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2002-82

- Final Decision
- Findings and Recommendation of Executive Director

Final Decision

Steven Fenichel
Complainant
v.
Ocean City Board of Education
Custodian of Record

GRC Complaint No. 2002-82

Decision Issued: January 17, 2003
Decision Effective: January 31, 2003

At its January 17, 2003 public meeting, the Government Records Council considered Complaint #2002-82 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., against the Ocean City Board of Education. The Complaint challenged the Board's denial of access to photocopies of three research papers authored by administrators and/or teachers at Ocean City High School (OCHS) in 2002 for which the authors received compensation in addition to regular salary. The specific documents are entitled or concern: (a) "Anger Management Plans," (b) "Analysis of Students Failing at OCHS," and, (c) "Staff Development Programs."

The Council considered the Requester's complaint, the Custodian's Statement of Information, and the Executive Director's Findings and Recommendations dated January 13, 2003.

The Council having decided by affirmative vote of four Council members at its January 17, 2003 meeting to adopt the attached Findings and Recommendations of the Executive Director dated January 13, 2003, the Council herewith finds that the research papers are government records to which the requester shall be provided access by January 31, 2003, along with the identities of the authors. Any redactions that the Custodian makes to the papers pursuant to OPRA that the requester believes are unlawful may be challenged in another OPRA complaint.

A copy of this Decision shall be provided to the requester, the custodian, and all counsel of record. Any application for a stay of this Decision must be filed with the Council by January 31, 2003.

/s/ Vincent Maltese, Chair
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council:

/s/ Virginia Hook, Secretary
Government Records Council

Dated: January 17, 2003

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Findings and Recommendation of Executive Director

Steven Fenichel
Complainant
v.
Ocean City Board of Education
Custodian of Record

GRC Complaint No. 2002-82

Decision Issued: January 17, 2003
Decision Effective: January 31, 2003


Relevant Record Requested: Research papers authored by school staff for projects approved by school administrators and paid for with public funds.
Date of Request: October 3, 2002
Custodian: Doris Isaacs, School Business Administrator
Request Denial: October 10, 2002
Complaint filed: November 4, 2002

Executive Director's Recommendation

This complaint concerns a request for disclosure of copies of three research papers authored by administrators and/or teachers at Ocean City High School (OCHS) for which "Administrative Evaluation Compensation" was provided. Lacking justification from the records custodian to support a finding that these records are confidential under OPRA, it is recommended that Council order the documents be released to the requester at OPRA's standard copy rates, subject to any redactions appropriate under OPRA. These may include the identity of research subjects. In addition, although the requester expressed no desire to know the identity of the papers' authors, the custodian should release the names of the authors because there is no basis under OPRA to withhold access to them. There is a further consideration that attributing authorship protects not only the researchers' copyright in the material, but assists the public in assessing the soundness of the work.

Statements of Facts

On or about October 3, 2002 Steven Fenichel made a request of the Ocean City Board of Education for copies of three research papers authored by administrators and/or teachers at Ocean City High School (OCHS). The papers were described in an October 2, 2002 article in a local newspaper, "The Gazette." Specifically, the requester sought copies of research papers on (1) "anger management plans," (2) an "analysis of students failing at OCHS," and (3) "staff development programs." A fourth research project described in the newspaper article was not sought. The newspaper article states that in each case, the author of the paper received compensation in addition to regular salary, referred to as "Administrative Evaluation Compensation." The requester states that he does not seek the identity of the staff member who did the research.

On October 10, 2002, School Business Administrator and Records Custodian Doris Isaacs denied the request, advising that the research papers were part of the personnel records of the public employees who wrote the papers and, as such, were confidential under N.J.S.A. 47:1A-10. This section prohibits release of information from personnel records, with certain exceptions that do not include research papers by faculty. In the custodian's Statement of Information filed on December 3, 2002, the custodian alleged that the Complaint lacked a factual basis because:

Administrators (3) performance based salary increase documents utilized by the evaluator (Superintendent of Schools) to determine performance-based salary increases based on achievement of goal(s) were deemed to be personnel records not available for public access.

