Caliendo v. Velez, A-3773-10T3; Appellate Division; opinion by Skillman, J.A.D., retired and temporarily assigned on recall; decided and approved for publication July 17, 2012. Before Judges Parrillo, Alvarez and Skillman. On appeal from the Law Division, Warren County, L-316-10. DDS No. 52-2-7027 [12 pp.]

This appeal challenges the validity of a regulation adopted by the Department of Human Services, N.J.A.C. 10:41-3.2(b), which provides that incident reports prepared by the Division of Developmental Disabilities are not public records and may be released only by court order. Appellant, a developmentally disabled adult who resides at the Hunterdon Developmental Center, contends that this regulation is inconsistent with N.J.S.A. 30:4-24.3, which authorizes a developmentally disabled resident of a state institution to consent to the release of a confidential document that mentions the resident.

The appeal was precipitated by an incident that occurred at a party held on Dec. 1, 2007, at the cottage in the Hunterdon Developmental Center where appellant resides. Subsequently, the Caliendos submitted a written inquiry to Hunterdon Developmental Center concerning the incident involving their son. A member of the Hunterdon staff with the title “Quality Assurance Specialist” conducted an investigation of the incident, which included interviews of the members of the staff on duty in the cottage when it occurred. The results of the investigation were set forth in a 15-page report, dated Dec. 11, 2007, which contained findings of fact, a series of conclusions regarding the incident, and recommendations for remedial actions to prevent a similar occurrence.

After receiving this report, the chief executive officer at Hunterdon sent the Caliendos a letter that summarized the results of its investigation. The Caliendos advised officials of the Department of Human Services that they were not satisfied with this response and claimed that they were entitled, as appellant’s guardians, to see the entire Dec. 11, 2007, investigation report. However, the department refused to release the report to the Caliendos on the ground that it was confidential.

Appellant filed a multicount complaint in the Law Division against the commissioner of the Department of Human Services, the chief executive officer at Hunterdon and other officials. One count of the complaint challenged the validity of N.J.A.C. 10:41-3.2(b). Every other count has been resolved by a settlement agreement and dismissal based on that agreement. The Law Division transferred the count challenging N.J.A.C. 10:41-3.2(b) to the Appellate Division in accordance with Rule 2:2-3(a)(2).

Held: N.J.A.C. 10:41-3.2(b), a regulation that provides that incident reports prepared by the Division of Developmental Disabilities are not public records and may be released only by court order does not violate N.J.S.A. 30:4-24.3, which authorizes a developmentally disabled resident of a state institution to consent to the release of a confidential document that mentions the resident. Therefore, a developmentally disabled resident of a state institution or the resident’s guardian is not entitled to unfettered access to a report prepared by a member of the institution’s staff regarding an investigation of alleged neglect or abuse of the resident.

The appellate panel rejects appellant’s challenge and upholds the validity of N.J.A.C. 10:41-3.2(b).

During the course of the proceedings before the Law Division, the trial court ordered the disclosure to the Caliendos of a redacted version of the Dec. 11, 2007, investigation report. In addition, the division provided an unredacted version of the report to Disability Rights New Jersey, the agency appointed to represent the interests of developmentally disabled persons, which also represents appellant in this appeal, but that agency was prohibited from disclosing the unredacted copy to appellant and his parents.

It is plain on the face of N.J.S.A. 30:4-24.3 that it does not give patients in state institutions any right of access to government reports. Rather, N.J.S.A. 30:4-24.3 protects the privacy rights of patients by providing that any report identifying them “shall be kept confidential and shall not be disclosed” unless the patient or his legal guardian “shall consent.” This right to prevent disclosure to a third party of a government report identifying the patient does not confer any right on the patient to obtain access to that report.

The Open Public Records Act (OPRA) expressly exempts “inter-agency or intra-agency advisory, consultative, or deliberative material” from the definition of “government record.” This exemption from disclosure under OPRA is commonly referred to as the “deliberative process privilege.” Under this exemption, “a record, which contains or involves factual components, is subject to the deliberative process privilege when it was used in the decision-making process and its disclosure would reveal the nature of the deliberations that occurred during that process.” N.J.S.A. 30:4-24.3 does not give appellant an unfettered right of access to the report that circumvents the restrictions on access to government records imposed under OPRA and the common-law right of access.

Appellant relies on Bonnie S. v. Altman in support of his argument that N.J.S.A. 30:4-24.3(b) gives residents of state institutions a right of access to records that identify them. As relevant here, the court considered whether parts of the committees’ medical records residents sought to obtain in order to support their challenges to their commitments could be withheld from disclosure. Bonnie S. involved only committees’ rights of access to their own medical records and not, as in this case, an agency investigatory report in which their names are mentioned. In any event, insofar as the court in Bonnie S. construed N.J.S.A. 30:4-24.3(b) to establish a right of access to the documents listed in that section, as distinguished from a right to prevent their disclosure to third parties, the appellate panel concludes that this construction was incorrect.

For appellant — Curtis D. Edmonds (Disability Rights New Jersey Inc.). For respondent — Gerard Hughes, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel).