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2003-142
Final Decision
At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 4, 2004 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 with the correction to “3” under the recommendations to be changed from “May 6, 2004” to May 6, 2003.” The Council, therefore, dismissed the case on the basis of:
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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Supplemental Findings and Recommendations of the Executive DirectorRichard Wilcox GRC Complaint No. 2003-142Complainant v. Township of West Caldwell Custodian of Records Relevant Records Requested:
Request Made: May 8, 2003 Executive Director’s Findings & Recommendations At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations amended to include a certification and response deadline of March 18, 2004 to the Executive Director and ordered the following items in 1 and 2 from the custodian.
The custodian’s counsel, on March 18, 2004, provided the council’s staff and the complainant with copies of the privilege log for all documents contained in the Township Attorney’s files and the Board of Adjustment Attorney’s files that were withheld from the complainant. The custodian’s counsel maintains the claim that all the documents listed in the privilege log are considered “attorney-client privileged,” “work product privileged” and “advisory, consultative or deliberative” and therefore are exempt under OPRA. Further, the custodian’s counsel stated that the certifications as ordered by the Council could not be produced by March 18, 2004 because not enough time was provided to compile certifications from the various sources involved in this case (i.e. two law firms and the Township Deputy Clerk). On March 24, 2004, the custodian’s counsel provided the certifications ordered by the Council regarding the issue of “attorney-client privilege” and timeliness. The Township’s Deputy Clerk, who was serving as the custodian, affirms that she responded to the complainant’s OPRA requests within the appropriate time frame. The custodian certified and provided documentation that the response in question was given to the complainant two (2) business days after the OPRA request was filed. The Township Attorney also provided a certification to clarify that the disclosable records contained in his files are also available to the complainant through the Township of West Caldwell’s file, to which he was given access on May 23, 2003. The Township Attorney continued stating that all the rest of the records in his file are exempt under “attorney-client privilege” because they serve as “legal advice” given to various Township employees. Additionally, the Board of Adjustment Attorney certified the same based upon his involvement in supplying “legal advice” to the Board of Adjustment and that some of his records are considered “mental analysis on the hearings of the Wilcox application.” The complainant has indicated, as a rebuttal to the information provided by the custodian’s counsel on March 24, 2004, that it is his belief that the West Caldwell Board of Adjustments Rules of Procedure states that all records are public records and contain no exemptions including “attorney-client privilege.” The complainant also claims that the custodian falsely certified that she notified the complainant on May 8, 2003 concerning his OPRA request dated May 6, 2003. Further, the complainant claims that the Township Attorney’s certification does not, in his opinion, reflect his earlier actions concerning the existence of his file. At its April 26, 2004 public meeting, the Council considered the April 19, 2004 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 ordered the custodian to comply with Council’s staff’s request of April 19, 2004 to provide another certification clarifying what records in West Caldwell’s file(s) were disclosed to the complainant pursuant to his May 8, 2003 Open Public Records Act request. If any documents were not disclosed, the custodian is to provide a detailed explanation, in the form of a Vaughn Index if necessary; stating the rationale for withholding said document(s). The custodian is to provide the Council’s Executive Director, Paul Dice, a response to April 26, 2004 Interim Order within five (5) business days from receipt of same. On April 22, 2004, prior to the Council’s April 26, 2004 Interim Order, the custodian’s counsel provided a supplemental certification from the custodian explaining her reference to “any records” as indicated in her May 23, 2003 response to the complainant and her reference to “all public records” in her certification of March 23, 2004. As indicated by the custodian’s certification, her reference to “any records” was to mean “all public records.” In addition, the custodian’s counsel contends that a search was in the process of being completed to indicate the records, if any, which were withheld from the complainant in the West Caldwell file. The custodian’s counsel indicated by letter on April 29, 2004 that Ms. Gail Marie Stewart maintained the West Caldwell files and was not in the country and would return on May 3, 2004 and requested a few more days in order to comply with the Council’s April 26, 2004 Interim Order. The custodian’s counsel asked to be contacted if an extension would potentially cause a problem. On May 7, 2004, the custodian counsel responded to the portion of the April 26, 2004 Interim Order clarifying what records in West Caldwell’s file(s) were disclosed to the complainant pursuant to his May 8, 2003 Open Public Records Act request and a detailed explanation of any records withheld from the complainant and the reason for being withheld. The custodian’s counsel contends that “the only documents that were withheld from the public files, and thus from the [complainant’s] review, were