MUNOZ TRUCKING CORP. VS. KNIGHTBROOK INSURANCE COMPANY (L-7594-12, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0840-15T4
DEAN SMITH,
Plaintiff-Appellant,
v.
SWEDESBORO-WOOLWICH SCHOOL DISTRICT
BOARD OF EDUCATION and CHRISTOPHER DESTRATIS,
Defendants-Respondents.
____________________________________
Argued November 30, 2016 – Decided March 6, 2017
Before Judges Alvarez and Accurso.1
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-652-15.
1
Hon. Carol E. Higbee was a member of the panel before whom this
case was argued. The opinion was not approved for filing prior
to Judge Higbee's death on January 3, 2017. Pursuant to
R. 2:13-2(b), "Appeals shall be decided by panels of 2 judges
designated by the presiding judge of the part except when the
presiding judge determines that an appeal should be determined
by a panel of 3 judges." The presiding judge has determined
that this appeal remains one that shall be decided by two
judges. Counsel has agreed to the substitution and
participation of another judge from the part and to waive
reargument.
Donald M. Doherty, Jr., argued the cause for
appellant.
R. Taylor Ruilova argued the cause for
respondents (Comegno Law Group, P.C.,
attorneys; Mr. Ruilova and Brandon R.
Croker, on the brief).
PER CURIAM
At the January 15, 2014 meeting of defendant Swedesboro-
Woolwich School District, the Board of Education voted to go
into executive session to discuss the superintendent's contract.
Following that session, the Board accepted the superintendent's
resignation, over the objections voiced by members of the
public.
Plaintiff Dean Smith, a supporter of the superintendent,
submitted an Open Public Records Act request for the minutes of
that executive session. The Board responded by providing a two-
page document entitled "Minutes: January 15, 2014 Executive
Session." The top line of the first page states: "Personnel
Matter – Discussion of Superintendent Contract." Following are
two short bullet points, which are entirely blackened out. The
next line reads: "Attorney/-Client Privileged Communication &
Personnel Matter." The twenty-one bullet points under that
heading, which extend a quarter way down the second page of the
document, are also entirely blackened out.
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Accompanying the response was a redaction and privilege
log. The log provides that "[t]he Superintendent presented
information regarding his accomplishments in the District" as
the subject matter redacted under the first heading. The log
states the material redacted under the second heading consisted
of the Board's discussion of "the Superintendent's contract,"
and its discussion of "related issues with its counsel." The
log provides the same reasons for all redactions: "N.J.S.A.
47:1A-9 (effect of OPRA on other statutes); N.J.S.A. 10:4-
12(b)(8) (personnel); Personnel privacy and confidentiality;
Advisory, consultative and deliberative." With regard to
redactions related to conversations with counsel, the Board also
asserted attorney-client and work product privileges.
Plaintiff filed his complaint in the Law Division seeking
the unredacted minutes. After reviewing in camera both the
redacted minutes, as well as the unredacted copy supplied by the
Board, Judge Curio denied plaintiff's request and dismissed his
complaint.
In a thoughtful and cogent opinion delivered from the
bench, Judge Curio acknowledged plaintiff's frustration over the
extent of the redactions, "because plaintiff is flying blind
without having had the opportunity to see the unredacted version
of these minutes." Having reviewed both versions, however, the
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judge was "satisfied that the reasons advanced by the defendant
School Board for redacting the minutes are appropriate."
Specifically, the judge found:
[I]t's clear from the unredacted version of
[the] minutes, that the discussion had to do
with whether the Board was inclined to renew
the contract of the then Superintendent. So
the exception claimed by the defendant that
this is a personnel matter, is accurate and
appropriate.
I am also satisfied, having had the
opportunity to read through the minutes,
that there was, in fact, a give and take
among the members of the Board relative to
that issue of whether to renew the contract
preliminarily to further action by the Board
on that subject. And so, that comports with
the deliberative process exception, and
would justify the redactions.
Defendant also claims that some of the
matters redacted were subject to the
attorney-client privilege and, again, taking
the page and a half as a whole, and reading
it together, it does appear clear that there
was input by the solicitor that would
qualify as attorney-client privilege.
So it's not that the redaction is
appropriate because each and every line
speaks to all of these exemptions, but I am
satisfied that each and every line is
subject to one or the other, and sometimes
more than one appropriate exemption.
Clearly, the Open Public Records Act
dovetails with the Open Public Meetings Act
in a situation such as this, and so the
exemption that would permit the Board to
meet in closed session for the personnel
action, informs the determination about
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whether the records ought to be released
under the Open Public Records Act.
So for those reasons, I do find that
the exemption for the discussion of the
personnel matter and the contract of the
Superintendent, as well as the deliberative
process exemption, and the attorney-client
privilege, work in concert to support the
action of the defendant Board in redacting
all of the minutes.
[P]laintiff's counsel has argued that
because of the passage of time, the result
should be impacted in plaintiff's favor.
However, without clear authority supporting
that proposition, I am unpersuaded that it
would alter the determination that I've
stated.
Plaintiff raises the following issues on appeal:
THE REDACTIONS MADE WERE EXCESSIVE AND THE
JUSTIFICATIONS PROVIDED FOR THEM CONFUSED
THE BASES FOR GOING INTO EXECUTIVE SESSION
UNDER THE OPEN PUBLIC MEETINGS ACT (OPMA)
WITH THE REASONS FOR WITHHOLDING REGARDS
FROM DISCLOSURE UNDER THE OPEN PUBLIC
[RECORDS] ACT (OPRA), AS WELL AS RELIED UPON
AN OVERLY EXPANSIVE VIEW OF RECOGNIZED OPRA
EXEMPTIONS.
A. MEETING MINUTES ARE NOT "PERSONNEL
RECORDS."
B. THERE ARE NO INDICATIONS THERE WAS A
NEED TO WITHHOLD ANY OF THE INFORMATION
SOME 14 MONTHS AFTER THE DISCUSSIONS
TOOK PLACE.
C. SHORT, INCOMPLETE SENTENCE NOTATIONS
TYPICALLY FOUND IN MEETING MINUTES ARE
NOT ADVISORY, CONSULTIVE OR DELIBERATIVE
MATERIALS.
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D. SUBSTANTIVE LEGAL ADVICE COULD NOT
NORMALLY BE SUMMARIZED AS IN THESE
MINUTES AND THERE IS NO ATTORNEY-WORK
PRODUCT ASSOCIATED WITH MEETING MINUTES.
E. THE REDACTION METHODOLOGY WAS IMPROPER.
We reject those arguments. Reviewing those same documents
in camera and exercising plenary review, see Asbury Park Press
v. Cnty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009),
aff'd, 201 N.J. 5 (2010), we affirm substantially for the
reasons expressed by Judge Curio in her opinion from the bench
on August 27, 2015. We add only the following.
As we explained in O'Shea v. West Milford Board of
Education, 391 N.J. Super. 534, 540 (App. Div.), certif. denied,
192 N.J. 292 (2007), any OPRA analysis of documents
memorializing closed-session discussions must be informed by the
Open Public Meetings Act (OPMA), the statute which permits the
agency to go into executive session. See N.J.S.A. 10:4-12b. A
government agency may only go into executive session to discuss
those limited matters that the Legislature has deemed agencies
"have a legitimate need to discuss privately," including certain
specific "personnel matters and contract negotiations." O'Shea,
supra, 391 N.J. Super. at 540; see N.J.S.A. 10:4-12b(4), (8).
"OPRA dovetails with OPMA by exempting documents on these
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subjects from disclosure as public records." O'Shea, supra, 391
N.J. Super. at 540; see N.J.S.A. 47:1A-1; 47:1A-1.1; 47:1A-9.
This matter proceeded exactly as it was supposed to. Upon
receipt of plaintiff's OPRA request, the Board provided
plaintiff with the minutes of the executive session, redacted as
the Board determined appropriate with an accompanying privilege
log. See Paff v. N.J. Dep't of Labor, 392 N.J. Super. 334, 341
(App. Div. 2007). Plaintiff elected to challenge those
redactions by filing an OPRA complaint in the Law Division. See
N.J.S.A. 47:1A-6. The Board submitted both the redacted and
unredacted minutes for review, and the Law Division judge issued
a decision explaining why she found the redactions appropriate.
See S. Jersey Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478,
499 (1991).
We agree with Judge Curio that the Board's discussion, had
with its legal counsel, assessing the superintendent's
performance in order to determine whether it would renew the
superintendent's contract, is protected from disclosure under
the personnel records exception under OPRA, N.J.S.A. 47:1A-10;
see McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 614-16
(App. Div. 2010), as well as the deliberative process and
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attorney-client privileges,2 see N.J.S.A. 47:1A-1.1; 47:1A-9b;
O'Boyle v. Borough of Longport, 218 N.J. 168, 183-85 (2014);
McGee, supra, 416 N.J. Super. at 618-21.
We also agree with plaintiff that he was entitled to the
facts included in the superintendent's presentation "regarding
his accomplishments in the District." See Gannett N.J. Partners
v. Cnty. of Middlesex, 379 N.J. Super. 205, 219-20 (App. Div.
2005) (holding the deliberative process exemption incorporated
in N.J.S.A. 47:1A-1.1 adopted the principles set forth in In re
Liquidation of Integrity Insurance Company, 165 N.J. 75, 84-85
(2000)). As the unredacted minutes, however, provide no more
detail than the privilege log regarding the specifics of the
superintendent's presentation, we find no error.
Affirmed.
2
Our conclusion is buttressed by the information provided by
the Board's counsel at oral argument, without objection by
plaintiff's counsel, that the superintendent was provided a
notice pursuant to Rice v. Union County Regional High School
Board of Education, 155 N.J. Super. 64, 73 (App. Div. 1977)
(interpreting N.J.S.A. 10:4-12b(8) to require agencies to give
employees notice they will be the subject of a closed session
discussion to allow them the opportunity to "make a decision on
whether they desire a public discussion and . . . prepare and
present an appropriate request in writing"), certif. denied, 76
N.J. 238 (1978), prior to the meeting and had not made a written
request that the discussion whether to renew his contract be had
in public.
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