Murphy DEP Expands Abuses Of Open Public Records Law

DEP Invokes A Broad Categorical Secrecy Claim Over DEP Internal Communications

DEP Creates New Secret Category – A “Ghost File” For Withdrawn Permit Applications

Protecting Pipeline Corporations While Keeping The Public In The Dark

The so called “deliberative privilege” under OPRA was designed as a narrow exemption to protect the legitimate “deliberations” of the final decision makers in State agencies in making policy decisions.

It was NOT intended to – and it does not – throw a broad and categorical secrecy blanket over scientific and factual information that is gathered and analyzed and communicated by State agency employees, crucial information that forms the factual basis of those policy decisions. The NJ Supreme Court explains:

OPRA exempts from the definition of “government record” documentary information that constitutes “inter-agency or intra-agency advisory, consultative, or deliberative material.”  …

The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” [cite] The essence of the privilege is simple, its rationale built on powerful logic. As explained by Justice Reed when introduced for use in the federal courts, the privilege is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.

Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.

This seems to prefer secrecy to transparency and public disclosure.

However, there are important distinctions that must be made in determining what documents are truly “deliberative” and exempt under OPRA. They involve the nature of the information (e.g. whether it is fact or science, versus advise or opinion) and the level within the agency that the information is generated in relation to the final agency decsion-maker (e.g. the “nexus”, or its role in deliberation and how close it is to the final decision by the Commissioner). The NJ Supreme Court explains:

Because the privilege is a qualified one, a litigant can still obtain the requested materials upon a showing that the need for the materials overrides the government’s interest in confidentiality.  Ibid.  At that point, the burden is on the litigant to demonstrate such a compelling need:  “[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions.”  Ibid. [cite]. In making the determination whether a litigant has demonstrated an overriding need, a court should consider the following factors:  “(1) the relevance of the evidence;  (2) the availability of other evidence;  (3) the government’s role in the litigation;  and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  

For example, a DEP field technician’s memo to his supervisor summarizing water quality data is a scientific communication that is far down the management chain and deliberative process for a final permit decision made the Commissioner.

In contrast, a memo or email to the DEP commissioner from an Assistant Commissioner that summarizes the issue, balances public comments, and makes recommendations on a water quality permit decision legitimately could be considered to be “advisory, consultative, and/or deliberative” exempt under OPRA.

The NJ Supreme Court lays out the framework – it is clear that there can be no blanket claims to “deliberative privilege”, and clearly, science and factual information is distinct from consultation and advice, as is the role of the information in the “nexus” of the deliberative process.

In EDUCATION LAW CENTER, On Behalf of Abbott v. Burke Plaintiff Children, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF EDUCATION, Defendant-Appellant, the Court ruled: (emphasis mine)

We hold that a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process. By that standard, an individual document 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 processes.

In my case, DEP has abused OPRA by throwing a broad secrecy blanket over virtually all DEP science, data, and technical analyses conducted by DEP professionals and scientists, regardless of its role in the deliberative process.

DEP staff are “public servants”. They work for the public and virtually everything they do is “on the record” and public, not secret. How could DEP possibly get away with trying to keep all DEP emails on permit reviews secret? For years, in Democratic and Republican Administrations, I have filed OPRA requests and been provided DEP emails regarding permit reviews.

In denying my OPRA, DEP arrogantly failed to even justify their claims about the deliberative process. They imply categorically denied my request.

There is no way that all DEP communications regarding renewal of the SJG permits could all reflect DEP’s  internal, pre-decisional policy recommendations.

Obviously, there is a strong public interest in knowing what DEP professionals say about the application of DEP rules for renewal of permits with respect to the hugely controversial SJG pipeline.

II) Ghost Permit Files – Public Comments Go Down The Memory Hole

DEP also created an entirely new category of OPRA exemption.

I was particularly interested in public comments filed by Princeton Hydro on that permit application, which I was led to believe identified fatal flaws in the permit application that would force DEP to deny the permit.

I suspected that by allowing Transco to withdraw the flawed permit application and re-apply instead of simply denying the application, that DEP was protecting Transco.

I assumed that someone in DEP had a similar view and had put it in writing during the permit application process.

So I filed the following requests for public records:  I boldfaced relevant request denied: