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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

JENNIFER BECK and SEAN T. KEAN, SUPERIOR COURT OF NEW JERSEY

LAW DIVISION Plaintiffs, MERCER COUNTY DOCKET No.MER-L-2411-07 v. CIVIL ACTION BARBARA O’HARE, in her official capacity as Government Records OPINION Custodian for the New Jersey Department of the Treasury, Defendant.

Decided: November 26, 2007 Thomas H. Neff, co-counsel for the plaintiffs (Assembly Republican Office, attorneys; Mr. Neff of counsel and on the brief). Mark D. Sheridan, co-counsel for the plaintiffs (Drinker, Biddle & Reath, attorneys; Mr. Sheridan of counsel). Anne Milgram, Attorney General, for the defendant (Robert J. Gilson, Director, Division of Law, Assistant Attorney General, of counsel; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cynthia Hackett, Deputy Attorney General, on the brief). FEINBERG, A.J.S.C.

Currently, the State of New Jersey is exploring the

advantages and disadvantages of “monetizing” some of its

assets, particularly roads. “Asset monetization” refers to

transactions that realize the value of certain assets

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through leases, concessions, securitization or some other

type of mechanism to generate cash up-front or over a

period of time. The first phase of this exploration was the

engagement by the State of a financial advisor to prepare a

comprehensive study of the State’s assets that potentially

could be “monetized.” Next, the financial advisor prepared

an asset/liability study and substantive analysis of

various State assets.

Thereafter, the State undertook an evaluation of

“monetizing” certain roads. On October 12, 2006, the State

issued a request for qualifications (“RFQ”) to retain the

services of a traffic and revenue consultant. The scope of

work required the consultant to prepare an analysis of

traffic and revenue for the following New Jersey roads: the

New Jersey Turnpike, Garden State Parkway, Atlantic City

Expressway, Interstate 78, Interstate 80, a portion of

Route 440, the portion of Interstate 95 under New Jersey

Turnpike jurisdiction and the Pulaski Skyway.

On October 25, 2006, Steer Davies Gleave, Limited

(“SDG”) and two other firms submitted proposals to the

State in response to the RFQ. SDG was selected through a

competitive waiver process. The contract requires SDG to:

[M]ake traffic projections; review and update economic data including population, employment, gross state

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product, car ownership and gasoline prices; develop a traffic model based on data; collect data required to develop a traffic model that allows the State to establish views on the commercial value and revenue potential of the toll roads; develop annual traffic and toll revenue estimates for each toll road for a period of up to 99 years, based on date; assess and analyzes the traffic and revenue elasticity of toll roads under varying toll rate scenarios and with varying toll collecting technology; and assess the value of the competing routes as viable alternatives to the toll road . . . . [Compl. ¶ 9.]

Under the contract, the State limited the analysis to

four roads: the New Jersey Turnpike, Garden State Parkway,

Atlantic City Expressway, and a portion of Route 440. The

contract set forth four milestones for delivery of services

under the contract and corresponding payments. These

include: (1) a Phase I Report; (2) a Progress Report; (3) a

Final Report; and (4) acceptance of the Final Report. SDG

commenced work in December 2006.

On January 31, 2007, SDG delivered the first contract

deliverable, the Phase I Report (also referred to as a

Scoping Report). According to Nancy B. Feldman, Department

of the Treasury, Director, Office of Public Finance

(“Feldman”), this document contained initial traffic and

revenue forecasts based on limited preliminary data,

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available at this early stage of the process, as well as

unrefined assumptions imposed in lieu of more developed

data. Feldman characterized the forecasts generated for

inclusion in this Phase I, Scoping Report as highly

preliminary.

On March 14, 2007, SDG delivered the second contract

deliverable, a Progress Report. Feldman represents: (1) the

Progress Report was also a preliminary document and

included an updated Scoping Report that built on and

refined the initial forecasts; and (2) the due diligence

process remained on-going at the time the report was

delivered.

On April 2, 2007, SDG provided the State with an

initial draft of the Report for each of the four roadways

being studied. The front page of this document is stamped

“DRAFT” and also states it is a “Draft for Discussion.”1

(Certification of Nancy B. Feldman, ¶13.) Based on

additional representations offered by counsel during oral

argument: (1) the State has requested SDG to expand the

1 Subsequent to the filing of a brief by the State, the court requested copies of the “Draft Final Report.” The front page of each of the four reports, in large print across the front page, is marked “DRAFT.” Furthermore, the words consultative, deliberative and draft for discussion, appear on the left hand side of the front page of each of the four documents. According to counsel for the State, these words appeared on the documents at the time of delivery on April 2, 2007.

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Draft Final Report to include additional analyses, traffic

and revenue scenarios and projections; and (2) “the process

of reaching acceptance of the Final Report will involve

review and editing of the Draft Final Report based upon

continued discussion of its contents and the assumptions

employed therein.” (Def. Br. at 7.)

Furthermore, defendant argues: (1) despite what its

name may imply, the Final Report is, in fact, a draft

document subject to further alterations; (2) since SDG has

delivered the reports, the State expects SDG will make

revisions to comply with the contract; (3) before the State

certifies that SDG has completed stage four, acceptance of

the Final Report, and makes the final installment payment,

SDG will have responded to additional requests for

revisions and supplementations; and (4) the reports are

merely draft versions of what will be the final documents

that the contract requires.

