McGee v. TOWNSHIP OF EAST AMWELL
416 N.J. Super. 602
| N.J. Super. Ct. App. Div. | 2010Background
- McGee appeals a Government Records Council (GRC) decision denying access to 12 emails among East Amwell officials and related parties.
- OPRA governs access to government records; emails fall within the broad definition of government records.
- GRC conducted in-camera review of undisclosed emails and issued various exemptions, including 'advisory, consultative, or deliberative' and 'personnel records'.
- Wolfe, a former Planning Board chair, participated in the emails while her official role had ended shortly before the emails were created.
- McGee argues the 'personnel records' and 'deliberative process' exemptions do not apply or were waived; East Amwell contends exemptions apply and are supported by the record.
- The court reviews the GRC’s decision de novo with deference to the GRC’s interpretation of OPRA.
- The matter was remanded to determine whether McGee effectively waived confidentiality under the 'personnel records' exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OPRA's deliberative process privilege apply to emails involving a former official? | McGee contends no deliberative protection applies since Wolfe was no longer a public official. | GRC and East Amwell argue the privilege applies to pre-decisional communications even with a former official. | Yes; emails are pre-decisional and deliberative, protected by OPRA. |
| Whether 'personnel records' exemption applies and if waiver is possible. | McGee asserts waiver by her own request; argues records concern personnel matters. | East Amwell relies on personnel records exemption; argues waiver issues require GRC proceedings. | Exemption applies; remand to determine if waiver defeats confidentiality. |
| Does Wolfe's status as private resident defeat 'inter-/intra-agency' privilege? | |||
| Wolfe was not a public official at the time; communications should be outside inter-/intra-agency scope. | OPRA's advisory/deliberative exclusion covers communications among officials; private status does not defeat scope. | No; deliberative communications remain within OPRA’s scope when related to official business. | |
| Is the GRC's interpretation of 'deliberative' and 'personnel records' reasonable under a deferential standard? | GRC’s breadth improperly extends protections | GRC’s interpretation aligns with OPRA's aims and existing case law. | Yes; GRC’s interpretation is reasonable and supported by authorities. |
Key Cases Cited
- Educ. Law Ctr. ex rel. Abbott v. N.J. Dep't of Educ., 198 N.J. 274 (N.J. 2009) (deliberative process privilege framework under OPRA)
- Integrity Ins. Co. v. N.J. Dept. of Banking & Ins., 165 N.J. 75 (N.J. 1999) (deliberative process threshold and pre-decisionality)
- Mapother v. Dep't of Justice, 3 F.3d 1533 (D.C. Cir. 1993) (two-factor test for identifying deliberative material)
- North Jersey Media Group, Inc. v. Bergen County Prosecutor's Office, 405 N.J. Super. 386 (App. Div. 2009) (privacy interests in personnel-related information)
- Michelson v. Wyatt, 379 N.J. Super. 611 (App. Div. 2005) (privacy interests in employee information analogous to personnel records)
- Fisher v. Div. of Law, 400 N.J. Super. 61 (App. Div. 2008) (OPRA interpretation consistent with purpose of statute)
- Paff v. N.J. Dep't of Labor, 379 N.J. Super. 346 (App. Div. 2005) (duty to provide reasons for rulings; in-camera review)