Freehold Borough officials do not have to make public a consultant’s report that examined the organization and operation of the Freehold Borough Police Department.
State Superior Court Judge Lawrence M. Lawson, sitting in Freehold, ruled last week that the consultant’s report that was sought by the Latino Coalition of Monmouth County under New Jersey’s Open Public Records Act (OPRA) can be withheld from the public.
A comprehensive review of the Freehold Borough Police Department was requested by the Borough Council in October 2010 and Jersey Professional Management (JPM) was hired to perform the study. The review was paid for with public funds.
The report was delivered to the council but never discussed in public.
In June 2011, the Latino Coalition filed an OPRA request with Freehold Borough seeking the release of the document.
Borough officials denied the OPRA request by saying JPM’s review of the police department “is a management and personnel document which contains strategies and policies regarding public safety and crime prevention.” In August 2011, the Latino Coalition filed a legal complaint appealing the borough’s decision not to release the consultant’s report.
The matter went to court and Lawson decided the issue in favor of Freehold Borough.
In deciding that the JPM report about the police department need not be released to the public, Lawson wrote, “This exclusion from the general definition of government records is known as the ‘deliberative process privilege.’ ”
Lawson’s decision states that the public’s right to inspect documents is “not unlimited” and that the “definition of government records excluded disclosure of documents that consist of advisory, consultative or deliberative material.”
Attorney Surinder K. Aggarwal, who represented the Latino Coalition, said the coalition requested access to the JPM report because it “contained information that is factual in nature and does not relate to any deliberation or policy formation.”
The Latino Coalition requested disclosure of at least the factual components of the JPM report with policy matters redacted.
On that matter, Lawson ruled, “While the court would be willing to grant this request in some situations, the report in question contains facts which themselves informed the borough’s decision and are not raw data.”
He added that the “factual components of the report are intertwined with the process of deliberation the borough underwent. The facts in the report supported JPM’s recommendations which the borough considered in making a policy decision.
“Disclosure of the facts cited in the report, even with other information redacted, would defeat the purpose of the deliberative process privilege as applied to this report because aspects of the decision making process could be revealed.”
Frank Argote-Freyre, the director of the Latino Coalition of Monmouth County, said, “We are disappointed in Judge Lawson’s decision, but it will not deter us from monitoring the actions of municipalities like Freehold Borough that in the past have displayed a disregard for the civil rights of members of the community. We will now meet with our attorneys to consider whether any further legal action is appropriate.”
Attorney Edward J. McKenna, who represented Freehold Borough, said, “I think Judge Lawson’s decision was right on point and could not have been more accurate. The law is clear, our arguments were clear, and I think the court did the right thing.”
Mayor Nolan Higgins said, “We are pleased the court recognized that the report, which provided the governing body with advisory opinions and recommendations to assist in the deliberations and decisions made regarding the future of the police department, is not a government record as defined under OPRA.
“We are equally pleased the court found that under the common law the report is protected as part of a process by which governmental decisions and policies are formulated. Disclosure could undermine the ability of the governing body to engage in full and frank discussions in the future when developing new ideas, policies, positions or organizational systems,” the mayor said.
Councilman George Schnurr, who served as Borough Council president in 2011, had a different view, saying, “I do not agree with the governing body’s decision to keep the report private. As an open government advocate, documents that do not relate to personnel matters, litigation and contract negotiations should be made available to the public.
“I disagree with the Borough Council’s decision not to make the police study public and believe that the lawsuit should not have been defended. The police study largely focused on whether to promote a new police chief after Police Chief Mitch Roth retired or hire a public safety director.
“After much study, I was a proponent of keeping the police chief model. It was the best thing for the Freehold Borough Police Department and the public they serve. The retiring of a police chief just gave us the opportunity to look at how the department was structured. Once that decision was made, there was no reason to withhold the report. Defending the lawsuit cost the town money and it was really a moot point,” Schnurr said.