On August 8, 2007, Thomas H. Neff submitted an Open

Public Records Act (“OPRA”) request to the Department of

Treasury on behalf of three Assembly members

(“plaintiffs”). The request included any and all vouchers

of requisitions for payments submitted by SDG for traffic

and revenue consultant services provided under the contract

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and a copy of any reports delivered, including delivery of

the Final Report on April 2, 2007.

The OPRA request specifically requested defendant to:

[P]lease provide a copy of any reports delivered to the Department of Treasury by Steer Davies Gleave pursuant to the terms of a contract. In particular, please be advised that we are particularly interested in reviewing a copy of a report delivered to the Department of Treasury by Steer Davies Gleave, the delivery of which resulted in Department of Treasury making a payment to Steer Davies Gleave for ‘delivery of Final Report’ under section 2.1 of the above mentioned contract. [Compl. Ex. A.]

On August 17, 2007, the State disclosed three SDG

invoices and three State payment vouchers corresponding to

the performance of the first three stages of the contract:

(1) the first invoice, in the amount of $221,960,

representing roughly 25% of the total contract amount of

$887,838; (2) the second invoice in the amount of

$221.959.50, representing 25% of the final amount; and (3)

the third voucher in the amount of $355,135.20,

representing 40% of the final amount. (Def. Ex. E.)

On the same date, the State denied disclosure of the

report on the basis that the document was exempt from

disclosure under OPRA as inter-agency or intra-agency

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advisory, consultative or deliberative material. In the

denial letter, defendant asserted the “document remains in

draft form and, therefore, is subject to the exemption for

advisory, consultative and deliberative material.”

(Certification of Cynthia Hackett, Esq., Ex. D.)

On September 27, 2007, plaintiffs filed a complaint

for declaratory judgment and order to show cause why

judgment should not be entered declaring that: (1)

defendant, Barbara O’Hare, in her official capacity as

Government Records Custodian for the New Jersey Department

of the Treasury, violated plaintiffs’ rights under the New

Jersey Right to Know Law, as amended by OPRA, N.J.S.A.

47:1A-1, et seq. and plaintiffs’ common law right of access

to public records; (2) requiring defendant to provide

plaintiffs with immediate access to the requested records;

(3) awarding plaintiffs reasonable attorneys’ fees and

costs pursuant to N.J.S.A. 47:1A-11; and (4) granting such

other relief as the court deems equitable and just.

On September 28, 2007, this court signed the order to

show cause, requiring defendant to show cause on November

16, 2007 why judgment should not be entered in favor of

plaintiffs. On October 26, 2007, defendant filed

opposition. Subsequently, on November 1, 2007, plaintiffs

filed a reply brief. In addition, on November 1, 2007, a

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Notice of Appearance was filed with the court listing the

firm of Drinker, Biddle & Reath, LLP, as co-counsel for

plaintiffs.

ANALYSIS

The court finds unpersuasive the argument by defendant

that the complaint should be dismissed based on

representational issues. First, defendant cites, and the

court knows of, no rule to bar counsel in this matter.

Second, staff attorneys frequently represent the interests

of legislators. See, e.g., State v. Gregorio, 186 N.J.

Super. 138 (Law Div. 1982); In the Matter of Advisory Comm.

on Prof’l Ethics Opinion 621, 128 N.J. 577 (1992); and

State v. Twp. of Lyndhurst, 278 N.J. Super. 192 (Ch. Div.

1994). Third, as a duly licensed attorney in good

standing, no professional bar prohibits counsel from

representing plaintiffs in this matter. Finally, the firm

of Drinker, Biddle & Reath, LLP, has entered an appearance

as co-counsel.2

OPRA is designed to enhance the transparency and

accountability of government, where key decisions often

must be made away from direct public scrutiny. By enacting

OPRA, the legislature has attempted to strike a balance

2 During oral argument, the State withdrew its objection to dismiss the complaint based on representational grounds.

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between the public’s interest in overseeing the actions of

government officials and the public’s interest in

maintaining the confidentiality of sensitive information.

OPRA provides that “government records shall be

readily accessible for inspection, copying or examination

by the citizens of this State.” N.J.S.A. 47:1A-1.

Moreover, the Legislature has provided access “for the

protection of the public interest,” and any exceptions or

limitations on the public’s rights “shall be construed in

favor of the public’s right of access.” Ibid.

Under OPRA, a “government record” is defined as:

any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. [N.J.S.A. 47:1A-1.1.]

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When a custodian of a record denies a request for a

document, OPRA requires the custodian of records to provide

an explanation. N.J.S.A. 47:1A-5(g). In such cases, the

requesting party may challenge the denial by filing an

action either with the Government Records Council (“GRC”)

or in the Superior Court. N.J.S.A. 47:1A-6. When an action

is filed, the custodian withholding the document bears the

“burden of proving that the denial of access is authorized

by law.” Ibid. If the requesting party prevails, the

court or agency head must order that the custodian grant

the document to the requesting party; moreover, in an OPRA

action, the court awards a prevailing plaintiff reasonable

attorney’s fees. Ibid.

