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State of NJ - Government Records Council Email Grc

2003-140

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Jordan Mariano,
Complainant
v.
NJ Dept. of Environmental Protection,
Custodian of Record

Complaint No. 2003-140
Decision Issued: February 27 2004
Decision Effective: March 8, 2004

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 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 and dismissed the case on the basis the information requested falls squarely within the ambit of Executive Order No. 21 and falls under the exceptions set forth in N.J.S.A. 47:1A-1. 

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

Jordan Mariano,
Complainant
v.
NJ Dept. of Environmental Protection,
Custodian of Record

Complaint No. 2003-140

Relevant Records Requested: List of New Jersey Chlorine Gas Users
Custodian: Rich Yarsinsky
Request Made: 9/17/2003
Response Made: 9/26/2003
GRC Complaint filed: 11/3/2003

Executive Director's Recommendations

This OPRA Complaint filed November 3, 2003 alleges denial of an OPRA request to the New Jersey Department of Environmental Protection ("NJDEP") for the dissemination of the list of users of chlorine gas in New Jersey.  The Requestor is a representative of Chlorinators Incorporated, a Florida-based distributor of equipment for the chlorine industry.

NJDEP maintains that the denial of this OPRA request was proper because the release of such records would violate Executive Order No. 21, which provides for confidential treatment of information that would, if released, "substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or . . . would materially increase the risk or consequences of potential acts of sabotage or terrorism."  Because the release of the list of chlorine users could assist terrorists/saboteurs in targeting the facilities of such chlorine users, NJDEP denied the OPRA request.

The Acting Executive Director respectfully recommends that the Council dismiss this complaint because the information requested falls squarely within the ambit of Executive Order No. 21. 

Legal Analysis

The exceptions set forth in N.J.S.A. 47:1A-1 provide, in pertinent part that government records shall be subject to public access "unless exempt from such access by . . . Executive Order of the Governor."   Pursuant to Governor James E. McGreevey's Executive Order No. 21, "any government record where the inspection, examination or copying of that record would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism" shall not be subject to public inspection, copying or examination.  In balancing the goal of providing access to public records against the risk that disclosure of such information might impede the State's ability to defend its citizens from terrorism, the GRC takes the position that the State's interest substantially outweighs the interest of the Requestor.  Specifically, the risk posed to New Jersey citizens from terrorist attacks that might be planned using the information requested is significantly greater than the benefit of conferred by providing such information to the Requestor.  Although the motives of the Requestor appear to be legitimately related to his business, once the requested information is released, there is no way of ensuring that such information would remain in the hands of parties who would use it for proper purposes.

Documents Reviewed

The following documents have been submitted to members of the Government Records Council concerning the case:

  • 9/17/2003 - Government Records Request Form
  • 9/27/2003 - Denial of Access to the Requested Record
  • 11/3/2003 - Denial of Access Complaint Form
  • 1/14/2004 - Offer of Mediation (to Requestor and Custodian)
  • 1/19/2004 - Complainant’s Agreement to Mediate
  • 1/28/2004 -GRC Request for Statement of Information (SOI) from Custodian
  • 2/4/2004 - Statement of Information

Conclusion

The Acting Executive Director respectfully recommends that the Council dismiss this complaint because the information requested falls squarely within the ambit of Executive Order No. 21. 

________________________

Paul F. Dice
Acting Executive Director
Government Records Council
Dated:  February 23, 2004

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