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2002-91

- Final Decision on Access
- Findings and Recommendations of Executive Director

Final Decision on Access

Rose Rosenbaum,
Complainant
v.
Rutgers University,Custodian of Record
Complaint No. 2002-91
Decision Issued: January 8, 2004
Decision Effective: January 23, 2004

At its January 8, 2004 public meeting, the Government Records Council considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt said Findings and Recommendations with a modification in the Executive Director’s recommendation regarding the timeliness of the custodian’s response. The Council, therefore, finds that:

  1. The survey responses sought by the requestor are academic research records exempted from disclosure under N.J.S.A. 47:1A-1.1.
  2. The privilege of confidentiality or non-disclosure was not waived because the New Jersey State Legislature considered the use of this survey for a bill.  Unlike a common law or regulatory privilege, a statutory exemption cannot be waived.
  3. The custodian responded to the request in a timely manner given that she complied with the request within seven business days from the time she received it.
  4. The complaint is 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 of Executive Director

Rose Rosenbaum,
Complainant
v.
Rutgers University,
Custodian of Record
Complaint No. 2002-91

Relevant Records Requested: Written Responses to an Opinion Survey Questionnaire conducted by the Center of Wildlife Damage Control (Rutgers University) in 1998
Request made: July 23, 2002
Response made: August 23, 2002
Number of Business Days for the Response: 22 business days 
Custodian: Leslie Fehrenbach, Rutgers University Custodian
GRC Complaint filed:  November 21, 2002

Executive Director's Recommendations
The requestor is seeking copies of responses to an Opinion Survey Questionnaire conducted by the Center of Wildlife Damage Control (“Center”), a unit of the New Jersey Agricultural Experiment Station (“NJAES”), which is a component of Rutgers, The State University of New Jersey (“Rutgers”).   The survey collected information concerning crop damage attributable to the white-tailed deer from more than 4000 agricultural producers throughout New Jersey.  The survey responses gathered by the Center constitute academic research records of a research project conducted under the auspices of a public higher education institution in New Jersey. 
Secondly, the requestor argues that the Center waived its right to claim that the survey responses are exempted from disclosure under OPRA because survey data was shared with members of the New Jersey Legislature during consideration of a bill concerning issues raised by the burgeoning population of white-tailed deer in this State.
The Acting Executive Director respectfully recommends to the Council that they find that:

1.   The survey responses sought by the requestor are academic research records exempted from disclosure under N.J.S.A. 47:1A-1.1.

2.   The privilege of confidentiality or non-disclosure was not waived because the New Jersey State Legislation considered the use of this survey for a bill.  Unlike a common law or regulatory privilege, a statutory exemption cannot be waived.

3.   The custodian responded to the open public records request 22 days after the initial written letter dated July 23, 2002 from the requestor.  The University’s response was not in a timely manner.  The custodian submitted a certification regarding her actions. 

Statement of Facts

July 23, 2002 - Records Request
The requestor, Ms. Rose Rosenbaum, submitted a written request for the responses to an Opinion Survey Questionnaire conducted by the Center of Wildlife Damage Control in 1998.  Dr. John Grande of Rutgers University’s Snyder Research and Extension Farm received this written request.

August 23, 2002 – Custodian’s Denial of Access
The Rutgers University custodian, Ms. Leslie Fehrenbach, provided a written response to Ms. Rosenbaum.  The custodian cited that the information requested was research records and that academic records are exempt under the Open Public Records Act.  As a result, the university denied Ms. Rosenbaum’s request.

September 1, 2002 - Requestor’ Response
The requestor wrote a letter to Dr. Grande questioning the decision of Rutgers University for denying this request.  In her letter, she argues that the information was used as justification for bill A-2387 and as such, waves the privilege granted under the auspices of academic records.

September 10, 2002 - Custodian’s Response
Dr. Grande wrote back to requestor advising her to contact the university’s custodian of records with any future concerns or questions regarding the decision.

September 15, 2002 - Requestor's Response #2
Similar to her letter to Dr. Grande on 9/1/03, Ms. Rosenbaum appealed to the custodian to reconsider this decision citing once again bill A-2387.

November 21, 2002 - Denial of Access Complaint Filed

December 1, 2002 - Mediation Accepted by Requestor   

December 2, 2002 - Mediation Accepted by Custodian

June 4, 2003 - Mediator's Response to Government Records Council
The mediator, Ms. Fran Snyder, indicated that mediation failed and that the case would be referred back to the Government Records Council.

August 19, 2003 - Submission of Statement of Information
The custodian’s counsel, Carpenter, Bennett & Morrissey submitted the SOI stating:

1.   That the custodian received the Open Public Records Act (OPRA) request from Ms. Rosenbaum on August 14, 2002.

2.   That the respondents to this survey would be kept completely anonymous according to a January 2, 1998 letter transmitting the survey to New Jersey (NJ) farm operators.

