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Privacy Study Commission Minutes

September 24, 2004

Chairman Litwin called the meeting to order at 10:24 a.m.

Chairman Litwin read the Open Public Meetings Statement.

Chairman Litwin led all present in the salute to the flag.

Ms. Mallon called the roll as follows:

Commission Members Present: Chairman Larry Litwin, George Cevasco, Edithe Fulton, Jack McEntee, Thomas Cafferty, John Hutchison, Rosemary Reavey, Karen Sutcliffe, H. Lawrence Wilson, Grayson Barber (arrived 10:27 am) and Richard DeAngelis, Jr. (arrived 10:30 am).

Commission Members Absent: William Kearns and Pamela McCauley.

Staff Present: Susan Jacobucci, Acting Director, Division of Local Government Services and Erin Mallon, Division of Local Government Services staff.

Mr. Cevasco moved to approve the minutes of the July 9, 2004 meeting and September 10, 2004 meeting with a second by Judge Karcher-Reavey. The motion was adopted on a call of ayes and nays.
Chairman Litwin asked for comments on the Draft Final Report and discussed the outline for the rest of the meetings.

Chairman Litwin asked the members to review the Strategic Recommendations for discussion. Chairman Litwin discussed number 18 of the Strategic Recommendations for the purposes of making recommendations for amendments to the Open Public Records Act.

Mr. Cevasco noted that he had some concerns regarding recommendation number 4. Mr. Cevasco had concerns regarding persons requesting voluminous amounts of records, especially prior to elections, that the cost to taxpayers would be significant.

Chairman Litwin asked Mr. Cafferty to comment on Mr. Cevasco’s concern.

Mr. Cafferty noted that the Open Public Records Act has a provision that would allow for a special service charge to be applied in such cases where an extraordinary time and effort is made to comply with the request.

Mr. Cevasco noted that his concern is that the recommendation made in number 4 would alter the provision for a special service charge.

Chairman Litwin noted that he also has a concern with altering the provision for a special service charge in the Open Public Records Act and noted that this issue can be addressed in the Final Report. Chairman Litwin also noted that in some cases the per page cost does not reflect the cost of the research going in to retrieving the data for the request.

Chairman Litwin commented that the Commission could make recommendations in the Final Report as well as indicated unresolved issues. Chairman Litwin asked the Commission to again review the Strategic Recommendations and forward any comments to him or staff for review prior to the public hearings.

Chairman Litwin noted that the next meeting will be October 29, 2004 and sought comment regarding a possible October 15, 2004 meeting date as the Technology and Commercial Use Reports still need to be discussed.

Ms. Barber asked for an update on the status of the Technology and Commercial Use Reports, as she has not seen any drafts of the reports.

Chairman Litwin asked Mr. Cafferty to comment on the Commercial Use Report and then he will give a brief synopsis on the Technology Report.

Mr. Cafferty noted that the Commercial Use Report will be out of the subcommittee by the end of next week and that the Commission should be ready to vote on it by October 29, 2004.

Ms. Jacobucci noted that if the Commission has a quorum the staff issued would be resolved for the October 15, 2004 meeting.

Chairman Litwin noted that he left a message for Mr. Kearns regarding the Technology Report and is unaware as to when it will be completed. Chairman Litwin asked Ms. Jacobucci if she has received a draft of the Technology Report or knows the status of the report.

Ms. Jacobucci stated that she had not seen a draft of the report.

Ms. Sutcliffe stated a vote should take place on the Data Practices Survey because the Commission did not have a quorum for the meeting on September 10, 2004.

Chairman Litwin stated that a vote will take place at this meeting and asked members to consider a meeting on October 15, 2004.

Ms. Barber asked that should the Data Practices Survey be accepted today; what items would be discussed at the October 15, 2004 meeting.

Ms. Jacobucci stated that a meeting would take place if the Commission would have a quorum, however, the Commercial Use and Technology Reports may not be ready for review.

Chairman Litwin noted that October 29, 2004 would be a better date for a meeting because the Commercial Use Report would be ready for the Commission and the Technology Report may be ready for the Commission. Chairman Litwin asked the members to confirm their attendance for a meeting on October 29, 2004.

Ms. Sutcliffe noted that she would not be in attendance on October 29, 2004.

Chairman Litwin noted that no meeting would be held on October 15, 2004; however, a meeting will take place on October 29, 2004. Chairman Litwin also stated that public hearings would take place in December according to the schedule. Chairman Litwin commented that he would like the meeting to take place at 10:00 am if Commission members can attend.

Mr. Cafferty noted that he teaches a class at Rutgers University and cannot attend at 10:00 am, however, Mr. Kearns may be able to present his report first and then when he arrives he can present the Commercial Use Report.

Chairman Litwin agreed to Mr. Cafferty’s suggestion.

Chairman Litwin asked Ms. Sutcliffe to present the NJ Data Practices Survey to the Commission.

Special Directive Subcommittee – NJ Data Practices Survey

Ms. Sutcliffe noted that the NJ Data Practices Survey before the Commission is the revised version with the changes proposed at the July 9, 2004 meeting. Ms. Sutcliffe noted that no comments were received from the Commission members regarding the revised version of the Data Practices Survey, which was e-mailed to the members. Ms. Sutcliffe made a motion to adopt the report on the NJ Data Practices Survey.

