2002-98

Final Decision

At its February 10, 2004 public meeting, the Government Records Council ("Council") considered the February 10, 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. The Council dismissed the complaint on the basis that the custodian provided a certification stating that all the information that Kean University has on file and which is responsive to the October 16, 2002 Open Public Records Act request have been provided.

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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Supplemental Findings and Recommendation of Executive Director

Janice Jackson
Complainant
vs.
Kean University
Custodian of Record

Relevant Records Requested: Names of those Kean University employees who were granted paid leaves of absence, the dates of the leaves, the employee’s regular salary and the salary during the leave of absence
Request made: October 16, 2002
Custodian: Tina Lisa
Request denial: November 5, 2002
GRC Complaint filed: November 22, 2002

Acting Executive Director's Supplemental Findings and Recommendation

The Council considered this case at its January 8, 2004 meeting. At that meeting the Council directed Acting Executive Director Dice to elicit a certification from the custodian stating that the information she sent to the requestor on December 10, 2003 represents the entirety of what Kean University has on record and which is responsive to the requestor's October 16, 2002 Open Public Records Act (“OPRA”) request.

In keeping with the Council's January 8, 2004 Interim Order, the custodian provided a certification stating that she has provided all the information that Kean University has on record and which is responsive to the request. Therefore, the Acting Executive Director respectfully recommends that the Council dismiss this complaint.

Legal Analysis

No further legal analysis is needed in this case.

Paul F. Dice, Acting Executive Director

Government Records Council

Dated: February 10, 2004

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Interim Order

At its January 8, 2004 public meeting, the Government Records Council (“Council”) considered the following received in response to the Council’s November 13, 2003 Final Decision:

1.      December 10, 2003 letter from custodian enclosing the requested information pursuant to the Council’s November 13, 2003 Final Decision.

2.      Paul Dice’s verbal recount at the open session of the January 8, 2004 meeting of a telephone conversation of the same date that Gloria Luzzatto of the GRC had with the requestor. The requestor informed Luzzatto that the information she received did not contain the leave of absence information she’s seeking for a particular individual.

On the basis of the above, the Council unanimously voted to direct the Acting Executive Director to elicit a certification from the custodian stating that the information she provided to the requestor represents the entirety of what Kean University has on record and which is responsive to the request, with the appropriate redactions, pursuant to the Open Public Records Act.

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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Final Decision

At its November 13, 2003 public meeting, the Government Records Council considered Complaint No. 2002-98 pursuant to OPRA and the November 6, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties concerning access to leave of absence information for certain individuals.

The Council voted unanimously to accept the November 6, 2003 Recommendations of Executive Director that states:

1. Kean University should disclose existing documentation that is responsive to the request with appropriate redactions pursuant to OPRA provisions. Such disclosure should be made within ten business days following receipt of the Council's Order.
   
2. The remaining portions of the complaint should be dismissed. In dismissing these portions of the complaint, the Council should find that:
   
   1. The University is not responsible for developing a list of government documents maintained by the organization.
      
   2. There is no indication that the form lacks compliance with OPRA. Further, there is neither legislative intent nor statutory obligation for the university to prepare a list of government documents.
      
   3. The custodian responded to the request in a timely manner given that the response was made within the extension of time granted by the requester.
      
   4. The custodian's alleged statement that the University did not have an obligation to create a document was apparently in response to a different OPRA request and is not before the GRC for adjudication.

The Council hereby orders the custodian to comply with the above recommendations.

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: Names of those Kean University employees who were granted paid leaves of absence, the dates of the leaves, the employee's regular salary and the salary during the leave of absence
Request made: October 16, 2002
Custodian: Tina Lisa
Request denial: November 5, 2002
GRC Complaint filed: November 22, 2002

Executive Director's Recommendation

This case primarily involves a complaint for denial of access to leave of absence documentation. Custodian's counsel contends that the Open Public Records Act's ("OPRA") personnel and pension provision, N.J.S.A. 47:1A-10, does not permit the release of such documentation. In light of such a provision, she argues, access should not be granted. She further states that leave of absence documentation often contains personal and confidential information that is also not releasable under N.J.S.A. 47:1A-10.

Custodian's counsel also discusses OPRA's specific provision for release of "payroll records." She states that that provision does not pertain in this case because Kean University's Human Resources Department maintains leave of absence documentation, not the Payroll Department. Thus, the university does not include leave of absence documentation as part of payroll records. Also, the University does not maintain a list of paid leave recipients, so they could not produce one even if the requester was entitled to the list.

In her complaint, the requester also discusses the matter of Kean University's request form asking people to be as specific as possible in identifying desired records. Requester contends that the University should publish a list of all government documents so that requesters will know what to ask for and how much to expect for copy charges.

