Just before Thanksgiving, the Appellate Division issued a precedential opinion on a major OPRA issue of first impression. The court held that a public body may withhold disclosure of the names of those who reviewed applications that were submitted to the public body in a competitive process. IMO Application for Medicinal Marijuana ATC for Pangaea, etc.

When agencies render a decision choosing among applicants, whether in a formal bidding process or other type of competitive matter, OPRA requestors commonly ask for all information concerning the agency’s selection of the winning applicant. This includes the review and scoring of the applications by the agency’s review committee, as well as the identities of the members of the committee. Of course, the records showing the committee members’ evaluations of each application are public under OPRA, but it’s never been clear whether the names of those who made these evaluations must be disclosed.

In Pangaea, the court dealt with a challenge to the Department of Health’s selection of entities to grow, process and dispense marijuana under the State’s medicinal marijuana program. The opinion primarily focused on challenges to the scoring of the applications and the Department’s explanation for its decisions, but the court also firmly rejected the argument, made by some of the disappointed applicants, that OPRA requires disclosure of the identities of the review committee members. This information, the court said, is covered by the deliberative process privilege: revealing the identities would harm the agency’s decisionmaking process.