NORTH JERSEY MEDIA GROUP INC v. CITY OF CLIFTON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1469-16T4
NORTH JERSEY MEDIA GROUP,
INC.,
Plaintiff-Appellant,
v.
CITY OF CLIFTON and NANCY
FERRIGNO in her capacity as
City Clerk and Custodian of
Records for the City of
Clifton,
Defendants-Respondents.
____________________________
Submitted November 29, 2017 – Decided January 11, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
0543-16.
Pashman Stein Walder Hayden, PC, attorneys for
appellant (Samuel J. Samaro and Jennifer A.
Borg, of counsel; Samuel J. Samaro, on the
brief).
DeCotiis, FitzPatrick, Cole & Giblin, LLP
attorneys for respondents (Thomas A. Abbate,
of counsel; Gregory J. Hazley, on the brief).
PER CURIAM
Appellant North Jersey Media Group, Inc. (NJMG) appeals from
an October 25, 2016 order dismissing its complaint against
defendant City of Clifton and its custodian of records, Nancy
Ferrigno, seeking production of certain records pursuant to the
Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13, and the
common law right to inspect government records. For the reasons
that follow, we affirm.
I.
In 2015, Clifton began exploring a potential transition from
paying its employees biweekly to paying them semimonthly. Under
its biweekly payroll system, Clifton issued payroll checks every
other Friday, yielding twenty-six pay periods per year. In
contrast, under a semimonthly system, Clifton would pay its
employees on the fifteenth and last day of each month, yielding
twenty-four pay periods per year.
Clifton employees contended biweekly pay periods resulted in
a shortfall of their annual compensation. Specifically, there are
fifty-three Fridays instead of fifty-two approximately every five
years. Clifton's biweekly payroll system, however, paid employees
as if there were only fifty-two weeks in that fifth year.
Employees alleged they were not paid for that first week, leaving
them underpaid in those years.
2 A-1469-16T4
NJMG is the owner of various print and web-based news
organizations, including The Record, a general circulation daily
newspaper. The Record began investigating and reporting on a
potential transition by Clifton to a semi-monthly payroll system
due to the allegation that Clifton's biweekly payroll system was
shortchanging employees. The investigation revealed that Clifton
employees were not being compensated for every day they worked.
In response to the investigation, Clifton hired Lerch, Vinci
& Higgins (LVH), an accounting firm, to perform an independent
review of its payroll practices. LVH was tasked with analyzing
and providing recommendations in connection with Clifton's twenty-
six pay period system, as well as the consequences of changing to
a twenty-four pay period system. At a June 30, 2015 special
meeting, Clifton announced that LVH would be commissioned to
determine whether the City was handling the payroll issue properly.
Following its review, LVH prepared a report of its findings.
Over the course of five months, LVH revised the report five times
in response to questions and comments by Clifton officials. The
revisions were requested by Clifton or its attorney to address
anticipated issues likely to be raised in the expected grievances
and arbitrations. According to Clifton's Chief financial Officer,
"[n]umerous discussions were held involving [his] department, the
Law Department, outside counsel and the City's expert consultant
3 A-1469-16T4
as to how to proceed." The six versions of the report were sent
to Clifton in July, August, and December 2015.1 Clifton
characterizes each version of the report as a draft and
deliberative in nature. NJMG contends that the report was not in
draft form, but rather, was commissioned for investigative
purposes and contained only factual data.
Following LVH's submission of the August 3, 2015 version of
the report, Clifton held a meeting of its governing body on August
15, 2015, and made the decision to convert to semimonthly pay
periods. On January 8, 2016, Clifton issued special payroll checks
to 439 employees to make up for the shortfall between days
previously worked and pay received that resulted from the prior
biweekly pay periods. The unions representing the affected
employees subsequently filed grievances contesting the amount
paid, alleging that the employees were still owed additional back
2
pay. Some of the grievances went to arbitration.
