association (NJSIAA) about the possibility that
A-0039-18T3 3 two student-athletes on the WHHS football team, who transferred to the school
and played that fall, were ineligible to play because they had not established
bona fide residence in the District. After meeting with Dr. Toback and other
WHHS administrators the following day, the NJSIAA determined the students
were in fact ineligible to play because they did not have a bona fide change of
address, and, thus, WHHS was disqualified from the 2016 state football
playoffs.
On November 8, the Board and parents of WHHS students filed an
emergent application with the New Jersey Commissioner of Education. On
November 10, the Acting Commissioner issued a decision overturning the
NJSIAA's decision barring WHHS from competing in the state football playoffs.
The Acting Commissioner determined the NJSIAA did not conduct an eligibility
hearing for the student-athletes, thereby denying them due process.
At the ensuing eligibility hearing on November 15, based upon new
information presented, the NJSIAA held the student-athletes were eligible to
play, and WHHS was able to participate in the state football playoffs. With the
green light to compete, the WHHS football team won a sectional state
championship against its intra-school district rival, WVHS.
A-0039-18T3 4 The eligibility controversy continued to fester when irate members of the
Wayne Township community – including plaintiff – voiced concerns and
complaints at the Board's November 17 meeting. As a result, on December 21,
the Board retained DiFrancesco, Bateman, Kunzman, Davis, Leher & Flaum,
PC, "at an hourly rate of $150/hour not to exceed 50 hours/$7,000" as special
counsel, to investigate "all events related to [the residency incident] as well as
[conduct] an audit of the district's processes used to verify student residency and
procedures followed to verify athletic transfer into the district."
On June 5, 2017, approximately two weeks before special counsel's
investigation concluded, plaintiff submitted an OPRA request to Donow.
Plaintiff requested the following:
(1) Copies of all reports, including all addenda and appendices to all reports and copies of all documents referenced in all reports, by the special outside counsel, Philip J. Stern, Esq.[,] of the [DiFrancesco law firm], and any other lawyer or lawyers of that firm, in connection with the investigations requested by [the Board] in or about December[] 2016 of (a) the events surrounding the Wayne Hills High School varsity football team being temporarily disqualified from participation [in] the state football playoffs in 2016 by the [NJSIAA] and (b) the policy of [the District] regarding residency of students in [the District], and
(2) Copies of all contracts a/k/a retainer agreements between [the District] and [the DiFrancesco law firm], in connection with the hiring of that law firm by [the
A-0039-18T3 5 District] to conduct the investigations requested by [the Board] referenced in Part II, item (1) above, and
(3) Copies of all invoices and bills submitted to [the District] by [the DiFrancesco law firm], in connection with the hiring of that law firm by [the District] to conduct the investigations requested by [the District] to conduct the investigations requested by [the Board] referenced in Part II, item (1) above.
On June 13, Donow responded to the request. He informed plaintiff the
District was not in possession of any reports requested in item one but provided
copies of: (1) special counsel's legal bills with redactions of the interviewees'
names and information "considered protected under attorney-client privilege, as
well as information which is considered advisory, consultative, or deliberative
material[;]" and (2) minutes of the December 21 Board meeting approving
Two days later, with the investigation concluded, Stern gave an oral report
to the Board at its public meeting. Stern stated that during the investigation, a
total of eight individuals "includ[ing] staff members, building level
administration, central office administrators," and Dr. Toback, were
interviewed. He advised the Board it needed to "update and institutionalize" its
process for handling residency transfers and provided new procedures drafted
for its consideration to address transfers. He further explained that, at all times,
A-0039-18T3 6 Dr. Toback "acted in the best interest of the school district" and "within his
authority as the chief school administrator." Stern recommended the Board and
its administration, among other things, "commit to improving the internal
residency procedures"; procure a "centralized administrative overview of all
transfers into the district"; conduct "additional overview for all transfers"
seeking to participate in sports related activities; and "implement[] measures to
ensure that students and student athletes participate in a healthy school
community . . . ." Stern neither disclosed the names of interviewees, nor the
content of their interviews.