communications to and from counsel.” The custodian further asserts “[t]hese communications were each reflected on the privilege logs submitted by Mr. Podvey (Township attorney) and Mr. Lott (the Planning Board attorney) on March 24, 2004.” On May 12, 2004, the complainant sent an e-mail to the Government Records Council staff in response to the custodian’s counsel’s response to the March 11, 2004 Interim Order, dated March 24, 2004, to the April 26, 2004 Interim Order and to the custodian’s counsel’s response to the April 26, 2004 Interim Order, dated May 7, 2004. The complainant contends that all references to the May 6, 2004 response should be taken out of this complainant, as he does not consider this part of the complaint. The complainant maintains that the OPRA request of May 6, 2003 was closed when the custodian responded on May 8, 2004 seeking clarification of the request. The complainant, further disagrees with the custodian’s counsel’s assertion in the March 24, 2004 letter stating that the complainant “had not amended his description of the records he sought access to (arguably leaving his request deficient)” regarding his May 8, 2004 request. The complainant asserts that his original request sought “the records as defined in [N.J.S.A.] 47:1A-1.1, of Municipal Attorney, and everyone who assisted him, regarding, in any way, 18 Memorial Road since august 1, 1999” and his clarification sought “all Municipal Attorney’s records regarding 18 Memorial Road since August 1, 1999. Also the records of anyone who assisted him.” Additionally, the complainant also sent another e-mail to the Government Records Council staff refuting the submission dated May 7, 2004 from the custodian’s counsel in reference to the April 26, 2004 Interim Order. The complainant contends that the custodian’s counsel did not send in a Vaughn Index outlining the withheld documents in West Caldwell’s files and that the Council should not accept the exemption of “attorney-client privilege” without the index. The complainant also refers to his early argument that according to West Caldwell’s Rules of Procedure, all records in the file are disclosable without exception. Additionally, the complainant states that because of the Rules of Procedure, Mr. Lott’s Vaughn Index submission should not be considered as meeting the requirements of a Vaughn Index. The complainant argues that Mr. Lott, being the Planning Board attorney, is required to have his files available for public review with the exception of the last two items on the Vaughn Index (handwritten notes). Although the complainant states that the last two records of the Vaughn Index are not disclosable, in his opinion, the court stated in Vaughn that large documents are to be explained in detail, specifically which portions of the documents are not disclosable and which are disclosable. The complainant sent a certification to the Government Records Council on May 14, 2004 certifying that he did not speak by telephone with the custodian, Judy Edwards on or about May 8, 2003 regarding his May 8, 2003 OPRA request. On June 4, 2004, the custodian submitted a supplemental certification, in which she certifies that the information conveyed by her counsel in a May 7, 2004 letter is true and if any of the statements are found to be false, she acknowledges that she is subject to punishment. The Executive Director respectfully recommends that the Council consider the following:
Legal Analysis Pursuant to N.J.S.A. 47:1A-1.1, “…any record within the attorney client privilege…” shall not be a “…public record…” and shall be “…deemed confidential for the purpose of [an OPRA request]….” The custodian has denied access to the records of the Township attorney and Planning Board attorney based on the OPRA exemption of “attorney-client privilege.” The custodian’s counsel has provided Vaughn Indices listing the privileged records. Further, “communications between a lawyer and his client in the course of [the attorney – client] relationship and [held] in professional confidence are privileged.” N.J.S.A. 2A: 84A-20. The attorney client privilege applies to confidential communications or correspondence between an attorney and his or her client, be it an individual or entity. In the present case, the indices were in fact submitted along with certifications from both the Municipal Attorney and the Zoning Board of Adjustment’s Attorney. Review has shown that the materials the custodian would not disclose are privileged. The indices were both presented in chronological order including a file number and a brief description of each listed item. In both instances, the attorneys represented in their certifications the nature of each of the communications by category and file number. N.J.S.A. 47:1A-5(i) provides that the custodian “shall grant access to a government record or deny a request for access to a government record as soon as possible, but no later than seven (7) business days after receiving the request, provided that the record is currently available and not in storage or archived.” The custodian certifies and documents that she did comply with the statutory OPRA time frame. The requestor argues that West Caldwell’s Rules of Procedure Ordinance supersedes the “attorney-client privilege” protection; however, there are no provisions in OPRA that allow a municipal ordinance to abrogate a statutory exemption. The custodian certified that “all public records” in West Caldwell Township’s file were disclosed to the complainant, however, in the May 23, 2003 response to the requestor, the custodian states that “any records” in West Caldwell Township’s file were accessible to the complainant. Based on the significant difference in the definitions of “all public records” and “any records,” the Council, in the April 26, 2004 Interim Order, ordered the custodian to comply with the Council’s staff’s letter dated April 19, 2004 and provided a certification as to the correct information and explain and provide a log for any records contained in West Caldwell’s file that were withheld from the complainant. On April 22, 2004[2], the custodian provided a certification stating that her reference to “all records” in the response to the complainant was to refer to “public records.” Documents Reviewed The following additional documents were reviewed in preparing the Supplemental Findings and Recommendations for this case:
