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2003-113

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

C.W.
   Complainant
      v.
William Paterson University
   Custodian of Record

Complaint No. 2003-113

 

At its June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 2005 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, re-affirmed its November 9, 2004 Final Decision in its entirety without amendment or qualification. 

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 9th Day of June, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  June 14, 2005

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Supplemental Findings and Recommendations of the Executive Director

C.W.                                                      GRC Complaint No. 2003-113
Complainant
       v.
William Paterson University
Custodian of Records

Records Requested:

  1. Three witness statements relative to the activities of C.W.on January 23, 2003
  2. “Record Request Document” from Complainant’s disciplinary file, and any other documents maintained by the Department of Residence Life and the Office of Dean of Student Development listing persons who have gained access to Complainant’s disciplinary file
  3. University restriction list as of 1/23/03

Request Made: 8/21/03
Response Made: 9/3/03
Custodian:   Marc Schaeffer – William Paterson University
GRC Complaint filed: 9/4/03

Background
At its November 9, 2004 meeting, the Government Records Council (Council) voted unanimously to amend the Findings and Recommendations of the Executive Director’s after considering the Custodian’s November 8, 2004 certification. The Council dismissed the case on the basis of:

  1. The Custodian’s certification that there are no separate records of witness statements responsive to the request.
  2. The Custodian’s certification that there are no records responsive to the request for “record request document from Complainant’s disciplinary file.”
  3. The request for the “restriction list” was properly withheld pursuant to the Federal Educational Rights and Privacy (FERPA), specifically, 20 U.S.C.A. 1232g and is not abrogated by the Open Public Records Act (“OPRA”) pursuant to N.J.S.A. 47:1A-9
  4. The Custodian violated N.J.S.A. 47:1A-5(g) by requiring the Complainant to use the University’s request form.  However, the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

In a November 13, 2004 letter, the Complainant alleges that the Custodian’s certification of its position is “defective” because it misrepresents that the positions of resident director and area coordinator are one in the same when a William Paterson University (WPU) policy indicates that the two are separate and distinct. Further, Complainant alleges that the Council did not have the benefit of reviewing certain documents pertaining to the case. The Complainant also raised issues of due process in a December 15, 2004 letter to the Council.

Based on the unique circumstances surrounding the alleged facts in this case, the Council’s Executive Director re-opened the case in order to provide the Complainant with an opportunity to present “arguments and/or documentation that were not incorporated into our cases-handling process” and to offer the Custodian an opportunity to respond to same.

Council staff sent both parties complete copies of all records received by the Council to date and elicited their positions.

Analysis

WHETHER the Council has the right to reconsider this case following the issuance of its November 18, 2004 Final Decision?

Custodian’s counsel argues that the Open Public Records Act (OPRA) does not provide the Council with the statutory authority to reconsider this case. Counsel indicates that disputes involving Council decisions should be addressed by appeals of said decisions to the Appellate Division of Superior Court. N.J.S.A. 47:1A-7(e).

Custodian’s counsel has erred in its narrow interpretation of the Council’s duties under OPRA. OPRA states that the Council shall “initiate an investigation concerning the facts and circumstances set forth in the complaint.” N.J.S.A. 47:1A-7(e). The Council’s Executive Director concluded that based on the Complainant’s statements that pertinent arguments and documents had not been reviewed, the Council’s investigation into the issues of GRC Complaint No. 2003-113 case might not be complete. Therefore, in order to fully execute its duties under N.J.S.A. 47:1A-7(e), the Council is obligated to re-open this case.

The Council should conclude that it is within its statutory authority to re-open this case.

WHETHER the Custodian’s statement in its Statement of Information for GRC Complaint #2003-109 that it would address items three and four in its response to GRC Complaint #2003-113 compromised Complainant’s positions?      

Complainant contends that he cannot find any “authoritative policy which would allow the Respondent such license or any authoritative policy or procedure that allows GRC staff to arbitrarily amend a Complaint and transfer portions to another case.”

The OPRA states that the Council shall “receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access complaint.” N.J.S.A. 47:1A-7(b). Since the OPRA is silent on how those tasks are to be accomplished, it is within the Council’s purview to determine appropriate courses of administrative action, not the Complainant’s.

