2002-68

Final Decision

At its December 11, 2003 public meeting, the Government Records Council considered the Acting Executive Director’s December 2, 2003 Findings and Recommendations. Based on the Council’s review of same, along with the source documentation, the Council voted unanimously to accept the Acting Executive Director’s recommendations and hereby finds that:

1. The requested information is confidential pursuant to:
   
   
   1. N.J.A.C. 10:133G-2.5 (adoptive information)
   2. N.J.A.C. 10:133G-2.3 (third party records in DYFS files)
   3. N.J.S.A. 2A: 4A-60 (juvenile court records)
   4. N.J.S.A. 9:6-8.10a (child abuse reports and investigations)
   5. N.J.A.C. 10:1B-2.2(7) (identifying information regarding foster care placements such as dates of placement and names of caregivers)
   6. N.J.S.A. 9:6-8.10a (DYFS caseworker identity)
      
      
2. The information voluntarily provided to the requestor by DYFS pertaining to her adoption and medical history is accessible by the requestor only under N.J.A.C. 10:133G-2.2(d) and N.J.A.C. 10:133G-2.3 at DYFS’ discretion and does not make those documents publicly accessible pursuant to OPRA.
   
   
3. The custodian responded in a timely fashion to the OPRA request in 7-business days. While the custodian voluntarily provided discretionary information beyond the 7-day timeline, requestor access to those records is not governed by OPRA; and
   
   
4. This complaint should be dismissed.

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

Relevant Records Requested:  Information relating to requestor before and after adoption as detailed below
Request Date:  July 9, 2002
Response Date:  July 18, 2002
Number of Business Days for the Response:  7 business days  1.
Custodian:  Christine Schroeder - Division of Youth and Family Services (DYSF)
GRC Complaint Filed:  October 12, 2002

Executive Director’s Recommendation

This case involves a request for information from DYFS pertaining to the requestor’s adoption. The requestor seeks 15 items listed in the request pertaining to records and/or information. Each of those 15 items was assigned a categorical reference and then analyzed against statutes or regulations pertaining to same.

The Acting Executive Director respectfully recommends that the Council find that there is a disclosure exemption or limitation for each requested item in accordance with N.J.S.A. 47:1A-9, “Other Laws, regulations, privileges unaffected.” The Executive Director further recommends that the Council find that:

1. The requested information is confidential pursuant to:
   1. N.J.A.C. 10:133G-2.5 (adoptive information)
   2. N.J.A.C. 10:133G-2.3 (third party records in DYFS files)
   3. N.J.S.A. 2A: 4A-60 (juvenile court records)
   4. N.J.S.A. 9:6-8.10a (child abuse reports and investigations)
   5. N.J.A.C. 10:1B-2.2(7) (identifying information regarding foster care placements such as dates of placement and names of caregivers)
   6. N.J.S.A. 9:6-8.10a (DYFS caseworker identity)
2. The information voluntarily provided to the requestor by DYFS pertaining to her adoption and medical history is accessible by the requestor only  under N.J.A.C. 10:133G-2.2(d) and N.J.A.C. 10:133G-2.3  at DYFS’ discretion  and does not make those documents publicly accessible pursuant to OPRA.
3. The custodian responded in a timely fashion to the OPRA request in 7-business days. While the custodian voluntarily provided discretionary information beyond the 7-day timeline, requestor access to those records is not governed by OPRA; and
4. This complaint should be dismissed .

Statement of Facts

July 9, 2002 – Records request
Requestor made a request to DYFS for the following information relating to the requestor before and after her adoption:

1. Records of visits to “medical professional”
2. Records of surgeries
3. Records of hospitalizations
4. Evaluations by psychiatrists or psychologists
5. “Information on schools” including dates of attendance
6. Educational evaluations
7. Psychiatric or medical evaluations from schools
8. Classification status in schools
9. Records of intelligence tests performed by schools
10. Information on teachers and information they provided on requestor
11. All reports about requestor by CART (county Case Assessment Resource Team), including evaluations, meeting minutes, treatment and placement plans
12. Information regarding requestor by Child Study Team
13. Information regarding requestor’s foster care placements, including location, dates, situation of placement, reason moved from home to home, interviews, names, addresses and phone numbers of foster parents
14. Names of caseworkers assigned to requestor and dates
15. Evaluations and reports produced by caseworker pertaining to requestor

July 18, 2002 – Custodian response

DYFS responded to request indicating it would, in its discretion, provide requestor her placement locations (city), dates and reasons for move after adoption.  They noted that the placement information would be provided by August 22, 2002, and advised that the requested information in its entirety was deemed confidential under N.J.A.C. 10:133G-2.3, N.J.A.C. 10:B-2.2(7) and Executive Order #21, and would not be disclosed.  The custodian’s response was provided on the 7^th business day after receipt of the request. 

Note to Council: E.O.21 was in effect at the time of the custodian’s response.

July 30, 2002 through September 4, 2002 – Correspondence between requestor and custodian

A series of correspondence between requestor and custodian in which the requestor explains her need for the medical history, foster care information and a contact person at CART. Requestor states that she had an “open” adoption and that she knew and visited her birth family after her adoption.

August 15, 2002 – Information provided to requestor

The DYFS Litigation Specialist reviews over four boxes of medical history and, after conferring with case managers and attorneys, exercises her discretion to provide requestor a summary of her placement history and a list of addresses and phone numbers for the facilities and programs that provided services to the requestor through DYFS.  The letter also advised the requestor to contact the facilities directly to acquire any further information

August 21, 2002 – Correspondence from DYFS to requestor pertaining to copy fees and information to be provided

Reference to copy fees required prior to mailing four pages of information.

September 9, 2002 – Letter from custodian to requestor regarding post-adoption information

This correspondence noted that an information summary of the requestor’s prior adoption background was provided to her in April 29, 2002 pursuant to N.J.A.C. 10:121C-7 and referenced the information provided in the August 15, 2002 letter pertaining to her out-of-home placements after adoption.

September 17, 2002 – Additional information provided to requestor

DYFS Adoption Registry Unit provided requestor identifying information concerning requestor’s pre-adoption background left on file for her by relatives and available only to requestor pursuant to regulation. The information included the names of requestor’s birth parents, other relatives, their addresses, and four more paragraphs of information (the GRC’s copy contained redactions to protect the requester’s privacy).

October 1, 2002 – Requestor acknowledges receipt of information

Requestor acknowledges receipt of September 9, 2002 four-page information summary and requests refund for copy charges on the grounds the letter was newly created and not a “copy” of a government record.

October 12, 2002 – GRC Complaint filed

DYFS refunds requestor the $3 charged. The requestor complained that she was denied access to the records but acknowledged she received a summary of her medical information before and after her adoption, her foster care homes, placement and removal reasons and home situation regarding her post adoption.  She stated, however, that her request was for the records and not an informational summary. 

October 2002 – Parties agree to mediation

January 15, 2003 – Letter to Mediator from requestor

The requestor indicated that through mediation, she received six pages of medical records, and no other records. 

January 29, 2003 – Case returned to GRC for adjudication

January 31, 2003 – Letter to requestor from DYFS Interstate Services Unit

DYFS provided requestor with her medical records from a  Residential Treatment Center .  The requestor was informed that all other medical information was confidential by statute including records from Juvenile court and all third party reports.

March 14, 2003 – Custodian completes SOI

The DYFS custodian responded to the 15 items listed in the records request as follows:

1. All pre-adoption records were sealed and not disclosable pursuant to N.J.A.C. 10:133G-2.5 as were third party records in DYFS files pertaining to medical records, education & child study team and CART(N.J.A.C. 10:133G-2.3).
2. All records and investigative information pertaining to any child abuse reports were considered confidential pursuant N.J.S.A. 9:6-8.10a
3. DYFS employee names assigned to an adoptive case was confidential information pursuant to Executive Order #21 (in effect at the time of response to requestor) and, subsequently pursuant to N.J.S.A. 9:6-8.10a.
4. Foster care identifying information was confidential pursuant to N.J.A.C. 10:1B-2.2(7).

DYFS did voluntarily provide requestor a summary of pre-adoption and post-adoption medical treatment, which they contended was permitted under the law in situations where there was “sufficient reason for needing the information”.  Additionally, DYFS voluntarily provided the requestor with pre-adoption information concerning her birth mother, birth father, other relatives, their addresses and foster home placements.

DYFS contends that while some of the requestor’s adoptive information was provided to her on a discretionary and a sufficient need to know basis, the requestor’s request for her personal DYFS record was exempt from disclosure under the authority of other statutes . 

March 27, 2003 – Requestor’s supplemental information provided

Requestor indicated that she was unclear whether the information she received from DYFS was complete or a “partial collection of medical records.”