Defendant’s denial letter and Vaughn index assert the

Draft Final Report is a draft document exempt from

disclosure as an intra-agency deliberative record. While

OPRA provides access to a broad range of documents, OPRA

includes numerous exceptions that limit the meaning of

“government record.” N.J.S.A. 47:1A-1.1. Specifically,

OPRA provides that the term “government record” shall not

include “inter-agency or intra-agency advisory,

consultative, or deliberative material.” Ibid. This

exemption “shields from disclosure documents ‘deliberative

in nature, containing opinions, recommendations, or advice

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about agency policies,’ and ‘generated before the adoption

of an agency’s policy or decision.’” Bent v. Stafford

Police Dep’t, 38 N.J. Super. 30, 37 (App. Div.

2005)(quoting Gannett N.J. Partners, LP v. County of

Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005)).

Initially, the court must address two issues: (1)

whether the reports are inter-agency or intra-agency

documents; and (2) whether the reports are advisory,

consultative, or deliberative materials.

Plaintiffs argue the report prepared by SDG, a private

consultant, does not qualify as intra-agency. The court

disagrees. Clearly, reports prepared for a government

agency by a third party consultant are entitled to the same

protection for deliberative materials as if prepared by the

agency. See McClain v. Coll. Hosp., 99 N.J. 346 (1985). In

McClain, the State Board of Medical Examiners had conducted

an investigation into several deaths that occurred in the

OB-GYN unit of the defendant hospital. Plaintiff, the

personal representative of one of the deceased, sought

discovery of “confidential investigative records relating

to” the deaths. Id. at 351. The records contained the

“evaluation and recommendation” of the Board’s own

executive committee and a report of the executive

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committee’s consulting obstetrician-gynecologist. Id. at

352.

The court held the report as a government report: “[a]

consultant acts on behalf of the agency. To that extent

the consultant’s opinion is the opinion of the agency.”

Id. at 363. Similarly, in this case, the State hired SDG

to prepare reports to inform its decision of whether to

pursue monetizing state-owned roads. See also, Asbury Park

Press, Inc. v. State, Dept. of Health, 233 N.J. Super. 375,

383 (App. Div. 1989); Red Bank Register v. Bd. of Educ.,

206 N.J. Super. 1, 7 (App. Div. 1985).

The next issue is whether the document requested falls

within the deliberative process privilege exemption. The

deliberative process privilege applies to documents

generated before a governmental decision is made. As noted

in Gannett, the court in considering the deliberative

process privilege must first determine whether the reports

are pre-decisional, “meaning it was ‘generated before the

adoption of an agency’s policy or decision...’” Gannett,

supra, 379 N.J. Super. at 219 (quoting In re the

Liquidation of Integrity Ins. Co., 165 N.J. 75, 84-85

(2000)).

Based on this record, the court finds the Draft Final

Report, as a draft, is pre-decisional and deliberative. The

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Draft Final Report represents the third stage of a contract

that consists of four parts. During the fourth and final

stage, SDG must respond to present requests and possible

future requests from the State to “perform additional

analyses and projections.” (Def. Br. at 15.) The contract

between the parties clearly states SDG will not fulfill its

obligation to the State until the reports are completed to

the “satisfaction of the State.” (Compl. Ex. B.)

As noted by the defendant, while the contract refers

to each document currently on file with the State as a

Final Report, a stamp clearly marks each report with

“DRAFT.”3 Although that fact does not conclusively establish

the reports as drafts, it does suggest that going forward

the State and SDG will alter the reports according to the

requirements of the contract. Suffice it to say, the

defendant argues draft reports are presumptively not

subject to disclosure under OPRA.

In response to questions during oral argument on

November 16, 2007, counsel for the plaintiffs did not

3 At the request of the court, the defendant has produced the four documents: (1) one report for the Garden State Parkway; (2) one report for the New Jersey Turnpike and Route 440; (3) one report for the Atlantic City Expressway; and (4) one report entitled Background Report. Across each report in large bold letters is the word “DRAFT.” Furthermore, each report has the words, “Confidential and Deliberative, Trade Secrets/Proprietary and Commercial or Financial Information.”

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oppose the court’s reference to the “Final Report” as a

draft document. Rather, counsel argued plaintiffs have an

interest in disclosure that outweighs the State’s interest

in non-disclosure. In their brief and comments during oral

argument, plaintiffs assert the nature of the contract

between SDG and the defendants, namely the collection of

data and information, suggests that these kinds of

materials are not, under OPRA, characterized as

deliberative, consultative or advisory. Accordingly, even

if the reports do contain limited protected material as

deliberative, plaintiffs argue the court should conduct an

in camera review to identify factual information subject to

disclosure.

The court is satisfied the “Final Report” is, in fact,

a draft report and is pre-decisional. As long as the

Governor abstains from making a final determination to

monetize or not to monetize the toll roads, the reports

remain pre-decisional. As the plaintiffs concede,

“[w]ithout question, the Governor, his staff, and a team of

consultants will review mountains of relevant documents

before such a proposal is crafted and presented to the

public.” (Pls. Reply Br. at 5.)

Clearly, the Governor has not decided to make

monetization of toll roads the official policy of the

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State. Rather, the administration is still weighing the

merits of such a policy. During oral argument, in response

to a question from the court, counsel for the State

represented that the Governor anticipates reaching a final

resolution in the next few months.

The parties strongly disagree as to whether a draft

document, which is pre-decisional and deliberative,

requires the court to undertake an in camera review to

release purely factual information. A review of cases in

this State and other State and Federal Courts, support the

conclusion that a draft document, as deliberative, is not

subject to an in camera review for the purpose of

identifying purely factual information subject to release.

