2003-123

At the July 8, 2004 public meeting, the Government Records Council (“Council”) referred this case to the Office of Administrative Law (“OAL”) because there were contested facts regarding the documents being sought by the Complainant. On December 13, 2005, the Council received the initial decision from Judge Masin at the OAL. At the January 27, 2006 public meeting the Council was scheduled to hear the case but did not and requested an extension of time from the OAL to accept, reject or modify the initial decision of Judge Mason so that it may give thorough and complete consideration to the parties’ submissions (Complainant’s exception and the Custodian’s reply) received subsequent to the issuance of the initial decision.

At its February 17, 2006 public meeting, the Council considered the February 10, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that Judge Masin’s initial decision is modified only to include references to the applicable provisions of OPRA (N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9.a.) and that the requested records are exempt from disclosure.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 17^th Day of February, 2006

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Robin Berg Tabakin, Secretary
Government Records Council
Decision Distribution Date: February 28, 2006

Supplemental Findings and Recommendations of the Executive Director

Records Requested: Digital base map on CD-ROM, request for reason of denial, additional information request and clarification of BTMUA “reason.”
Custodian: Richard E. Garnett (on whom request was served) Kevin Donald (custodian who denied request)
Request Made: April 18, 2003
Response Made: May 9, 2003
GRC Complaint Filed: October 2, 2003

At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 29, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby found that:

The initial decision from Judge Masin at the OAL. Judge Masin decided that the GIS topographic mapping data sought by the Complainant is protected from disclosure due to its protected status under federal law which supersedes OPRA.

The Complainant’s exception to the initial decision of Judge Masin. The Complainant assets that Judge Masin made an “improper decision” regarding access to the GIS topographic mapping data requested. Specifically, the Complainant asserts that the State has not compelled the Custodian to answer “a single question and concocted a motion on behalf of [the Custodian] to justify, what appears at present, a pre-determined decision. Dismissing this case is substantially premature.”

The Custodian’s reply to the Complainant’s exception to the initial decision of Judge Masin. The Custodian asserts that the OAL did not delay this matter to allow the Custodian to make a submission to the Department of Homeland Security. The Custodian further asserts that the Municipal Utilities Authority was in the process of making an application when this matter arose, and asked for and received a stay until the outcome of that application was received. Additionally, the Custodian asserts that the Complainant is not entitled to the requested information because it is exempt from disclosure pursuant to the Critical Infrastructure Protection Act.

At the January 27, 2006 public meeting, the Council was scheduled to hear the findings and recommendations of the Executive Director in this matter but did not. The Council decided to request an extension of time to approve, modify or reject the initial decision of Judge Masin so that it may give thorough and complete consideration to the parties’ submissions (exception and reply) subsequent to the issuing of the initial decision.

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added) N.J.S.A. 47:1A-1.

“ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …” (Emphasis added) N.J.S.A. 47:1A-1.1.

"The provisions of [OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA]; any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order…" (Emphasis added.)

The above OPRA provisions have been included in this Analysis by Council staff in agreement with the Administrative Law Judge’s findings. Pursuant to the fact that Judge Masin considered 6 C.F.R .§ 29.8 in making his decision it is imperative that N.J.S.A. 47:1A-1.1., N.J.S.A. 47:1A-1.1., and N.J.S.A. 47:1A-9.a. be referenced.

Robert Tombs filed a request under the Open Public Records Act, N.J.S.A. 47: lA et seq., with the respondent Brick Township Municipal Utilities Authority ("Authority"), seeking a "digital copy (.DWG) format of the Brick MUA's GIS topographic mapping data." The Authority refused to supply the material requested. The dispute came before the Government Records Council ("GRC") and was transferred for a hearing to the Office of Administrative Law ("OAL"). While at first the Authority relied upon several legal arguments in support of its refusal to supply the data which are not directly implicated in the issue under consideration in this Interlocutory Order, the Authority ultimately asserted that because it had voluntarily submitted the computerized GIS data to the Federal Department of Homeland Security ("DHS") under the Critical Infrastructure Information Act of 2002 ("CIIA"), 6 U.S.C. @ 131-134, the matter should be stayed pending that Agency's review of the data. An Interlocutory Order granting a Stay of the proceedings was issued on January 13, 2004.

