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2003-128

- Final Decision
- Interim Decision on Access
- Interim Decision on Access
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

John Paff
   Complainant
      v.
New Jersey Department of Labor, Board of Review
   Custodian of Record

Complaint No. 2003-128

 

At the October 13, 2005 public meeting, the Government Records Council (“Council”) conducted an in camera inspection of records not disclosed to the Complainant in response to his OPRA request in accordance with the August 2, 2005 Superior Court of New Jersey-Appellate Division decision.  After completing the in camera review of the six (6) unredacted documents appearing in the document index provided by the Custodian, the Council concluded that access was to be provided, in part, as specifically set forth in the October 13, 2005 decision. 

On October 21, 2005, the Custodian confirmed that the six (6) redacted records were provided to the Complainant and his counsel in accordance with Council’s October 13, 2005 decision.  Subsequent to the Council’s Interim Decision and the in camera inspection, the Government Records Council’s staff discovered that two additional records responsive to the OPRA request were not reviewed and considered by the Council at the October 13, 2005 meeting. 

At its November 10, 2005 public meeting, the Council conducted the in camera inspection of the two unredacted records dated August 17, 2000 and September 1, 1999.  Present during the in camera review were: 

Council Members:                    Vincent Maltese – Chair
                                           DeAnna Minus-Vincent
                                           Robin Berg Tabakin

Government Records Staff:       Paul Dice, Executive Director
                                           Gloria Luzzatto, Assistant Executive Director
                                           Catherine Starghill, In-House Counsel
                                           Chris Malloy, Case Manager

After completing the in camera review of the unredacted records in closed session, the Council concluded by a unanimous vote to order that the Custodian provide the Complainant access to the requested document, in part, as specifically set forth below:

  1. Document  - Letter Dated August 17, 2000: Disclose the name and address, to which the letter is written, the date of the letter, and the salutation including the sender’s name pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document is exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru 2.4.
  2. Document – Letter Dated September 1, 1999: Disclose the name and address in the letterhead, the date, the method of delivery, and the signature including the sender’s name under the signature pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document is exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru 2.4.

The Custodian is to provide the Complainant access to the requested records as set forth herein within ten (10) business days from receipt of this decision and provide confirmation to the Executive Director that the Custodian has complied with the Council’s decision. 

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 10th Day of November, 2005

Vincent 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:  December 5, 2005

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Interim Decision on Access

John Paff
    Complainant
         v.
New Jersey Department of Labor
    Custodian of Record

Complaint No. 2003-128

 

At the October 13, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of documents not disclosed to the Complainant in response to his OPRA request for “any documents relating to the following Certificate of Debt:  Docket # MER-DJ-492454-97 Department of Labor Docket #ND-103920-97 Department of Labor v. Gladys Garbin SS# _________[1] Certificate of Debt filed 10/30/97 for #1,764.72 open and still due.” 

The Council conducted said review as concluded at the September 8, 2005 public meeting in accordance with the August 2, 2005 Superior Court of New Jersey-Appellate Division decision.   Present during the in camera review were:

      Council Members:                         Vincent Maltese
                                                      Diane Schonyers
                                                      DeAnna Minus-Vincent

      Government Records Staff:            Paul Dice, Executive Director
                                                      Gloria Luzzatto, Assistant Executive Director
                                                      Catherine Starghill, In-House Counsel
                                                      Chris Malloy, Case Manager

After completing the in camera review in Closed Session of the six (6) unredacted documents certified by the Custodian in the document index to be all the documents responsive to the OPRA request, the Council concluded by a unanimous vote that access is to be provided, in part, as specifically set forth below:  

Document 1.: Undated computer screen showing assessed employer contribution rates for unemployment and disability insurance per U&D Tax Act

  • Disclose name, address and SIC pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru -2.4.

Document 2.: Undated computer screen showing date judgment was docketed   

  • Disclose name pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru -2.4.

Document 3.Undated computer screen showing that parties were notified of filing of judgment

  • Disclose name and address pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru -2.4.

Document 4.Undated computer screen print-out showing judgment filed on 10/30/97

  • Disclose name pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru -2.4.

Document 5.Undated computer screen of collection summary

  • Disclose name pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru -2.4.

Document 6.Undated copy of computer screen detailing conversation with employer

  • Disclose name pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information in the document exempt from disclosure pursuant to N.J.S.A. 43:21-11.g. and N.J.A.C. 12:15-2.1 thru -2.4.

The Custodian shall provide the Complainant access to the requested documents within ten (10) business days from receipt of this decision on the basis of the Council’s above determination and provide confirmation to the Executive Director that the Custodian has complied with the Council’s decision. 

Interim Decision Rendered by the
Government Records Council
On The 13th Day of October, 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:  October 18, 2005


[1] The Social Security number redacted by the Government Records Council

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Interim Decision on Access

John T. Paff
  Complainant
      v.
Department of Labor – Board of Review
  Custodian of Record

Complaint No. 2003-128

 

At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of the Executive Director’s Conclusions. Therefore, the Council hereby finds that in accordance with the August 2, 2005 Superior Court of New Jersey - Appellate Division decision, the Council will conduct an in camera inspection of the requested documents in this case at its October 13, 2005 meeting.