With respect to a list of government documents pertaining to the University, custodian's counsel contends that requesters are not required to identify specific documents. The university is just seeking as much detail on the subject matter as possible for purposes of identifying the document requested. Further, she states that to create such a list would be burdensome and entirely unnecessary.

The Acting Executive Director respectfully recommends that the Council find that:

1. Kean University should disclose existing documentation that is responsive to the request with appropriate redactions pursuant to OPRA provisions. Such disclosure should be made within ten business days following receipt of the Council's Order.
   
2. The remaining portions of the complaint should be dismissed. In dismissing these portions of the complaint, the Council should find that:
   
   1. The University is not responsible for developing a list of government documents maintained by the organization.
      
   2. There is no indication that the form lacks compliance with OPRA. Further, there is neither legislative intent nor statutory obligation for the university to prepare a list of government documents.
      
   3. The custodian responded to the request in a timely manner given that the response was made within the extension of time granted by the requester.
      
   4. The custodian's alleged statement that the University did not have an obligation to create a document was apparently in response to a different OPRA request and is not before the GRC for adjudication.

Statement of Facts

October 16, 2002 - Records request
The requester made a request for the names of those Kean University employees who were granted paid leaves of absence, dates of the leaves, the employee's regular salary and the salary during the leave of absence for the period of September 2000 through October 2002.

October 25, 2002 - Approval for extension
The custodian's November 5, 2002 disposition report indicates that an extension was approved. No further information is noted in regard to the extension.

November 5, 2002 - Custodian's denial of access
The custodian submitted a response denying the request and asserting that personnel records in the possession of a public entity are not disclosable unless they fall within an exemption under N.J.S.A. 47:1A-10.

November 22, 2002 complaint filing
The requester filed a denial of access complaint in the form of a letter and stating that she wishes to appeal the custodian's denial to provide the requested records. Further, she requests that the Council direct Kean University to provide a complete listing of all government records in their possession made available to the public under the Open Public Records Act ("OPRA").

Requester also stated her belief that the University's compliance and denial are being handled in a manner that may compromise the spirit and intent of OPRA. She states that the University's request form asks requesters to be as specific as possible in identifying the record to expedite the request. In response to a separate OPRA request she had filed, the custodian stated that under OPRA, the University is not required to create a record to satisfy a request and that no record existed which contained all of the requested information. In the current matter, the requester asked how taxpayers could request government records unless they are advised how to identify the records made available under OPRA, how many pages comprise the record and the copying charge.

March 11, 2003 - Submission of documentation
The submission includes:

1. The October 16, 2002 records request (referenced above)
   
2. The custodian's November 5, 2002 disposition record that evidences an approved extension to October 25, 2002 (referenced above).
   
3. The requester's November 22, 2002 letter referencing her request for appeal (referenced above)
   
4. A statement that she agrees with the university that mediation would not be helpful.
   
5. A November 23, 2002 letter from the requester to the custodian stating the issues surrounding a separate OPRA request. She states that she has appealed the custodian's November 5, 2002 denial and that she has requested the Government Records Council ("GRC") to review the instructions on the university's request form as she believes some of the content of same may be compromising the spirit of OPRA. She suggests that perhaps there should be a public listing of what the university considers to be public records.

July 7, 2003 - Submission of Statement of Information ("SOI")
The custodian's counsel, DAG Andrea R. Grundfest, submitted the SOI stating:

1. That the custodian received the OPRA request on October 17, 2003.
   
2. That the custodian obtained two extensions through November 18, 2002, for responding.¹
   
3. That dissemination of information concerning the use of leave time is precluded by OPRA.
   
4. That the language of N.J.S.A. 47:1A-10 mirrors New Jersey's prior law. Regarding the prior law, she argued that even if a personnel document could be considered a public record under the prior Right to Know Law, the combined effect of Executive Order Nos. 9 and 11 could prohibit disclosure.
   
5. That the court in Collins v. Camden County Dept. of Health, 200 N.J. Super. 281, (Law Div. 1984), interpreted the language in the Executive Orders as allowing the release of only such insignificant data that does not invade a person's legitimate right to privacy.
   
6. That the requested information does not fall within any of the exceptions to OPRA's exemption for personnel records. The custodian's counsel also argued that information about leaves, often confidential, is the kind of data the personnel exemption is meant to protect.
   
7. That with regard to the requester's allegation that the University's handling of OPRA requests may compromise the spirit and intent of the law, the custodian's counsel asserted that the requester misconstrues the purpose of OPRA. She stated that the request form enables a citizen to inform the University of the subject matter of the records desired. The more specific the subject matter, the quicker the University will be able to identify the pertinent documents.
   