Analysis

N.J.S.A. 47:1A-10 provides, in pertinent part, that the personnel or pension records of any individual in the possession of a public agency shall not be considered a government record, except that (1) an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record; and (2) data which discloses conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension shall be a government record , but shall not include any detailed medical or psychological information.

N.J.S.A. 47:1A-10 codifies a series of Executive Orders (EO) addressing disclosure of personnel records. The text of the initial Order (Hughes, EO #9) stated that limited access to personnel records was needed " to balance the right of the public to know against the risk of unintentional harm or injustice to individuals that might be occasioned by the indiscriminate exposure of certain records containing data of a sensitive or personal nature."

Executive Order #11 by Governor Byrne provided for disclosure of the specific information itemized in N.J.S.A. 47:1A-10 on the rationale that "disclosure of the name, title and position of persons receiving pensions and of the type and amount of pension being received is an insignificant invasion of privacy outweighed by the public's right to know who it is employing, what jobs they are filling and the identities of those receiving government pensions." [emphasis supplied].

Both these Orders as well as OPRA refer to "personnel records." The question in this case is whether the information requested is a "personnel record" or merely information placed in a personnel file. OPRA provides no specific guidance on the issue, thus the Council can examine case law from other jurisdictions in addition to its own consideration of the merits of the issue.

Other states considering the issue have held that not every bit of information found in a personnel file is necessarily personal so as to be exempt from disclosure. Personnel information that identifies a specific, individual government employee is exempt and therefore confidential. So, for example, New Jersey courts consider confidential any performance evaluations in personnel files. This shields from access supervisory criticisms or evaluation of the research in this case.

Furthermore, while the research papers sought in this matter may be personnel records for purposes of documenting why the employees received compensation in excess of their usual salary, that fact alone does not render the content of the research confidential. The records custodian does not state that any of the papers contain information of a personal nature peculiar to the author of the paper or which would reveal the compensation received by the author for the work. Research on anger management plans, failing students or staff development programs can be constructed to be generic in nature. For this reason, the Executive Director recommends that the Council order the custodian to provide the requester a copy of each research paper at standard OPRA per-page copy rates, subject to the following cautions as applicable.

Prior to release, the custodian should redact from the papers any information considered confidential under OPRA. For example, the names of any students in the "anger management" research or the "analysis of students failing at OCHS" should be redacted so as to conform with state and federal laws pertaining to confidentiality of student records. Similarly, the names of any staff member appearing in the "staff development program" research should be redacted as necessary to protect the legitimate privacy interests of staff members. However, it should be noted that OPRA permits release of that portion of employees' personnel files that disclose "conformity with specific experiential, educational or medical qualifications required for government employment."

While the parties do not address whether the papers have any economic value aside from the compensation paid to the authors by the school, the custodian should be mindful of the authors' legitimate copyright interest in the papers. The names of the authors should be released, first, because there is no exemption under OPRA to withhold access to them, and second, because the value of scientific studies is greatly affected by the author's training and experience.

Conclusion

This is not a case in which the requester is seeking the supervisor's evaluation of the papers or the payment received, either of which might reflect an evaluation of the professional performance of the author deemed confidential. This is not research performed at an institution of higher learning which is classified as confidential under N.J.S.A. 47:1A-1.1. The custodian has not stated that the "Staff Development" or "Anger Management" research reveals any information whatsoever identifiable with any particular staff member or student, nor is there a claim that the material was commissioned for use as part of a advisory, consultative or deliberative process to formulate school policy. There is no reasonable expectation of privacy in the work itself since it concerns generic topics, paid for by public funds.

Lacking justification from the custodian supporting an exception from disclosure there appears to be no basis to withhold access to the papers under OPRA. It is recommended that Council order the custodian to provide the requester a copy of each of the research papers at OPRA's standard per-page copy rate subject to redaction for any lawful reason. The requester may challenge the lawfulness of any redactions in a separate Complaint.

Marc H. Pfeiffer, Acting Executive Director
Government Records Council

Dated: January 13, 2003

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