Thereafter, the Authority received a letter dated June 3, 2005, from the DHS which informed it that the material submitted had been validated as Protected Critical Infrastructure Information ("PCII") and would be "handled and safeguarded as required by the CII Act and 6 C.F.R. 29." On October 4, 2005, the Authority moved to dismiss this contested case on the grounds that the GRC, and derivatively, the OAL, had no jurisdiction "over Federal questions." I denied that motion by Letter Order issued on October 20, 2005. Thereafter, I received written clarification that the Authority considered that the exact material requested by Mr. Tombs in his April 18, 2003, complaint, the “digital copy (.DWG) format of the Brick MUA's GIS topographic mapping data" was the same material that had been submitted to the DHS and had been granted PCII status. In her October 26, 2005, letter, Ms. Anderson wrote,

The BTMUA respectfully submits that the material requested in the above referenced correspondence is Protected Critical Infrastructure Information. Accordingly, it is the BTMUA's position that the Government Records Counsel (sic) cannot order the disclosure of this material due to the impact of the federal law.

I advised the parties that I would consider Ms. Anderson's letter as a motion for summary decision and would entertain Mr. Tombs' response, which I received on November 7, 2005. A reply was received from MUA's counsel on November 30, 2005.

(3) State and local governments may use Protected CII only for the purpose of protecting critical infrastructure or protected systems, or in furtherance of an investigation or the prosecution of a criminal act.

(g) Responding to requests made under the Freedom of Information Act or State/local information access laws.

(1) Protected CII shall be treated as exempt from disclosure under the Freedom of Information Act and. if provided by the Protected CII Program Manager or the

Protected CII Program Manager's designees to a State or local government agency, entity, or authority, or an employee or contractor thereof, shall not be made available pursuant to any State or local law requiring disclosure of records or information. Any Federal, State, or local government agency with questions regarding the protection of Protected CII from public disclosure shall contact the Protected CII Program Manager, who shall in turn consult with the DHS Office of the General Counsel.

The above represents a regulatory construct intended by Congress to provide for certain protection of information deemed of critical importance to the national security. The MUA decided to voluntarily submit the .DWG formatted GIS topographic mapping data to the DHS, with the required statement, and the DHS determined to grant Protected CII status to the information.

6 C.F.R .§ 29.8 deals specifically with the issue of "Disclosure of Protected Critical Infrastructure Information." Subsection (b) addresses sharing of information by Federal, State and Local governments. It limits such sharing to instances where the information is "shared for purposes of securing the critical infrastructure and protected systems . . . or for other informational purpose including, without limitation, the identification, analysis, prevention, preemption, and/or disruption of terroristic threats to our homeland." Further, this Protected CII may only be provided to such governmental entities if they sign an "express written agreement with the Protected CII Program Manager to comply with the requirements of paragraph (d) of this section and that acknowledges the understanding and responsibilities of the recipient."

Subsection (d) deals with further use or disclosure of Protected CII by State and local governments. Where a state or local government receives Protected CII it "shall not share that information with any other party . . . without first obtaining authorization from the Protected CII Program Manager . . . who shall be responsible for requesting and obtaining written consent for any such State or local government disclosure from the person or entity that submitted the information . . . ." State and local governments may themselves only use Protected CII "for the purpose of protecting critical infrastructure or protected systems, or in furtherance of an investigation or the prosecution of a criminal act." Protected CII "shall be treated as exempt from disclosure under the Freedom of Information Act and, if provided by the Protected CII Program Manager . . . to a State or local government agency, entity. or authority . . . shall not be made available pursuant to any State or local law requiring disclosure of records or information."

As previously noted, in this case the entity submitting the CII to the DHS was not a private water company, but instead a local governmental authority. The Protected CII has not been made available to the state, as contemplated by subsection (d). If it had, the provisions just recited would bar its disclosure under "any State or local law requiring disclosure of records or information.'' Further, this subsection makes it quite clear that release of such data received by any such State or local government to "any other party" cannot occur without the written consent of the "entity that submitted the information." The CII here granted Protected CII status by DHS is no less critical or any less protected because the submitter is a governmental authority than if it were a private entity. The same protections and limitations on disclosure apply in either case.

In his letter brief, Mr. Tombs argues that as the OPRA is to be construed in favor of the public's right to access, the MUA must bear the burden of establishing any exemption from its reach. I agree with that analysis. Here, the MUA, which would not voluntarily produce the information he sought, has pleaded that the information Mr. Tombs wants cannot be the subject of an order for production by the GRC due to the effect of the provisions of federal law. And that federal law does appear to prevent the GRC from ordering the production of material allotted the Protected CII status that the DHS gave to the digital copy (.DWG) format GIS topographic mapping data. Whether the DHS decision to grant such status was appropriate is surely not for either this forum or the GRC to consider.

