GRC Must Review Documents Requested Pursuant to OPRA in Order to Determine Applicability of Individual Privilege

Insurance Law Alert

February 23, 2015

Meghan M. Dougherty

Meghan M. Dougherty


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The New Jersey Appellate Division vacated the determination of the Government Records Council (GRC) regarding a denial of access to public records in Katon v. New Jersey Department of Law and Public Safety, Office of the Attorney General, A-0183-13T2, (Feb. 12, 2015).

On May 24, 2012, then-Attorney General Jeffrey S. Chiesa issued a press release regarding a three-month fact-finding review of the New York Police Department’s intelligence-gathering activities in New Jersey. Glenn Katon, on behalf of Muslim Advocates, filed a request pursuant to the Open Public Records Act (OPRA), N.J.S.A. §§47:1A-1 - 13, with the Records Custodian of the Department of Law and Public Safety of the Office of the Attorney General (OAG). Mr. Katon requested six categories of records regarding the NYPD’s surveillance activities involving the Muslim community in New Jersey. When Mr. Katon did not receive a response, he filed a “Denial of Access Complaint” with the GRC. In response, the Custodian asserted that three of the categories sought non-existent or privileged records and provided responses or limited documents regarding the remaining three categories. The Custodian filed a Statement of Information with the GRC that echoed his responses to Mr. Katon’s request. Without reviewing any records, the Executive Director of the GRC then issued Findings and Recommendations stating the Custodian had not unlawfully denied access to responsive records. The GRC adopted the Executive Director’s findings in its final administrative determination. Mr. Katon appealed, challenging only the GRC’s response to the first three categories.

The first category of documents requested included records pertaining to the fact-finding review referenced in the press release. The Custodian’s response stated that the OAG did not possess records created by the NYPD. The Court found this response was incomplete as it did not address whether the OAG created any records. Furthermore, the Custodian referenced 610 pages of documents in his Statement of Information, but did not address why none of the documents were responsive to the request.

The second category of documents requested included the records the OAG relied on in determining that the NYPD did not violate New Jersey law. The third category similarly requested records reflecting the OAG’s determination that New Jersey laws were not violated. The Custodian asserted the deliberative process privilege as well as attorney work product and attorney-client privilege. The Court found that the second category requested materials exempt as advisory, consultative or deliberative. However, the same exclusion did not apply to the third category. To assert a privilege, the Custodian must produce a sworn statement akin to a privilege log indexing the privilege claimed for each document with a description of that document. The Court deemed the Custodian’s index insufficient.

The Court therefore vacated the GRC’s determination and remanded the matter to the GRC, requiring the Custodian to provide a revised Statement of Information and index and holding that the GRC must determine on a document-by-document basis whether each claim of privilege is appropriate, including an in camera review of the records, if necessary. The GRC must perform its own review rather than merely accepting the recommendations of the Custodian.

For more information, please contact Meghan M. Dougherty.