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2005-103
Final Decision
At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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 based on the March 20, 2006 response to the Council’s Interim Order, the Custodian has released government records in accordance with the Council’s March 9, 2006 Interim Order and has appropriately done so within ten (10) business days from receipt of the Council’s Order. 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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. Decision Distribution Date: April 21, 2006 Supplemental Findings and Recommendations of the Executive DirectorJohn McCormack GRC Complaint No. 2005-103Complainant v. NJ Department of Treasury, Custodian of Records Records Relevant to Complaint: Background March 9, 2006 Government Records Council’s (“Council”) Interim Order. At the March 9, 2006 public meeting, the Council considered the March 3, 2006 In Camera 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 in camera findings and recommendations. The Council, therefore, found that:
March 20, 2006 Custodian’s response to the Council’s Interim Order. The Custodian copied the Council on the letter forwarded to the Complainant with attachment of the documents released in response to the Council’s Interim Order. The Custodian released:
Analysis Whether the Custodian complied with the Council’s March 9, 2006 Interim Order? Based on the March 20, 2006 response to the Council’s Interim Order, the Custodian has released:
Conclusions and Recommendations The Executive Director respectfully recommends the Council find that based on the March 20, 2006 response to the Council’s Interim Order, the Custodian has released government records in accordance with the Council’s March 9, 2006 Interim Order and has appropriately done so within ten (10) business days from receipt of the Council’s decision. Prepared By: Colleen McGann, Case Manager Approved By: April 4, 2006 [1] The Denial of Access indicates a Barbara O’Hare however; Michael Tyger is listed on the Statement of Information. Interim Order
At the March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 2006 In Camera 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 in camera findings and recommendations. The Council, therefore, finds that:
Interim Decision Rendered by the Decision Distribution Date: March 15, 2006 In Camera Findings and Recommendations of the Executive DirectorJohn McCormack GRC Complaint No. 2005-103Complainant v. NJ Department of Treasury, Custodian of Records Records Relevant to Complaint: Background December 8, 2005 Interim Order of the Government Records Council. At the December 8, 2005 public meeting, the Government Records Council (“Council”) considered the December 2, 2005 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 found that there is insufficient information to determine whether the requested records are exempt from access because of the claimed advisory, consultative or deliberative privilege and personnel exemption under N.J.S.A. 47:1A-10. Therefore, the Council should conduct an in camera inspection of the requested records in order to make a determination on access to said records. December 14, 2005 Interim Decision and in camera letter requesting documents sent to both parties. December 22, 2005 Certification of the Custodian with the following attachments:
Analysis After completing the in camera inspection of the unredacted February 25, 2005 Memo, New Unit Scope for Taxation Taxpayer Services, February 24, 2005 Department of Treasury Pending Promotional Announcements, June 1, 2005 Department of Treasury Active Promotional Lists, NJ Division of Taxation Organizational Charts, and Employee Status Listing, the Council should order that the Custodian disclose the requested documents except the information as specifically set forth below, which is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10 at the time of the request. Document 1: February 25 Memo This document consists of 1 page. The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1. This document is a request for a unit scope change that was pending in the Department of Personnel at the time of the request. Document 2: New Unit Scope for Taxation Taxpayer Services This document consists of 2 pages. The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1. This document reflects the changes that would occur if the unit scope change were approved. Document 3: February 24, 2005 Department of Treasury Pending Promotional Announcements This document consists of 1 page. Discloseable. Document 4: Active Promotional Lists This document consists of 3 pages. The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10. This is a ranked list of individually named employees eligible for promotion to certain specific titles that have not been placed in those titles. Document 5: NJ Division of Taxation Organizational Charts This document consists of 4 pages.