Plaintiff filed a second, more expansive, OPRA request with the District
on July 3, 2017. He requested:
(1) Resolution S-2017-19, approved by [the Board] at its meeting held on November 17, 2016, and
(2) List of the dates of all executive sessions of [the Board] that were held on or about September 8, 2016 through July 3, 2017, and
(3) Minutes of all executive sessions of [the Board] that were held on or about September 8, 2016 through July 3, 2017, and
(4) Minutes of all special and regular meetings of [the Board] that were held on or about April 5, 2017 through June 15, 2017, and
A-0039-18T3 7 (5) List of dates of all executive sessions of [the Board] at which the investigation and/or a report of the special investigator and outside counsel [Stern] was a topic addressed and/or discussed, and
(6) Minutes of all executive sessions of [the Board] at which the investigation and/or report of the special investigator and outside counsel [Stern] was a topic addressed and/or discussed, and
(7) Copy of the final report by special investigator and outside counsel, [Stern], of [the DiFrancesco law firm], to [the Board] regarding his investigation that was requested by [the Board] on or about December 21, 2016, and copies of all documents attached to, and/or referenced in, the final report, and
(8) List of the names, addresses and, if an employee of [the District], job title, of all persons who were interviewed by special investigator and outside counsel [Stern], and/or by any member or associate of [the DiFrancesco law firm], including Robert Manetta, Esq., in connection with the investigation and report that was requested by [the Board] on or about December 21, 2016, and, with respect to each such person, the date, time and place that such person was interviewed and the name and title of the person who conducted the interview, and
(9) List of names. addresses and, if an employee of [the District], job title, of all persons who gave statements to the special investigator and outside counsel, [Stern], and/or to a member or associate of [the DiFrancesco law firm], including associate attorney [Manetta], in connection the investigation and report that was requested by [the Board] on or about December 21, 2016, and, with respect to each statement, (a) the date,
A-0039-18T3 8 time and place that such statement was made and, if in writing, (b) copies of all such statements, and
(10) List of all documents, records and information, by title, author, date and subject matter, that have been submitted by [the District], including employees thereof, and/or by [the Board], including employees thereof, to the special investigator and [Stern] and/or to [the DiFrancesco law firm], including associate attorney [Manetta], in connection with the investigation and report that was requested by [the Board] on or about December 21, 2016, and all copies of all such documents, and
(11) List of all documents, records and information, by title, author, date and subject matter that were submitted to [the Board] and/or [the District], by the special investigator and outside counsel [Stern] and/or by [the DiFrancesco law firm], including associate attorney [Manetta], in connection with the investigation and report that was requested by [the Board] on or about December 21, 2016, and all copies of all such documents, and
(12) List of all emails and all other correspondence, identified by sender, recipient, date and subject matter, which were sent by [the Board], or a member thereof, and/or by [the District], or an employee thereof, to [the] special investigator and outside counsel [Stern] and/or to a member or associate attorney in [the DiFrancesco law firm], including [Manetta]. in connection with the investigation and report that was requested by [the Board] on or about December 21, 2016, and all copies of all such emails and correspondence, and
(13) List of all emails and all other correspondence, identified by sender, recipient, date and subject matter, which were sent by [the] special investigator and
A-0039-18T3 9 outside counsel [Stern] and/or by a member or associate of [the DiFrancesco law firm], including [Manetta], to [the Board], or a member thereof, and/or to [the District], or an employee thereof, in connection with the investigation and report that was requested by [the Board] on or about December 21, 2016, and all copies of all such emails and correspondence, and
(14) Copies of all invoices and bills submitted by [the DiFrancesco law firm] to [the Board] and/or [the District] subsequent to May 31, 2017 in connection with the investigation and report requested by [the Board] on or about December 21, 2016.
In a letter dated July 12, Donow advised plaintiff the documents sought in
request numbers 1, 2, 3, 4, 5, and 6 were available on the District's website.
Because of the volume of additional documents sought, Donow indicated they
would be provided to plaintiff "on or before August 11."
Two weeks later, plaintiff filed an Order to Show Cause and verified
complaint seeking unredacted versions of the legal bills and invoices. On
August 17, pursuant to Rule 4:67-1(a), the trial judge entered the order requiring
defendants to show cause on September 28, as to why plaintiff was not entitled
to unredacted copies of the requested documents.
In the meantime, the parties continued to communicate in an effort to
resolve their differences. However, as they were unsuccessful, defendants
A-0039-18T3 10 eventually submitted the disputed documents to the judge for in camera
inspection.
On October 2, plaintiff filed an amended verified complaint contesting the
Board's denial of item number nine from his July 3, 2017 OPRA request. The
judge ordered a return date of November 14.
