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2006-51

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Dina Parave-Fogg

    Complainant

         v.

Lower Alloways Creek Township

    Custodian of Record

Complaint No. 2006-51

 

 

 

At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 2006 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:

  1. The Custodian has not unlawfully denied access to the requested meeting minutes as the Custodian certifies that at the time of the request said minutes had not been approved by the governing body and as such, they constitute inter-agency, intra-agency advisory, consultative, or deliberative material and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.  However, the Custodian certifies providing the Complainant with the requested minutes on March 14, 2006 (eleven business days after receiving the records request).
  2. The Custodian has not unlawfully denied access to the Complainant’s request for incorrect test answers as she certifies that there are no records responsive since no testing materials are maintained by the Custodian and have been destroyed by the testing company as per a security agreement with the testing company. 

 

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. 

 

 

 

Interim Order Rendered by the

Government Records Council

On The 10th Day of August, 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, Vice Chairman & Secretary
Government Records Council 

 

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Findings and Recommendations of the Executive Director

Dina Parave-Fogg[1]                                           GRC Complaint No. 2006-51
Complainant

 

            v.

 

Lower Alloways Creek Township[2]

Custodian of Records

 

 

Records Relevant to Complaint:

  1. Township Committee meeting minutes for the following dates: February 7, 2006; February 9, 2006; February 13, 2006; and February 21, 2006
  2. Copy of my [Dina Parave-Fogg’s] incorrect answers for the dispatcher test.

Request Made:  February 27, 2006

Response Made:  February 28, 2006 and March 1, 2006

Custodian:  Lisa Montagna

GRC Complaint filed:  March 5, 2006

 

Background

 

February 27, 2006

            Complainant’s Open Public Records Act (“OPRA”) request.  The Complainant is seeking the Township Committee meeting minutes for the following dates: February 7, 2006; February 9, 2006; February 13, 2006; and February 21, 2006, as well as a copy of her incorrect answers for the dispatcher test. 

 

February 28, 2006

            Custodian’s response to the Complainant’s OPRA request one day following the date of the request.  The Custodian states that she forwarded the Complainant’s request to the Chief of Police and is awaiting his reply.  She also states that February minutes will be approved at the March 21, 2006 meeting. 

 

February 28, 2006

            E-mail from Complainant to Custodian.  The Complainant asks the Custodian if she is denying her the right to promptly access government records. 

 

March 1, 2006

            Custodian’s subsequent response to the Complainant’s OPRA request.  The Custodian states that the requested meeting minutes will be provided upon their approval which is scheduled for the Township Committee’s March 21, 2006 meeting.  She additionally states that copies of the answers to the test for dispatcher have been destroyed and cannot be produced as noted in the attached letter from the Chief of Police dated February 28, 2006. 

            In the Chief’s February 28, 2006 letter, he acknowledges receiving the Complainant’s request for a copy of her incorrect answers to the dispatcher test.  The Chief states that he reviewed the security agreement with the testing company IPMA-HR and under such agreement, section II paragraph D states “if any IPMA-HR test materials should become involved in legal or regulatory compliance proceedings, the agency will inform the legal authority of the terms of this agreement and will seek a court protective order to safeguard the confidentiality of the test.  IPMA-HR must also be notified immediately.”  He states that he notified the testing company that one of the test candidates had made a public records request for a copy of her incorrect answers.  Further, the Chief states that he cannot supply a copy of the test or any part of the test as it violates the security agreement with IPMA-HR.  He additionally states that all testing materials have been destroyed as per the security agreement. 