For the reasons stated, I find that the "digital copy (.DWG) format of the Brick MUA's CIS topographic mapping data" sought by Mr. Tombs in his April complaint is protected from disclosure due to its Protected CII status. Summary decision can be granted where the material facts are not in genuine dispute and the law as applied to those facts requires a decision in favor of the moving party, giving proper consideration to the burden of proof by which the petitioner must prove his claim. Brill v. Guardian Life Insurance Company of America, 142 1V.J. 520

(1995). Here, the respondent has asserted a legal defense to the petitioner's claim that is sufficient to warrant the dismissal of the action. The fact that the digital copy (.DWG) format of the Brick MUA's GIS topographic mapping data was submitted to DHS and granted Protected CII status has not been disputed by Mr. Tombs and has been supported by documentary evidence and certifications submitted by the MUA. I conclude that the GRC cannot order its production. As such, the petitioner's request need not be honored by the MUA and the contested case must be dismissed.

Additionally, the parties’ submissions subsequent to the issuance of Judge Masin’s initial decision were considered in this analysis. Such submissions (Complainant’s exception and the Custodian’s reply), together with the evidence in the record and determinations made during the proceedings, support the Council’s modify of Judge Masin’s initial decision only to include references to the applicable provisions of OPRA (N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9.a.).

The Executive Director respectfully recommends that the Council modify Judge Masin’s initial decision only to include references to the applicable provisions of OPRA (N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9.a.) and find that the Council should not order the disclosure of the requested records.

Second Interim Order

Supplemental Findings and Recommendations of the Executive Director

July 8, 2004
At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 29, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby found that:

December 13, 2005
The initial decision from Judge Mason at the OAL. Judge Mason decided that the GIS topographic mapping data sought by the Complainant is protected from disclosure due to its protected status under federal law which supersedes OPRA.

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added) N.J.S.A. 47:1A-1.

(g) Responding to requests made under the Freedom of Information Act or State/local information access laws.

(1) Protected CII shall be treated as exempt from disclosure under the Freedom of Information Act and. if provided by the Protected CII Program Manager or the

6 C.F.R .§ 29.8 deals specifically with the issue of "Disclosure of Protected Critical

Infrastructure Information." Subsection (b) addresses sharing of information by Federal, State and Local governments. It limits such sharing to instances where the information is "shared for purposes of securing the critical infrastructure and protected systems . . . or for other informational purpose including, without limitation, the identification, analysis, prevention, preemption, and/or disruption of terroristic threats to our homeland." Further, this Protected CII may only be provided to such governmental entities if they sign an "express written agreement

with the Protected CII Program Manager to comply with the requirements of paragraph (d) of this section and that acknowledges the understanding and responsibilities of the recipient."

information . . . ." State and local governments may themselves only use Protected CII "for the purpose of protecting critical infrastructure or protected systems, or in furtherance of an investigation or the prosecution of a criminal act." Protected CII "shall be treated as exempt from disclosure under the Freedom of Information Act and, if provided by the Protected CII Program Manager . . . to a State or local government agency, entity. or authority . . . shall not be made available pursuant to any State or local law requiring disclosure of records or information."

As previously noted, in this case the entity submitting the CII to the DHS was not a

private water company, but instead a local governmental authority. The Protected CII has not been made available to the state, as contemplated by subsection (d). If it had, the provisions just recited would bar its disclosure under "any State or local law requiring disclosure of records or information.'' Further, this subsection makes it quite clear that release of such data received by any such State or local government to "any other party" cannot occur without the written consent

of the "entity that submitted the information." The CII here granted Protected CII status by DHS is no less critical or any less protected because the submitter is a governmental authority than if it were a private entity. The same protections and limitations on disclosure apply in either case.

For the reasons stated, I FIND that the "digital copy (.DWG) format of the Brick MUA's CIS topographic mapping data" sought by Mr. Tombs in his April complaint is protected from disclosure due to its Protected CII status. Summary decision can be granted where the material facts are not in genuine dispute and the law as applied to those facts requires a decision in favor of the moving party, giving proper consideration to the burden of proof by which the petitioner must prove his claim. Brill v. Guardian Life Insurance Company of America, 142 1V.J. 520

(1995). Here, the respondent has asserted a legal defense to the petitioner's claim that is sufficient to warrant the dismissal of the action. The fact that the digital copy (.DWG) format of the Brick MUA's GIS topographic mapping data was submitted to DHS and granted Protected CII status has not been disputed by Mr. Tombs and has been supported by documentary evidence and certifications submitted by the MUA. I CONCLUDE that the GRC cannot order its production. As such, the petitioner's request need not be honored by the MUA and the contested case must be DISMISSED.

