2002-88

Final Decision

At its December 11, 2003 public meeting, the Government Records Council considered the responses provided to the Acting Executive Director pursuant to its November 13, 2003 Interim Order. The Council reviewed and discussed the following documentation:

December 2, 2003 Letter Memorandum from custodian’s counsel, Laura Eytan,

December 1, 2003 certification from Robert A. Sanguinetti.

The Council voted unanimously to:

• Incorporate by reference into this Final Decision, the entirety of the November 6, 2003 Findings and Recommendations of the Executive Director.
• Find that the custodian properly executed his duties in responding to the requestor’s October 7, 2002 Open Public Records Act (OPRA) request.
• Find that the custodian correctly denied access to the Aftab appraisal because both it and the Department of Transportation appraisals were confidential as a matter of law. However, the Council also notes that the custodian’s basis for the denial, N.J.A.C. 16:1A-3.2(a)2 (the “project” exemption), is incorrect. Nonetheless, the requested document was not accessible under the Open Public Records Act (OPRA) at the time of request based on N.J.A.C. 16:1A-1.8(j)(2) – a statute classifying confidential all records part of any case file maintained by a Deputy Attorney General acting on behalf of DOT.
• Dismiss the complaint.

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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Interim Decision

At its November 13, 2003 public meeting, the Government Records Council considered the November 6, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties concerning this OPRA request for copies of all appraisals submitted into evidence in the matter of Commissioner DOT v. Aftab, Dkt. No. BGER-L-6884-00.

The Council voted unanimously to seek the following additional information from the custodian regarding the Aftab property appraisal in Commissioner, DOT v. Aftab, Dkt. No. BER-L-6884-00:

1. Why was the appraisal not located until March 4, 2003?
   
2. What gave rise to the custodian finding it on March 4, 2003?
   
3. Why did the custodian not release the appraisal following conclusion of the condemnation litigation on July 12, 2003?
   
4. How was the custodian notified that the condemnation litigation ended on July 12, 2003?

In addition, the custodian shall submit a certification explaining why the Council should not consider his actions as having knowingly and willfully violated the Open Public Records Act in the totality of the circumstances.

The Council hereby orders the custodian to provide the above information to the Government Records Council's Acting Executive Director Dice no later than December 1, 2003.

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 Recommendation of Executive Director

Relevant Records Requested: "A copy of appraisal reports admitted in evidence at hearings before condemnation commissioners on 5/22/02, 6/24/02 & 7/23/02 in State of N.J. v. Marc Aftab, Superior Court of N.J., Bergen County, Docket # BER-L-6884-00"
Request Made: October 7, 2002
Custodian: Robert Sanguinetti - Division of Law
Request Denied: access to DOT appraisal denied October 15, 2002; access granted to Aftab appraisal October 3, 2003
GRC Complaint Filed: November 7, 2002

Executive Director's Findings and Recommendation

This complaint challenges the denial of an OPRA request to the Division of Law for appraisal reports "admitted into evidence at hearings before condemnation commissioners" on specific dates in Commissioner, DOT v. Aftab, Dkt No. BER-L-6884-00. There were two appraisals, one done for DOT and another, for Aftab. The Division recently provided requestor a copy of Aftab's appraisal under DOT regulations regulating access to material in DAG litigation files, alleging access was appropriate once the litigation concluded. However, the Division alleges DOT's appraisal remains confidential.

The denial is lawful and the Complaint should be dismissed. DOT proposed regulations made effective through EO21 prohibit access to "estimates, appraisals and costs of acquiring right-of-way prior to acquisition of all right-of-way on a project." N.J.A.C. 16:1A-3.2(a)2. DOT confidentiality regulations are binding upon the Division of Law pursuant to EO26 (August 13, 2002), Paragraph 4(d). A DOT Right-of-Way Manager has certified that acquisition of all right-of-way for the project in question had not yet concluded. The requester may submit another OPRA request for the appraisal at the completion of the road project.

The Executive Director respectfully requests that the Council find that:

1. The custodian provided access to the appraisal done for Aftab on October 3, 2003, citing DOT regulations permitting access to this record at the conclusion of the litigation (in this case, on July 12, 2003)
   
2. DOT's appraisal report is confidential pursuant to N.J.A.C. 16:1A-3.2(a)2 as made applicable to OPRA pursuant to Executive Order #21 (July 8, 2002) and is, therefore, confidential pursuant to OPRA until such time as all acquisitions for the road project in question are complete.
   
3. Neither facts nor case law support the requester's claim that confidentiality has been waived and, therefore, no hearing is appropriate.
   
