2003-147

Final Decision

1. The Division custodian provided access to all Division records extant that are responsive to the 4 OPRA requests at issue in the complaint.
2. The one record withheld, a Division investigation of a complaint filed by the requestor against a named Division employee, is a confidential record within a Division employee's personnel file pursuant to N.J.S.A. 47:1A-10. Requestor has been informed, however, of the result of the investigation, specifically, that the Division's Office of Criminal Investigation (OCI) found no evidence to support requestor's allegations. 

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 Acting Executive Director

Relevant Records Requested: Requestor challenges the sufficiency of Division response to four OPRA requests, all of which seek records related to a 1997 state tax judgment against requestor recouping an improperly issued tax refund and subsequent years' underpayment of tax. (See Legal Analysis for More Details)
Custodian: Mary Beth Davies
Request Made: On Various Dates Between August 2, 2002 and October 23, 2003 (See Legal Analysis)
Response Made: On Various Dates Between the Same Time Period (See Legal Analysis)
GRC Complaint filed: November 17, 2003

Recommendations of Acting Executive Director

Requestor challenges the sufficiency of Division response to four OPRA requests, all of which seek records related to a 1997 state tax judgment against requestor recouping an improperly issued tax refund and subsequent years' underpayment of tax. Requestor denies ever receiving the refund check, the notice of the tax deficiency dated September 26, 1996 or the subsequent judgment against him recorded electronically in Essex County Superior Court on August 11, 1997.  Requestor's state and federal tax rebates were recently diverted to satisfy the judgment. Requestor accused a Division of Taxation employee of fraudulently cashing the refund check and, along with a private collection agency, processing paperwork without notice to him that resulted in the judgment.
On March 8, 2002 Department of Treasury, Office of Management and Budget, provided requestor a copy of the refund check in question, signed by him, from its files at 33 West State Street. The Division has also provided electronic computer entries describing the various stages of notice to requestor and entry of judgment, as the hard copies of the documents were destroyed in March 2000 pursuant to Disposal Authorization #45-690.

The Acting Executive Director respectfully recommends the Council find that:

1. The complaint should be dismissed because the Division custodian has provided access to all Division records extant that are responsive to the 4 OPRA requests at issue here
2. The one record withheld, a Division investigation of a complaint filed by the requestor against a named Division employee, is a confidential record within a Division employee’s personnel file pursuant to N.J.S.A. 47:1A-10. Requestor has been informed, however, of the result of the investigation, specifically, that the Division's Office of Criminal Investigation (OCI) found no evidence to support requestor's allegations. 

Legal Analysis

1. Request C446. On or about August 2, 2002, a Division employee advised requestor that Division files concerning the judgment against him had been destroyed. [See, e.g., 8/2/02 letter from requestor]. Request C446, filed August 26, 2002, sought copies of the Division authorization for disposal of requestor's "tax file" along with a copy of the certificate of destruction. On September 4, 2002, the custodian provided a copy of a "authorization for records disposal" #45-690 dated March 20, 2000 permitting destruction of "Correspondence and Internal administrative" records dated 1991-1999 for a "Summer of 92 project, Doctors and Dentists"

The credible evidence establishes that the records provided are those sought.  Custodian Maureen Adams certifies that the taxpayer's records were part of an audit project undertaken by the Division known as "the Summer 92 project" described in Disposal Authorization #45-690.  Regardless what the audit project was named, a Division file establishing requestor's liability for failure to return an inappropriate refund can, arguably, be classified as "internal administrative records." While the custodian's certification states that the files were authorized for destruction March 20, 2003, Division counsel advises that this is a typographic error and an amended certification to be submitted shortly shall recite that files were authorized for destruction on March 20, 2000, as indicated in Disposal Authorization #45-690. GRC staff should contact the custodian if the certification is not received in the next few days.

2. Request C5236. By letter dated February 17, 2003, requestor accused a named Division employee of forgery, fraud and illegal destruction of state records. On or about July 17, 2003, requestor wrote State Treasurer John McCormac regarding the Complaint. By letter dated July 30, 2003, the Treasurer advised requestor that the Division's Office of Criminal Investigation (OCI), Internal Security Unit had completed its investigation of the complaint and had "taken appropriate action." The Treasurer stated that the investigation report was a confidential personnel record pursuant to N.J.S.A. 47:1A-10.

Request C5236 dated July 25, 2003 asked the Division for a copy of report #3015 by OCI concerning requestor's complaint. Custodian advised requestor by letters dated August 8 and August 22 that additional time was required to reply to the request. By letter dated September 3, 2003, the custodian replied that OCI investigated the complaint and concluded that "no impropriety had occurred." However access to the report was denied on the grounds that it constituted a confidential personnel record pursuant to N.J.S.A. 47:1A-10. By letter dated September 10, 2003, the State Treasurer reiterated that the report was confidential and stated that OCI was "unable to verify the allegations of impropriety."