Complainant’s assertion is a form-over-function argument. The Custodian’s reference to answering sections three of four of GRC Complaint #2003-109 in its answer to GRC Complaint #2003-113 is wholly appropriate given that Complainant’s itemized list of issues in 2003-109 is repeated, in part, in 2003-113. With scrutiny and analysis of case issues predicated on facts, not assigned complaint numbers, the Complainant’s positions have not been compromised in any way.

The Council should conclude that this portion of Complainant’s allegations would not have altered its Final Decision of November 9, 2004.

 

WHETHER additional documentation allegedly not received by the GRC regarding the Custodian’s actions would have altered the Council’s determination that the Custodian did not knowingly and willfully violate OPRA by imposing the use of an OPRA request form?

Complainant contends that Council staff’s conclusion that the Custodian violated OPRA but that the action did not rise to a knowing and willful violation in the totality of the circumstances was “no doubt because it appeared that Schaeffer’s action was an isolated incident.” Complainant cites an August 7, 2003 communication he allegedly sent to the Custodian, which states, in part, “Mr. Schaeffer, under OPRA I don’t have to make a request on your, or any form. It is your statement that I must use your form is yet another barrier to access that the University is attempting employ (sic) and such will be incorporated into my complaint to the GRC.”

The existence of the cited communication, as written and presented by the Complainant, would not have resulted in a recommendation by the staff that the Council find that the Custodian’s actions rise to the level of a knowing and willful OPRA violation. N.J.S.A. 47:1A-11.

The Council should conclude that this portion of Complainant’s allegations would not have altered its Final Decision of November 9, 2004.

WHETHER WPU’s Public Records Request Form is in violation of the OPRA?

The Complainant acknowledges that this was not part of his original complaint. Since the Executive Director only re-opened this case for the purpose of reviewing arguments and documents that relate to the issues in the original complaint, the Council should not consider this issue within the scope of its re-opening of GRC Complaint #2003-113.

WHETHER the Custodian provided a lawful response to Complainant’s OPRA request regarding the request for the three (3) witness statements?

Complainant asserts that because his “original request was not specific, Schaeffer continued to insist that the police reports were responsive, that the witness statements did not exist separately but were rather in those police reports and no further requests or supplements on the issue would be considered by his office.”

Considering the July 29, 2003, August 14, 2003 and August 19, 2003 requests, the Complainant has phrased his request in three different ways. A review of the Custodian’s September 3, 2003 response indicates that the Custodian responded to the more specific August 19, 2003 phrasing.

The Complainant requests that the Council “compel the Respondent to release all documents representing written exchanges between the University, its Records Custodians and Complainant specific to the (3) witness statements.” Further, the Complainant requests that the Council elicit another certification from the Custodian with yet another phrasing of the request.

Nothing that Complainant has submitted is compelling enough or effectively rebuts the Custodian’s November 8, 2004 certification that states “[t]here is no government record that can be provided to the Complainant in response to this request.” The Custodian has borne its burden of proving that its actions in this regard were appropriate. N.J.S.A. 47:1A-6.

The Council should conclude that this portion of Complainant’s allegations would not have altered its Final Decision of November 9, 2004.

WHETHER the Custodian’s November 8, 2004 certification is “defective” as described by the Complainant’s November 13, 2004 characterization of same in regard to the three (3) witness statements?

The Complainant states that a published WPU policy “clearly delineates that the positions of the Resident Director (RD) and Area Coordinator are separate and not the same as certified by the Custodian.”  The Custodian indicates in his certification that the Resident Director and the Area Coordinator are the same person.

The Complainant’s assertion in this regard is neither compelling nor relevant. The issue is not whether the positions are separate and distinct or whether one person occupies both positions. What is at issue is whether the three (3) witness statements, as requested, exist. The Custodian has provided an unwavering answer to the contrary. The Complainant has not effectively rebutted that position.

The Council should conclude that this portion of Complainant’s allegations would not have altered its Final Decision of November 9, 2004.

WHETHER the Custodian’s denial of access to the Restriction List was lawful under OPRA?

The Complainant asserts that Custodian’s counsel, “has not provided any statutory references except for a federal reference to the entire Family Educational Rights and Privacy Act.”

On September 4, 2004 the Custodian denied access to the Restriction List because “You (the Complainant) have requested educational records that are personally identifiable to WP students. The University is prohibited from disclosing such records by Federal law, namely, the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g.” Custodian’s counsel reiterated that position in the October 22, 2004 Statement of Information.