4. Although the portion of the Complaint seeking access to the records can be dismissed, the Executive Director recommends that the Council reserve decision on custodian penalty and ask the custodian to fully explain all efforts made to locate the documents sought by the requestor and explain why the Aftab appraisal was not discussed in the custodian's October 15, 2002 reply to the OPRA request, the custodian's SOI or any subsequent Division correspondence, until March 2003.

Statement of Facts

On October 7, 2002 requestor sought from the Department of Law and Public Safety, Division of Law a "copy of appraisal reports admitted into evidence at hearings before condemnation commissioners" on specific dates in State v. Marc Aftab, Docket No. BER-L-6884-00. The litigation concerns Aftab's appeal from a Condemnation Commissioners' award (valuation) for Aftab property condemned by the Department of Transportation (DOT). The Division is counsel to DOT in that litigation.

When the request was made, the custodian believed that the Division's litigation file contained only an appraisal obtained by DOT. The custodian denied the request by e-mail dated October 15, advising that proposed DOT regulations prohibited access to estimates, appraisals and costs of acquiring right-of-way "prior to acquisition of all right-of-way on a project." N.J.A.C. 16:1A-3.2(a)2 (the "project" exemption.) DOT regulations defined "acquisition" to occur only after all condemnation litigation and non-litigated agreements to acquire such properties had been completed. The custodian stated that the acquisition of all right-of-way for the road project in question had not yet occurred and, accordingly, denied the request.

The OPRA Complaint was filed November 7, 2002. By letter dated January 17, 2003, requestor's counsel claimed that, in his view, the DOT rule intended only to prevent condemnees from acquiring DOT information prior to acquisition so as to preserve the State's bargaining position. Since the property had already been acquired, counsel argued the regulation no longer applied. Counsel also argued that DOT had "waived" the confidentiality by using the appraisal in evidence.

In a SOI dated February 3, 2003, the custodian explained DOT's appraisal was confidential by regulation and submitted a certification by DOT Right-of-Way Manager Nicholas J. Monahan stating that acquisitions for the project affecting the Aftab property Route 4, Section 2AC, were not yet completed.

By order issued February 13, 2003 and made effective February 28, the GRC voted to convene a hearing to determine, among other things, the manner in which appraisals are utilized in condemnation actions so as to assess whether confidentiality had been waived.

By letter dated February 27, 2003, DOT counsel requested a stay of the order on the grounds it received the Council's Order late and required time to prepare a response. On February 28, 2002, Chairman Maltese extended the effective date of the Order until March 7, 2003. DOT sought and received a further extension until March 11.

On or about March 4, the custodian became aware that the Division file contained not only DOT's appraisal but also an appraisal conducted on behalf of the property owner, Aftab. The circumstances of the custodian's discovery of the Aftab appraisal are unknown. By letter dated March 14, 2003, the Division advised Aftab counsel, Anthony F. Della Pelle, Esq., of Minuskin's OPRA request and stated that the project exemption applied to DOT appraisals only, not property owner appraisals. The Division speculated that language in the Aftab appraisal might prohibit public disclosure of the report, but advised Della Pelle that all objections would be waived unless he submitted his client's position to the GRC by March 21.

In early August, 2003, DAG Conklin telephoned Della Pella and advised him to submit any written objections to the GRC. To date, no written communication from Della Pelle or Aftab has been received by the GRC or the Division of Law. By letter dated October 3, 2003, the Division advised the GRC that it had provided a copy of Aftab's appraisal to Minuskin on the grounds that N.J.A.C. 16:1A-1.8(j)(2) (classifying confidential all records part of any case file maintained by a Deputy Attorney General acting on behalf of DOT) was moot since the litigation with Aftab had concluded.¹

However, the Division contends that DOT's appraisal is confidential until the completion of all acquisitions for that project pursuant to N.J.A.C. 16:1A-1.8(j)(1) and proposed N.J.A.C. 16:1A-3.2(a)(2).²

By letter dated March 14, 2003, the Division asked the Council to stay the matter until the custodian had an opportunity to review the audiotape of the February 13 GRC meeting and the Serrano decision.

By letter dated March 27, 2003, the Division advised the GRC that the audiotape was defective and that Division technicians would require time to decipher it. In addition, the custodian asserted that the March 19 Serrano decision suggested that the GRC had failed to afford the Division custodian adequate opportunity to object prior to the GRC decision to hold a hearing in the matter. For these reasons, the Division asked for a stay until 14 days following the custodian's receipt of the official transcript. The Division advises that it received a copy of the transcript on May 20th.

