2004-41

Final Decision

At its May 13, 2004 public meeting, the Government Records Council (Council) considered the May 6, 2004 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, dismissed the case on the basis of:

1. The requested attorney fee bills are exempt pursuant to Court Rule R 1:20A-5 and N.J.S.A. 47:1A-9.
2. The custodian violated N.J.S.A. 47:1A-5(e) by not providing the complainant immediate access to the requested bills. However, the custodian did provide a redacted copy to the complainant within seven (7) business days. Therefore, the custodian’s actions did not rise to the level of a knowing and willful violation under OPRA.

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 13th Day of May, 2004

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Copy of Attorney Fee Bills
Request Made:    July 14, 2003
Response Made: July 22, 2003
Custodian:   Millburn Board of Education
GRC Complaint filed:  March 26, 2004

Executive Director’s Findings and Recommendation

The complainant requested to receive a copy of the attorney’s bill to the Millburn Board of Education. Upon his original request, he was supplied a redacted bill from the board. When the complainant requested to receive a finalized bill, he was denied access because the fees were in arbitration.

The complainant also addresses a timeliness issue. Pursuant to  N.J.S.A. 47:1A-5(e) bills are to be available for immediate access. The complainant did not receive the bill immediately. He did receive a redacted bill within seven (7 ) business days.

In the Statement of Information, the custodian has asserted that pursuant to N.J.S.A. 47:1A-3 the bill in question is being investigated and therefore should not be disclosed. Also, “the board is currently investigating the attorney’s bill sought by the complainant  to determine the propriety of this bill, and in fact, this matter has been submitted to fee arbitration to contest the fees set forth in the bill in accordance with the New Jersey court Rules.”  The Court Rule R. 1:20A-5, states that fee arbitration is to be kept confidential.

The Executive Director respectfully recommends that the Council dismiss the complaint on the basis of:

1. The requested attorney fee bills are exempt pursuant to Court Rule R 1:20A-5 and N.J.S.A. 47:1A-9.
2. The custodian violated N.J.S.A. 47:1A-5(e) by not providing the complainant immediate access to the requested bills. However, the custodian did provide a redacted copy to the complainant within seven (7) business days. Therefore, the custodian’s actions did not rise to the level of knowing and willful violation under OPRA.

Legal Analysis

According to N.J.S.A  47:1A-3 records that are part of an ongoing investigation may be withheld from inspection. This provision of OPRA is not applicable in this case.

Pursuant to N.J.S.A. 47:1A-9 court rules that grant confidentiality supercede OPRA. The Court Rule R. 1:20A-5 states that if a bill is in arbitration, it must be kept confidential. Since the propriety of this bill is being investigated in arbitration, the court rule applies to this case.

Documents Reviewed

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

• March 26, 2004 – Denial of Access Complaint (including attachment A-K)
• April 15, 2004 – Statement of Information
• April 20, 2004 – Letter from Complainant – Response to Statement of Information

Paul F. Dice
Executive Director
Government Records Council

May 6, 2004

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