On March 7, 2005, and at the request of Council staff, Custodian’s counsel clarified its position. Counsel states that the Restriction list is an “education record” as defined in FERPA. U.S.C. 1232g(a) (4) (A). Counsel goes on to state that disclosure of education records to third parties is contingent on written consent of the student. U.S.C. 1232g(b) (1) and (b) (2) (A). 

Disclosure of the Restriction List is not warranted under OPRA because of the applicability of Federal law. N.J.S.A. 47:1A-9(a). The Custodian has borne its duty of proving that the denial of access was lawful. N.J.S.A. 47:1A-6.

The Council should conclude that this portion of Complainant’s allegations would not have altered its Final Decision of November 9, 2004.

The Council need not address the “Record Request Document” from Complainant’s disciplinary file, and any other documents maintained by the Department of Residence Life and the Office of Dean of Student Development listing persons who have gained access to Complainant’s disciplinary file (item #2 of “Records Requested” above) as the Complainant has not offered any additional information in regard to same.

Documents Reviewed

  1. July 29, 2003 – E-mail request for documents from Complainant to Dr. Marc Schaeffer
  2. August 14, 2003 – Amended e-mail request for documents from Complainant to Dr. Marc Schaeffer
  3. October 28, 2004 – Request from Council staff to Custodian’s counsel seeking a certification clarifying the Custodian’s position
  4. October 29, 2004 – E-mail from Complainant regarding the Council’s use of information revealed during mediation
  5. November 1, 2004 – Findings and Recommendations of the Executive Director
  6. November 4, 2004 – GRC staff confirmation that the Council will not use information or documentation received during mediation
  7. November 4, 2004 – Complainant’s acknowledgement of GRC staff’s November 4, 2004 communication
  8. November 8, 2004 – Custodian’s certification in support of the October 22, 2004 Statement of Information
  9. November 9, 2004 – Findings and Recommendations of the Executive Director for the November 9, 2004 Council meeting – GRC Complaint #2003-113
  10. November 11, 2004 – Complainant’s follow-up to the GRC staff in regard to his files
  11. November 13, 2004 – Complainant’s letter rebutting the Custodian’s November 8, 2004 certification and asserting that the Council lacks certain and necessary documentation
  12. November 18, 2004 – Council’s Final Decision – GRC Complaint #2003-113
  13. November 25, 2004 – Complainant states concern about not having been able to respond to a Preliminary Findings and Recommendation
  14. November 29, 2004 – GRC staff’s acknowledgement of Complainant’s November 25, 2004 letter
  15. November 29, 2004 – Complainant’s letter to the U.S. Department of Education’s Family Policy Compliance Office regarding the appropriateness of the Council’s finding that the Family Educational Rights and Privacy Act (FERPA) serves as a valid preemption in certain of Complainant’s Council cases
  16. December 1, 2004 – Complainant’s confirmation of Council staff’s November 29, 2004 communication and a request for documentation regarding the Council’s PFR process
  17. December 15, 2004 – Complainant’s additional commentary on the Council’s lack of issuing PFR’s
  18. December 17, 2004 – Council Executive Director re-opens  C.W. v. William Paterson University, Council Complaints # 2003-109 and 2003-113
  19. December 22, 2004 – Complainant’s acknowledgement of the re-opening of Council Complaints # 2003-109 and 2003-113 and assertion of concerns he has with open Council cases
  20. January 16, 2005 – Complainant requests clarification of select issues in his cases
  21. January 21, 2005 – Council staff communicates file copies to Complainant and Custodian’s counsel and offers each the opportunity to present its case within the parameters set by the Council’s Executive Director when re-opening the case
  22. January 22, 2005 – Complainant asserts that selected documentation in the GRC’s file does not pertain to the subject case
  23. January 23, 2005 – Complainant asserts that he has not received certain pages from Custodian counsel’s October 22, 2004 submission
  24. January 27, 2005 – GRC staff follow-up to Complainant’s issues in his January 22 and 23, 2005 communications
  25. January 27, 2005 – Complainant’s response to GRC staff’s January 27, 2005 letter
  26. January 28, 2005 – Complainant’s detailed position
  27. January 31, 2005 – Complainant’s follow-up to the transmission of his January 28, 2005 detailed position
  28. February 2, 2005 – Custodian counsel’s objection the re-opening of the case and statement of position with respect to the Council’s November 9, 2004 decision
  29. February 3, 2005 – Complainant’s subsequent detailed position
  30. February 4, 2005 – Complainant’s rebuttal to Custodian counsel’s February 2, 2005 submission
  31. February 7, 2004 – Council’s Executive Director states that the time for submissions ended on February 4, 2005
  32. March 7, 2005 – Custodian counsel’s clarification of the Custodian’s legal position

Conclusions and Recommendations of the Executive Director
The Executive Director respectfully recommends that the Council re-affirm its November 9, 2004 Final Decision in its entirety and without amendment or qualification.