November 24, 2003 – GRC sends Preliminary Findings and Recommendations (PFR) to the parties

November 25, 2003 – Requestor’s request an extension to respond to Acting Executive Director’s (PFR)

November 26, 2003 – GRC’s denies request for extension

December 2, 2003 – Requestor’s response to PFR

The requestor raises the following issues pertaining to the request for extension and the Executive Director’s recommendations:

• Requestor contends there is no timeline established for each step of the GRC process.
• Requestor contends that the information groupings referenced in the PFR was not the information requested.
• Requestor contends that the denial of access focused only on a portion of the request.
• Requestor acknowledged the custodian’s response was provided within 7-business days; however, because the requestor did not know the specific record names, the custodian failed to address the entire request.   The requestor indicated that the specific record names was requested during mediation, but was not provided.  

Analysis

The complaint should be dismissed because the records containing the information sought are confidential.  N.J.A.C. 10:133G-2.5 provides that all court records and information relating to adoption proceedings are sealed upon the legal finalization of the adoption pursuant to N.J.S.A. 9:3-52.  All third party records in DYFS files are confidential (N.J.A.C. 10:133G-2.3) as are juvenile court records (N.J.S.A.2A: 4A-60) and child abuse reports and investigations (N.J.S.A. 9:6-8. 10a).  Identifying information regarding foster care placements such as dates of placement and names of caregivers is confidential pursuant to N.J.A.C. 10:1B-2.2(7).  DYFS caseworker identity is confidential pursuant to N.J.S.A. 9:6-8.10a.

DYFS did voluntarily provide requestor a summary of pre-adoption and post-adoption medical treatment, copies of 3 medical reports and 89 pages of records from a  Residential Treatment Center pursuant to N.J.A.C. 10:133G-2.2(d) [permitting release of records to former child welfare clients upon demonstration of reasonable need to know].  Notwithstanding this discretionary release of records, third party information in DYFS files is still confidential pursuant to N.J.A.C. 10:133G-2.3.  DYFS’ release of these records to requestor under the discretion conferred by N.J.A.C. 10:133G-2.2(d) does not make these documents publicly accessible pursuant to OPRA. Thus, DYFS was not bound by OPRA’s seven day response time in deciding whether or not to provide requestor access to these records. 

DYFS also provided requestor a non-identifying summary of the cities and dates and reasons for each of her post-adoption foster home placements and specific personal background information from its Adoption Registry Unit (ARU), a repository for background data on adoptees.  N.J.A.C. 10:121C-7.1.  ARU data, when it exists at all, is confidential and intended for release only to adoptees. Id.  It is not publicly accessible under OPRA.

Requestor’s complaint that the PFR does not accurately list all the record sought does not affect the analysis or conclusion here. The PFR accurately summarizes the groups of records sought and, in any event, the Council has been provided copies of the original request and all supporting documentation. There is no evidence that any single record sought by requestor is exempt from the relevant confidentiality statutes and regulations and publicly accessible under OPRA.

Nor is the custodian obligated to provide requestor a “list” of all records in her files. Since the categories of records sought are confidential, naming or labeling specific records will not render them accessible and may inadvertently compromise confidentiality of those authoring third party reports.

While requestor correctly notes that there is no “timeline” for responses to PFRs, the Executive Director’s decision to deny requestor’s application for additional time to respond has not deprived requestor of any opportunity to contest the custodian’s position in this matter. The requestor has known the custodian’s rationale for denying access since July, 2002 and had an opportunity to discuss these assertions with the custodian during mediation in January, 2003. Requestor has had ample opportunity in the 10-11 months between the mediation and the PFR to provide the Council any objections to custodian’s position. Furthermore, the burden of proving that denial of access was lawful rests with the custodian, not the requestor.

1. The requested information is confidential pursuant to:

1. N.J.A.C. 10:133G-2.5 (adoptive information)
2. N.J.A.C. 10:133G-2.3 (third party records in DYFS files)
3. N.J.S.A. 2A: 4A-60 (juvenile court records)
4. N.J.S.A. 9:6-8.10a (child abuse reports and investigations)
5. N.J.A.C. 10:1B-2.2(7) (identifying information regarding foster care placements such as dates of placement and names of caregivers)
6. N.J.S.A. 9:6-8.10a (DYFS caseworker identity)

2. The information voluntarily provided to the requestor by DYFS pertaining to her adoption and medical history is accessible by the requestor only under N.J.A.C. 10:133G-2.2(d) and N.J.A.C. 10:133G-2.3 at DYFS’ discretion and does not make those documents publicly accessible pursuant to OPRA.
3. The custodian responded in a timely fashion to the OPRA request. While the custodian voluntarily provided discretionary information beyond the 7-day timeline, requestor access to those records is not governed by OPRA; and,
4. This complaint should be dismissed for the forgoing reasons.

Dated:  December 2, 2003

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