The Executive Director respectfully recommends that the Council modify the OAL's initial decision to include N.J.S.A. 47:1A-1.1., N.J.S.A. 47:1A-1.1., and N.J.S.A. 47:1A-9.a and find that the GRC cannot order the disclosure of the requested records.

Interim Decision on Access

At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 29, 2004 Executive Director's Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:

I attest the foregoing is a true and accurate record of the Government Records Council.

Findings and Recommendations of the Executive Director

Relevant Records Requested: Digital base map on CD-ROM, request for reason of denial, additional information request and clarification of BTMUA "reason".
Custodian: Richard E. Garnett (on whom request was served) Kevin Donald (custodian who denied request)
Request Made: April 18, 2003
Response Made: May 9, 2003
GRC Complaint Filed: October 2, 2003

In a letter dated April 18, 2003, the Complainant requested that the GIS Program Manager of the Brick Township Municipal Utilities Authority provide him with "a digital copy (.dwg) format of the Brick MUA's GIS topographic mapping data." The Complainant asserts that an unidentified staff member in the GIS department had informed him that "the topographic mapping data is less than 650 MB of data and can fit on one CDROM."

The Complainant asked for advice concerning the cost for the information requested, which he assumed would be limited to the cost of the CD ROM. The Complainant replied to the custodian's May 9, 2004 letter on June 6, 2003, stating that he had previously received GIS mapping data from the Borough of Point Pleasant Beach and from Ocean County. He also asserts that BTMUA staff had previously responded to "numerous requests for such data." The Complainant questioned why the custodian was unable to furnish the records that he had requested in a digital format.

The Complainant alleges that the Custodian's assertion of the "proprietary" exemption, and the potential for alteration of data, "have already been tested and are of no material concern at this time."

With regard to the Custodian's "critical infrastructure" argument, the Complainant sought clarification on a number of points. The Complainant asserts that the BTMUA purchased same "from a vendor in 1993 using public funds" the same GIS information that is the subject of his request, which the BTMUA allegedly has been selling for a profit.

In light of these assertions, the Complainant asked the custodian to "explain how the GIS Topographic data set cannot be ‘separated'?" The Complainant also questioned why information that purportedly was inaccessible in digital format due to concerns about protecting "critical infrastructure," was offered to him by the custodian on May 9, 2003, in the form of 160 24 x 40 inch maps. Moreover, the Complainant emphasized that he did not ask for the BTMUA's software, "but simply a data file acquired in AutoCAD (.dwg) format purchased by BTMUA in 1993 with public funds." He questioned how the release of a data set purchased with public funds could constitute a risk to the BTMUA's "information management system." With regard to the custodian's claims concerning the "New Jersey Office of County (sic) Terrorism, Homeland Security Department or elsewhere," the Complainant sought the identities of individuals with whom the custodian consulted, and any written evidence in support of his claims. He asked the custodian to identify the specific information in the GIS topographic data that the BTMUA contends is "off-limits' for security reasons." Finally, the Complainant questioned whether the custodian was claiming that the BTMUA was exempted from OPRA^[1] by the commentary to the Domestic Security Preparedness Act. In the Denial of Access Complaint the Complainant argued that OPRA contained no exemption for records concerning "critical infrastructure."

"of custodian of records, advised the Complainant that the information could not be furnished in the requested digital format. Instead, the custodian offered to supply a single," 24 x 40 map of Brick Township with various information on it," for the "standard cost" of Five Dollars ($5.00). In the alternative, a similarly sized map of particular parts of the Township could be provided for the "standard cost" of Five Dollars ($5.00) each. The custodian noted that "it would take 160 sheets to cover the entirety of Brick Township."

