Nutley4Change (Joyce),

This correspondence shall serve as Nutley Township’s (the “Township”) 
response to your request for access to government records pursuant to the 
Open Public Records Act, N.J.S.A. 47:1A-1.1, et seq. (“OPRA”), which was
received by the Township on December 16, 2019 during regular business
hours.  Below are the Township’s responses to each said request.

“Any and all traffic studies submitted by traffic experts and/or engineers
to the Nutley Planning, zoning and/or Board of Commissioners for the
Township of Nutley from January 1, 2014 to present”.  OPRA exempts from
the definition of “government records” documentary information that
constitutes “inter-agency or intra-agency advisory, consultative, or
deliberative material.”  N.J.S.A. 47:1A-1.1.  This deliberative process
privilege “permits the government to withhold documents that reflect
advisory opinions, recommendations, and deliberations comprising part of a
process by which governmental decisions and policies are formulated.”  In
Re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000).  The
underlying rationale for the deliberative exemption is two-fold: “first,
the exemption protects free and open comments within government agencies,
and second, it prevents the release of proposed policies before they have
been fully scrutinized and implemented by the governmental agency.” 
Tractenberg v. Twp. of West Orange, 416 N.J. Super. 354, 366 (App. Div.
2010).  The requested traffic studies were commissioned by the Board of
Commissioners for purposes of evaluating traffic impacts on Nutley that
would be generated by the development of property formerly owned by
Hoffman-La Roche.  Said studies are pre-decisional as the Township is
currently examining the proposed development and its traffic impacts. 
Moreover, the studies contain analyses of traffic impacts which inform the
Board of Commissioners in its deliberations.  Accordingly, the requested
studies are protected from public disclosure as deliberative documents and
your OPRA request denied.

To the extent that you have also requested access to the above government
records under the common law, your stated interest in obtaining the
records must be balanced against the Township of Nutley’s interest in
nondisclosure.  See Loigman v. Kimmelman, 102 N.J. 98 (1986).  The
foregoing response to your request for access to government records
incorporates the aforementioned balancing test.  Please note that "a
party's status as a litigant does not enlarge its access to government
records under OPRA”.  MAG Entm't, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 545-46 (App. Div. 2005).  The Township of
Nutley reserves the right to raise any other grounds for denial not raised
in this response.  Failure of the Township of Nutley to assert an
exemption or privilege does not act as a waiver of any grounds for
denial.  Furthermore, a reviewing Court or the Government Records Council
("GRC") may deem a denial of access to be authorized on grounds other that
those advanced by a custodian.  See Paff v. Twp. of Plainsboro,
A-2122-05T2, 2007 WL 957289, at *2 (App. Div., Apr. 2, 2007), affirming,
Paff v. Township of Plainsboro, GRC Complaint No. 2005-29 (March 2006). 
If your request for access to a government record has been denied or
unfilled, you have a right to challenge the decision by the Township of
Nutley to deny access.  At your option, you may either initiate a
proceeding in the Superior Court of New Jersey or file a complaint with
the GRC by completing the Denial of Access Complaint Form.  You may
contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O.
Box 819, Trenton, NJ, 08625, by e-mail at [1][email address], or on
its website at [2]www.state.nj.us/grc.  The GRC can also answer other
questions about the law.  All questions regarding complaints filed in
Superior Court should be directed to the Court Clerk in your County.

Sincerely,

Ceci Tramontana

Ceci Tramontana

Clerk / Municipal Housing Liaison

Municipal Clerk’s Office

Township of Nutley, NJ

(973) 284-4951 x2233 Office

(973) 284-5668 Fax

[3]www.nutleynj.org

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References

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