Paul F. Dice
Executive Director
Government Records Council

June 3, 2005

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Final Decision

C.W.,
     Complainant
           v.
William Paterson University,
     Custodian of Record

Complaint No. 2003-113

 

At its November 9, 2004 public meeting, the Government Records Council (Council) considered the November 1, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties, including the Custodian’s November 8, 2004 certification. The Council voted unanimously to amend the Executive Director’s recommendations after considering the Custodian’s November 8, 2004 certification on the basis of:

  1. The Custodian’s certification that there are no separate records of witness statements responsive to the request.
  2. The Custodian’s certification that there are no records responsive to the request for “record request document from Complainant’s disciplinary file.”
  3. The request for the “restriction list” was properly withheld pursuant to the Federal Educational Rights and Privacy (FERPA), specifically, 20 U.S.C.A. 1232g and is not abrogated by the Open Public Records Act (“OPRA”) pursuant to N.J.S.A. 47:1A-9
  4. The Custodian violated N.J.S.A. 47:1A-5(g) by requiring the Complainant to use the University’s request form.  However, the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.
  5. The case is hereby dismissed on the basis of #1, #2, #3 and #4 directly above.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 9th Day of November, 2004

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 the Executive Director

C.W.                                                             GRC Complaint No. 2003-113
    Complainant
          v.
William Paterson University
     Custodian of Records

Records Requested:

  1. 3 witness statements relative to the activities of C.W. on 1/23/03
    1. Guard Statement
    2. Resident Director
    3. Area Coordinator 
  2. Record Request” document from Complainant’s disciplinary file
  3. Restriction list as of 1/23/03

Request Made: 8/21/03
Response Made: 9/3/03
Custodian:   Marc Schaeffer – William Paterson University
GRC Complaint filed: 9/4/03

Background

Complainant’s Case Position
The Complainant filed a Denial of Access Complaint with the Government Records Council on September 4, 2003 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging Denial of Access to the following:

  1. Witness statements relative to the activities of the Complainant, on the evening of 1/22/03 – 1/23/03 from the guard, resident director, and area coordinator. The Complainant states that these records were said to exist by the Assistant Director of Residence Life, Patricia Whiteman during a University disciplinary hearing on 2/13/03.
  2. A “Record Request” document from the Complainant’s disciplinary file that he asserts is a required document according to both University policy and Federal Educational Rights and Privacy Act (FERPA) regulations.
  3. Restriction list as of 1/23/03 showing that the Complainant’s name was not contained therein. The Complainant contends this list is part of his educational record therefore it is his right to inspect it with appropriate redactions.

Public Agency’s Case Position
In response to the Complainant’s allegations, the Custodian asserts the following:

  1. There is no separate record of witness statements and the information obtained during investigation is integrated into police reports, which have already been made available to the Complainant. Therefore, there are no further records responsive to his request.
  2. The “Records Request” document to which the Complainant refers in his request does not exist. Neither the Residence Life Office nor any other University entity keeps such a record of requests for educational files. There is nothing in their Statement of Information regarding this item.
  1. Deputy Attorney General, Cheryl Clarke, states federal law (FERPA) prohibits the release of the restriction list, as it is personally identifiable to other William Paterson University students. The Custodian states that the records are not releasable under 20 U.S.C.A. 1232g because it contains personally identifiable information to those students who were banned from the residence hall at a given time.

Analysis
The Complainant is seeking three witness statements, a “Record Request” document and a University restriction list. At issue is the existence of the records in question and the validity of the exemption from disclosure. 

  1. N.J.S.A. 47:1A-1.1 states,

"Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.

The Custodian’s counsel Deputy Attorney General Clarke states “there was no government record responsive to the request. There is no such policy.” The witness statements and “Record Request” document are not “made, maintained or kept on file.” As the records do not exist there is no denial of access. While the Custodian’s counsel has provided a Statement of Information the Custodian has not certified that statement.

  1. N.J.S.A. 47:1A-6 states,

The public agency shall have the burden of proving that the Denial of Access is authorized by law.