On December 16, 2015, a reporter for The Record submitted a
request to Clifton for the following documents pursuant to OPRA
and the common law:
1
Two versions of the report are dated July 14, 2015 and another
two are dated December 3, 2015. The others are dated August 3,
2015 and December 2, 2015.
2
Some of the grievances were settled through arbitration, while
others remained pending when this appeal was filed.
4 A-1469-16T4
(1) The audit of Clifton payroll this year
performed by Lerch, Vinci & Higgins of Fair
Lawn and any recommendations made regarding
the payroll and payment to employees.
(2) . . . [D]ocuments that explain how the
[C]ity determined the amount to be paid to
employees at the beginning of January in lump
sums to each employee.
(4)3 . . . [M]emos or letters sent out to
employees regarding the lump sums they are to
receive in January and the calculations made
to determine the amount.
(5) . . . [D]ocuments showing payments made
to employees who were hired in 2015, and the
amount of pay they received after Aug[ust] 1
when the city went to a bi-monthly paychecks.
Defendant Nancy Ferrigno, Clifton's designated Custodian of
Records, responded to the request on December 28, 2015. Ferrigno
provided copies of 490 pages of "interoffice memorandums" that
were sent to each of Clifton's affected employees advising them
how much they would receive in special payroll. However, Ferrigno
withheld the report for the following reasons expressed in an
email:
The report, even once finalized, will not be
a public record as it will be used by the City
in connection with actual and/or potential
litigation related to the grievance and
arbitration proceedings. In addition, it will
be subject to the deliberative process
privilege and will not be subject to a request
under OPRA. See Cielsa v. New Jersey Dept.
of Health and Senior Services,
429 N.J. Super.
3
The email did not contain an item number three.
5 A-1469-16T4
127,
57 A.3d 40 ([App. Div.] 2012), which held
that the exemption of deliberative materials
from [the] definition of a "government record"
subject to disclosure under Open Public
Records Act (OPRA) is an unqualified one.
On February 8, 2016, NJMG filed a verified complaint against
defendants challenging the denial of its request for the LVH
report. In count one of the complaint, NJMG demanded access to
the requested LVH report under OPRA and asserted that defendants'
failure to produce the report was a violation of OPRA. In count
two, NJMG alleged that it was entitled to production of the
requested report under the common law right of access to public
records. Each count also demanded an award of counsel fees and
costs.
On February 16, 2016, the trial court issued an order to show
cause requiring defendants to show cause why the relief sought in
in the complaint should not be granted. Defendants filed an
opposition on March 29, 2016. A certification by Clifton's Chief
Financial Officer claimed "[n]umerous discussions were held
involving [his] department, the Law Department, outside counsel
and the City's expert consultant as to how to proceed." Clifton
further asserts it intended to use the LVH report in connection
with a pending payroll arbitration filed by PBA Local 36.
The parties appeared before the trial court on April 28,
2016. Plaintiff argued the LVH report was investigative in nature
6 A-1469-16T4
because Clifton was investigating a claim brought to its attention
by The Record. NJMG claimed the LVH report must be disclosed to
"allow plaintiff and the public to confirm, that [employees] have
been properly paid." In contrast, Clifton argued the LVH report
was in "draft" form, pre-decisional, deliberative in nature, and
was, at the time, being relied upon in considering its response
to, and negotiation and settlement of, the employee grievances.
Following oral argument, the trial court ordered Clifton to
forward each version of the report for in camera review. On
September 21, 2016, the parties appeared before the trial court
to receive the court's decision as a result of the in camera
review. The court determined the report was deliberative material
exempt from disclosure under OPRA. The judge characterized the
report as being "mostly just statistical data," but recognized the
analysis did not end there. The judge then read the following
passage from Educ. Law Ctr. v. N.J. Dep't of Educ. into the record:
"pre-decisional documents do not lose their protection from
unwarranted public scrutiny merely because they may contain
numerical or statistical data or information used in the
development of[,] or deliberation on[,] a possible government[al]
course of action."