Paul F. Dice [1] Please note that the April 22, 2004 certification was in response to the Council’s staff’s letter dated April 19, 2004. The certification was not received by the Government Records Council until April 27, 2004 [2] Please note that the April 22, 2004 certification was in response to the Council’s staff’s letter dated April 19, 2004 and then the April 26, 2004 Interim Order. The certification was not received by the Government Records Council until April 27, 2004 Interim Order
At its April 26, 2004 public meeting, the Government Records Council (Council) considered the April 19, 2004 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. Therefore the Council hereby orders the Custodian to comply with Council’s staff’s request of April 19, 2004 to provide another certification clarifying what records in West Caldwell’s file(s) were disclosed to the Complainant pursuant to his May 8, 2003 Open Public Records Act request. If any documents were not disclosed, the Custodian shall provide a detailed explanation, in the form of a Vaughn Index if necessary, stating the rationale for withholding said document(s). The Custodian shall provide the Council’s Executive Director, Paul Dice, a response to this Interim Order within five (5) business days from receipt of same. Interim Order Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: April 29, 2004 Supplemental Findings and Recommendations of the Executive DirectorRichard Wilcox GRC Complaint No. 2003-142Complainant v. Township of West Caldwell Custodian of Records Relevant Records Requested:
Request Made: May 8, 2003 Executive Director’s Recommendations At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations amended to include a certification and response deadline of March 18, 2004 to the Executive Director to determine the following from the custodian.
The Custodian’s Counsel, on March 18, 2004, provided the Council’s staff and the Requestor with copies of the privilege log for all documents contained in the Township Attorney’s files and the Board of Adjustment Attorney’s files that were withheld from the Requestor. The Custodian’s Council maintains the claim that all the documents listed in the privilege log are considered “attorney-client privileged,” “work product privileged” and “advisory, consultative or deliberative” and therefore are exempt under OPRA. Further, the Custodian’s Council states that the certifications as ordered by the Council could not be produced by March 18, 2004 because not enough time was provided to compile certifications from the various sources involved in this case (i.e. two law firms and the Township Deputy Clerk). On March 24, 2004, the Custodian’s Council provided the certifications ordered by the Council regarding the issue of “attorney-client privilege” and timeliness. The Township’s Deputy Clerk, who was serving as the Custodian, affirms that she did respond to the Requestor’s OPRA requests within the appropriate time frame. The Custodian certifies and provides documentation that the response in question was given to the Requestor two (2) business days after the OPRA request was filed. The Township Attorney also provided a certification to clarify that the disclosable records contained in his files are also available to the Requestor through the Township of West Caldwell’s file, to which he was given access on May 23, 2003. The Township Attorney continues that all the rest of the records in his file are exempt under “attorney-client privilege” because they serve as “legal advice” given to various Township employees. Additionally, the Board of Adjustment Attorney certifies the same based upon his involvement in supplying “legal advice” to the Board of Adjustment and that some of his records are considered “mental analysis on the hearings of the Wilcox application.” The Requestor has indicated, as a rebuttal to the information provided by the Custodian’s Counsel on March 24, 2004, that it is his belief that the West Caldwell Board of Adjustments Rules of Procedure states that all records are public records and contain no exemptions including “attorney-client privilege.” The Requestor also claims that the Custodian falsely certified that she notified the Requestor on May 8, 2003 concerning his OPRA request dated May 6, 2003. Further, the Requestor claims that the Township Attorney’s certification does not, in his opinion, reflect his earlier actions concerning the existence of his file. The Executive Director respectfully recommends the following:
