Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the NEW YORK PUBLIC RADIO d/b/a NEW JERSEY PUBLIC RADIO v. OFFICE OF THE GOVERNOR and ANDREW J. MCNALLY

NOT FOR PUBLICATION WITHOUT THE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-0968-16T3

NEW YORK PUBLIC RADIO
d/b/a NEW JERSEY PUBLIC
RADIO,

        Plaintiff-Appellant,

v.

OFFICE OF THE GOVERNOR,

        Defendant-Respondent,

and

ANDREW J. MCNALLY, custodian;
N.J. DEPARTMENT OF COMMUNITY
AFFAIRS; CUSTODIAN OF RECORDS
FOR THE N.J. DEPARTMENT OF
COMMUNITY AFFAIRS; N.J.
DEPARTMENT OF LAW AND PUBLIC
SAFETY, DIVISION OF STATE
POLICE; CUSTODIAN OF RECORDS
FOR THE N.J. DEPARTMENT OF
LAW AND PUBLIC SAFETY, DIVISION
OF STATE POLICE; N.J. TRANSIT;
CUSTODIAN OF RECORDS FOR N.J.
TRANSIT,

     Defendants.
————————————————————————————————————————

              Submitted November 14, 2017 – Decided December 19, 2017

              Before Judges Hoffman and Gilson.
          On appeal from Superior Court of New Jersey,
          Law Division, Mercer County, Docket No. L-
          1345-14.

          McCusker, Anselmi, Rosen & Carvelli, James
          Rosenfeld and Jeremy Chase (Davis Wright
          Tremaine) of the New York bar, admitted pro
          hac vice, attorneys for appellant (Bruce S.
          Rosen, James Rosenfeld and Jeremy Chase, on
          the briefs).

          Christopher S. Porrino, Attorney General,
          attorney for respondent (Raymond R. Chance,
          III, Assistant Attorney General, of counsel;
          Matthew T. Kelly, Deputy Attorney General, on
          the brief).

PER CURIAM

     In this opinion, we address the sole remaining issue from a

complaint filed in July 2014 by plaintiff, New York Public Radio,

d/b/a   New   Jersey   Public   Radio,   seeking   various   documents,

including defendant's Town Priority Lists (TPL), under the Open

Public Records Act (OPRA), 
N.J.S.A. 47:1A-1 to -13, and the common

law right of access.      In a prior opinion, we vacated the trial

court's order compelling production of defendant's TPL, holding

the TPL were not subject to disclosure under OPRA's deliberative

process privilege.     
N.J.S.A. 47:1A-1.1.   N.Y. Pub. Radio v. Office

of the Governor, No. A-0565-15 (App. Div. July 13, 2016) (slip op.

at 13). Because the trial court did not address whether the common

law right of access required disclosure of the TPL, we remanded



                                   2                            A-0968-16T3
this matter for the trial court to decide that issue.              Id., slip

op. at 16.

     On remand, the Law Division applied the common law right of

access   balancing   test   and   held   the   TPL   were   not   subject   to

production.    Plaintiff appealed, and presents three arguments for

reversal: (1) the trial court failed to properly credit its

significant public interest in obtaining the TPL; (2) the trial

court improperly applied the factors set forth in Loigman v.

Kimmelman, 
102 N.J. 98, 113 (1986); and (3) this court's prior

OPRA ruling did not foreclose plaintiff's ability to obtain the

TPL under the common law right of access.            For the reasons that

follow, we affirm.

                                     I

     We review a trial judge's legal conclusions concerning access

to public records de novo.        Drinker Biddle & Reath LLP v. N.J.

Dep't of Law & Pub. Safety, 
421 N.J. Super. 489, 497 (App. Div.

2011).     We will not disturb factual findings as long as they are

"supported    by   adequate,   substantial     and    credible    evidence."

Meshinksky v. Nichols Yacht Sales, Inc., 
110 N.J. 464, 475 (1988)

(citing Rova Farms Resort v. Inv'rs Ins. Co., 
65 N.J. 474, 483-84

(1974)).