An in camera review may, however, be appropriate for

the limited purpose of determining whether the document is,

in fact, a draft document. Archer v. Cirrincione, 722

F.Supp. 1118, 1121 (S.D.N.Y. 1989). In this case, there

are several factors to support the conclusion that the

document requested is a draft: (1) the terms and conditions

of the contract between the State and SDG; (2) the

representations by the State that work is on-going; and (3)

the “DRAFT” markings and advisory, consultative and

deliberative words listed on the cover of each of the

reports.

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This court addressed the release of internal

memoranda, capital sentence minutes, draft regulations and

a myriad of other documents in the case of In re Readoption

of N.J.A.C. 10A:23, 367 N.J. Super. 61 (App. Div. 2004). In

this case, appellants challenged final regulations that

established procedures for imposing the death penalty. Id.

at 66. Before the Appellate Division, appellants sought

nearly one thousand documents, including draft regulations.

Id. at 66, 75. Opposing release, the Department of

Corrections argued three independent grounds protected

background documents for New Jersey’s death penalty

regulations: the common law deliberative process privilege,

the common law right of access and the OPRA exemption for

“inter-agency or intra-agency advisory, consultative, or

deliberative material.” Id. at 73.

While the appeal challenging the final regulations was

pending, the Appellate Division remanded the OPRA portion

of the litigation to the Superior Court, Law Division in

Mercer County. Id. at 74. As the trial judge, this court

reviewed several hundred pages of documents. Final

regulations had already been adopted by the agency at the

time plaintiff sought access to the draft regulations.

Nonetheless, this court and the Appellate Division held

that draft regulations were not subject to release. Ibid.

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In the unreported section of In re Readoption, the

Appellate Division reviewed the OPRA request to the

Department of Corrections for draft regulations and draft

statutory revisions. The court held, “we think it plain

that all these drafts, in their entirety, are reflective of

the deliberative process.” Dina Parave-Fogg v. Lower

Alloways Creek Twp., GRC Complaint No. 2006-51 (August

2006)(quoting the unreported section of In re Readoption,

supra, 367 N.J. Super. at 75).

Finally, the court noted, although Integrity Ins. did

not involve the interpretation of OPRA, we are satisfied

that the deliberative process exemption incorporated in

N.J.S.A. 47:1A-1.1 adopted the principles set forth in that

opinion.” In re Readoption, supra, 367 N.J. Super. at 73-

75.

In Home News v. Bd. of Educ. of Borough of Spotswood,

286 N.J. Super. 380 (App. Div. 1996), plaintiff sought

access to “copies of the proposed school district budget

and supporting documentation.” Id. at 383. In this case,

plaintiff was never denied access to the proposed school

district budget, but was denied access to supporting

documentation and budget projections used by Board members

and officers in the budget planning process. Similar to our

case, the projections and supporting materials were

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utilized by Board of Education personnel to finalize a

final budget. The final budget was released. Ibid.

The court held “we are unaware of any requirement of

law that mandates the preparation or use of a working

document such as a green book in the budget planning

process that boards of education must undertake. While the

end result of the process is mandated, i.e., the

preparation and submission of a proposed budget, individual

boards of education and their members and officers are free

to develop whatever mechanisms they wish to aid in the

process of developing the budget.” Id. at 386.

Additionally, the court held the supporting documents

were not public records under the Right to Know Law.

Furthermore, the court held plaintiff failed to meet the

test for common law access to the records. The court

noted: “no disclosure rule yet articulated requires the

release of drafts and other tentative formulations created

in the process of developing a document that, in its final

form, will unquestionably be a record to which the public

will be entitled to access.” Id. at 388 (emphasis added).

Interestingly, in Home News, each school district is

required to propose and adopt a school budget. Therefore,

at some juncture, the public will have access to this

information. In the case at bar, the report requested is

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preliminary but nevertheless near the end of the completion

process. What remains is stage four. Stage four permits

the Governor to request additional work of SDG and to

change or modify assumptions in the report. The “true”

final report is when the document prepared by SDG is

finally accepted.

In Asbury Park Press, Inc., plaintiff sought access

to a spreadsheet analysis that was compiled by employees of

the State of New Jersey Department of Health. Asbury Park

Press, Inc., supra, 233 N.J. Super. at 378. The spreadsheet

analyzed data from various sources that concerned the

financial status of New Jersey hospitals. It appears that

as part of an investigative review, the Department had

examined the state hospital’s audited financial statements

and retained a consultant who had prepared a computer

spreadsheet as part of his work in analyzing data derived

from the audited financial statements. Ibid.

The trial court affirmed the denial of the request and

agreed with the Department that factual data utilized by

the consultant and the Department staff to prepare the

computerized spread sheet were public records available for

inspection. Id. at 380. However, the court determined that

the internal analysis or work product of the analysis (the

spreadsheet itself) was not a public record. Ibid.

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On appeal, the court affirmed and held: (1) the

spreadsheet was not a public record within the meaning of

the Right to Know Law, N.J.S.A. 47:1A-1 et seq., because it

was not required by law to be made, maintained or kept on

file; (2) the spreadsheet was not a public record within

the meaning of the common law; and (3) even if it was,

plaintiff’s need for the information was outweighed by the

public interest in maintaining the document’s

confidentiality. Id. at 381.