 

March 5, 2006

            Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:

  • Complainant’s February 27, 2006 OPRA request
  • E-mail from Complainant to Custodian dated February 27, 2006
  • E-mail from Custodian to Complainant dated February 28, 2006
  • E-mail from Complainant to Custodian dated February 28, 2006
  • Letter from Custodian to Complainant dated March 1, 2006
  • Letter from Chief of Police to Complainant dated February 28, 2006
  • Standard Test Security Agreement for IPMA-HR (International Public Management Association for Human Resources)

 

            The Complainant states that she submitted her OPRA request on February 27, 2006 and that later that day she e-mailed the Custodian indicating that she forgot to date her request form and asked the Custodian to do it for her.  She states that on February 28, 2006 she received an e-mail from the Custodian indicating that she took care of the date, that she had forwarded the request to the Chief of Police and was awaiting his response, and that the requested meeting minutes would be approved at the March 21, 2006 Township Committee meeting.  The Complainant then claims that she e-mailed the Custodian asking her if she was denying her right to access government records. 

            Additionally, on February 28, 2006, the Complainant states that she contacted the Custodian by phone to ask if she had received the Complainant’s e-mail.  She claims that the Custodian advised her that she had forwarded the e-mail to the Township Attorney.  The Complainant states that she told the Custodian that she wanted a response from the Solicitor in twenty four (24) hours citing a statute or she would file a complaint with the GRC and that she hoped this would not fall back on the Custodian as she is not the one the Complainant has issues with. 

            The Complainant claims that the next day she went to the Municipal Building and asked the Custodian if she had a response for her.  She states that the Custodian typed the letter dated March 1, 2006 which did not cite any statute but indicated that the requested meeting minutes would become “immediately available”[3]  after their approval at the March 21, 2006 Township Committee meeting.  She also claims that the Custodian advised her that the back of the Township’s OPRA request form indicates that minutes must be adopted before they can be released to the public, however the Complainant states that no statute is cited.  The Complainant states that the Custodian also gave her a letter dated February 28, 2006 from the Chief of Police stating that as per the security agreement with IPMA-HR, all testing materials had been destroyed. 

            Further, the Complainant states that on March 1, 2006 she contacted IPMA-HR and advised them that she received her grade on a little piece of paper and that she was seeking an official copy of her grade.  She claims that the IPMA-HR staff member advised her that the testing company does not have a database for applicants and that the testing materials must be shredded.  The Complainant also states that she requested the company’s web address as she wanted a copy of the security agreement.  She claims that the security agreement mandates that unused tests must be shredded. 

 

March 8, 2006

            Offer of Mediation sent to both parties.

 

March 9, 2006

            The Complainant declines mediation via e-mail.  The Custodian also did not agree to mediate this case.

 

March 10, 2006

            Request for Statement of Information sent to the Custodian.

 

March 14, 2006

            Custodian’s Statement of Information (“SOI”) with the following attachments:

  • Complainant’s February 27, 2006 OPRA request
  • March 1, 2006 letter from Custodian to Complainant
  • March 1, 2006 e-mail from Township Solicitor to Custodian
  • February 28, 2006 letter from Chief of Police to Complainant
  • IPMA-HR Standard Test Security Agreement
  • March 14, 2006 letter from Chief of Police to Township Solicitor
  • Draft Township Committee meeting minutes dated February 7, 2006, February 9, 2006, February 13, 2006, and February 21, 2006
  • March 15, 2006 letter from Custodian to Complainant

 

            The Custodian certifies that she received the Complainant’s OPRA request for Township Committee meeting minutes and a copy of her incorrect answers for the dispatcher test on February 27, 2006.  She certifies that she provided the Complainant with the Township meeting minutes together with a copy of this certification.  She also certifies that a copy of the Complainant’s incorrect answers are not available, however she provided the Complainant with a letter from the Chief of Police dated March 14, 2006 which she just received. 

            The Custodian certifies that a copy of the Complainant’s incorrect test answers was not provided as the Township does not maintain these documents.  She certifies that the tests were graded by the testing company and therefore the Township never had the requested documents on file.  In this matter she also references the Chief of Police’s letters dated February 28, 2006 and March 14, 2006. 

