One of OPRA’s most important exemptions is the deliberative process privilege, often referred to as the “ACD” exemption, i.e., “inter-agency or intra-agency advisory, consultative, or deliberative material” (NJSA 47:1A-1.1). The Appellate Division recently summarized the legal standards governing the deliberative process privilege in the published opinion of Larkins v. Solter.

Although the Larkins case involved a discovery dispute, not an OPRA claim, it is directly applicable to OPRA matters concerning the deliberative process privilege. As the court noted, the deliberative process privilege is one of the exemptions in OPRA. In fact, the court relied primarily on OPRA case law in explaining the requirements of the privilege.

The Appellate Division held that the deliberative process privilege covered the following records of the Office of the State Comptroller (OSC): an internal audit proposal, a planning memo and a risk/priority evaluation. These documents reflected the OSC’s internal, pre-decisional policy recommendations as to what should be audited and how the audit should be performed. These are precisely the kind of records that are confidential under the deliberative process privilege.