198 N.J. 274, 295 (2009).
The judge found that LVH did not give "advice or []
suggestions as to how to proceed. It just gave them a . . . per
7 A-1469-16T4
employee statistic as to what they felt . . . was a discrepancy
between what they should have been paid and what they in fact were
paid, both for the first year and -- and running currently."
Although he "didn't see any advice" in the report, he classified
the report as "recommendations[] and deliberations comprising part
of a process by which [Clifton's] decisions and policies [were]
formulated." The judge concluded the "statistical information"
in the report "certainly [was] part of the process by which the
decisions and the policies of the City [were] formulated."
Recognizing that government records subject to disclosure
under OPRA "shall not include inter-agency or intra-agency
advisory, consultative or deliberative material[,]" the judge held
the six versions of the report were exempt from disclosure under
the deliberative process privilege. The decision was memorialized
in an order entered on October 25, 2016, which dismissed NJMG's
complaint with prejudice.
On appeal, NJMG argues that the LVH report is neither a draft
report for deliberative purposes nor an expert report for use in
defending the city against grievances. NJMG further argues we
should examine the report as part of its review in this matter.
II.
We apply the following standards of review. We exercise de
novo review of the trial court's legal conclusions concerning
8 A-1469-16T4
access to public records under OPRA and the common-law right of
access. Drinker Biddle & Reath, LLP v. N.J. Dep't of Law and Pub.
Safety,
421 N.J. Super. 489, 497 (App. Div. 2011). "We also
conduct plenary review of the trial court's legal conclusion that
a privilege exempts the requested records from disclosure[.]" K.L.
v. Evesham Twp. Bd. of Ed.,
423 N.J. Super. 337, 349 (App. Div.
2011) (citing Paff v. Div. of Law,
412 N.J. Super. 140, 149 (App.
Div. 2010); Asbury Park Press v. Cnty. of Monmouth,
406 N.J. Super.
1, 6 (App. Div. 2009), aff'd,
201 N.J. 5 (2010). "We defer to the
trial court's factual findings when they are 'supported by
adequate, substantial and credible evidence.'" North Jersey Media
Grp., Inc. v. State Office of the Governor,
451 N.J. Super. 282,
295-96 (App. Div. 2017) (quoting Toll Bros., Inc. v. Twp. of W.
Windsor,
173 N.J. 502, 549 (2002)).
"We apply a different and deferential standard of review when
a court conducts an in camera review of documents and balances
competing interests in disclosure and confidentiality in
connection with a common-law-based request to inspect public
records." North Jersey Media Grp., Inc. v. Twp. of Lyndhurst,
441 N.J. Super. 70, 89 (App. Div. 2015) (citing Shuttleworth v. City
of Camden,
258 N.J. Super. 573, 588 (App. Div. 1992)).
9 A-1469-16T4
III.
NJMG contends the trial court misinterpreted the deliberative
process privilege by finding that the report, which contained
"mostly just statistical data[,]" was qualified for protection
under the privilege even though disclosure would not reveal
information about the defendant's deliberations. Clifton contends
the report is exempt from disclosure under OPRA because it is
incomplete, pre-decisional, deliberative, and is not an
investigative report. Clifton maintains the report should not be
ordered disclosed even in redacted form.
The general purpose of OPRA is "to maximize public knowledge
about public affairs in order to ensure an informed citizenry and
to minimize the evils inherent in a secluded process." Mason v.
City of Hoboken,
196 N.J. 51, 64 (2008) (quoting Asbury Park Press
v. Ocean Cnty. Prosecutor's Office,
374 N.J. Super. 312, 329 (Law
Div. 2004)). To achieve this purpose, OPRA provides that
"government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, with certain
exceptions, for the protection of the public interest[.]"
N.J.S.A.
47:1A-1. This appeal turns upon one of those codified exceptions.
Although OPRA broadly defines the term "government record,"
it expressly provides that it "shall not include inter-agency or
intra-agency advisory, consultative, or deliberative material."
