OPRA can’t be used to obtain draft reports that inform Department of Health decisions on certificates of need for health-care facilities, a New Jersey appeals court ruled on Tuesday.
Forcing their release would have a “chilling effect” on staffers engaged in a deliberative process, the Appellate Division said finding them exempt.
“[W]e conclude that appellant’s interest in obtaining the draft report does not sufficiently outweigh the strong public policy that promotes robust and confidential internal advice to a government decision-maker,” the panel held in Ciesla v. Department of Health, A-5309-10.
The dispute arose from an Open Public Records Act request for a 2009 DOH draft report — never made final — on Hackensack University Medical Center’s application to reopen the bankrupt Pascack Valley Hospital in Westwood, which closed in 2007. Later HUMC took over its assets and applied for a certificate of need to reopen the hospital under HUMC’s name.
In July 2009 HUMC rescinded that application and instead applied for a certificate of need to open and operate a smaller 128-bed facility. The new plan was opposed by Englewood Hospital and Medical Center and The Valley Hospital of Ridgewood. It was Valley Hospital’s lawyer, Frank Ciesla, of Red Bank’s Giordano Halleran & Ciesla, who made the OPRA request.
The DOH and the Government Records Council denied the request, saying the report was protected under OPRA’s deliberative process exception.
On Tuesday, Judges Jack Sabatino, Douglas Fasciale and Susan Maven agreed.
The privilege is needed to ensure “free and uninhibited” communication between policy advisers and policy-makers, Sabatino wrote for the panel, quoting the Supreme Court’s opinion in Education Law Center v. Department of Education, 198 N.J. 274 (2009).
“It is obvious from the context that the staff report encompasses ‘advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.’”
Draft reports, he said, are preliminary and subject to change. “Given their non-final character, it makes eminent sense to treat such pre-decisional drafts as protected materials within the umbrella of the deliberative-process privilege,” Sabatino said. “Without such protection, policy advisers would be reluctant to express on paper or a computer screen their tentative thoughts on a pending issue, lest their words be prematurely launched into the public domain.
“[W]e are satisfied that a compelled release of a draft of this nature, in such a policy-laden context, would invariably have a chilling effect upon ‘open and frank discussion and recommendations from agency employees … now and in the future,’” he said, again quoting the ruling in Education Law Center.
HUMC’s lawyer, Thomas Abbate, says the ruling is a “vital” one for policy-makers and those who assist them.
“The ruling gives [policy advisers] security in that they are allowed to be free to review matters and make recommendations without being concerned about litigants seeking deliberative materials,” says Abbate, of Teaneck’s DeCotiis, FitzPatrick & Cole. “These litigants were using a good-governance statute for a tactical advantage.”
Douglas Eakeley, of Roseland’s Lowenstein Sandler, represented The Valley Hospital on the appeal of the GRC’s decision. He did not return a telephone call seeking comment.
The GRC’s attorney, Jennifer Borek, of Newark’s Genova Burns Giantomasi & Webster, and officials from the Division of Law, which represented DOH, also did not respond to messages.
In a consolidated, unpublished ruling also released Tuesday, the same Appellate Division panel upheld DOH Commissioner Mary O’Dowd’s decision to grant HUMC a certificate of need to open a scaled-down operation called Hackensack University Medical Center North Hospital at the old Pascack Valley Hospital site.