            In the Chief’s March 14, 2006 letter to the Township Solicitor, he states that he is unable to fulfill the Complainant’s request for incorrect answers as per the security agreement with IPMA-HR.  The Chief states that the testing company holds the rights to the test and states that he has enclosed a copy of the security agreement.  Additionally, the Chief claims that the Complainant’s request was handled according to the information received from the State Division of Archives and Records Management on records retention and disposition.  The Chief claims that his department is required to maintain employment applications of unsuccessful candidates for three (3) years.  He additionally states that after three (3) years, the department can file a request for authorization for records disposal.  Further, the Chief asserts that as the testing company graded the test and did not provide his department with the answers to the test, he is not in possession of the Complainant’s incorrect answers and is unable to comply with her request. 

 

Analysis

 

Whether the Custodian unlawfully denied access to the requested records?

 

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, 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 … 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.

 

OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:

 

“…[t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.

 

The Open Public Meetings Act provides that:

 

“[e]ach public body shall keep reasonable comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act.”  N.J.S.A. 10:4-14.

            The Complainant asserts submitting her OPRA request on February 27, 2006.  She states that on February 28, 2006 she received an e-mail from the Custodian indicating that she had forwarded the Complainant’s request to the Chief of Police and that the requested meeting minutes would be provided upon their approval at the March 21, 2006 Township Committee meeting.  Additionally, the Complainant states that she received a letter from the Custodian dated March 1, 2006 which again indicated that the Custodian would release the requested meeting minutes upon their approval at the March 21, 2006 meeting and that as per the Township’s security agreement with the testing company, all testing materials have been destroyed.  The Custodian certifies that she released the requested meeting minutes to the Complainant on March 14, 2006 and that there are no records responsive to the Complainant’s request for testing materials as they have been destroyed. 

            OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt.  Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.

            The draft minutes in question are prepared as part of the process of producing minutes of a meeting of a public body that was held pursuant to the Open Public Meetings Act (OPMA).  Specifically, OPMA provides:

 

Each public body shall keep reasonable comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act.  N.J.S.A. 10:4-14.

 

            The question of whether such draft minutes are exempt from disclosure requires consideration of the general question of the status of draft documents under OPRA. As a general matter, draft documents are advisory, consultative and deliberative communications. Although OPRA broadly defines a “government record” as information either “made, maintained or kept on file in the course of [an agency’s] official business,” or “received” by an agency in the course of its official business, N.J.S.A. 47:1A-l.l, the statute also excludes from this definition a variety of documents and information. Ibid. See Bergen County Improvement Auth. v. North Jersey Media, 370 N.J. Super. 504, 516 (App. Div. 2004). The statute expressly provides that “inter-agency or intra-­agency advisory, consultative, or deliberative material” is not included within the definition of a government record. N.J.S.A. 47: 1A-1 .1.

            This exemption is equivalent to the deliberative process privilege, which protects from disclosure pre-decisional records that reflect an agency’s deliberations. In re  Readoption  of N.J.A.C.  lOA:23, 367 N.J. Super. 61, 73-74 (App. Div. 2004), certif. den. 182 N.J. 149 (2004); see also In re Liq. Of Integrity Ins. Co., 165 N.J. 75 (2000). As a result, OPRA “shields from disclosure documents ‘deliberative in nature, containing opinions, recommendations, or advice about agency policies,’ and ‘generated before the adoption of an agency’s policy or decision.’” Bent v. Stafford Police Department, 381 N.J. Super. 30, 37 (App. Div. 2005), quoting Gannet New Jersey Partners LP v. County of Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005).

The courts have consistently held that draft records of a public agency fall within the deliberative process privilege. See U.S. v. Farley, 11 F.3d 1385 (7th Cir. 1993); Pies v. U.S. Internal Rev. Serv., 668 F.2d 1350 (D.C. Cir. 1981); N.Y.C. Managerial Employee Ass’n, v. Dinkins, 807 F.Supp, 955 (S.D.N.Y. 1992); Archer v. Cirrincione, 722 F. Supp. 1118 (S.D. N.Y. 1989); Coalition to Save Horsebarn Hill v.  Freedom of  Info. Comm., 73 Conn.App. 89, 806 A.2d 1130 (Conn. App. Ct. 2002); pet. for cert. den. 262 Conn. 932, 815 A.2d 132 (2003). As explained in Coalition, the entire draft document is deliberative because in draft form, it “‘reflect[s] that aspect of the agency’s function that precedes formal and informed decision making.’”Id. at 95, quoting Wilson v.  Freedom of Info. Comm., 181 Conn. 324, 332-33, 435 A.2d 353 (1980).