10 A-1469-16T
4 N.J.S.A. 47:1A-1.1. "This exemption has been construed to
encompass the deliberative process privilege, which has its roots
in the common law." Ciesla,
429 N.J. Super. at 137 (citing Educ.
Law Ctr.,
198 N.J. at 284).
The deliberative process privilege allows government entities
to "withhold documents that reflect advisory opinions,
recommendations, and deliberations comprising part of a process
by which [its] decisions and policies are formulated." In re
Liquidation of Integrity Ins. Co.,
165 N.J. 75, 83 (2000) (NLRB
v. Sears, Roebuck & Co.,
421 U.S. 132 (1975)). "[T]he privilege
is necessary to ensure free and uninhibited communication within
governmental agencies so that the best possible decisions can be
reached[.]" Educ. Law Ctr.,
198 N.J. at 286. "The privilege bars
the 'disclosure of proposed policies before they have been fully
vetted and adopted by a government agency,' thereby ensuring that
an agency is not judged by a policy that was merely considered."
Ciesla,
429 N.J. Super. at 137-38 (quoting Educ. Law Ctr.,
198 N.J. at 286).
"In order to invoke the deliberative process privilege, an
agency must initially prove that a document is 'pre-decisional,'
i.e., 'generated before the adoption of an agency's policy or
decision,' and also 'deliberative,' in that it 'contain[s]
opinions, recommendations or advice about agency policies.'" Id.
11 A-1469-16T4
at 138 (alteration in original) (quoting Integrity,
165 N.J. at
84-85). Here, all six versions of the report predated the decision
how to compensate employees for unpaid work time, issuance of
special payroll checks to the affected employees, and the filing
of the arbitrations. Moreover, the first three drafts of the
report predated the August 15, 2015 decision to convert to
semimonthly pay periods.
The fact that the report underwent five revisions at Clifton's
request bespeaks its ongoing draft status. "By their very nature,
draft documents are preliminary and subject to further revision."
Ciesla, 429 N.J. Super. at 140. Pre-decisional drafts are
protected from disclosure. See id. at 141; State v. Ballard,
331 N.J. Super. 529, 551-53 (App. Div. 2000).
We further find the report to be closely related to Clifton's
formulation and exercise of "policy-oriented judgment" to adopt
semimonthly pay periods and to decide how and when to remit payment
for unpaid work time. See Educ. Law Ctr.,
198 N.J. at 295.
The trial court declared the report exempt from disclosure
despite the fact that it contained considerable statistical data.
We recognize that "[p]urely factual material that does not reflect
deliberative processes in any way is not protected by the
privilege." Ciesla,
429 N.J. Super. at 138 (citing Integrity,
165 N.J. at 85). However, as explained by the Court in Educ. Law
12 A-1469-16T4
Ctr., the fact that the report contains statistical data and other
factual information does not preclude protection by the privilege.
Deliberative material need not, in all
instances, expressly reflect an overt opinion,
recommendation, or advice when a discretionary
decision is in development. And, pre-
decisional documents do not lose their
protection from unwarranted public scrutiny
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. As the D.C.
Circuit Court aptly stated, the deliberative
process privilege "was intended to protect not
simply deliberative material, but also the
deliberative process of agencies."
[Educ. Law Ctr.,
198 N.J. at 295 (emphasis in
original) (quoting Mapother v. Dep't of
Justice,
3 F.3d 1535, 1538 (D.C. Cir. 1993).]
Having concluded that the draft, pre-decisional report is
deliberative material, it is unqualifiedly exempt from disclosure
under OPRA. Ciesla,
429 N.J. Super. at 142-45.
IV.
Clifton further contends that disclosure of the report, which
it categorizes as an expert report, is precluded by the work-
product doctrine. See R. 4:10-2(c). NJMG contends that the LVH
report does not qualify for work-product protection because it was
not prepared "in anticipation of litigation," but rather, was used
in deciding whether to issue special paychecks to defendant's
employees.