Interim Decision Rendered by the
Government Records Council
On The 8th Day of September, 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:  September 19, 2005

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Supplemental Findings and Recommendations of the Executive Director

John Paff
   Complainant
      v.
New Jersey Department of Labor, Board of Review
   Custodian of Record

Complaint No. 2003-128

Relevant Records Requested: Any documents relating to the following Certificate of Debt:  Docket # MER-DJ-492454-97 Department of Labor Docket # ND-103920-97 Department of Labor v. Gladys Garbin ss#                         [1]Certificate of Debt filed 10/30/97 for $1,764.72 open and still due.  
Custodian:  Department of Labor – Board of Review, Fredrick Cohen
Request Date:  June 21, 2003
Response Date:  June 25, 2003
GRC Complaint Filed:  July 17, 2003

Background

March 11, 2004

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 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 and found that OPRA does not have jurisdiction to supersede the Unemployment Compensation Law and grant access to the records that the Custodian certifies are protected by N.J.S.A. 43:21-11(g).

April 27, 2004

The Complainant appealed the case to the Superior Court of New Jersey, Appellate Division.

August 2, 2005

The Superior Court of New Jersey, Appellate Division, remanded the case to the Government Records Council (Council) for an in camera inspection of the requested documents.

Analysis

No analysis is needed at this time

Conclusions

In accordance with the August 2, 2005 Superior Court of New Jersey - Appellate Division decision, the Council will conduct an in camera inspection of the requested documents in this case at its October 14, 2005 meeting.

Prepared By: Chris Malloy, Case Manager

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

September 2, 2005


[1] The Social Security number was redacted by the Government Records Council.

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Final Decision

John Paff
Complainant
v.
New Jersey Department of Labor - Board of Review
Custodian of Record

Complaint No. 2003-128
Decision Issued: March 11, 2004
Decision Effective: 14 business days from date of receipt unless otherwise provided by Council
Date Prepared: March 26, 2004

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 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 and to dismiss the case on the basis of:

  1. N.J.S.A. 43:21-11 (g) provides that “all records and reports and other information obtained from employers and employees under this chapter, except to the extent necessary for the proper administration of this chapter, shall be confidential and shall not be published or open to the public inspection other than to public employees in the performance of their public duties, and shall not be subject to subpoena or admissible in evidence in any civil action or proceeding other than one arising under this chapter, but any claimant at a hearing before an appeal tribunal, the division or the board of review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim.” The Custodian certifies that the file is contained by the Division of Employer Accounts and contains information regarding wages and unemployment and disability taxes paid to the State of NJ, therefore, remain confidential. 
  2. OPRA (N.J.S.A. 47:1A-9)“shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (N.J.S.A.47: 1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.  Further, “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.”  Therefore, OPRA does not have jurisdiction to supersede the Unemployment Compensation Law and grant access to the records that the Custodian certifies are protected by this law. 

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

John Paff
   Complainant
      v.
New Jersey Department of Labor, Board of Review
   Custodian of Record

Complaint No. 2003-128

Custodian of Records

Relevant Records Requested: Any documents relating to the following Certificate of Debt:  Docket # MER-DJ-492454-97 Department of Labor Docket # ND-103920-97 Department of Labor v. Gladys Garbin xxxxxxxx (redaction) Certificate of Debt filed 10/30/97 for $1,764.72 open and still due.  
Custodian:  Department of Labor – Board of Review, Fredrick Cohen
Request Date:  June 21, 2003
Response Date:  June 25, 2003
GRC Complaint Filed:  July 17, 2003

Executive Director’s Recommendations

This Open Public Records Act (“OPRA”) Complaint filed July 17, 2003 alleges denial of access of an OPRA request to the Department of Labor – Board of Review regarding any and all documents pertaining to Certificate of Debt #MER-DJ-492454-97 Department of Labor Docket #ND-103920-97 (Department of Labor v. Gladys Garbin).  The Requestor alleges that the Custodian did not relinquish all documents requested, however, the Requestor does acknowledge a receipt of some of the documents, specifically the Debt of Judgment Order and Warrant of Satisfaction.  Further, the Requestor asserts that the Custodian cannot cite the Unemployment Compensation Law in regards to these records because it only exempts records that relate to the administration of the Unemployment Compensation Fund, obtained from employers and employees and are necessary and proper for the administration of the chapter.  The Requestor asks the Government Records Council to issue an order requiring the Custodian to provide a detailed list of documents in the file that are deemed confidential.  

The Custodian alleges that the Requestor received redacted documents from the file that are considered to be public record and filed with the Superior Court.  The Custodian certifies, however, that the remaining documents requested are the Wage Record and Tax Contribution File for Ms. Garbin and pursuant to N.J.S.A. 43:21-11 (g) are confidential and are not subject to OPRA. 