The New Jersey Appellate Division also has reached this conclusion with regard to draft documents. In the unreported section of In re Readoption, supra, the court reviewed an OPRA request to the Department of Corrections (DOC) for draft regulations and draft statutory revisions. The court stated that these drafts were “all clearly pre-decisional and reflective of the deliberative process.” Id. at 18. It further held:

 

The trial judge ruled that while appellant had not overcome the presumption of non-disclosure as to the entire draft, it was nevertheless entitled to those portions which were eventually adopted. Appellant appeals from the portions withheld and DOC appeals from the portions required to be disclosed. We think it  plain  that  all  these  drafts,  in  their entirety,  are reflective of the deliberative process. On the other hand, appellant certainly has full access to all regulations and statutory revisions ultimately adopted. We see, therefore, no basis justifying a conclusion that the presumption of non­disclosure has been overcome. Ibid. (Emphasis added.)

 

            The court similarly held that memos containing draft procedures and protocols were entirely protected from disclosure.  Id. at 19.  See also Edwards v. City of Jersey City, GRC No. 2002-71 (February 27, 2004) (noting that in general, drafts are deliberative materials).

Although draft minutes always fall under OPRA’s exemption for deliberative material, the Appellate Division has suggested that the confidentiality accorded to deliberative records may be overcome if the requestor asserts and is able to demonstrate an overriding need for the record in question.  See In re Readoption, supra, 367 N.J.Super. at 73.  Resolution of such a claim, if raised by the requestor, will depend upon the particular circumstances of the case in question.

Thus, in accordance with the foregoing case law, all draft documents, including the draft minutes of a meeting held by a public body, are entitled to the protection of the deliberative process privilege. Draft minutes are pre-decisional. In addition, they reflect the deliberative process in that they are prepared as part of the public body’s decision making concerning the specific language and information that should be contained in the minutes to be adopted by that public body, pursuant to its obligation, under the Open Public Meetings Act, to “keep reasonably comprehensible minutes.” N.J.S.A. 10:4-14.  This conclusion is a departure from prior GRC decisions and is based on the legal advice received from the Office of the Attorney General.

            As a result, the Custodian has not unlawfully denied access to the requested meeting minutes as the Custodian certifies that at the time of the request said minutes had not been approved by the governing body and as such, they constitute inter-agency, intra-agency advisory, consultative, or deliberative material and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.  However, the Custodian certifies providing the Complainant with the requested minutes on March 14, 2006.  Additionally, the Custodian has not unlawfully denied access to the Complainant’s request for incorrect test answers as the Custodian certifies that there are no records responsive since no testing materials are maintained by the Custodian and have been destroyed by the testing company as per a security agreement with the testing company.   

 

Conclusions and Recommendations

 

The Executive Director respectfully recommends the Council find that:

 

  1. The Custodian has not unlawfully denied access to the requested meeting minutes as the Custodian certifies that at the time of the request said minutes had not been approved by the governing body and as such, they constitute inter-agency, intra-agency advisory, consultative, or deliberative material and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.  However, the Custodian certifies providing the Complainant with the requested minutes on March 14, 2006 (eleven business days after receiving the records request).
  2. The Custodian has not unlawfully denied access to the Complainant’s request for incorrect test answers as she certifies that there are no records responsive since no testing materials are maintained by the Custodian and have been destroyed by the testing company as per a security agreement with the testing company. 

 

 

Prepared By:

                        Dara Lownie

                        Case Manager

                       

 

 

Approved By:

Catherine Starghill, Esq.

Executive Director



[1] No legal representation list.

[2] Represented by Herbert Butler, Esq.  (Salem, NJ).

[3] As stated on Complainant’s Denial of Access Complaint.

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