On appeal, in deciding that the spreadsheet was not a

common law document, the court held the Commissioner had no

duty to prepare or keep it as a memorial or evidence of

something written, said or done; it is not a written

memorial made by a public officer “authorized to perform

that function.” Id. at 383. Furthermore, while the court

rejected the notion that the consultant who prepared the

report was a public officer, contra, Red Bank Register,

supra, 206 N.J. Super. at 7, the court reinforced the

notion from McClain that opinions of consultants acting on

behalf of an agency, are the opinions of the agency and

that consultant’s opinions are entitled to a high degree of

confidentiality. Ibid.

Finally, even assuming for purposes of argument that

the computer spreadsheet of this type of preliminary

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analysis of incomplete data was a public record under the

common law definition, the court agreed with the trial

judge and held, “the spreadsheet involved here is merely a

portion of the analytical process of the consultant’s

efforts. It constitutes nothing more than a basis for

preliminary and tentative conclusions and opinions of the

Commissioner drawn from documents which have been made

available to the press.” Id. at 384.

Most importantly, the court held “the Department’s

continuing investigation into the financial status of New

Jersey’s hospitals could be hindered by such disclosure

. . . . Hence, the basic interests of the Department, the

public, the HRSC [Hospital Rate Setting Commission] and

each hospital in the confidentiality of the preliminary

spreadsheet analysis outweighs any inconvenience which

might be caused by the Press having to examine the raw data

which was available to the consultant and the Department

staff . . . . It is free on its own to review and analyze

the underlying data that has been made available.” Id. at

385.

While Asbury Park Press and Home News predate OPRA,

both cases support the notion that preliminary or draft

reports are exempt from disclosure. In both cases, the

courts noted that the premature release of information can

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mislead the public. This rationale is especially relevant

in this case, because the release of inaccurate and/or

incomplete information in the Draft Final Report could lead

participants in the potential transaction to draw erroneous

conclusions about the value of the assets. Importantly,

once inaccurate and/or incomplete information is introduced

into the marketplace, it could be difficult, if not

impossible, to correct or retract such information.

Other States and the Federal Courts have addressed the

release of draft report, regulations and documents.

Furthermore, all of the cases support the position that an

in camera review to identify and release purely factual

information in drafts is not warranted. Rather, an in

camera review to identify factual information applies to

final reports, internal memoranda or minutes that may

contain deliberative material. That is exactly the type of

task this court has performed in many other OPRA cases.

This court finds the redaction methodology utilized for

deliberative process privilege, when addressing internal

memoranda or other agency communications, does not equally

apply to drafts. A limited in camera review may be

warranted, however, to verify the accuracy of

representations advanced by the government, i.e., that a

document is, in fact, a draft.

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In Coalition to Save Horsebarn Hill v. Freedom of

Info. Comm., 73 Conn. App. 89 (Conn. App. Ct. 2002), the

court addressed the obligation of defendant, the University

of Connecticut, to disclose, under Connecticut’s General

Statutes § 1-210(b), drafts of a proposed agreement between

a university and a pharmaceutical company “for the

construction of a joint development project.” Id. at 91.

Plaintiffs sought access to documents relating to

construction of a now cancelled joint project of the

University and Pfizer, Inc. (Pfizer). Ibid. It is

undisputed that the University Board of Trustees authorized

the administration to enter into agreements with Pfizer on

April 3, 1998 and that the parties exchanged various drafts

of the proposed agreements until the project was canceled

sometime in 1999. Id. at 94. The request for documents

was denied. Id. at 92.

On appeal, plaintiffs challenged the finding that the

documents sought were preliminary drafts. Id. at 93.

Furthermore, plaintiffs argued that the public interest in

access to these documents outweighed any interest by the

agency in nondisclosure. Id. at 96. The court concluded

that “any and all public records consisting of preliminary

draft documents are eligible for nondisclosure as

preliminary drafts regardless of their provenance.” Id. at

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97. Having determined that the documents were “preliminary

drafts” the court affirmed the decision to withhold the

documents. Id. at 103. Importantly, in the State of

Connecticut, preliminary drafts are considered documents

properly withheld from public scrutiny. Id. at 101.

The case did not discuss inter-agency or intra-agency

communications or deliberative process privilege. Quite

simply, in Connecticut preliminary drafts are withheld

absent a sufficient showing by an applicant that their

interest in disclosure outweighs the interest of the

government in nondisclosure. Id. at 98. Furthermore, the

court noted that documents properly may be characterized as

preliminary even when they are not “subject to further

alteration.” Id. at 100. Inasmuch as the documents were

drafts, the court did not undertake an in camera review to

identify purely factual information subject to potential

release.

Further evidence to support the proposition that draft

documents are not subject to public scrutiny is found in

United States v. Farley, 11 F.3d 1385 (7th Cir. 1993). In

Farley, the Seventh Circuit was faced with the Government’s

application to protect documents under the deliberative

process privilege. Id. at 1387. The documents consisted of

drafts by members of the Federal Trade Commission for

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future action that may or may not have been implemented.

Ibid. The Court accepted the Government’s characterization

of the drafts and identified those recommendations as

“clearly part of the FTC’s deliberations.” Id. at 1389.