8. That OPRA establishes a right to existing records, not undocumented information. Because the University does not ask a requester to specifically identify documents, there is no need for the requester to have a complete list of all government records.
   
9. Her argument that granting the requester's demand for a list of all government records would be impossibly burdensome and completely unnecessary.
   
10. A request for dismissal of the Complaint, because the requester's claims are without factual basis and are frivolous.

August 1, 2003 - GRC request for explanation of university's position regarding denial of access
Paul Dice, Assistant Executive Director of the GRC, wrote to the custodian and asked for an explanation of why the requested information does not fall within the exceptions to N.J.S.A. 47:1A-10.

August 11, 2003 - Custodian counsel's response to the GRC regarding why the request should not be granted
The custodian's attorney responded stating:

1. That the requester was entitled to the name, title, position and salary of University employees but is not entitled to a partial list of those categories if it would automatically convey confidential information.
   
2. That the categories of length of service, date of separation, reason for separation and amount and type of pension received are not relevant to a request for paid leave documents, which do not constitute a break in service, separation or receipt of pension.
   
3. Her conclusion that paid leave could only be subsumed, if at all, within the "payroll record" exception. She stated that information concerning paid leaves is not sent to the University's Payroll Office but, rather, is generated by the Office of Human Resources and remains in each employee's personnel file. The University does not generate a payroll record for paid leaves because there is no change in salary.
   
4. That information concerning paid medical leaves charged to accumulated sick time for career service employees, but not for managerial, professional or faculty employees, is sent to the New Jersey Department of Personnel's (NJDOP) Personnel Information Management System ("PIMS"). She argued that as the information in the PIMS has no effect on the employee's salary, it should not be considered a payroll record.
   
5. That during the relevant time period, the University's Office of Human Resources did not, in practice, convey paid leave information about classified employees to PIMS.
   
6. She stated that the information could be reconstructed.
   
7. She also noted that the University does not have a list of paid leave recipients and so would not have a record to produce even if the requester were entitled to it.
   
8. She asserted that paid leaves most often occur for sensitive personal or medical reasons or due to pre-disposition suspensions for disciplinary charges that are not ultimately sustained. Therefore, dissemination of leave information would jeopardize the confidentiality of events for which University employees have a legitimate expectation of privacy.

The custodian's attorney supported her letter brief with an Affidavit of the custodian dated August 11, 2003. In the Affidavit, the custodian swore that records containing information about paid leaves for University employees are created for and maintained in personnel files in the Office of Human Resources only. Because paid leave status does not impact salaries, no such records are distributed to the University's payroll office. For classified career service employees only, copies of paid and unpaid leave statistics are conveyed to the New Jersey Department of Personnel for inclusion in the PIMS.

The requester did not respond to the custodian's Statement of Information, August 11, 2003, letter or the Affidavit.

¹The custodian’s attorney attached an e-mail dated November 5, 2002 from the requester to the custodian. In the e-mail, the requester acknowledged the custodian’s requests for extensions of time to respond to the request and noted that while she had been cooperative, she could not wait much longer and would submit an appeal to the GRC if she had not received the records by November 18, 2002. She stated that thirty days is an excessive amount of time to comply with the request. The custodian’s attorney also attached an e-mail dated November 8, 2002 from the custodian to the requester stating that the dispositions on her OPRA requests were ready and could be picked up.

Analysis

Assuming for purposes of this request that the requested leave of absence information is a personnel record, a reasonable interpretation of the relevant law allows for disclosure of the requested information under the payroll record exception to the confidentiality of personnel records. Specifically, a person's name and salary are subject to disclosure under N.J.S.A. 47:1A-10. The requested paid leave of absence information is also subject to disclosure under N.J.S.A. 47:1A-10 as part of an employee's payroll record. That statute provides that:

Notwithstanding the provisions of P.L. 1963, c.73 (C.47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:

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;

Neither OPRA nor Executive Order #11² defines the term "payroll record". Thus, we look to the ordinary meaning of that term, and are informed by other regulatory provisions defining that phrase. "Payroll" is defined as a list of employees to be paid and the amount due to each of them. Black's Law Dictionary (7th Ed., 1999). It is also clear that documents included within the payroll record exception are, in part, records required by law to be maintained or reported in connection with payment of salary to employees and is adjunct to salary information required to be disclosed. In this regard, N.J.A.C. 12: 16-2.1, a Department of Labor regulation entitled "Payroll records," requires the following:

Every employing unit having workers in employment, regardless of whether such unit is or is not an "employer" as defined in the Unemployment Compensation Law, shall keep payroll records that shall show, for each pay period:

1. The beginning and ending dates;
   
2. The full name of each employee and the day or days in each calendar week on which services for remuneration are performed;
   