The Executive Director respectfully recommends that the Council dismiss this complaint because:

  1. N.J.S.A. 43:21-11 (g) provides that “all records and reports and other information obtained from employers and employees under this chapter, except to the extent necessary for the proper administration of this chapter, shall be confidential and shall not be published or open to the public inspection other than to public employees in the performance of their public duties, and shall not be subject to subpoena or admissible in evidence in any civil action or proceeding other than one arising under this chapter, but any claimant at a hearing before an appeal tribunal, the division or the board of review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim.” The Custodian certifies that the file is contained by the Division of Employer Accounts and contains information regarding wages and unemployment and disability taxes paid to the State of NJ, therefore, remain confidential. 
  2. OPRA (N.J.S.A. 47:1A-9)“shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (N.J.S.A.47: 1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.  Further, “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.”  Therefore, OPRA does not have jurisdiction to supersede the Unemployment Compensation Law and grant access to the records that the Custodian certifies are protected by this law. 
Legal Analysis

Pursuant to the OPRA statutes, specifically N.J.S.A. 47: 1A-1 et.seq.,  “…all government records shall be subject to public access unless exempt from such access by…any other statute….”  Also, “…[t]he provisions of [OPRA] shall not abrogate any exemption of public record or government record from public access heretofore made pursuant to…any other statute…”  N.J.S.A.  47:1A-9(a).   Finally, “…[t]he provisions of [OPRA] shall not abrogate or erode any …grant of confidentiality heretofore established or recognized by …statute…which …grant of confidentiality may duly be claimed to restrict public access to a public record or a government record.”  N.J.S.A. 47:1A-9(b).

In the instant case, the remaining records sought by the requestor fall under the Wage Record and Tax Contribution file of a Ms. Garbin (not the requestor).  As such, the government record sought falls under N.J.S.A. 43: 23-11(g):

…all records and reports and other information obtained from employers and employees under this chapter, except to the extent necessary for the proper administration of this chapter, shall be confidential and shall not be published or open to the public inspection other than to public employees in the performance of their public duties…

It is clear from the statute that the remaining records sought are confidential pursuant to State statute:  N.J.S.A. 43:23-11(g).  As the records are confidential under a State statute, they are exempt from public access under OPRA. N.J.S.A. 47:1A-1; N.J.S.A. 47:1A-9(a) and N.J.S.A. 47:1A-9(b). 

As to the Requestor’s assertion that the Custodian cannot cite the Unemployment Compensation Law with regard to these records because it only exempts records that relate to the administration of the Unemployment Compensation Fund, obtained from employers and employees and are necessary and proper for the administration of the chapter; this assertion is incorrect given a plain reading of the statute.  N.J.S.A.  43:23-11(g). Under the statute, cited above, all records are confidential with the exception of those necessary for the proper administration of the Unemployment Compensation Fund. [Emphasis added] Therefore, from the statutes cited, the records sought are confidential by State statute and are not accessible under the OPRA statutes.

The Requestor also asks the Government Records Council to issue an order requiring the Custodian to provide a detailed list of documents in the file that are deemed confidential. The custodian, in the certified SOI, has stated that the remaining records sought are confidential by statute.  The Government Records Council does not have jurisdiction to abrogate this grant of confidentiality.  The compliant, therefore, must be dismissed.

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case: 

  • June 21, 2003 – Requestor OPRA request
  • June 25, 2003 – Custodian denies access
  • June 29, 2003 – Requestor 2nd OPRA request
  • July 7, 2003 – Custodian denies access
  • July 17, 2003 – Denial of Access Complaint Filed
  • September 16, 2003 – Requester 3rd OPRA request
  • September 19, 2003 – Custodian response with enclosure of redacted documents
  • October 3, 2003 – Denial of Access Complaint Filed again
  • January 12, 2004 – Offer of Mediation (Requester & Custodian)
  • January 13, 2004 – Requester declines mediation
  • January 27, 2004 – Statement of Information & Certification
  • January 28, 2004 Statement of Information requested by GRC
  • January 29, 2004 – Email correspondence – Notice of same Statement of Information for 2003-128 & 2003-98

Conclusion

The Executive Director respectfully recommends that the Council dismiss this complaint because:

  1. N.J.S.A. 43:21-11 (g) provides that “all records and reports and other information obtained from employers and employees under this chapter, except to the extent necessary for the proper administration of this chapter, shall be confidential and shall not be published or open to the public inspection other than to public employees in the performance of their public duties and shall not be subject to subpoena or admissible in evidence in any civil action or proceeding other than one arising under this chapter, but any claimant at a hearing before an appeal tribunal, the division or the board of review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim.” The Custodian certifies that the file is contained by the Division of Employer Accounts and contains information regarding wages and unemployment and disability taxes paid to the State of NJ, therefore, remain confidential. 
  2. OPRA (N.J.S.A. 47:1A-9)“shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (N.J.S.A.47: 1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.  Further, “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.”  Therefore, OPRA does not have jurisdiction to supersede the Unemployment Compensation Law and grant access to the records that the Custodian certifies are protected by this law. 

________________________

Paul F. Dice
Executive Director
Government Records Council

Dated:  March 11, 2004

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