Also, Russell v. Dep’t of the Air Force, 682 F.2d 1045

(D.C. Cir 1982) supports the withholding of preliminary

draft materials. In Russell, plaintiff requested portions

of a draft Air Force historical document regarding the use

of herbicides in Vietnam. Id. at 1046-47. The District

Court granted summary judgment holding those portions were

exempt from disclosure. Id. at 1046. The Air Force had

already disclosed the entire final manuscript and all but

twenty pages of a preliminary draft, which were not

included in the final manuscript. Ibid.

In Russell, the court reviewed a complex system of

editorial reviews. This included reviews by agencies

within the Air Force and other agencies. Id. at 1047. While

the court noted that agency communications containing

purely factual material are generally not protected, the

court concluded that where disclosure of even purely

factual information would reveal an agency’s decision-

making process, the exemption applied. Id. at 1048. While

the court recognized the deliberative process privilege and

the availability of factual information, the court appeared

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to take a more conservative approach when addressing drafts

that ultimately become final documents subject to

disclosure.

Furthermore, the court addressed several public policy

considerations in favor of nondisclosure. These include:

(1) disclosure of the draft manuscript could lead to

confusion of the public; (2) the material sought would

violate the integrity of the decision making process; (3)

release of pages from the draft manuscript that were edited

out of the final version would reveal what material

supplied by subordinates senior officials judged

appropriate for the history and what material they judged

inappropriate; (4) if the segment appeared in the final

version, it is already on the public record and need not be

disclosed; and (5) a preliminary draft falls within the

scope of Exemption (b)(5). Russell, supra, 682 F.2d at

1048-49.

Following the same line of reasoning, in Pies v. U.S.

Internal Rev. Serv., 668 F.2d 1350 (D.C. Cir. 1981), the

court ruled that draft documents for a proposed regulation

should not be disclosed under the Freedom Of Information

Act. The court reasoned draft documents were developed to

provide recommendations and advice pertaining to a proposed

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regulation to a discarded section of the Internal Revenue

Code. Id. at 1355.

N.Y.C. Managerial Employee Ass’n v. Dinkins, 807

F.Supp. 955 (S.D.N.Y. 1992) and Archer, supra, 722 F.Supp.

1118, further support the withholding of drafts. In

Dinkins, the court addressed whether defendants were

justified in withholding or redacting the requested

documents on the grounds of deliberative process privilege

and/or attorney-client privilege. Dinkins, supra, 807

F.Supp. at 956. The court held the drafts were protected

by the deliberative process privilege since they embodied

the ideas that went into the final draft. Id. at 957.

While the court addressed the issue of redaction, it

appears five of the twelve items in issue had been withheld

or redacted on the ground of the attorney-client privilege.

Id. at 958. There is no evidence that the court redacted

documents in draft form that were considered protected from

disclosure by the deliberative process privilege.

In Archer, plaintiff sought to compel defendants to

disclose documents related to the administration of Part B

of the Medicare Program. Archer, supra, 722 F.Supp. at

1119. Plaintiff had challenged the propriety of a decision

by Department of Health and Human Services (“HHS”) to cut

benefits in half. Ibid. Plaintiff requested copies of all

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public comments received and all minutes, memoranda, notes

and other documents relating to the consideration by the

agency to modify benefits. Id. at 1120. Defendants

described the withheld documents as “internal drafts of a

regulation that contained suggested changes, marginal

notes, and analyses of public comments, constituting

opinions, conclusions and advice on preparing the Final

Rule.” Id. at 1123.

The court elected to conduct an in camera review of

the documents to determine whether their contents conformed

to the brief description given by defendants. Id. at 1121.

While the court recognized that non-privileged information

was not protected, the case suggests that the release of

purely factual information pertained to memoranda and notes

and not to internal draft regulations or reports. Id. at

1120. Furthermore, in the end, the court determined the

documents were protected and that the documents contained

no severable factual material. Id. at 1121.

Most importantly, in concluding the documents were

pre-decisional and protected from disclosure, the court

held: (1) the release of unfinished drafts either before or

after the agency’s final decision could easily mislead the

public as to the reality of agency policy; (2) the drafts

never had binding force; and (3) any real significance

- 29 -

contained therein was encapsulated in the Final Rule. Id.

at 1123.

In another case, not cited by either party, Scott v.

PPG Indus. Inc., 142 F.R.D. 291 (N.D.W.Va. 1992), the

district court was faced with the question of whether EEOC

draft letters of a determination made in connection with

discrimination claims the Commission was investigating were

discoverable. Id. at 293. While the issue of disclosure

turned on waiver, it was conceded by the party seeking

disclosure, and accepted by the Court for purposes of its

decision, that the draft letters of determination were

deliberative in nature. Id. See also, Boeing Airplane

Co. v. Coggeshall, 280 F.2d 654 (D.C. Cir. 1960)(holding

that investigative and other factual reports in the files

of the Renegotiation Board were subject to disclosure,

whereas policy recommendations were held to be privileged);

and Kaiser Alum. & Chem. Corp. v. United States, 157 F.

Supp. 939 (1958)(holding that prior drafts of a GSA

[General Services Administration] contract with agency

interpretation and justification thereof need not be

disclosed under the privilege).

State and Federal cases all support the conclusion

that draft regulations and draft reports, as pre-decisional

and deliberative, are not subject to release. The cases

- 30 -

that require an in camera review to determine the presence

of purely factual information, all relate to internal

memoranda and other inter-agency or intra-agency

communications. The court has found no case that requires

an in camera review for purely factual information as it

relates to draft regulations or draft reports.