On November 13, in response to the order, defendants provided the judge
for in camera review four sets of unredacted typewritten notes by special counsel
summarizing the interviews of Dr. Toback, Dr. Weir, and two other Board
employees. Also provided was a single page of handwritten notes by Stern
regarding his "mental impressions" of his interview of the unidentified person
from WVHS, as well as special counsel's unredacted invoices for legal bills.
Following three hearings dates in September, November, and December,
as well as three telephone conferences in February, June, and August of 2018,
which included some rulings, the judge entered an order of final judgment on
August 3, 2018, requiring defendants to turn over to plaintiff: (1) unredacted
copies of special counsel's itemized legal bills dated February 13, 2017, March
7, 2017, April 10, 2017, and May 31, 2107; and (2) an unredacted copy of
A-0039-18T3 11 typewritten notes of the interview of Dr. Weir.1 Additionally, the order denied
plaintiff's request to obtain: (1) unredacted copies of typewritten notes of
interviews of Dr. Toback, and two other Board employees; and (2) an unredacted
copy of Stern's single-page handwritten notes of the interview of "the person 'of
[WVHS].'" The order also awarded costs to plaintiff.
Plaintiff appealed and defendants' cross-appealed. The parties thereafter
agreed to a consent order executed by the judge staying all provisions of the
August 8 final judgment requiring the disclosure of documents and the award of
costs to plaintiff.
II.
We review de novo a trial judge's legal conclusions concerning access to
public records under OPRA and the common law right of access. N. Jersey
Media Grp., Inc. v. Township of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div.
2015). We will not disturb factual findings as long as they are supported by
adequate, substantial and credible evidence. See Meshinsky v. Nichols Yacht
Sales, Inc., 110 N.J. 464, 475 (1988). "We apply a different and deferential
1 The order suggests in paragraph 1(a) and (b) that there were two sets of "typewritten notes of the interview of Dr. Weir," however, the record indicates Dr. Weir was interviewed only once for which there is only one five-page typewritten summary. A-0039-18T3 12 standard of review when a court conducts an in camera review of documents and
balances competing interests in disclosure and confidentiality in connection with
a common-law-based request to inspect public records." N. Jersey Media Grp.,
Inc., 441 N.J. Super. at 89 (citing Shuttleworth v. City of Camden, 258 N.J.
Super. 573, 588 (App. Div.)). Nevertheless, "to the extent [the appellate court]
can be said to be reviewing essentially a legal determination, [it] can review the
documents which the trial judge ordered disclosed . . . ." Id. at 90 (quoting
Shuttleworth, 258 N.J. Super. at 588).
The following principles governing OPRA and the common law right to
access to government records are relevant to the present dispute.
A.
OPRA
"OPRA provides for ready access to government records by the citizens
of this State." Burnett v. Cty. of Bergen, 198 N.J. 408, 421-22 (2009) (citing
Mason v. City of Hoboken, 196 N.J. 51, 64-5 (2008)). "The purpose of OPRA
'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 Cty. Prosecutor's Office,
A-0039-18T3 13 374 N.J. Super. 312, 329 (Law Div. 2004)). Accordingly, OPRA directs that
"all government records shall be subject to public access unless exempt," 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.
Although OPRA broadly defines the term "government record," it
expressly provides it "shall not include inter-agency or intra-agency advisory,
consultative, or deliberative material." N.J.S.A. 47:1A-1.1. "This exemption
has been construed to encompass the deliberative process privilege, which has
its roots in the common law." Ciesla v. N.J. Dep't of Health & Sr. Servs., 429
N.J. Super. 127, 137 (App. Div. 2012) (citing Educ. Law Ctr. v. N.J. Dep't of
Educ., 198 N.J. 274, 284 (2009)). The deliberative process privilege allows
government entities to "withhold documents that reflect advisory opinions,
recommendations, and deliberations comprising part of a process by which [its]
decisions and policies are formulated." In re Liquidation of Integrity Ins. Co.,
165 N.J. 75, 83 (2000) ("Integrity") (citing NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 150 (1975)). "[T]he privilege is necessary to ensure free and
uninhibited communication within governmental agencies so that the best
possible decisions can be reached[.]" Educ. Law Ctr., 198 N.J. at 286. "The
privilege bars the 'disclosure of proposed policies before they have been fully
A-0039-18T3 14 vetted and adopted by a government agency,' thereby ensuring that an agency is
not judged by a policy that was merely considered." Ciesla, 429 N.J. Super. at
137-38 (quoting Educ. Law Ctr., 198 N.J. at 286).
