In an unpublished opinion, Katon v. NJ Dept. of Law and Public Safety, the Appellate Division emphasized that a custodian must provide to the GRC a document-by-document description and argument when various exemptions are claimed for a number of records. Although unpublished court opinions are not precedential, this opinion is useful because it shows how a court reacted to the common situation of a case involving numerous documents which are subject to several different exemptions.

The Katon case involved three parts of a request to the Office of the Attorney General (OAG) for:

(1) All records collected and/or created as part of the [OAG’s] fact-finding review of intelligence gathering conducted by the New York Police Department (NYPD) in New Jersey…

(2) All records upon which OAG relied for its determination that the NYPD’s activities in the state did not violate New Jersey civil or criminal laws.

(3) All records reflecting the OAG’s determination [with regard to the legality of the NYPD’s activities]….

The custodian indicated that there were 610 pages of responsive documents and withheld all of them. Before the GRC, the custodian did not describe each of these records or present arguments about specific documents. Instead, the custodian argued that all of the documents were confidential, under the exemptions for attorney work product, attorney-client privilege, deliberative process privilege, and security and surveillance measures and techniques. The GRC upheld the denial on the basis of the deliberative process privilege, and did not address any of the other cited exemptions.

The Appellate Division agreed that request no. 2 was properly denied because it sought exclusively deliberative material. The court said that by definition, a request asking what records were “relied upon” by the agency in making its decision would expose the agency’s deliberative process.

However, the court found that the deliberative process privilege did not similarly apply automatically to the remaining requests, and therefore, said the court, each responsive document would have to be reviewed to determine whether it fell within the deliberative process privilege, or one of the other claimed bases for confidentiality. The court remanded the case to the GRC for such review, holding that the custodian must supply the GRC with a privilege log identifying the withheld documents and explaining the basis for the confidentiality of each one.

This opinion is a reminder that when multiple exemptions are claimed for a number of records, and that decision is challenged before a court or the GRC, the custodian cannot simply make general arguments about the confidentiality of the documents. Instead, the custodian must provide the tribunal with some type of index that shows why each individual record should be considered exempt from disclosure.