McGee v. East Amwell – The “Advisory, Consultative or Deliberative” Exemption to The New Jersey Open Public Records Act (OPRA)

On November 16, 2010, the Appellate Division, in McGee v. Township of East Amwell, Dkt. No. A-1233-09T2, 2010 N.J. Super., held that emails among township officials and a former supervisor regarding an employee’s termination from employment are subject to the “advisory, consultative or deliberative” exemption to the New Jersey Open Public Records Act. Plaintiff Joan McGee had appealed the Government Records Council’s (GRC) final decision denying her request for reconsideration of the GRC’s decision that the emails were exempt from disclosure.

McGee was an employee of the Township of East Amwell who had filed work-related complaints with both the Equal Employment Opportunity Commission (EEOC) and the New Jersey Courts. Thereafter, various township officials, employees and appointees circulated emails regarding the filings. Those emails were the subject of McGee’s OPRA requests. In response to the OPRA requests, the Township asserted that certain of the emails were protected by the attorney-client privilege and denied access to those materials. McGee challenged the denial based on attorney-client relationship before the GRC, arguing that a third-party individual privy to the emails — McGee’s former supervisor — was not an employee at the time the emails were created. The Township argued that the withheld emails were protected by privilege (i.e., dual representation of Township and named officials, present and former) and further that the emails were protected from disclosure under OPRA’s “advisory, consultative and deliberative” exemption. In its decision, the GRC found several of the emails should not be produced because they were exempt from OPRA based on the “advisory, consultative or deliberative” exemption, attorney-client privilege, or consisted of protected material contained within a personnel file. The GRC denied a request for reconsideration, and McGee appealed to the Appellate Division.

McGee advanced several arguments before the Appellate Division, including that the “advisory, consultative or deliberative” exemption could not be utilized to deny her access to the remaining emails because a third-party (her former supervisor) was involved in, or privy to, the emails; that the attorney-client privilege did not apply to the emails for the same reason; and that the emails were part of her personnel file and thus the Township could not withhold them from her once she waived her right to confidentiality — an argument that McGee raised for the first time before the Appellate Division.

The Appellate Division rejected McGee’s first two arguments, observing that the “advisory, consultative and deliberative” exemption “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and polices are formulated.” Two predicates are required to successfully invoke the exemption: (1) the document must be pre-decisional; and (2) the document must be deliberative in nature, containing opinions, recommendations or advice about agency policies. Satisfaction of these two predicates creates a presumption of confidentiality and shifts the burden to the requestor to establish that her interest in disclosure outweighs the government’s interest in confidentiality. As to McGee’s OPRA request, the Appellate Division deferred to the GRC’s decision, finding that:

• the emails consisted almost entirely of preparations for the upcoming meetings where McGee’s employment was to be discussed and thus were subject to the “advisory, consultative and deliberative” exemption;
• the emails involving McGee’s former supervisor or to which the former supervisor was privy were protected by the attorney-client privilege because the former supervisor’s input was critical to the Township’s defense; and
• the inclusion of McGee’s former supervisor in the emails did not destroy the applicability of the “advisory, consultative and deliberative” exemption.

The Appellate Division reversed and remanded the issue of whether McGee’s waiver of confidentiality justified disclosure of the emails since the issue had not been raised before the GRC and directed that the Township be permitted to present arguments against the waiver.

McGee, however, is not entirely definitive on the applicability of the “advisory, consultative or deliberative” exemption. First, the opinion is less than clear as to the policy or decision that was involved that would justify the application of the exemption. Second, the Appellate Division failed to discuss well-settled law that factual information contained in a document that is advisory, consultative or deliberative is nonetheless accessible under OPRA unless it is inextricably intertwined with the deliberative material. To the extent that factual information may be excised, such information would arguably be accessible under OPRA.