"In order to invoke the deliberative process privilege, an agency must
initially prove that a document is 'pre-decisional,' i.e., 'generated before the
adoption of an agency's policy or decision,' and also 'deliberative,' in that it
'contain[s] opinions, recommendations or advice about agency policies.'" Id. at
138 (alteration in original) (quoting Integrity, 165 N.J. at 84-85). "As with any
privilege, the party seeking such documents bears the burden of showing a
substantial or compelling need for them." Integrity, 165 N.J. at 85 (citations
omitted).
"Documents that satisfy the OPRA definition of government record are
not subject to public access if they fall within the work-product doctrine."
O'Boyle v. Borough of Longport, 218 N.J. 168, 188 (2014) (citing Sussex
Commons Assocs., LLC v. Rutgers, 210 N.J. 531 542 (2012); Gannett N.J.
Partners, L.P. v. Cty. of Middlesex, 379 N.J. Super. 205, 218 (App. Div. 2005)).
OPRA also exempts "any record within the attorney-client privilege . . .;
[and] security measures and surveillance techniques which, if disclosed, would
create a risk to the safety of persons, property, electronic data or software . . .
A-0039-18T3 15 [.]" N.J.S.A. 47:1A-1.1. "[T]he attorney-client privilege applies whenever
confidential legal advice is rendered to state agencies, whether by private
counsel . . . or by the Division [of Law] . . . ." Paff v. Div. of Law, 412 N.J.
Super. 140, 154 (App. Div. 2010). The purpose of the attorney-client privilege
is "to encourage clients to make full disclosure to their attorneys." Id. at 150
(quoting Macey v. Rollins Envtl. Servs. (N.J.), Inc., 179 N.J. Super. 535, 539
(App. Div. 1981)). The attorney-client privilege is "ordinarily waived when a
confidential communication between an attorney and a client is revealed to a
third party." O'Boyle, 218 N.J. at 186 (citation omitted). While records that are
"within the attorney-client privilege" are confidential, OPRA explicitly
precludes from exemption "attorney or consultant bills or invoices[,]" although
such records "may be redacted to remove any information protected by the
attorney-client privilege." N.J.S.A. 47:1A-1.1.; see also O'Boyle, 218 N.J. at
184-85) (holding "a document by a third party, such as a bill for services
prepared by an attorney retained by a public entity and submitted to it for
payment, is subject to public access pursuant to OPRA").
A-0039-18T3 16 B.
Common Law
A common law right of access to public records exists parallel and
unrestricted by OPRA. See Mason, 196 N.J. at 67. Under common law, to
constitute a public record, three elements must be met: (1) the document be a
written memorial; (2) the document be made by a public officer; and (3) the
officer be authorized by law to make it. Bergen Cty. Imp. Auth. v. N. Jersey.
Media Grp., Inc., 370 N.J. Super. 504, 518 (App. Div. 2004).
The common law right to access, however, is not absolute. Keddie v.
Rutgers, 148 N.J. 36, 50 (1997). To gain access to materials under the common
law right of access: "(1) 'the person seeking access must establish an interest in
the subject matter of the material'; and (2) 'the citizen's right to access must be
balanced against the State's interest in preventing disclosure.'" Mason, 196 N.J.
at 67 (quoting Keddie, 148 N.J. at 50). And a "citizen's right to access 'must be
balanced against the State's interest in preventing disclosure.'" Ibid. (quoting
Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 46 (1995).
III.
Guided by the principles set forth above, we address the parties' respective
contentions in their appeal and cross-appeal.
A-0039-18T3 17 A.
Interview Summaries
In his appeal, plaintiff argues the judge erred in denying his request for
unredacted typewritten notes of interview summaries of Dr. Toback and two
unidentified interviewees. Defendants contend in their cross-appeal the judge
erred in ordering the release of any of interview summaries and providing costs
to plaintiff.2
Based on our review of the interview summaries of Dr. Toback and the
two unidentified Board employees, we agree with the judge that the summaries
should not be released due to the deliberative process privilege under OPRA
because "they [were] consultative and deliberative about a new [residency]
policy[,] . . . two of them don't mention [the student-residency investigation] at
all . . . [the] other one mentions [the student-residency issue] but only as an
2 Although identified in their notice of cross-appeal, defendant's do not brief the trial judge's award of costs, thus we deem the issue abandoned. See Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2019); see also Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-19 (App. Div. 2017).