     The common law right of access provides broader access to

government records than under OPRA.       Mason v. City of Hoboken, 196

                                     3                               A-0968-16T
3 N.J. 51, 67 (2008).          Nonetheless, that right must be balanced

against the State's interest. Higg-A-Rella, Inc. v. Cty. of Essex,


141 N.J. 35, 46 (1995).

      To prevail under the common law, a plaintiff must satisfy the

following requirements: "(1) the records must be common-law public

documents; (2) the person seeking access must establish an interest

in the subject matter of the material; and (3) [plaintiff's] right

of   access    must   be   balanced    against   the   State's   interest     in

preventing disclosure."       Keddie v. Rutgers, 
148 N.J. 36, 50 (1997)

(citations and internal quotation marks omitted).             In this matter,

the parties do not dispute that the documents are public records

and plaintiff has the requisite standing to seek the records.

Accordingly,     we   need   only     review   the   third   factor:   whether

plaintiff's right to the documents outweighs defendant's interest

in preventing disclosure.

      In weighing the parties' interests, our Supreme Court has set

forth the following factors:

              (1) the extent to which disclosure will impede
              agency functions by discouraging citizens from
              providing information to the government; (2)
              the effect disclosure may have upon persons
              who have given such information, and whether
              they did so in reliance that their identities
              would not be disclosed; (3) the extent to
              which    agency    self-evaluation,    program
              improvement, or other decision[-]making will
              be chilled by disclosure; (4) the degree to
              which the information sought includes factual

                                        4                              A-0968-16T3
           data as opposed to evaluative reports of
           policymakers; (5) whether any findings of
           public misconduct have been insufficiently
           corrected by remedial measures instituted by
           the investigative agency; and (6) whether any
           agency    disciplinary    or    investigatory
           proceedings have arisen that may circumscribe
           the individual's asserted need for the
           materials.

           [Loigman, 
102 N.J. at 113.]

     Applying these standards, we find no basis to disturb any

aspect of the order under review.    We find no error in the way the

trial judge treated plaintiff in terms of its interest in obtaining

the TPL.   Furthermore, the trial judge satisfactorily addressed

and weighed the relevant Loigman factors, and adequately explained

her findings and conclusions.   We add the following comments.

     Plaintiff contends the common law balance of interest test

weighs in favor of disclosing the TPL.    Namely, plaintiff asserts

it "is inherently speculative" that disclosing the TPL would chill

agency communication because the TPL "are likely no longer in use,

and the agency" at issue "has been abolished."

     Plaintiff's argument lacks persuasion.     Regarding the third

Loigman factor — whether disclosure would chill agency decision-

making — we concur with the trial judge's reasoning and analysis.

As the trial judge found, "If communication that formed part of

an agency's pre-decisional process could be disclosed after the

decision has been released, one of the major justifications for

                                 5                           A-0968-16T3
the privilege in the first place, maintaining the free flow of

communication within an agency, would be rendered meaningless."

To wit: merely because the TPL are no longer in use does not strip

them of protection from unwarranted public scrutiny.           See Educ.

Law Ctr. v. N.J. Dep't of Educ., 
198 N.J. 274, 294-95 (2009).

Moreover, we agree with the trial judge's comments emphasizing

"the importance of promoting government's" ability to engage in

"full and frank discussions of ideas when developing new policies

and taking action."    See id. at 295.

                                    II

      We further find no merit in plaintiff's contention that the

trial court erroneously reasoned "this Court's prior ruling that

the   deliberative   process   privilege   exempted     the   [TPL]   from

disclosure under OPRA forecloses a different result under the

common law."   Plaintiff fails to demonstrate the trial judge based

her analysis on anything other than the requisite common law

balancing test.

       We note that under the common law, a document's meeting the

threshold requirements for the deliberative process privilege

invokes a presumption against its disclosure.          In re Liquidation

of Integrity Ins. Co., 
165 N.J. 75, 85 (2000).                However, a

plaintiff   can   overcome   that   presumption   by    demonstrating     a

compelling need substantial enough to "override the government's

                                    6                             A-0968-16T3
significant interest in non-disclosure."   Ibid.   Moreover, when a

document is deliberative, the first four Loigman factors weigh

more heavily in favor of non-disclosure.   See Educ. Law Ctr., 
198 N.J. at 304.     Here, the trial judge accurately found, and the

parties agree, the third and fourth Loigman factors are most

applicable to the instant action.

     The record reflects the trial judge appropriately applied the

common law balancing test and found plaintiff failed to demonstrate

a sufficiently compelling need to overcome defendant's interest

in non-disclosure.   We are satisfied the trial judge recognized

our previous holding that the TPL were deliberative under OPRA did

not foreclose a different common law result.

     Affirmed.




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