Ms. Barber seconds the motion.

Chairman Litwin calls for a vote on the revised NJ Data Practices Survey.

Ayes: Chairman Litwin, Ms. Barber, Mr. Cafferty, Mr. Cevasco, Ms. Fulton, Mr. McEntee, Judge Karcher-Reavey, Mr. DeAngelis, Mr. Hutchison, Ms. Sutcliffe, and Mr. Wilson.

Nays: None.

The motion carried 10-0.

Chairman Litwin and Ms. Barber congratulate Ms. Sutcliffe.

Chairman Litwin asked Judge Karcher-Reavey about the public hearings.

Judge Karcher-Reavey acknowledged that a public hearing is scheduled and commented on public attendance at the hearing.

Ms. Barber commented on Commission members getting members of the public to attend the public hearings by making telephone calls.

Judge Karcher-Reavey agreed that telephone calls might be helpful in recruiting members of the public to attend meetings.

Chairman Litwin commented that DCA Communications Office might assist in advertising the December hearings to the public in November.

Ms. Fulton noted that the some members of the public could claim to not have been aware of the public hearings and she is concerned that the Commission does not consider information provided by the public.

Chairman Litwin commented that the preamble to the final report could be considered if the Commission feels that it is necessary.

Judge Karcher-Reavey mentioned that the Commission could hold the public hearing longer if necessary to receive all the public comment.

Chairman Litwin asked for other subcommittee chair comments.

Chairman Litwin asked for staff update.

Ms. Jacobucci commented on the Commission’s ability to include public comment with the final report.

Ms. Fulton brought the NJ League of Municipalities letter regarding social workers to the Commission’s attention.

Chairman Litwin acknowledged that social workers were part of the list.

Ms. Barber commented that the League of Municipalities letter has not been included regarding home addresses; however, there is a long list of persons included in the final report. Ms. Barber further commented that public testimony could be included in the final report.

Ms. Fulton stated that she thought that the list of persons had to be submitted prior to public comment.

Ms. Barber commented that the Commission could submit more categories.

Chairman Litwin stated that the Legislature or Governor could amend the provisions of the Open Public Records Act based upon the Commissions final report.

Chairman Litwin noted that the next meeting would be a longer meeting with more reports to discuss.

Ms. Sutcliffe noted that she would not attend the December 2, 2004 meeting.

Chairman Litwin allowed David Rosenberg from NJEA to publicly comment before the Commission.

Mr. Rosenberg asked the Commission if the Legislature takes up the writing of regulations.

Chairman Litwin referred the question to Mr. Hutchison.

Mr. Hutchison stated that the Executive Branch and Legislature could draft administrative regulations.
Mr. Hutchison further stated that the Legislature could task a Department to draft regulations.

Mr. DeAngelis noted that the Commission does not have the authority to draft regulations, however, the Governor could issue an Executive Order directing a Department to draft regulations.

Mr. Rosenberg further asked if the Commission is looking to recommend that legislation be proposed or regulations be proposed.

Ms. Jacobucci noted that the Legislature and Executive Branch could act in a few ways based upon the Commission’s recommendations. Ms. Jacobucci stated that the recommendations could become and Executive Order, legislation to change or amend OPRA or the Legislature could task a Department to write regulations. Ms. Jacobucci noted that once the Commission has submitted its final report to the Governor, the Governor or Legislature would determine the path that the recommendations will take.

Mr. Rosenberg, as a follow-up question, asks if a general recommendation would be to make a recommendation to proceed in amending the current law or make regulations or both.

Ms. Jacobucci noted that the Commission would make recommendations such as excluding police officers addresses and telephone numbers; however, it is not the Commission’s position to recommend how this comes about. Ms. Jacobucci further stated that it is the authority of the Governor and Legislature to determine if a regulation, legislation or Executive Order is appropriate.

Mr. Cafferty states that it is important to not lose context with how the recommendation arose and that the Commission was formed as a directive of the Governor to determine the accessibility of certain information.

Ms. Barber asked Mr. Rosenberg if he feels that his question was answered. Ms. Barber noted that the Subcommittee Report on Home Addresses and Telephone Numbers offered many recommendations and that the Legislature should look at different ways of categorizing government records. Ms. Barber noted that a way to do this is to identify the person involved in the record and the groups of people who are exempt from having there home addresses disclosed. Ms. Barber also noted that the Legislature could look at the characteristics of the record and weigh the competing interests in privacy versus disclosure and categorize the records in this way. Ms. Barber stated that the Subcommittee offered many options on how to implement the recommendations.

Chairman Litwin noted that the public comment portion would be included in the final report.

Ms. Fulton asked if there was anything in an Executive Order that may be in conflict with the current OPRA law.

Mr. Cafferty noted that it would not be in conflict because the current law empowers the Governor and the Executive Branch to create further exemptions than those contained in the legislation either by regulation or Executive Order. Mr. Cafferty stated that section one of OPRA empowers those exemptions, however, an Executive Order cannot be created to exempt everything.

Chairman Litwin asked for any additional comments. Hearing no additional comments, Chairman Litwin asked for a motion to adjourn.

Ms. Fulton moved to adjourn the meeting with a second by Mr. Cevasco.

Chairman Litwin adjourned the meeting at 11:44 a.m.

Respectfully submitted,

Larry Litwin, Chairman



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