In its letter-brief dated December 10, 2003, Division counsel argues that the investigation is part of the personnel file of the employee in question and constitutes a "grievance" against a state employee that is listed as confidential pursuant to N.J.S.A. 47:1A-10.

The custodian correctly denied access to the investigation report. Council need not determine whether a complaint against a state employee constitutes a "grievance" by or against an employee as the term is used in OPRA. Section 10 only permits access to specific information in an employee's personnel file and plainly does not include internal investigations of alleged employee misconduct. For this reason, this portion of the OPRA complaint challenging denial of this request should be dismissed.

3. Request C5905 filed September 16, 2003, requestor sought 8 categories of information. Items 1-4 sought phone logs and file notes recording attempted collection of the tax deficiency, all communications between the Division and Payco, the collection subcontractor, concerning collection of requestor's debt, a copy of the judgment and proof of service of the judgment upon requestor. By letter dated September 25, 2003, requestor was provided copies of data entries in the Division's computer system regarding all such information. Mary Beth Davies, Manager of the Division's Government Records Access Unit, reiterated that hard copies of the records had been destroyed. Custodian Maureen Adams certifies that all electronic records relating to the subject matter sought by requestor have been provided and that no other records exist.

Item 5 sought a copy of the Notice of Contract Award to Payco pursuant to which Payco’s processed the State tax claim against requestor. This was provided. Item 6 asked for the names of other bidders for the contract. This was provided. Item 7 asked for the revenue generated from the contract. This was provided. Item 8 asked for a list of all lawsuits arising from the contract. This was provided.

Requestor complains that he does not understand some of the entries on the Division computer records sent to him. However, the Division has satisfied its obligation under OPRA by providing all records in its possession responsive to the request. For this reason, the portion of the OPRA complaint challenging denial of this request should be dismissed.

4. Request C6412 submitted October 23, 2003 sought a copy of "Mr. Grady's investigation" concerning requestor's February 2003 complaint against a named Division employee. By letter dated October 31, 2003, custodian sought additional time within which to respond. By letter dated November 7, 2003, Mary Beth Davies, Manager of the Division's Government Records Access Unit, advised requestor that the record sought, Report #3015, was not publicly accessible because it was part of a Division employee's personnel file.

As noted earlier, the custodian has correctly withheld access to Report #3015 pursuant to N.J.S.A. 47:1A-10. For this reason, this final portion of the OPRA complaint which challenges denial of this request should be dismissed.

Documents Reviewed

August 26, 2002 - Records Request #1

September 12, 2002 - Custodian's Letter to Requestor Indicating Fee for Request

July 25, 2003 - Records Request #2

August 8, 2003 - Request by Custodian for More Time to Complete a Review of the Request

August 14, 2003 - Requestor's Letter to Custodian Questioning the Actions of the Custodian

August 22, 2003 - Custodian's Letter to Requestor Indicating a Legal Review Before Submitting a Response

September 3, 2003 - Denial of Records Submitted to Requestor

September 6, 2003 - Records Request #3

September 10, 2003 - Custodian's Response to the 8/14/03 Letter

September 10, 2003 - Records Request #4

September 12, 2003 - Response by Custodian to the Telephone Inquiries of Requestor

September 16, 2003 - Response by Custodian of the Cost and Balance Due for the Request

September 25, 2003 - Custodian's Letter to Requestor Regarding Documents Available for Delivery

October 14, 2003 - Requestor's Letter to the Attorney General

October 25, 2003 - Requestor's Letter to Barbara O'Hare of the Dept. of Treasury

October 27, 2003 - Requestor's Letter and Attachments Sent to GRC

October 31, 2003 - Request by Custodian for More Time to Complete a Review of the Request

November 6, 2003 - GRC Responded to Requestor

November 7, 2003 - Denial of Records Submitted to Requestor

November 17, 2003 - Denial of Access Form Submitted to GRC

November 19, 2003 - Complaint Sent to Custodian

December 1, 2003 - Response by Custodian to GRC

December 15, 2003 - Statement of Information Filed with GRC

Conclusion

1. The complaint should be dismissed because the Division custodian has provided access to all Division records extant that are responsive to the 4 OPRA requests at issue here
2. The one record withheld, a Division investigation of a complaint filed by the requestor against a named Division employee, is a confidential record within a Division employee's personnel file pursuant to N.J.S.A. 47:1A-10. Requestor has been informed, however, of the result of the investigation, specifically, that the Division's Office of Criminal Investigation (OCI) found no evidence to support requestor's allegations.

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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