A-0039-18T3 18 example of why we need to improve [the District's policy]. It doesn't go into
any detail about the [the student-residency] investigation."
The interviewees' comments were not purely factual and were made to
special counsel to aid in the formulation of residency policies for the Board's
consideration. See Integrity, 165 N.J. at 80, 83. They revealed their experiences
with the district's student residency policies and procedures with no mention of
the student-athletes' transfer incident. To allow disclosure would curb the flow
of complete and uninhibited communication that is needed to develop sound
governance policy. See Educ. Law Ctr., 198 N.J. at 286. Contrary to plaintiff's
argument, the Board did not waive any privilege when Stern delivered his oral
report at the public Board meeting, because other than identifying Dr. Toback,
no one else was identified and there was no mention of what any interviewee
revealed. As for defendants' claim the interview summaries are protected by the
work product doctrine, this is to no avail because the summaries were not
completed in anticipation of litigation. R. 4:10-2(c).
We recognize the summaries of Dr. Toback and Dr. Weir's interviews,
appear to mix deliberation with pure facts. We therefore look to Educ. Law Ctr.,
where the Court held:
[A] record, which contains or involves factual components, is subject to the deliberative process
A-0039-18T3 19 privilege when it was used in the decision-making process and its disclosure would reveal the nature of the deliberations that occurred during that process. By that standard, individual documents may not be capable of being determined to be, necessarily, deliberative material, or not, standing alone. A court must assess such fact-based documents against the backdrop of an agency's deliberative efforts in order to determine a document's nexus to that process, and its capacity to expose the agency's deliberative thought-processes.
[198 N.J. at 299-300.]
Dr. Toback's interview summary reveals facts referencing the residency
incident solely as an example, and was a brief and fleeting mention. The
remainder of the document expresses Dr. Toback's opinions regarding the
District's student residency policy and his recommendations for updating the
policy. Thus, we discern no reason to overturn the judge's decision with respect
to this interview summary because plaintiff does not provide any substantial or
compelling need for the same reasons noted above.
As for the interview summary of Dr. Weir, we part company with a portion
of the judge's ruling. For the most part, the summary is not protected because it
details the facts as Dr Weir knew them concerning the student-athletes'
residency incident and does not discuss the Board's residency policy and
procedures. However, at the end of the summary are sections titled "Dr. Weir's
Recommendations on Procedure" and "Dr. Weir's Recommendations on other
A-0039-18T3 20 people to interview"; these are deliberative and should be redacted. Further,
releasing the names of the individuals Dr. Weir recommended the DiFrancesco
firm to interview would hinder future "independent discussion regarding
contemplated policies and decisions." Integrity, 165 N.J. at 85-86.
Turning to the common law right of access, we see no cause to differ from
the conclusions reached under OPRA. It is clear the interview summaries are
public records because they are memorialized documents created at the behest
of a public body. However, plaintiff has not shown his interest in disclosure of
the documents outweighs the State's interest in nondisclosure. Higg-A-Rella,
141 N.J. at 47-48.
Plaintiff's interest concerning the public's right to know how tax dollars
are being spent vis-à-vis the Board's residency policies, is not satisfied in
obtaining the interview summaries of Dr. Toback and the two Board employees,
and the portions of Dr., Weir's summary that we conclude are protected. In fact,
plaintiff's concerns can be best addressed through a review of the unprotected
summary of Dr. Weir's interview which detail the student-athletes' eligibility
incident and the temporary disqualification of the WHHS football team from
competing in the state championship playoffs. As Stern publicly reported, the
need to update the student residency policies and procedures can prevent the
A-0039-18T3 21 problem which led to the student-athletes' eligibility incident. Plaintiff and the
public need only look to Dr. Weir's interview summary to understand why the
student residency policy was updated.
On the other hand, the interview summaries of Dr. Toback and the two
Board employees reference their opinions and experience with the then current
residency procedures. For the reasons explained under OPRA, the Board's
interest in non-disclosure outweighs the public right to know.
B.
Stern's Handwritten Notes
Plaintiff asserts in his appeal that Stern's handwritten notes of the
unidentified WVHS person must be released because they are not covered under
any exception or exemption under OPRA and the judge's reasoning, that the
notes are unintelligible, is an insufficient basis for preserving its confidentiality.