Document 6: Employee Status Listing This document is 12 pages. The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A.47:1A-1.1. This document lists all individual employees in status U794 and indicates each employee that would be directly affected by the requested unit scope change. The factual material in this document is inextricably intertwined with the advisory, consultative and deliberative material contained therein. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Colleen McGann, Case Manager Approved By: March 3, 2006 [1] The Denial of Access indicates a Barbara O’Hare however; Michael Tyger is listed on the Statement of Information. Interim Order
At the December 8, 2005 public meeting, the Government Records Council (“Council”) considered the December 2, 2005 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 there is insufficient information to determine whether the requested records are exempt from access because of the claimed advisory, consultative or deliberative privilege and personnel exemption under N.J.S.A. 47:1A-10. Therefore, the Council shall conduct an in camera inspection of the requested records in order to make a determination on access to said records. Decision Distribution Date: December 14, 2005 Findings and Recommendations of Executive DirectorJohn McCormack GRC Complaint No. 2005-103Complainant v. NJ Department of Treasury, Custodian of Records Records Requested:
Custodian: Michael Tyger[1] Background April 14, 2005 Complainant’s written Open Public Records Act (OPRA) request. The Complainant is requesting all letters, forms, e-mails, etc. concerning a change in unit scope for particular units within the Treasury.[2] April 25, 2005 Letter from the Barbara O’Hare, Manager of the Government Records Access Unit to the Complainant, “Reference: W14272.” Ms. O’Hare indicates the requested records are part of a proposed unit scope change that has not been finalized and as such the records responsive are not government records subject to disclosure because they contain “intra-agency advisory, consultative, or deliberative material [ACD]” as defined under N.J.S.A. 47:1A-1.1. Ms. O’Hare adds that in addition to the exemption for ACD, all documents relating to this proposed change are also exempt under the OPRA as personnel records, defined in N.J.S.A. 47:1A-10. May 6, 2005 Complainant’s Denial of Access Complaint with the following attachments:
The Complainant does not feel that the Custodian’s Denial of Access to the requested records was lawful. The Complainant cites Government Records Council (GRC) Case 2004-18, Rademacher v. Borough of Eatontown in which the Council stated[3] that “the ACD exemption only applies to material that is ‘pre-decisional and deliberative in nature’ and that ‘deliberative material contains opinions, recommendations or advice about agency policies.’” The Complainant states that the requested records do not concern policy and should not be exempt from disclosure. The Complainant goes on to state that if there is any information contained in the documents that is in fact ACD that information should be redacted with a detailed explanation as to the reasons for the redaction and the factual information contained therein should be released per the GRC decision in Case 2003-139, Gober v. City of Burlington. The Complainant also states that the personnel exemption claimed by the Custodian is incorrect because the statute indicates the exemption applies only to “the personnel or pension records of any individual.”[4] The Complainant alleges that the records requested do not pertain to any individual employee “but simply to the Unit Scope for organizational and promotional purposes with the Division of Taxation of a group of employees.” Therefore, the records requested should not contain personal information pertaining to any particular employee. May 25, 2005 Complainant’s Signed Agreement to Mediate. May 27, 2005 Mediation forwarded to both parties. June 3, 2005 Custodian’s signed Agreement to Mediate. June 15, 2005 Complaint forwarded to the Office of Dispute Settlement. July 8, 2005 Administrative Case Disposition. August 25, 2005 Complainant’s e-mail requesting that the case be retuned to the GRC for adjudication. September 23, 2005 Custodian’s Statement of Information with the following attachments:
The Custodian asserts that a request was received from the Complainant on April 14, 2005 referring to a proposed unit scope change that had not been finalized at the time of the request. The Custodian indicates that the records at issue are those that were exchanged between the Department of Treasury and the DOP recommending the unit scope change, offering supporting documentation and asking for approval of the change. The Custodian contends that these records are not subject to disclosure pursuant to N.J.S.A. 47:1A-1.1 due to the fact that they are advisory, consultative or deliberative materials and are also personnel records not subject to disclosure pursuant to N.J.S.A. 47:1A-10. The Custodian goes on to state that the Complainant was made aware of these reasons for denial in the April 25, 2005 response to the OPRA request. Statement of Fact submitted as part of the Statement of Information on behalf of the Custodian by Deputy Attorney General, Sharon D. Dickerson The Custodian’s counsel asserts the requested records involve a memorandum dated February 25, 2005 from D. Ianni, Human Resources Officer Department of the Treasury to Susan Mannix, DOP submitting a proposal for a unit scope change with supporting documents. The Custodian’s counsel states the Custodian responded to the request in a timely manner on April 25, 2005 indicating that the unit scope change had not been finalize and as such the requested records were not available in compliance with the exemption for ACD stated in N.J.S.A. 47:1A-1.1 because the information contained therein was pre-decisional. The Custodian’s counsel asserts that the Custodian also informed the Complainant that the information fell under the exemption for personnel records as stated in N.J.S.A. 47:1A-10. The custodian’s counsel goes on to state that the “pre-decisional and deliberative nature of the documents sought by [the Complainant] here Is not changed by the fact that as of today, the Commissioner has, in fact, made his decision.” In response to the Complainant’s contention that the requested records do not fall under the exemption for ACD the Custodian’s counsel cites 165 N.J. 75 (2000), In re Liquidation of Integrity Ins. Co. which according to the Custodian’s counsel defines the privilege as “doctrine that permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of the process by which governmental decisions and policies are formulated.” Id. At 83. The Custodian’s counsel states that at the time of the request the matter of the unit scope change was under consideration therefore the requested records fall under the exemption for ACD. The Custodian’s counsel indicates that the DOP is responsible for the administration of the Civil Service Act, N.J.S.A. 11A:1-1 et. seq. The Custodian’s counsel asserts that under this Act it is the responsibility of the Commissioner of DOP to implement personnel programs and policies and “establish and supervise the selection process and employee performance and evaluation procedures.” N.J.S.A. 11A:4-1. The Custodian’s counsel asserts that it is the responsibility of the Commissioner of the DOP to establish titles and unit scopes for all departments. The Custodian’s counsel states that the documents requested fall under the deliberative process privilege for which the Custodian’s counsel asserts, per McClain v. College Hospital, 99 N.J. 346, 360 (1985) protects the pre-decisional opinions, recommendations and advice that are preliminary to decision making. The Custodian’s counsel goes on to assert that this privilege “is intended to keep confidential advisory opinions, recommendations, and deliberations that compromise part of the process by which governmental decisions and policies are formulated.” In re Liquidation of Integrity Ins. Co., supra at 83. The Custodian’s counsel claims that the US Supreme Court, in Nat’l Labor Relations Bd. V. Sears Roebuck & Co., 421 U.S. 132 (1975), established “that the existence of the privilege turns on the ability of any agency to identify a specific decision in connection with which memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies.” The Custodian cites that 165 N.J. 75, 83 (2000), In re Liquidation of Integrity Ins. Co. indicates that the assertion of this privilege must meet two (2) requirements; it must have been generated before the adoption of a policy or decision by an agency and it must be deliberative in nature. The Custodian’s counsel states that N.J.S.A. 47:1A-1.1 and In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23 by the N.J. Dep’t of Corr., 367 N.J. Super. 61, 73-74, 842 A.2d 207 (App. Div.), certif.. denied, 182 N.J. 149, 862 A.2d 57 (2004) are “aimed at protecting the quality of government decisions by shielding the communications received by a decision maker from public disclosure” and that the release of this information may have a negative impact on the decision making process. The Custodian’s counsel asserts that in Envt’l Prot. Agency v. Mink, 420 U.S. 73 (1973) the court held that factual information should be disclosed unless it is “inextricably intertwined”. The Custodian’s counsel contends that this is the case with the documents in question. The Custodian’s counsel asserts that the documents are communications submitted to the Commissioner of the DOP for the purpose of allowing the Commissioner to deliberate on the unit scope change and include personnel information, recommendations on personnel to be impacted by the proposed unit change, reasons