2003-136

Final Decision

1. The Open Public Records Act provides that government records will be subject to public access unless exempted therefrom by, among other things, department or agency rules and regulations and Executive Orders of the Governor. 
2. Executive Order 21 issued by Governor McGreevey instructs all state departments and agencies to respond to requests for public records in a manner consistent with any proposed and pending rules and regulations relating to public records access. 
3. The New Jersey Department of Environmental Protection has proposed rules and regulations that exempt the “identity of complainants” from public access.  Because the requested information constitutes the “identity of a complainant” (i.e., the victim complained to NJDEP about a bear attack), the Custodian acted properly in denying access to such information.

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 8th Day of April, 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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Administrative Changes to Findings and Recommendations of the Executiv

The Findings and Recommendations of the Executive Director in Complaint No. 2003-136 is modified to reflect the following change:
On page 1 the sub-heading is changed to read, "Findings and Recommendations of the Executive Director, April 8, 2004 Council Meeting"

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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Findings and Recommendations of the Executive Director

Relevant Records Requested: The name and address of the 18-year-old Highland Lakes woman who was attacked by a bear on Wingdam trail in Wawayanda State Park on August 10, 2003, as well as the park (or division/department) report of the incident, and any other additional records that may exist regarding the incident.
Custodian: Richard Yarsinsky
Request Made:  August 13, 2003
Response Made: August 22, 2003
GRC Complaint filed: October 22, 2003

Recommendations of Acting Executive Director

This OPRA complaint filed October 22, 2003 alleges the partial denial of an OPRA request for the name and address of the 18-year-old Highland Lakes woman who was attacked by a bear on Wingdam trail in Wawayanda State Park on August 10, 2003, as well as the park (or division/department) report of the incident, and any other additional records that may exist regarding the incident.

The record shows that the Custodian provided access to all of the requested information with the exception of the name and address of the victim of the attack (who had called in a complaint to NJDEP concerning the attack), which the Custodian maintains were appropriately redacted from the records provided under the exemptions set forth in the Open Public Records Act and Executive Order 21.

The Executive Director respectfully recommends that the Council dismiss this Complaint. 

1. The Open Public Records Act provides that government records will be subject to public access unless exempted therefrom by, among other things, department or agency rules and regulations and Executive Orders of the Governor. 
2. Executive Order 21 issued by Governor McGreevey instructs all state departments and agencies to respond to requests for public records in a manner consistent with any proposed and pending rules and regulations relating to public records access. 
3. The New Jersey Department of Environmental Protection has proposed rules and regulations that exempt the “identity of complainants” from public access.  Because the requested information constitutes the “identity of a complainant” (i.e., the victim complained to NJDEP about a bear attack), the Custodian acted properly in denying access to such information.

Analysis

N.J.S.A. 47A-1 provides in pertinent part that “all government records shall be subject to public access unless exempt from such access by . . .regulation promulgated under the authority of any statute . . . [or] Executive Order of the Governor” [emphasis added].  

Section 4 of Executive Order No. 21 provides:

 “[i]n light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records request in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order.  Once those regulations have been adopted, they shall govern all government records requests filed thereafter.”

A proposed amendment to regulations of the New Jersey Department of Environmental Protection, which was published at 34 N.J.R. 2227 and which will be codified as N.J.A.C. 7:1D-4.2(a)8 provides:

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., as amended and supplemented, any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor (sic.), Rules of Court, or any Federal law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented:
. . . .

8.  Records that reveal the identity of a complainant

The commentary to this proposed regulation explains the rationale for the proposed regulation:

Proposed new N.J.A.C. 7:1D-4.2(a)8 makes records that reveal the identity of a complainant confidential. This exemption is supported by the OPRA exemption for records of criminal investigations, which records would include the identity of the complainant. However, the Department believes protection of the identity of complainants who provide information to the Department in non-criminal matters is necessary. Release of the identity of complainants could have a chilling effect, for instance, on the use of the DEP hotline to register complaints or potential violations of the environmental laws and regulations.

Here, the Custodian appropriately denied access to the requested information because such information constituted the “identity of a complainant,” which information is specifically excluded from public access under the Department of Environmental Protection’s proposed rules and regulations. 

Counsel for the Complainant asserts that the requested records is akin to a criminal investigation report as described in N.J.S.A. 47:1A-3b, which is required to be available for public access within 24 hours.  We note, however, that a bear attack is not a criminal act.  Hence, Counsel’s reliance on this provision is misplaced. 

In its defense of the Custodian’s denial of access to the name of the complaining victim, counsel for the Custodian also argues the applicability of N.J.S.A. 47:1A-1, which recites the legislature’s finding that “a public agency has a responsibility to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy…”  Counsel for the Custodian argues that because the victim specifically requested that her name not be released out of concern for publicity and undue attention that might garnered from the anti-bear hunting movement, the victim had a reasonable expectation that her name be kept confidential.  Because provisions (cited above) of the Open Public Records Act, Executive Order No. 21 and pending NJDEP regulations are sufficient to sustain the Custodian’s denial of public access to the requested information, this opinion does not address whether such information would also be entitled to confidential treatment under the “reasonable expectation of privacy” standard set forth in N.J.S.A. 47:1A-1.

Documents Reviewed

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

• August 13, 2003- Original record request submitted to Custodian by Complainant
  
• August 22, 2003   - Custodian’s response to record request
  
• September 29, 2003- Letter from Complainant’s counsel to DAG Christine Piatek concerning denial of access to victim/complainant’s name and address
  
• October 3, 2003- Letter from DAG Christine Piatek to Complainant’s counsel setting forth the reasons for NJDEP’s denial of access to the requested information
  
• October 22, 2003 -Denial of Access Complaint with Supplemental information including a copy of investigative report provided by Custodian to Complainant (redacted to remove victim/complainant’s name and address)
  
• January 14, 2004 - Offer of Mediation (sent to both Custodian and Complainant
  
• January 28, 2004 - Transmittal letter to Custodian requesting completion of Statement of Information
  
• February 3, 2004 - Statement of Information with accompanying exhibits and letter brief of DAG Christine Piatek on behalf of Custodian
  
• February 3, 2004 - Certifications (affidavits) of NJDEP Park Ranger Eric Kruegel and NJDEP Principal Biologist Kelcey Burguess.
  
• February 3, 2004 - Custodian’s Statement of Information (with supplementary materials)

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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