In a September 11, 2003 letter to the Complainant, the custodian denied the request for records on the grounds that the information was "proprietary," because the factual information could not be "separated from the GIS program that coordinates the information." In addition, the custodian asserted, with a CD of the GIS information, the Complainant would be able to change the data and present it as if it were issued directly from the BTMUA. The third, "and possibly most important reason, is the concern of protection of the BTMUA facilities as a ‘critical infrastructure'." The custodian stated that the "treatment facilities, information systems, and distribution lines of the Brick Township Municipal Utilities Authority are all clearly ‘critical infrastructures'." Of particular concern was the need to protect the information management systems. The custodian also characterized the municipal utilities and infrastructures as "critical assets" under the New Jersey Domestic Security Preparedness Act signed on October 4, 2001. Based on these grounds, and "various conferences with the New Jersey Office of Counter Terrorism, the New Jersey Homeland Security Department, and the United States Department of Homeland Security," the BTMUA denied the request for digital GIS information. John Paul Doyle, Esq, of Carluccio, Leone, Dimon, Doyle & Sacks, L.L.C., counsel to the BTMUA, responded on behalf of the custodian to the Complainant's September 15, 2003 letter. Counsel stated that the BTMUA considered its earlier response to the record request to be dispositive, and nothing additional would be added. He did clarify that the BTMUA never suggested, and does not believe, that it is exempt from OPRA.²

In the Statement of Information filed by the custodian on November 13, 2003, he reiterated that "...[a]ny and all paper (hard) copies of information are available at any time." The custodian reiterated the three reasons previously provided to the Complainant, concerning the allegedly "proprietary" nature of the information, the potential for alteration of the data, and, the "possibly most important reason, ... the concern of protection of the BTMUA facilities as a ‘critical infrastructure'," and as "critical assets" pursuant to the New Jersey Domestic Security Preparedness Act.

In response to a request for further information, the custodian explained that a GIS system incorporates graphical features with tabular data in order to assess real-world problems. The GIS system can be used to analyze a variety of data, for a variety of purposes, such as to find the best location for a new store, to analyze environmental damage, or to view similar crimes in a city to detect a pattern. GIS systems contain two types of data: spatial data is referenced to locations on the earth; attribute data provides additional information. For example, the actual location of the schools in a municipality is the spatial data. Examples of attribute data would be the school name, level of education taught, and school capacity. GIS operates on many levels. On the most basic level, GIS produces computer cartography, or mapping. Further use of spatial and statistical methods to analyze attribute and geographic information can produce derivative, interpolated or prioritized information.

When asked to explain in detail why the factual information of the GIS system cannot be separated from the GIS program that coordinates the information, the Custodian asserted that "the hardware, software and actual people manipulating and using the information are all part of the GIS system." He also noted that with improvements in current technology, GIS/Computerized Mapping software programs can open third party files.

When asked about the Complainant's assertion that he was asking for "GIS information purchased from a vendor in 1993," the custodian stated that there was no "GIS" system at that time. In 1993, the BTMUA, in concert with adjoining municipalities, used public and private funds to purchase a special type of aerial photography that was used to create base maps. The custodian stated that the "GIS information purchased from a vendor in 1993" that the Complainant seeks is non-existent.

The custodian noted that the precise records sought by the Complainant are unclear. The Complainant's April 2003 letter to the BTMUA requested "a digital copy (.dwg) format of the Brick MUA's GIS topographic mapping data," but he "did not indicate vintage." In other correspondence the Complainant refers to "information from a vendor in 1993" and "the mapping public record in digital format (e.g. dwg or .dxf), similar to that received by the Brick Utilities Authority from their vendor." In a form submitted by the Complainant to the GRC, he refers to the denial of his request for "Digital base map on CD-ROM, April 9, 2003."

In response to other questions, the custodian stated that when the BTMUA releases any GIS data "on a specific project area request basis, it is accompanied with an ‘Acknowledgement Form', restricting the use, re-distribution, and responsibility." Although some data exchange agreements are in place between other agencies, no licensing agreements exist with respect to the use of the BTMUA GIS data. In addition, the custodian noted that the GIS software that was purchased by the BTMUA to "create the whole BTMUA GIS system" is copyrighted, and each software application is individually licensed and copyright protected by the creator. Using information generated by the various types of software, the BTMUA created its GIS system.

1. The definition of a government record under OPRA includes, among other things, written or electronically maintained material that has been made, maintained, received or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof. The statute explicitly excludes from this definition inter-agency or intra-agency advisory, consultative, or deliberative material. N.J.S.A. 47:1A-1.1. In addition, OPRA exempts certain categories of material from the definition of a government record. Id. For example, "trade secrets and proprietary commercial or financial information obtained from any source" are not accessible to the public under OPRA. This category of exemption includes "data processing software obtained by a public body under a licensing agreement which prohibits its disclosure." Id. In addition, OPRA prohibits disclosure of "administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security." Id. Moreover, OPRA exempts from disclosure "emergency or security information or procedures for any buildings or facilities which, if disclosed, would jeopardize security of the building or facility or persons therein." Id.