Finally, the GRC has consistently held that draft

reports and draft minutes are protected from disclosure.

N.J.S.A. 47:1A-7. To support nondisclosure, the GRC has

determined that these documents are: (1) pre-decisional;

and (2) inter-agency/intra-agency, advisory, consultative

or deliberative pursuant to N.J.S.A. 47:1A-1.1. See Robert

Blau v. Union County, GRC Complaint No. 2003-75 (January

2005); Edwards v. City of Jersey City, GRC Complaint No.

2002-71 (February 27, 2004); O’Shea v. West Milford Bd. of

Educ., GRC Complaint No. 2004-93 (April 2006); and Dina

Parave-Fogg v. Lower Alloways Creek Twp., GRC Complaint No.

2006-51 (August 2006). A careful review of each of the

cases discloses that the GRC did not undertake an in camera

review in an effort to identify and release purely factual

information. While an in camera review approach to

ascertain purely factual information subject to release may

apply to internal memoranda or other type of intra-agency

or inter-agency communications, it appears that neither

- 31 -

courts nor the GRC have followed that approach as it

applies to drafts.

To summarize, the draft report is pre-decisional

inasmuch as the final stage of the process has not

occurred. Significantly, the fourth stage of the contract

anticipates on-going discussions between the parties,

additional work, revisions and, ultimately, the completion

of a final report to be accepted by the defendant.

Moreover, the Draft Final Report reflects the on-going

deliberative and consultative process by which government

staff and officials, at all levels of government, engage in

the give and take exchange of information and ideas

designed to formulate policy and finalize decision-making.

The Draft Final Report, prepared by the consultant and

subject to review and modification by staff, agency

representatives and officials is not the kind of document

where the author has an expectation that it will be subject

to public review. Rather, a draft is an internal document

circulated among agency personnel that is intended to

stimulate frank and open discussion about policy,

procedures and rule-making provisions. The Draft Final

Report, unlike a draft proposal prepared for public

distribution and open to public comment, is specifically

- 32 -

intended to remain within the confines of the agency to

foster the free and open exchange of ideas.

A draft document is the epitome of deliberative

material because such a document may be changed any number

of times before the agency finalizes its decision.

Comparison of various iterations of a government document

will reveal the thought process behind the revisions, which

is exactly what the privilege is intended to protect. See

Russell, supra, 682 F.2d at 1048 (portions of draft

manuscript not subject to disclosure because comparison of

draft manuscript and final document would show what

material government found appropriate to include in final

version). See also, Lead Indus. Assoc. v. Occupational

Safety and Health Admin., 610 F.2d 70, 85 (2d Cir. 1979)

(citing United States v. Morgan, 313 U.S. 409, 422 (1941))

(portions of draft preamble to regulation should be

protected because “[i]f the segment did not appear in the

final version, its omission reveals an agency deliberative

process . . . [and] disclosure of the internal workings of

the agency is exactly what the law forbids.”); Montrose

Chem. Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir.

1974)(“[W]e . . . recognize that in some cases selection of

facts or summaries may reflect a deliberative process which

- 33 -

[the deliberative process privilege] was intended to

shelter.”)

C. COMMON LAW REQUEST

What remains, is whether plaintiffs are entitled to

the deliberative process material; in other words, the

opinions, recommendations and consultative materials,

albeit falling within the protected deliberative process

privilege. Defendants argue that, given the draft status of

the report, the common law test does not apply. While that

argument is somewhat persuasive, given the highly

deliberative status of a draft, clearly OPRA preserves a

citizen’s opportunity to seek access pursuant to the common

law. N.J.S.A. 47:1A-8.

Under the common law, plaintiffs must establish: (1)

the requested reports are “public records”; (2) that they

have an interest in the requested reports; and (3) that,

balanced against the government’s interest in

confidentiality, their interest in disclosure of the

reports is greater. Keddie v. Rutgers, 148 N.J. 36, 50

(1997). Under the common law a public record is simply one

that may be kept on file in the course of a public official

exercising his or her public function. Id. at 49.

In this case, plaintiffs argue, and defendant does not

dispute, that the requested reports are public records.

- 34 -

The second issue is whether plaintiffs have an interest in

the subject matter of the material they seek.

Under the common law, as a threshold condition for access to public records, a citizen must establish an interest in the subject matter of the material that he or she is seeking. The interest does not have to be purely personal, but rather may be one citizen or taxpayer out of many, concerned with a public problem or issue. For example, a newspaper's interest in keeping a watchful eye on the workings of public agencies is sufficient to accord standing under the common law. [S. N.J. Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 71 (1995) (internal citations and quotations omitted).]

Once the government establishes the existence of the

privilege, a party seeking to pierce the privilege may

overcome the presumption against disclosure only if the

“need for fact-finding override[s] the government’s

significant interest in non-disclosure.” Integrity Ins.,

supra, 165 N.J. at 85. The standard for overcoming the

burden against the party seeking the documents is

“substantial and compelling.” Ibid. It is against the

public interest “in all but exceptional cases” to allow

disclosure if the privilege exists.” Ibid. (quoting E.W.

Bliss Co. v. United States, 203 F. Supp. 175, 176 (N.D.Ohio

1961).

