Ciesla O/B/O The Valley Hospital v. New Jersey Department of Health and Senior Services, A-5309-10T1; Appellate Division; opinion by Sabatino, J.A.D.; decided and approved for publication December 4, 2012. Before Judges Sabatino, Fasciale and Maven. On appeal from the Government Records Council, Complaint No. 2010-38. DDS No. 52-2-8351 [29 pp.]

When Pascack Valley Hospital filed for bankruptcy and closed its doors in late 2007, the commissioner of the Department of Health permitted its owners to retain its license through December 2009 so that a purchaser of PVH’s assets could seek DOH approval to reopen the hospital.

Hackensack University Medical Center (HUMC) and a business partner acquired PVH’s assets and applied to the DOH for a certificate of need (CN) to transfer the license and reopen the hospital, pursuant to N.J.S.A. 26:2H-7. The matter was submitted to the State Health Planning Board (SHPB) for consideration. In the meantime, DOH staff developed a recommendation on whether the application should be approved.

Ultimately, HUMC withdrew the license transfer application and instead filed an application for a new CN for a smaller community hospital on the PVH site. The commissioner approved the application over the objections of Valley Hospital Inc. and Englewood Hospital and Medical Center.

During these events, appellant Frank Ciesla, an attorney for Valley, submitted a request to the DOH for a copy of the staff report concerning HUMC’s initial CN application. The DOH records custodian advised him that the report was only a draft and was not subject to public disclosure since it was “advisory, consultative or deliberative material.”

Ciesla filed a denial-of-access complaint with the Government Records Council, invoking the Open Public Records Act (OPRA), 47:1A-1 to -13, and the common law. In opposition, the DOH submitted a supporting certification from John Calabria, director of the Certificate of Need and Healthcare Facilities Licensing program, indicating that the staff analysis and recommendations were not final and could be revised at any time prior to their transmittal to the SHPB.

The GRC adopted its executive director’s recommendation and Ciesla’s complaint was denied. On appeal, Ciesla argues that the GRC’s denial of access to the report was arbitrary and capricious. Alternatively, he maintains that he and his client have a right to the report based on a common-law right of access.

Held: The draft report is protected from disclosure under OPRA as “deliberative material” excluded from the statute’s definition of a potentially obtainable “government record,” which exclusion is absolute. The GRC’s statutory authority is confined to the resolution of OPRA-based requests and it lacks jurisdiction to resolve common-law claims for records access. The panel invokes its original jurisdiction and rejects appellant’s common-law claim, concluding that appellant’s interest in obtaining the report does not sufficiently outweigh the strong public policy that promotes robust and confidential internal advice to a governmental decision-maker.

OPRA provides that government records shall be readily accessible by the citizens of this state, with certain exceptions. N.J.S.A. 47:1A-1 expressly provides that “government record” does not include advisory, consultative or deliberative material. This exemption encompasses the deliberative process privilege, which has been deemed necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.

To invoke the deliberative process privilege, an agency must prove that a document is predecisional and deliberative. Purely factual material that does not reflect deliberative processes is not protected but predecisional documents do not lose their protection merely because they may contain numerical or statistical data or information used in the development of, or deliberation on, a possible governmental course of action.

The panel sustains the GRC’s determination that the report falls within the deliberative process exemption for several reasons.

It says the report is unquestionably predecisional and it encompasses advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. That the DOH routinely makes such reports public several days before the SHPB’s hearings is irrelevant because the report had not been circulated to the SHPB and the public. That the SHPB and the commissioner never acted on HUMC’s transfer application does not eviscerate the privilege.

The panel says that by their very nature, draft documents are preliminary and subject to further revision. Given their nonfinal character, it makes eminent sense to treat them as protected materials under the deliberative process privilege. Without such protection, policy advisers would be reluctant to express their tentative thoughts on a pending issue. Case law in this and other jurisdictions has repeatedly treated predecisional drafts as protected from disclosure. The panel distinguishes the circumstances here from those that allowed disclosure of internal agency documents in Correctional Medical Services Inc. v. State, 426 N.J. Super. 106 (App. Div. 2012).

The panel rejects appellant’s claim that there are countervailing interests that outweigh the DOH’s need for confidentiality. It says the argument is misplaced with respect to the OPRA-based claim because 47:1A-1.1 contains no limitation or qualification on the exemption. Nor does it include any balancing test to be applied when a document meets the definition of “deliberative material.” The panel disagrees with those decisions that have stated or presumed that the OPRA exemption of deliberative materials is qualified.

Finally, the panel considers appellant’s claim of entitlement to the report based on a common-law right of access.

It notes that the GRC confined its analysis to the OPRA issues, regarding its jurisdiction as limited to such issues. According substantial deference to the GRC’s interpretation of the limits of its authority under its enabling statute, and finding that it is institutionally sounder to have courts evaluate common-law arguments, in keeping with the functions that judges routinely perform in interpreting and applying the common law, the panel says the GRC correctly declined to assert jurisdiction over appellant’s common-law claims.

It then opts to exercise its original jurisdiction under Rule 2:10-5 and concludes that appellant has failed to overcome the presumption of privilege customarily attached to deliberative materials. Although Valley Hospital arguably has a keen interest in obtaining the report as a regulated competitor of HUMC and as a vigorous opponent of its proposal, its desire to obtain the report does not outweigh the agency’s strong interests in keeping the draft confidential.

For appellant — Douglas S. Eakeley (Lowenstein Sandler and Giordano, Halleran & Ciesla; Eakeley and Frank R. Ciesla on the brief). For respondents: Department of Health and Senior Services — Michael J. Kennedy, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel); State of New Jersey Government Records Council — Jennifer Borek (Genova, Burns & Giantomasi; Borek and Eileen Fitzgerald Addison on the brief); Hackensack University Medical Center — Thomas A. Abbate (DeCotiis, FitzPatrick & Cole; Abbate, Gregory J. Bevelock and Mark A. Bunbury Jr. on the brief).