Legal Analysis The custodian’s counsel has denied access to the correspondence invoking the attorney/client privilege exemption pursuant to N.J.S.A. 47:1A-1.1. The custodian has relied on a provision set forth in the Open Public Records Act [OPRA] which states in relevant part that “…any record within the attorney client privilege…” shall not be a “…public record…” and shall be “…deemed confidential for the purpose of [an OPRA request]….” N.J.S.A. 47:1A-1.1. To determine if the correspondence should be qualified as “privileged”, the Council requested that the custodian submit a Vaughn Index[1]. Information presented in the Vaughn index must then be evaluated to determine if it is covered by the statutory privilege established for attorney client communications. “[C]ommunications between a lawyer and his client in the course of [the attorney – client] relationship and [held] in professional confidence are privileged.” N.J.S.A. 2A: 84A-20. The attorney client privilege applies to confidential communications or correspondence between an attorney and his or her client, be it an individual or entity. In the present case, the indexes were in fact submitted along with certifications from both the Municipal Attorney and the Zoning Board of Adjustment’s Attorney. Review has shown that the materials the custodian would not disclose are privileged. The indexes were both presented in chronological order including a file number and a brief description of each listed item. In both instances, the attorneys represented in their certifications the nature of each of the communications by category and file number. Additionally, as stated in each certification, file materials not covered by the privilege that are duplicated in the attorney’s files may be reviewed in the public files maintained by the municipality. In each case, relying on the certification, it is clear that the material is the type of correspondence to be protected by the aforementioned privilege. N.J.S.A. 47:1A-5(i) provides that the Custodian “shall grant access to a government record or deny a request for access to a government record as soon as possible, but no later than seven (7) business days after receiving the request, provided that the record is currently available and not in storage or archived.” The Custodian certifies and documents that she did comply with the statutory OPRA time frame. The requestor argues that West Caldwell’s Rules of Procedure Ordinance supersedes the “attorney-client privilege” protection. There are no provisions in OPRA that allow a municipal ordinance to abrogate a statutory exemption. The custodian, Ms. Edwards, certifies that “all public records” in West Caldwell Township’s file were disclosed to the requestor, however, in the May 23, 2003 response to the requestor, the custodian states that “any records” in West Caldwell Township’s file were accessible to the requestor. Based on the significant difference in the definitions of “all public records” and “any records,” the custodian should certify as to the correct information and explain and provide a log for any records contained in West Caldwell’s file that were withheld from the requestor. Additional Documents Reviewed The following documents were reviewed in preparing the Findings and Recommendations for this case:
_________________________ Paul F. Dice April 19, 2004 [1] A listing of privileged documents listing each document the date, type of document, subject matter of the document, persons copied on the document, the sender and receiver of the document and an explanation of why each document is privileged which should include a non-conclusory, comprehensive presentation of all factual grounds and legal analyses. Interim Order on Access and Custodian Penalty
At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations amended to include a certification and response deadline of March 18, 2004 to the Executive Director Dice to determine the following from the custodian.
Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Findings and Recommendations of the Executive DirectorRichard Wilcox GRC Complaint No. 2003-142Complainant v. Township of West Caldwell Custodian of Records Relevant Records Requested:
Request Made: May 8, 2003 Executive Director’s Recommendations This Open Public Records Act (“OPRA”) Complaint filed November 5, 2003 alleges denial of an OPRA request to the Township of West Caldwell seeking to inspect various records of the Township Attorney and the Township’s Zoning Board of Adjustment Attorney specifically containing information on certain members of the Wilcox family and 18 Memorial Road, West Caldwell. The Requestor alleges that the records of the Township Attorney and the Township’s Zoning Board of Adjustment Attorney, as employees of the Township of West Caldwell, should be considered public information. The Requestor also alleges that in the Custodian’s initial response to his request, access to the records was granted but was later denied by the Township Attorney. Further, the Requestor alleges that the Custodian did not respond to his initial request within the seven (7) business days statutorily mandated under OPRA. The Custodian asserts in the Statement of Information that the records requested are subject to “attorney-client privilege,” and are therefore exempt from access under OPRA. The Custodian alleges that all documents in the requested files that are not exempt by “attorney-client privilege” were released to the Requestor. The Executive Director recommends:
Legal Analysis The custodian has invoked the attorney-client privilege exemption under OPRA. Specifically, OPRA provides that “[a] government record shall not include the following information which is deemed confidential for the purposes of [OPRA]: … any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege.” N.J.S.A. 47:1A-1.1. In this case, the records requested are those belonging to the Township Attorney and the Township’s Zoning Board of Adjustment Attorney which contain information on certain members of the Wilcox family and 18 Memorial Road, West Caldwell. The Custodian did not disclose the nature of the records. However, the certified Statement of Information states that the Requestor has been granted access to all “non-privileged” documents. The claim of “attorney-client privilege” should be explained. Documents Reviewed The following documents were reviewed in the preparing the Findings and Recommendations for this case:
Conclusion The Executive Director respectfully recommends:
_________________________ Paul F. Dice Executive Director
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