3. The total amount of remuneration paid to each employee showing separately cash, including commissions and bonuses; the cash value of all compensation in any medium other than cash; gratuities received regularly in the course of employment if reported by the employee, or if not so reported, the minimum wage rate prescribed under applicable laws of this State or of the United States or the amount of remuneration actually received by the employee from his employing unit, whichever is the higher; and service charges collected by the employer and distributed to workers in lieu of gratuities and tips;
   
4. The total amount of all remuneration paid to all employees;
   
5. The number of weeks worked.

The State of New Jersey, as well as its constituent agencies, is an employing unit. (See N.J.S.A. 43:21-19, a statute entitled "Definitions" in Article 1 of the Unemployment Compensation Law, which defines "employing unit" to mean the State or any of its instrumentalities or any political subdivisions.) Therefore, the State is required to keep payroll records in accordance with N.J.A.C. 12:16-2. By the same token, Kean University, as an instrumentality of the State, is an employing unit. See N.J.S.A. 18A:62-1 and 18A:64-21-1 (Governor continues as public employer for purposes of negotiation by state colleges.)

Additionally, because certain types of sick leave payments are treated as wages within the meaning of the Unemployment Compensation and Temporary Disability Benefits laws for both tax and benefit entitlement purposes, the payroll record should include the type of leave so that it may be treated appropriately for tax and benefit purposes. See N.J.A.C. 12:16-4.2.

Based upon the above, an employee's payroll records should include information that will allow a person to determine whether an employee took a leave of absence, the dates of the leave, whether it was paid, and if so, the amount of salary received for the paid leave of absence. For example, if a payroll record is for a two week period, and the employee is paid $52,000.00 a year³, and has taken a paid leave of absence of one week for that pay period, the payroll record should show that the employee actually worked one week, took one week of leave and received $2,000.00. The fact that the employee received her full salary during the pay period, even though she took a week of leave, shows that it was a paid leave of absence. Therefore, the relevant law supports a conclusion that the requested information should be disclosed.⁴

Regarding the requestor's request that the Council direct the University to provide a complete list of its government records, OPRA does not require such a listing. Indeed, the legislative history of OPRA reveals that the Legislature at first considered requiring agencies to create such lists but later deleted that requirement from the final version of the law. It is doubtful, therefore, that the Council has the jurisdiction to order such a listing. Concerning the requestor's Complaint that the University's handling of OPRA requests may violate the spirit and intent of the law, the GRC's authority to address such an issue is in the context of a denial of access of a specific government record.⁵ The only complaint concerning denial of access pending before the GRC is the alleged denial of paid leave of absence information. The custodian's handling of this request did not violate the intent and spirit of the law. The fact that the form upon which the request was made, asked the requestor to be as specific as possible in identifying the record is not a violation of OPRA. Such request is designed to facilitate timely access to records. Concerning the requestor's statement that the custodian responded that the University did not have an obligation to create a document, this statement was apparently in response to a different OPRA request. The requestor has not included an alleged denial of this request as part of her current Complaint and thus it is not before the GRC for adjudication.

The case also addresses Kean University's OPRA request form and whether they should prepare a list of government documents that pertain to the institution. The Acting Executive Director respectfully recommends that the Council dismiss these portions of the complaint as the facts do not support the need for adjudicatory action.

²Executive Order #11 exempted personnel records from disclosure under the Right to Know Law but excepted out payroll records from that exemption.

³ An employee’s salary is subject to disclosure under N.J.S.A. 47:1A-10. Additionally, the amount an employee would receive during a pay period can be ascertained by looking at a payroll record where no leave of absence was taken.

⁴It is not necessary here to address whether the reason for the leave is subject to disclosure because that information has not been requested.

⁵Additionally, regarding the requestor’s concern that the request form asked requestors to be as specific as possible, the general OPRA request form used by other state agencies also asks that requestors be as specific as possible to expedite the request.

Conclusion

The Acting Executive Director respectfully recommends that the Council find that:

1. Kean University should disclose existing documentation that is responsive to the request with appropriate redactions pursuant to OPRA provisions. Such disclosure should be made within ten business days following receipt of the Council's Order.
   
2. The remaining portions of the complaint should be dismissed. In dismissing these portions of the complaint, the Council should find that:
   
   
   1. The University is not responsible for developing a list of government documents maintained by the organization.
      
   2. There is no indication that the form lacks compliance with OPRA. Further, there is neither legislative intent nor statutory obligation for the university to prepare a list of government documents.
      
   3. The custodian responded to the request in a timely manner given that the response was made within the extension of time granted by the requester.
      
   4. The custodian's alleged statement that the University did not have an obligation to create a document was apparently in response to a different OPRA request and is not before the GRC for adjudication.

Paul F. Dice, Acting Executive Director
Government Records Council

Dated: November 6, 2003

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