3.   That, even after redacting the names of NJ farmers, the information remaining on the survey responses would permit the identities of many of the survey respondents to be determined.  The counsel claims that since the remaining information includes the county, township, nearest intersection and size of the farm in question, many respondents could still be identified.

4.   That the custodian, after receiving the request for this information and upon researching the nature of the requested documents, concluded that the survey responses were obtained by the Rutgers University in connection with an academic research project concerning the manner in which white-tailed deer affect agriculture in New Jersey.

5.   That the survey responses sought by the requestor are not subject to the disclosure requirements of Open Public Records Act (OPRA) because they are public higher education research records excluded from the definition of government record under N.J.S.A. 47:1A-1.1. 

“a government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

Pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available.”

6.   That Rutgers, the State University of New Jersey is a public higher education institution in New Jersey.

7.   That the requested survey responses are academic research records which contain specific details of a research project conducted under the university’s auspices.
Along with this SOI, the custodian included the following documents that support the University's Statement of Information:

  • An affidavit of John Grande, the Director of the Snyder Research and Extension Farm, identifying the purpose of the research survey and the history of the project
  • An affidavit of Keith Cooper, Acting Dean of Cook College, Acting Executive Dean of Agriculture and Natural Resources and Acting Executive Director of the New Jersey Agriculture Experiment Station presenting the reasons for not disclosing this information
  • An affidavit of Lesley Fehrenbach, the custodian, providing her actions in response to this request, and 
  • A certification of James P. Lidon validating the affidavits as genuine

December 8, 2003 - Submission of Certification Regarding an Explanation of the Custodian’s Actions

December 29, 2003 - Preliminary Findings and Recommendations sent to Respective Parties

December 30, 2003 - Custodian’s Request for an Extension

December 31, 2003 - Counsel for Records Custodian’s Response to PFR
The counsel for the records custodian responded in writing to the GRC by objecting to the amount of period granted for review of the PFR.  The counsel claimed that they had less than two business days to analyze and formulate a response to these findings. 

In addition, the counsel disagreed with the finding that the custodian had responded to the requestor’s initial request in an untimely manner.  The counsel argued that the PFR is erroneous for the following reasons:

  • In their assumption that the response period began to run on the date written on a request which was directed to a non-custodian officer or employee of the University
  • In their assumption that the requestor’s unofficial request, rather than her subsequently completed Request for Government Record form, initiated the running of the seven business-day response period

Finally, the counsel requested that the PFR be amended to delete recommended file no. 3 and that the University and its custodian be permitted to review and comment on any Revised Preliminary Findings before they are presented to the GRC. 

Legal Issues and Considerations

The requestor is seeking copies of responses to an Opinion Survey Questionnaire conducted by the Center of Wildlife Damage Control (“Center”), a unit of the New Jersey Agricultural Experiment Station (“NJAES”), which is a component of Rutgers, The State University of New Jersey (“Rutgers”).  The survey collected information concerning crop damage attributable to the white-tailed deer from more than 4000 agricultural producers throughout New Jersey.  N.J.S.A. 47:1A-1.1 provides, in pertinent part, that:

“A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research ..., except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available....”

Rutgers is a public institution of higher education of the State of New Jersey.  See N.J.S.A. 18A:65-2.  NJAES is a statutory component of Rutgers.  See N.J.S.A. 18A:65-3, -46 and -51.  The Center is a unit of NJAES.  Cooper Aff., ¶5.  The survey   collected data to be analyzed in the course of academic research and scholarly publication.  Grand Aff., ¶9.  The survey responses gathered by the Center constitute academic research records of a research project conducted under the auspices of a public higher education institution in New Jersey.  They are excluded from the statutory definition of government records, and are not permitted to be disclosed under OPRA. 

The requestor argues that the Center waived its right to claim that the survey responses are exempted from disclosure under OPRA because survey data was shared with members of the New Jersey Legislature during consideration of a bill concerning issues raised by the burgeoning population of white-tailed deer in this State.  The plain language of OPRA excludes academic research from the definition of “government records”.  Nothing in the statute supports the argument that any dissemination of academic research transforms those documents into “government records.”  Unlike a common law or regulatory privilege, a statutory exemption cannot be waived.  The survey responses sought by the requestor are academic research records exempted from disclosure under N.J.S.A. 47:1A-1.1.

Conclusions

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends the Council find that:

  1. The survey responses sought by the requestor are academic research records exempted from disclosure under N.J.S.A. 47:1A-1.1.
  2. The privilege of confidentiality or non-disclosure was not waived because the New Jersey State Legislation considered the use of this survey for a bill.  Unlike a common law or regulatory privilege, a statutory exemption cannot be waived.
  3. The custodian responded to the open public records request 22 days after the initial written letter dated July 23, 2002 from the requestor.  The University’s response was not in a timely manner.  The custodian submitted a certification regarding her actions. 

Paul F. Dice
Acting Executive Director
Government Records Council

Dated:  December 31, 2003

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