In its August 1st letter-brief, the Division cited Monahan's certification that the road project for which Aftab's property had been acquired was not yet complete and that DOT's appraisal was confidential until the completion of all acquisitions for that project pursuant to N.J.A.C. 16:1A-1.8(j)(1) and proposed N.J.A.C. 16:1A-3.2(a)(2). The Division also argued that the appraisal was an attorney-client communication and confidential under OPRA as well as N.J.A.C. 16:1A-1.8(j)(2) (classifying confidential all records part of any case file maintained by a Deputy Attorney General acting on behalf of DOT.) The Division stated that confidentiality had not been "waived": the appraisals had not been placed in evidence as part of the litigation.

¹ While the Division states that Della Pelle objected to disclosure of Aftab's appraisal because, among other reasons, the condemnation action had not yet concluded (March 24, 2003 letter), the Division later observed that no written objection had been received (August 6, 2003 letter-brief at p.6). The condemnation litigation, Commissioner, DOT v. Marc Aftab, concluded on May 28, 2003 by issuance of a Final Order of Judgment. Neither party filed a notice of appeal within the 45 days allotted for the filing, which expired on July 12, 2003. (August 1, 2003 Division letter-brief, p. 7).

² As of March 4, when the Division considered Aftab's appraisal confidential, the Division asked GRC to add Della Pelle's name to its service list. In light of DOT's subsequent release of Aftab's appraisal, there is no reason to do so.

Analysis

N.J.A.C. 16:1A-3.2(a)2 prohibits access to "estimates, appraisals and costs of acquiring right-of-way prior to acquisition of all right-of-way on a project." DOT defines "acquisition" to occur only after all condemnation litigation and non-litigated agreements to acquire such properties had been completed. These regulations were proposed on July 1, 2002 (34 N.J.R. 2199), but have not yet been adopted. However, EO21 (July 8, 2002) orders state agencies to handle OPRA requests in a manner consistent with their proposed rules and states that "the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order."

DOT confidentiality regulations are binding upon the Division of Law pursuant to EO26 (August 13, 2002), Paragraph 4(d) (exempting from access records of a department in the possession of another department when those records are made confidential pursuant to a regulation or an order authorizing the department to make records confidential or exempt from disclosure.) Modifications to proposed regulations posted pursuant to EO26 did not affect N.J.A.C. 16:1A-3.2(a)2.

It should be noted that DOT regulations pre-dating the 2002 proposal by at least a decade also classified appraisals as exempt "prior to the completion of a project." N.J.A.C. 16:1A-1.8(j). Inasmuch as the DOT Right-of-Way Manager's certification establishes further acquisitions are required for the road project in question (Route 4, Section 2AC), and the Division affirms three condemnation actions are still pending [Letter, October 3, 2003], the Council should find the DOT appraisal confidential under OPRA, affirm the custodian's denial of access and dismiss the Complaint.

Neither facts nor caselaw support Minuskin's claim that confidentiality was "waived" in this case. Accordingly, no hearing is appropriate. In general, confidentiality conferred by law cannot be "waived" in the absence of a regulation establishing the standards under which waiver can occur. No DOT regulation provides for waiver of the confidentiality provision. In Durkin v. State Police, GRC No. 2002-30, the Council affirmed this principle by affirming a denial of access to law enforcement interviews of persons with knowledge of organized crime because these interviews were deemed confidential pursuant to federal and state law, even though there was evidence the police had released portions to persons outside law enforcement.

Moreover, there is no proof the DOT appraisal was disseminated. As the Division notes in its August 1st letter-brief, appraisals are not admitted into evidence, either in hearings before Condemnation Commissioners or in appeals to Superior Court, Law Division. Instead, appraisers testify under oath as to their conclusions on valuation [Letter-brief, October 1, 2003, p. 11]. Rule of Evidence 705 permits experts to testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise.

Conclusion

For these reasons, it would be appropriate for the Council to conclude that the DOT appraisal in question is confidential pursuant to N.J.A.C. 16:1A-3.2(a)2 as made applicable to OPRA pursuant to Executive Order #21 and is, therefore, confidential pursuant to OPRA until such time as all acquisitions for the road project in question are complete. Since waiver of this provision is not an issue, no hearing is required. Although the portion of the Complaint seeking access to the records can be dismissed, the Council should withhold decision on custodian penalty and ask the custodian to fully explain all efforts made to locate the documents sought by the requestor and explain why the Aftab appraisal was not discussed in the custodian's October 15, 2002 reply to the OPRA request, the custodian's SOI or any subsequent Division correspondence, until March 2003.

Paul F. Dice,
Acting Executive Director
Government Records Council

Dated: November 6, 2003

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