The Custodian has justified its decision to deny access to the University’s restriction list by demonstrating that it was lawfully withheld. The Custodian’s Counsel Deputy Attorney General Clarke asserts that the restriction list the Complainant is requesting is covered under the provisions of 20 U.S.C.A. 1232g, stating that the record is personally identifiable to other students and is thereby not disclosable. N.J.S.A 47:1A-9(b).

       N.J.S.A. 47:1A-9b states,

The provisions of this act, P.L.2001, c.404 (C.47:1A-5 et al.), shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.

  1. N.J.S.A. 47:1A-5(g) states,

A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate Custodian. A Custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record.

The Complainant first requested these documents on 7/29/03 and again on 8/14/03 via e-mail. At that time the Custodian told the Complainant that an Open Public Records Act (OPRA) request form must be completed in order to obtain the records, as the Complainant had not included all of the required information in his request. The Complainant filed another OPRA request for the records on 8/21/03. The Custodian violated N.J.S.A. 47:1A-5(g) of the Act when requiring the use of the University request form. However, the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances. In the Statement of Information for Government Records Council, Case 2003-109 Deputy Attorney General Clarke states that the Custodian has been since advised to enter into an interactive process to obtain missing information or clarification of an OPRA request and will handle future inquiries in this manner. The Statement of Information has not been certified by the Custodian.

Documents Reviewed
The following records were reviewed in preparation for this “Findings and Recommendations of the Executive Director”

  1. 9/4/03 – Denial of Access Complaint
    1. September 3, 2004 – Denial of Access Complaint
    2. August 21, 2004 – Public Records Request form
    3. September 2, 2004 – Letter from Complainant to Custodian
    4. September 4, 2003 – E-mail from Custodian to Complainant “Re: OPRA 2003-12 response”
  2. 9/10/03 – Offer of Mediation to Custodian
  3. 11/19/04 - Letter to M. Horvath, Assistant V.P. Transportation, Emergency Management and Public Safety, “Re: Release of WPU Police Reports”
  4. 11/27/03 – Letter to P. Dice from Complainant “Re: William Paterson Police Department”
  5. 12/2/03 – Letter to M. Horvath, Assistant V.P. Transportation, Emergency Management and Public Safety
  6. 12/5/03 – Letter from M. Horvath, Assistant V.P. Transportation, Emergency Management and Public Safety, “Re: Response to Letters”
  7. 12/16/03 – Letter to P. Dice from Complainant “Re: William Paterson Police Department”
  8. 1/8/2004 – E-mail from Complainant to GRC
  9. 1/9/04 – Offer of Mediation to Complainant
  10. 1/9/04 – Offer of Mediation to Custodian
  11. 1/9/04 – Custodian’s e-mail to GRC “Re: GRC Complaint #2003-113 Offer of Mediation”
  12. 1/16/04 – GRC response to Complainant “Re: GRC Complaint 2003-109 2003-113”
  13. 1/13/04 – Custodian’s Agreement to Mediate
  14. 1/22/04 – Complainant ‘s Agreement to Mediate
  15. 2/10/04 – GRC Interim Decision
  16. 3/1/04 - GRC notification to Custodian of Interim Decision
  17. 3/1/04 - GRC notification to Complainant of Interim Decision
  18. 7/18/04 – Complainant’s letter to Deputy Attorney General, Cheryl Clarke
  19. 9/14/04 – Request for Statement of Information to Custodian
  20. 9/16/04 – E-mail from Complainant to Gloria Luzzatto, Assistant Director GRC
  21. 10/22/04- Statement of Information from Deputy Attorney General Cheryl Clarke
    1. August 14, 2003 – E-mail from Complainant to Custodian “Re: OPRA Request”
    2. August 21, 2003 - Public Records Request
    3. September 2. 2003 – Custodian response to request

Conclusions and Recommendations of the Executive Director
The Executive Director respectfully recommends that the Council:

  1. Order the Custodian to submit a certification providing;
    1. A statement regarding the existence of 3 witness statements relative to the activities of C.W. the evening of 1/22/03 through the morning of 1/23/03.
    2. A statement regarding the existence of the “Records Request” document.
    3. A statement of the reasoning for the disclosure exemption for the restriction list
  2. The Custodian should provide a response to the Executive Director to “1” above within 10 business days from receipt of the Council’s decision.

 

Prepared By:  Colleen C. McGann, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council

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