for approval, the way in which the change should occur and analysis of the “statutory and regulatory schemes which allow for the change, among other things,” therefore the requested documents should not be disclosed pursuant to the ACD exemption. Additionally, the Custodian’s counsel asserts that the requested record also contains personnel information on specific employees within the Division of Taxation. The Custodian’s counsel states that the documents requested fall under the exemptions set forth for personnel records in N.J.S.A. 47:1A-10 and are also exempt from disclosure pursuant to N.J.A.C. 4A:1-2.1(b). The Custodian’s counsel also cites Executive Order (E.O.) 9 and E.O. 11 which balances the privacy interests of a public employee against the public right to know. The Custodian’s counsel cites numerous cases in support of this defense. The Custodian’s counsel goes on to state that a Custodian is obligated under the law, N.J.S.A. 47:1A-1, to protect the reasonable expectation of privacy for individuals and the asserts that this is further established by the narrow provisions set forth in N.J.S.A. 47:1A-10. The Custodian’s counsel contends that while the Complainant speculates that the requested documents do not contain personnel records it does, in fact contain individual personnel information that cannot be disclosed pursuant to the OPRA and DOP regulations. “Privilege Log for OPRA request W14272 and corresponding complaint 2005-103.” The Custodian asserts that there are 5 documents responsive to the request. The Custodian claims the following privileges for each:
Analysis WHETHER the Custodian unlawfully denied access to the requested records pursuant to the OPRA? The OPRA provides that, “…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” N.J.S.A. 47:1A-1. Additionally, the OPRA defines a government record as: “…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 in the course of his or its official business… The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (Emphasis added.) N.J.S.A. 47:1A-1.1. The OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states: “…The public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6. N.J.S.A. 47:1A-10 states in part, "Notwithstanding the provisions of the OPRA or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access…" The Complainant submitted a request for copies of documents pertaining to a change in unit scope. The Custodian denied access to these records and asserts that a “privilege log” was forwarded to the Complainant listing the dates, description and privileges asserted for the documents withheld. The Custodian asserts that these documents are not subject to disclosure pursuant to both N.J.S.A. 47:1A-1.1, because they contain information that is ACD in content and N.J.S.A. 47:1A-10 as they are personnel records. The Custodian’s reasons for denying access to the requested records are compelling however, the burden of proving that a Denial of Access is lawful rests on the Custodian. The Custodian did provide the Complainant with a log indicating the privilege claimed for each of the documents responsive to the request, however the log is not detailed enough to determine if the claimed privileges apply to the requested documents in their entirety. Therefore, Council should conduct an in camera review of the documents to determine what information, if any, is disclosable. Based on the fact that, while Custodian’s reasons for denying access to the requested documents are compelling there is insufficient evidence to determine if the documents are exempt from access. Therefore, the Council should perform an in camera inspection of the requested records. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that an in camera inspection of the requested records is necessary to determine if they are disclosable because there is insufficient evidence to conclude whether the documents are exempt from access because of the advisory, consultative or deliberative exemption under OPRA. Prepared By:Colleen McGann, Case Manager Approved By: December 2, 2005 Administrative Case DispositionGRC Complaint No: 2005-103Complainant: John McCormack Public Agency: NJ Department of the Treasury Case Disposition: The Complainant withdrew his agreement to mediate and the case was referred back to the Government Records Council for adjudication on August 29, 2005. Date of Disposition: August 29, 2005 Assistant Executive Director: Gloria Luzzatto Date: November 16, 2005 Administrative Case DispositionGRC Complaint No: 2005-103Complainant: John M. McCormack Custodian: New Jersey Department of Treasury – Michael Tyger Case Disposition: Parties mutually agreed to
mediation The case was forwarded to the Office of Dispute Settlement on June 15, 2005 Date of Disposition: June 3, 2005 Case Manager: Erin M. Knoedler Date: July 8, 2005 |
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