- 35 -

Applying the second factor, plaintiffs argue, as

members of the New Jersey General Assembly Transportation

and Public Works Committee, they have the responsibility to

take “informed and educated” positions when called upon to

comment or craft policy proposals regarding the State’s

transportation infrastructure. (Pls.’ Br. at 15.)

Plaintiffs cite a number of bills for which the current

reports might serve an informative purpose.4 Also,

plaintiffs argue, as representatives of the public, they

have an obligation to: (1) oversee the expenditure of funds

on behalf of taxpayers; (2) effectively debate the merits

of the monetization policy currently being discussed by the

executive branch; and (3) enrich public discussion of the

monetization plan and even craft legislation to restrict

the Governor’s power to monetize toll roads.

In response, defendant argues the concerns expressed

are unfounded because: (1) the parties have yet to fully

4 Assembly Bill No. 685 repealing the Turnpike Authority’s power to build a certain roadway in Middlesex County; Assembly Bill No. 688 reducing tolls for trucks on the New Jersey Turnpike; Assembly Bill No. 862 directing the New Jersey Highway Authority to remove toll booths at Irvington exit and entry ramps; Assembly Bill No. 1058 requiring the Turnpike Authority to collect tolls only in southbound direction at certain toll plazas; Assembly Bill No. 1994 increasing motor fuels tax by three cents per gallon and earmarking increase for abolishment of Garden State Parkway tolls; and Assembly Bill No. 2933 suspending certain tolls during evacuation of coastal areas.

- 36 -

perform the contract; stage four, which requires further

drafting from SDG and an additional payment from the State

is outstanding; (2) there is at this time no monetization

proposal; (3) the executive has yet to issue a final

decision regarding the monetization of state-owned roads;

(4) when and if the executive chooses to do so there will

be adequate public airing of the proposal; (5) the Governor

has stated should a monetization proposal be put forth

there will be substantial public discussion concerning it,

including the Governor’s holding of town meetings in all

counties; and (6) since legislation will be needed to

effectuate any monetization transaction, members of the

legislative branch will have ample opportunity to

participate in the discussion.

Clearly, as noted by the court during oral argument,

members of the legislative branch have both an individual

and representational interest in the disclosure of

information. Against this backdrop, the court must still

determine whether that interest outweighs the government’s

interest in keeping the reports confidential. In Loigman

v. Kimmelman, 102 N.J. 98 (1996), the Court provided the

general rule:

[T]he focus must always be on the character of the materials sought to be disclosed. Armed with a qualitative

- 37 -

description by the agency, the trial court will be in a position preliminarily to balance the need for confidentiality exhibited by the description of the materials with the citizen's interest in the information and the potential adverse consequences of disclosure. In this determination, the trial court will want to consider whether the demand for inspection is premised upon a purpose which tends to advance or further a wholesome public interest or a legitimate private interest. [Loigman, 102 N.J. at 112 (internal quotations and citations omitted).]

Six factors apply when performing what has been called

“an exquisite weighing process by the trial judge.” Beck v.

Bluestein, 194 N.J. Super. 247, 263 (App.Div. 1984). They

are:

(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary

- 38 -

or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. [Loigman, supra, 102 N.J. at 113.]

Together, they essentially restate the deliberative

process privilege, which, if first established by the state

agency, places a heavy burden upon its adversary to

overcome.

As with any privilege, the party seeking such documents bears the burden of showing a substantial or compelling need for them. Deuterium Corp., supra, 4 Cl. Ct. 361, 364 (1984)(requiring compelling need); Scott, supra, 142 F.R.D. at 293 (same); Burka, supra, 110 F.R.D. at 663 (requiring substantial need). "[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions." E.W. Bliss Co., supra, 203 F. Supp. 175, 176 (N.D.Ohio 1961). Integrity Ins., supra, 165 N.J. at 85.

In this case, the court finds the interest of the

defendant in nondisclosure outweighs the interest of the

plaintiffs in disclosure. First, the release of incomplete

information in the Draft Final Report could diminish

competition among potential participants in the

monetization program; (2) at this time, the Governor has

not decided whether to propose proceeding with a

monetization program or, if such a program is deemed

- 39 -

desirable, how to structure the program; (3) the forecasts

generated for inclusion remain preliminary; (4) it is

anticipated SDG will revise the Draft Final Report once the

additional work is finished to reflect additional

information and any other feedback from the State and

submit another draft; (5) the process of reaching

acceptance of the Final Report will involve review and

editing of the Draft Final Report based upon continued

discussion of its contents and the assumptions employed;

and (6) disclosure of the withheld materials could lead to

confusion of the public. As noted in Russell, nevertheless,

we recognize the tendency of the public to assume that a

memorandum generated within an agency of the government

reflects the position of the agency, regardless of whether

the memorandum is designated as an “official document.”

Russell, supra, 682 F.2d at 1049.

As noted heretofore, the contract provides that SDG

shall be paid 10% of the total contract price upon

acceptance of the final report. The Draft Final Report was

filed with the State on April 2, 2007. More than seven

months have passed since that date. During oral argument,

the State estimated acceptance of the final report could

occur as early as January 2008. While the court understands

this date is merely an estimate, it appears that a period

- 40 -

of one year should be a sufficient period of time to

evaluate the options being considered.

Defendant shall submit an order consistent with this

opinion.