Friday, April 15, 2016

New OPRA lawsuit takes aim at GRC's wrongheaded Parave-Fogg decision.


Update:

Mercer County Superior Court Judge Mary C. Jacobson ruled today that the Government Records Council's (GRC) unapproved meeting minutes are exempt from disclosure because they are pre-decisional and deliberative. 

The plaintiff in the case, Libertarians for Transparent Government, a NJ Nonprofit Corporation and its attorney, CJ Griffin of Hackensack, filed a Notice of Appeal on August 24, 2016.

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In 2006, the Government Records Council (GRC) ruled--wrongly in my opinion--that a public body's unapproved meeting minutes were exempt from disclosure because they were "advisory, consultative and deliberative."  The GRC based its decision on former Executive Director Catherine Starghill's August 3, 2006 Findings and Recommendations in a case known as Parave-Fogg v. Lower Alloways Creek Twp., GRC Complaint No. 2006-51.  In her Findings, Starghill wrote:
Thus, in accordance with the foregoing case law, all draft documents, including the draft minutes of a meeting held by a public body, are entitled to the protection of the deliberative process privilege. Draft minutes are pre-decisional. In addition, they reflect the deliberative process in that they are prepared as part of the public body’s decision making concerning the specific language and information that should be contained in the minutes to be adopted by that public body, pursuant to its obligation, under the Open Public Meetings Act, to “keep reasonably comprehensible minutes.” N.J.S.A. 10:4-14.  This conclusion is a departure from prior GRC decisions and is based on the legal advice received from the Office of the Attorney General.
Since this decision, public bodies across New Jersey, some of which are months if not years behind in approving their meeting minutes, have used the Parave-Fogg decision to justify denying the public access to draft versions of those minutes.

On April 15, 2016, Libertarians for Transparent Government, a NJ nonprofit corporation, filed a lawsuit in Mercer County Superior Court that directly challenges Parave-Fogg's holding.  The defendant in the newly filed lawsuit is the GRC itself.

On April 4, 2015, the Libertarian advocacy organization submitted an Open Public Records Act (OPRA) request to the GRC seeking the minutes of the GRC's February 23, 2016 public meeting.  Since the GRC's March 29, 2016 meeting was cancelled for want of a quorum, the February meeting minutes were not approved at the time of the organization's April 4, 2016 request.  According, GRC records custodian Frank Caruso, relying on Parave-Fogg, denied access because of the "advisory, consultative and deliberative" exemption.

In its brief, penned by Hackensack attorney CJ Griffin, the Libertarian organization argued that Parave-Fogg was "simply wrong" because
The deliberative process privilege does not protect unapproved meeting minutes because there is nothing "deliberative" about meeting minutes—they are secretarial in nature and simply capture what occurred during a public meeting. While a "draft" document may be exempt in some circumstances, a draft of a non-deliberative document is not exempt.
Nothing about unapproved meeting minutes reveals the policy deliberations of the GRC, nor would release of the minutes chill frank discussion of government policies in the future. Simply put, the deliberative process privilege is not intended to protect meeting minutes. When OPRA's deliberative process privilege is narrowly construed, as the Legislature directed, it is clear that meeting minutes are not exempt from access simply because they have not been formally "approved."
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