A Capehart Scatchard Blog

Draft Meeting Minutes Not Subject to Disclosure Under OPRA

By on February 20, 2018 in Open Public Records Act with 0 Comments

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Now and then even the Government Records Council (“GRC”) is sued. In a published decision issued on January 26, 2018 by the New Jersey Appellate Division in Libertarians for Transparent Government v. Government Records Council and Frank Caruso, the plaintiff alleged that the GRC violated the Open Public Records Act (“OPRA”) and the common law by failing to produce draft minutes of a GRC meeting. Finding that the draft minutes were protected by the deliberative process privilege, the trial court rejected the plaintiff’s claims. The plaintiff appealed.

On appeal, the plaintiff argued that the draft minutes were not subject to the privilege simply because they were not approved and that the GRC should have produced the minutes with redactions. The Appellate Division disagreed with the plaintiff and affirmed the trial court’s decision.

The test for the application of the deliberative process privilege requires a showing that the document is (1) pre-decisional (meaning it was generated before the adoption of an agency’s policy or decision); and (2) deliberative (in that it contains opinions, recommendations, or advice about agency policies). The Appellate Division found that both prongs of the test were met. It concluded that the draft of the minutes was pre-decisional because it remained subject to revisions and recommendations, and because it was not yet approved for public circulation. The Appellate Division emphasized that “a draft is not a final document.”  The Appellate Division also concluded that that the draft was deliberative because it was merely a recommendation of what occurred subject to the members who attended the meeting making additions, deletions and suggestions with which the other members may or may not agree. The Appellate Division reached this conclusion despite the fact that large portions of the approved minutes mirror the agenda published by the GRC prior to the meeting.

Of particular interest, the Appellate Division rejected the plaintiff’s argument that the GRC had an obligation under the Act to produce the minutes with redactions. Plaintiff pointed to the statutory provision N.J.S.A. 47:1A-5(g), which permits deletion of a portion of a record deemed to be exempt from public access. Reiterating its conclusion that the draft minutes were subject to the deliberative process privilege (and to potential revision), the Appellate Division concluded that the section of OPRA authorizing redaction cannot apply to draft minutes because producing an entire document redacted would be illogical and serve no purpose. In sum, the entire document is privileged and exempt until approved by the public body.

While this litigation was brought against the GRC, its holding applies to school districts and all public agencies subject to OPRA.

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Robert Muccilli

About the Author

About the Author:

Robert A. Muccilli, Esq. is Co-Chair of Capehart Scatchard’s School Law Group and a Shareholder in the Labor and Employment Group. For over 25 years, he has focused his practice in the areas of school law, and labor and employment. He has represented school districts with respect to a variety of education law issues involving students, teachers, school construction and special education issues including questions pertaining to inclusion, least restrictive environment, discipline, behavior management, transition, evaluation, discrete trial instruction, medically fragile students, dyslexia, Down Syndrome, Aspergers Syndrome, and equal access to activities and services for disabled individuals. He has also been recognized as one of South Jersey’s Top Attorneys as published by SJ Magazine. Mr. Muccilli is admitted to practice law in New Jersey, the United States District Court for the District of New Jersey and Washington, DC.

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