13 A-1469-16T4
The work-product doctrine "protect[s] against disclosure of
the mental impressions, conclusions, opinions, or legal theories
of an attorney or other representative of a party concerning the
litigation." R. 4:10-2(c). In order for the doctrine to apply,
the document must have been "prepared in anticipation of litigation
or for trial by or for another party or by or for that other
party's representative (including an attorney, consultant, surety,
indemnitor, insurer or agent)[.]" Ibid. A document "will be
considered to have been prepared in anticipation of litigation if
the 'dominant purpose' in preparing the document was concern about
potential litigation and the anticipation of litigation was
'objectively reasonable.'" Miller v. J.B. Hunt Transport, Inc.,
339 N.J. Super. 144, 150 (App. Div. 2001).
Public policies generally shield consultations with expert
witnesses in connection with pending or threatened litigation.
Those policies apply with equal force to pending or threatened
labor grievances and arbitrations.
"Documents that satisfy the OPRA definition of government
record are not subject to public access if they fall within the
work-product doctrine." O'Boyle v. Borough of Longport,
218 N.J.
168, 188 (2014) (citing Sussex Commons Assocs., LLC v. Rutgers,
210 N.J. 531 542 (2012); Gannett N.J. Partners, L.P. v. Cnty. of
Middlesex,
379 N.J. Super. 205, 218 (App. Div. 2005)).
14 A-1469-16T4
Clifton's assertion of the work-product privilege is also
bolstered by the policies reflected in Rule 4:10-2(d)(1), which
was specifically amended in 2002 to insulate draft expert reports
as well as related oral and written communication between the
attorney and the expert. See Pressler & Verniero, Current N.J.
Court Rules, cmt. 5.2.1 on R. 4:10-2(d)(1) (2018). The same
principles apply here in the context of the anticipated adversarial
proceedings in the form of grievances and arbitrations that Clifton
correctly predicted would be filed.
The report was prepared by LVH in its capacity as Clifton's
consultant. The information contained in the report would be
highly relevant to the issues raised in the grievances and
arbitrations filed by the affected employees. The revisions to
the report were requested, in large part, for its intended use in
the grievance and arbitration process. The report was augmented
to address the issues expected to be raised in arbitrations that
were then "likely" to be filed by "one or more of the unions."
Indeed, following denial of the grievances, a request for
arbitration was filed against Clifton on December 7, 2015, only
four days after the last draft of the report was issued. For
these reasons, we hold that the work-product doctrine provides an
independent justification for withholding the report.
15 A-1469-16T4
V.
In count two of its complaint, NJMG alleges it is entitled
to access to the report under the common law right of access to
government documents. A citizen may be entitled to access to
public records under the common law even though the records are
not subject to disclosure under OPRA. Indeed, OPRA provides that
it should not be construed as limiting the common law right of
access to government records.
N.J.S.A. 47:1A-1, -8; see also
Bergen Cnty. Improvement Auth. v. North Jersey Media Grp., Inc.,
370 N.J. Super. 504, 516 (App. Div. 2004).
NJMG's argument before the trial court did not include any
analysis of the right of access to the report under the common
law. Similarly, NJMG did not raise the issue of the common law
right of access in its notice of appeal. Nor did it brief that
issue. The consequence of failing to brief an issue is waiver or
abandonment of that issue on appeal. See Gormley v. Wood-El,
218 N.J. 72, 95 n.8 (2014); Drinker Biddle,
421 N.J. Super. at 496 n.5
(holding that claims not addressed in merits brief deemed
abandoned); Sklodowsky v. Lushis,
417 N.J. Super. 648, 657 (App.
Div. 2011) ("An issue not briefed on appeal is deemed waived.");
DeVane v. DeVane,
280 N.J. Super. 488, 490 n.2 (App. Div. 1995)
(considering issues not briefed on appeal to be abandoned);
Pressler & Verniero, cmt. 5 on R. 2:6-2 (stating that "an issue
16 A-1469-16T4
not briefed is deemed waived"). We deem the issue of the common
law right of access to the report to be abandoned.
VI.
In summary, we affirm the determination by the trial court
that the report is exempt from disclosure.
Affirmed.
17 A-1469-16T4
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