2002-107

Final Decision

The Council considered this complaint at its December 10, 2003 meeting. The Council subsequently issued a December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation stating:

1. The copies of the checks, one of which contained redactions, satisfied this aspect of the request and this was confirmed verbally on November 14, 2003. 
   
2. The synopsis of the billing records was not in conformity with N.J.S.A. 47:1A-5(e) and the custodian is to provide the requestor immediate access to the requested billing records, subject to appropriate redactions.
   
3. To further determine if the correspondence is actually privileged, the custodian will be required to submit an index of the privileged documents by listing for each document the date, type of document, subject matter of the document, persons copied on the document, the sender and receiver of the document and an explanation of why each document is privileged which should include a non-conclusory, comprehensive presentation of all factual grounds and legal analyses.  The listing is to be provided to the Acting Executive Director no later than 10 days following the effective date of this order.
   
4. The custodian responded in a timely manner in six business days.

At its February 11, 2004 public meeting, the Government Records Council ("Council") considered the February 3, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations finding that:

1. The custodian has complied with number "2" of the Council's December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation by providing the requestor with the billing records by letter dated December 1, 2003.
   
2. The custodian has complied with number “3” of the Council's December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation by providing the subject index to Paul Dice on February 3, 2004. Dice forwarded same to the requestor on that date.
   
3. The complaint should be dismissed on the grounds that the custodian has fully complied with the Council's December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation.

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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Supplementary Findings and Recommendations of Executive Director

Relevant Records Requested:  Inspect two checks issued by the township to Thomas Rienzi (Check No. 10481) and Horizon Group (Check No. 105261); inspect “all correspondence between the Bernards Township Public Schools and Sill Cummis et al, the law firm under contract to the Board of Education relating to the case EDU 6161-01 and billing records from this firm encompassing this case”.

Request Date:  October 28, 2002
Response Date:  November 5, 2002
Number of Business Days to Respond:  5 business days
Custodian:  Joseph J. Barcellona, Business Administrator
GRC Complaint Filed:  December 14, 2002

Executive Director’s Supplementary Recommendation

The Council considered this complaint at its December 11, 2003 meeting. The Council subsequently issued a December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation stating:

1. The copies of the checks, one of which contained redactions, satisfied this aspect of the request and this was confirmed verbally on November 14, 2003. 
2. The synopsis of the billing records was not in conformity with N.J.S.A. 47:1A-5(e) and the custodian is to provide the requestor immediate access to the requested billing records, subject to appropriate redactions.
3. To further determine if the correspondence is actually privileged, the custodian will be required to submit an index of the privileged documents by listing for each document the date, type of document, subject matter of the document, persons copied on the document, the sender and receiver of the document and an explanation of why each document is privileged which should include a non-conclusory, comprehensive presentation of all factual grounds and legal analyses.  The listing is to be provided to the Acting Executive Director no later than 10 days following the effective date of this order. 
4. The custodian responded in a timely manner in six business days.

The Acting Executive Director considered the following documentation in addition to that already presented by the parties by the time of the December 11, 2003 meeting:

• December 1, 2003 letter from Bernards Township to Douglas Wicks
• January 26, 2004 e-mail from Paul Dice to requestor
• January 26, 2004 e-mail from requestor to Paul Dice
• January 26, 2004 e-mail from Paul Dice to custodian’s counsel
• February 2, 2004 e-mail from Paul Dice to custodian’s counsel
• February 3, 2004 e-mail from requestor’s counsel to Paul Dice
• February 3, 2004 e-mail from requestor to Paul Dice
• February 3, 2004 response from custodian’s counsel to the Council’s Revised Final Decision on Access; Interim Decision on Privileged Documentation
• February 4, 2004 e-mail from requestor’s counsel to Paul Dice
• February 4, 2004 e-mail from Paul Dice to requestor’s counsel
• February 4, 2004 Certification of Philip E. Stern, Esq. on behalf of the custodian and in response to Paul Dice’s February 4, 2004 request.

NOTE: Custodian’s counsel presented two February 4, 2004 certifications because the first contained a typographical error in the year stated in point “3.” The first certification states an OPRA request date of October 28, 2003. The second corrects the date to October 28, 2002. Other than that, the documents are identical.

Remaining at issue are the requestor’s positions in regard to:

o The synopsis of the billing records was not in conformity with N.J.S.A. 47:1A-5(e) and the custodian is to provide the requestor immediate access to the requested billing records, subject to appropriate redactions.

o To further determine if the correspondence is actually privileged, the custodian will be required to submit an index of the privileged documents by listing for each document the date, type of document, subject matter of the document, persons copied on the document, the sender and receiver of the document and an explanation of why each document is privileged which should include a non-conclusory, comprehensive presentation of all factual grounds and legal analyses.  The listing is to be provided to the Acting Executive Director no later than 10 days following the effective date of this order.

The custodian provided the requestor with the billing records referenced in number “1” directly above by letter dated December 1, 2003. 

Custodian’s counsel provided Paul Dice with the index referenced in number “2” directly above on February 3, 2004. Dice forwarded same to the requestor on the same date.

The requestor wrote to Paul Dice on February 3, 2004 stating that the billing records refer to documents not referenced in the index and that he has not received copies of those documents. He also alleges that the “attorney/client privilege should be pierced.”

On February 4, 2004, and in response to Paul Dice’s request, custodian’s counsel provided a certification on behalf of the custodian stating that “The documents that the Board has, or has access to, which are responsive to Mr. Wicks’ October 28, 2002 request, and disclosable pursuant to the provisions of the Open Public Records Act, have been provided to Mr. Wicks.”

The Acting Executive Director recommends that the Council find that:

1. The custodian has complied with number “2” of the Council’s December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation by providing the requestor with the billing records by letter dated December 1, 2003.

2. The custodian has complied with number “3” of the Council’s December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation by providing the subject index to Paul Dice on February 3, 2004. Dice forwarded same to the requestor on that date.

3. The complaint should be dismissed on the grounds that the custodian has fully complied with the Council’s December 30, 2003 Revised Final Decision on Access; Interim Decision on Privileged Documentation.

Legal Analysis

No further legal analysis is required in this case.

Paul F. Dice
Acting Executive Director
Government Records Council

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Final Decision on Access

At its December 11, 2003 public meeting, the Government Records Council considered the Acting Executive Director's December 4, 2003 Findings and Recommendations. Based on the Council's review of same, the Council, Vincent Maltese notwithstanding, voted to accept the Acting Executive Director's recommendations. Chairman Maltese recused himself from all case discussion and the vote due to conflict of interest.

Therefore, the Council finds that:

1. The copies of the checks, one of which contained redactions, satisfied this aspect of the request and this was confirmed verbally on November 14, 2003.
   
2. The synopsis of the billing records was not in conformity with N.J.S.A. 47:1A-5(e) and the custodian is to provide the requestor immediate access to the requested billing records, subject to appropriate redactions.
   
3. To further determine if the correspondence is actually privileged, the custodian will be required to submit an index of the privileged documents by listing for each document the date, type of document, subject matter of the document, persons copied on the document, the sender and receiver of the document and an explanation of why each document is privileged which should include a non-conclusory, comprehensive presentation of all factual grounds and legal analyses. The listing is to be provided to the Acting Executive Director no later than 10 days following the effective date of this order.
   
4. The custodian responded in a timely manner in six business days.

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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