Dear Nutley Township,
This is a request for public records made under OPRA and the common law right of access. I am not required to fill out an official form. Please acknowledge receipt of this message.
Records requested: I seek all public documents related to the Planning Board for December 18, 2019. Reference items #6 and #7 on the public agenda.. The document is locked and will not allow copying. Item #6 indicates a resolution and agreement for the Town Property.
Yours faithfully, Rory
This correspondence shall serve as Nutley Township’s (the “Township”)
response to your request for access to government records pursuant to the
Open Public Records Act, N.J.S.A. 47:1A-1.1, et seq. (“OPRA”), which was
sent via the opramachine.com website on December 19, 2019 at 8:56 PM and
received by the Township on December 20, 2019 during regular business
hours. Below are the Township’s responses to each said request.
“I seek all public documents related to the Planning Board for December
18, 2019. Reference items #6 and #7 on the public agenda. The document
is locked and will not allow copying. Item #6 indicates a resolution and
agreement for the Town Property”. OPRA exempts from the definition of
“government records” documentary information that constitutes
“inter-agency or intra-agency advisory, consultative, or deliberative
material.” N.J.S.A. 47:1A-1.1. This deliberative process privilege
“permits the government to withhold documents that reflect advisory
opinions, recommendations, and deliberations comprising part of a process
by which governmental decisions and policies are formulated.” In Re
Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000). The underlying
rationale for the deliberative exemption is two-fold: “first, the
exemption protects free and open comments within government agencies, and
second, it prevents the release of proposed policies before they have been
fully scrutinized and implemented by the governmental agency.”
Tractenberg v. Twp. of West Orange, 416 N.J. Super. 354, 366 (App. Div.
2010). Regarding item no. 6 on the referenced agenda, the requested
records include a resolution and an agreement which have not yet been
memorialized or executed by the Planning Board. As such, the requested
records are currently in draft form and subject to change, which exempts
them from public disclosure as deliberative documents. Regarding item no.
7 on the referenced agenda, the committee and subcommittee reports were
given verbally and no document exists pertaining to said reports.
Accordingly, your OPRA request is denied.
To the extent that you have also requested access to the above government
records under the common law, your stated interest in obtaining the
records must be balanced against the Township of Nutley’s interest in
nondisclosure. See Loigman v. Kimmelman, 102 N.J. 98 (1986). The
foregoing response to your request for access to government records
incorporates the aforementioned balancing test. Please note that "a
party's status as a litigant does not enlarge its access to government
records under OPRA”. MAG Entm't, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 545-46 (App. Div. 2005). The Township of
Nutley reserves the right to raise any other grounds for denial not raised
in this response. Failure of the Township of Nutley to assert an
exemption or privilege does not act as a waiver of any grounds for
denial. Furthermore, a reviewing Court or the Government Records Council
("GRC") may deem a denial of access to be authorized on grounds other that
those advanced by a custodian. See Paff v. Twp. of Plainsboro,
A-2122-05T2, 2007 WL 957289, at *2 (App. Div., Apr. 2, 2007), affirming,
Paff v. Township of Plainsboro, GRC Complaint No. 2005-29 (March 2006).
If your request for access to a government record has been denied or
unfilled, you have a right to challenge the decision by the Township of
Nutley to deny access. At your option, you may either initiate a
proceeding in the Superior Court of New Jersey or file a complaint with
the GRC by completing the Denial of Access Complaint Form. You may
contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O.
Box 819, Trenton, NJ, 08625, by e-mail at [email address], or on
its website at www.state.nj.us/grc. The GRC can also answer other
questions about the law. All questions regarding complaints filed in
Superior Court should be directed to the Court Clerk in your County.
Clerk / Municipal Housing Liaison
Municipal Clerk’s Office
Township of Nutley, NJ
(973) 284-4951 x2233 Office
(973) 284-5668 Fax
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