We disagree.
Under OPRA, a document is a "any paper . . . maintained or kept on file
in the course of his or its official business by" an agent of the District. N.J.S.A.
47:1A-1.1. This document does not appear to be a government record, as it is
one-page of handwritten notes of an attorney retained by the Board comprising
about two dozen words with symbols and other notations that for the most part
A-0039-18T3 22 are undecipherable. Yet, even if we consider the notes government records, they
are covered by the deliberative process privilege because they were created as
part of the investigation process into the student-athlete residency incident to
aid the Board in developing new policies and procedures.
We agree with the judge's reasoning – the notes "do[] nothing to illuminate
exactly the contents of the interview that spawned that particular note ," and
appear to be Stern's mental impressions. Moreover, plaintiff has not overcome
the presumption of nondisclosure by showing a "substantial or compelling need"
for Stern's handwritten notes. See Integrity, 165 N.J. at 85. Plaintiff makes no
showing that the notes are relevant to his reason for requesting the document,
which is to assess the investigation and the credibility of the Board's new
residency policy and procedures. As noted above, the interview summary of Dr.
Weir, Stern's public report, and the new residency policy alone are sufficient for
plaintiff and other members of the public to assess the credibility of the Board's
recommendations. Because Stern's unintelligible notes add nothing to plaintiff's
concerns, plaintiff is not entitled to them under OPRA.
Our conclusion that Sterns' single page of handwritten notes is not
disclosable under OPRA remains the same under our common law right of
access analysis. Applying the same reasoning expressed under OPRA, the notes
A-0039-18T3 23 are not public records under the common law. And even if they were, plaintiff
has not shown a particularized need for Stern's handwritten notes or whether the
information he needs is not available from other sources. Of the documents
being sought, plaintiff's legitimate quest to understand the Board's new
residency initiatives can be accomplished through the part of Dr. Weir's
interview summary that we have determined should be released.
C.
Itemized Legal Bills
Defendants argue in their cross-appeal that the judge erroneously granted
plaintiff access to special counsel's unredacted itemized legal bills. They
maintain the witness' identities and subject matter identifications should be
redacted based on the deliberative process privilege and the personnel record
exception, under McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 615 (App.
Div. 2010). Otherwise, the nature of the decision-making process for the
residency policy would be revealed and employees would effectively be
discouraged from any future discussion with or recommendations to their
superiors. Lastly, defendants maintain plaintiff is not entitled to the legal bills
because he has not established a "particularized need" but rather a "general
desire to learn more about the [i]nvestigation"; which does not overcome their
A-0039-18T3 24 interest in confidentiality. See Asbury Park Press, Inc. v. State, Dep't of Health,
233 N.J. Super. 375, 646 (App. Div. 1989).
It is undisputed the invoices are government records under OPRA and thus
subject to public access. N.J.S.A. 47:1A-1.1. Therefore, the legal invoices are
not covered under the deliberative process privilege and personnel records
exception. The question is whether they contain any information disclosing the
Board's decision-making process or would effectively discourage any discussion
or recommendations from employees to their superiors in the future. The
itemized bills indicate the names of the two Board employees and the
unidentified WVHS person interviewed by special counsel. Given our ruling
that these individuals' names should not be revealed, logic dictates their names
be redacted from the legal bills. This redaction would not restrict plaintiff's
right under OPRA to obtain copies of the bills. Accordingly, we need not
address whether the bills should be disclosed under the common law right of
access. Hence, subject to the noted redactions, we see no bar to the disclosure
of the bills under common law as plaintiff has a right to know the amount and
basis for expenditure of public funds.
A-0039-18T3 25 IV.
In sum, we affirm the final judgment that plaintiff is not entitled to: (1)
interview summaries of Dr. Toback and the two unidentified Board employees;
and (2) the single page of handwritten notes of an unidentified WVHS person.
We affirm plaintiff is entitled to the interview summary of Dr. Weir but reverse
to the extent that we order the summary's sections titled "Dr. Weir's
Recommendations on Procedure" and "Dr. Weir's Recommendations on other
people to interview," must be redacted. We affirm the award of costs to plaintiff.
Lastly, we affirm plaintiff is entitled to copies of special counsel's itemized legal
bills but reverse to the extent that we order the names of the Board employees
and the unidentified WVHS person redacted.
Affirmed in part, reversed and remanded in part.
A-0039-18T3 26