Government records may also be exempted from public access by Executive Order of the Governor, or by a regulation promulgated under the authority of any statute or Executive Order of the Governor. N.J.S.A. 47:1A-1. On July 5, 2002, New Jersey Governor James E. McGreevey signed Executive Order No. 21, which provided, in pertinent part, that records at "all levels of government - State, county, municipal and school district," shall not be deemed to be public records under OPRA, and shall not be subject to public inspection, copying or examination, if

the inspection, examination or copying of that record would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism. [Executive Order No. 21(1)(a).]

Executive Order No. 21 also directed the Attorney General to "promulgate a regulation to govern the determination of which government records shall be deemed to be confidential pursuant to subsection (a)." Executive Order No. 21(1)(b). In addition, pending proposal of the regulation by the Attorney General, all public agencies are "directed to handle all government records requests in a manner consistent with the standard contained in subsection (a)." Executive Order No. 21(1)(c).

A draft of the domestic security regulation is currently being reviewed by the Governor's office, and is expected to be proposed formally in the near future. Mirroring the Executive Order, the proposed regulation will provide that material does not constitute a government record accessible under OPRA "if inspection, examination or copying of that record would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism."

Executive Order No. 21(1) exempts records from public access if release "would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism." Whether or not records concerning the GIS system of a particular public entity are accessible under OPRA must be determined on a case-by-case basis, depending on the specific nature of the requested material. For example, the GRC previously ordered that paper copies of the GIS maps of Upper Pittsgrove Township, including the GIS "Farmland Preservation Map" and the GIS "zoning map" for the Township, be released to the Complainant. Michael Seerey v. Upper Pittsgrove Township, Complaint No. 2003-38 (September 11, 2003). While confidential information such as contemplated farmland acquisitions or proposed zoning changes not yet made public could have been redacted from the paper maps, the custodian had provided the GRC with no basis to conclude that any portion of the map was confidential under OPRA. Id.

In contrast, the custodian for the BTMUA has alleged that the Municipal Utility Authority's GIS system contains information about "treatment facilities, information systems, and distribution lines" that are all clearly "critical infrastructures." Public release of this information about the "municipal water treatment and supply system, sewer pipes, and geographical and topographical data" would, the custodian asserts, create a sufficient risk to domestic security to warrant exempting this material from public disclosure. On its face, the allegation that release of information concerning municipal water and sewer systems would create a domestic security hazard is plausible. The record in this case is unclear, however, concerning precisely what records are being sought, and precisely why the digitally formatted material cannot be redacted to eliminate the domestic security risk. The numerous written submissions in this matter have not clarified these issues.

2. Any matter before the GRC involving a dispute of material facts, or inadequately developed facts, constitutes a contested case which may, by statute, be referred to the Office of Administrative Law for a hearing. N.J.S.A. 52:14B-2(b). See Board of Educ. of Upper Freehold Regional School District v. State Health Benefits Comm'n, 314 N.J. Super. 486 (App. Div. 1998). This matter is no exception. The GRC is, therefore, advised to refer this case to the Office of Administrative Law for a hearing directed toward developing an adequate factual record upon which to determine whether all or part of a digital copy of the BTMUA's GIS topographical mapping date is exempt from disclosure, pursuant to any of the statutory exemptions set forth in OPRA, or pursuant to the domestic security exemption set forth in Executive Order No. 21(1)(a).

The following documents were reviewed in preparing the Findings and Recommendations for this case:

The record in this case is unclear concerning precisely what records are being sought, and precisely why the digitally formatted material cannot be redacted to eliminate the domestic security risk. The numerous written submissions in this matter have not clarified these issues.

Therefore, the case should be referred to the Office of Administrative Law for a hearing directed toward developing an adequate factual record upon which to determine whether a digital copy of the BTMUA's GIS topographical mapping date is exempt from disclosure, pursuant to any of the statutory exemptions set forth in OPRA, or pursuant to the domestic security exemption set forth in Executive Order No. 21(1)(a).

[1] Since the subject of the record request and the ensuing correspondence between the Complainant, the custodian, and the custodian's counsel was the Complainant's rights under the Open Public Records Act (OPRA), the references in the Complainant's and counsel's letters to the "Open Public Meetings Act" are clearly erroneous.
[2] Since the subject of the record request and the ensuing correspondence between the Complainant, the custodian, and the custodian's counsel was the Complainant's rights under the Open Public Records Act (OPRA), the references in the Complainant's and counsel's letters to the "Open Public Meetings Act" are clearly erroneous.