2003-155

Final Decision

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 to adopt the entirety of said Findings and Recommendations and to dismiss the complaint on the basis of:

1. The complainant was provided access to all requested personnel records pursuant to the County’s policy to permit County employees to review their own personnel files.
2. Access to the harassment complaint against complainant was properly denied pursuant to:
   1. N.J.S.A. 47:1A-10 “…records relating to any grievance filed by or against the individual are not considered a government record…;” and
   2. The disclosure exception under N.J.S.A. 47:1A-1.1, which includes “grievances” filed against an individual.
3. The information requested by the complainant is not a valid OPRA request as it does not constitute a “Government record” under the provisions of N.J.S.A. 47:1A-1.1.

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

Relevant Records Requested: Copy of harassment complaint and employee file (complete file); seeking the location, time and date when such harassment occurred. 
Custodian: Art Charlton
Request Made: December 1, 2003
Response Made:   December 5, 2003
GRC Complaint filed: December 27, 2003

Recommendations of Acting Executive Director

The complainant contends that he has been improperly denied access to the harassment complaint against him. In the supplement to the Denial of Access Complaint, the requestor stated that he was not seeking the actual harassment complaint, but was seeking information contained in the complaint.  The complainant has been provided access to his personnel records in accordance with the County’s policy to permit County employees to review their own personnel files.

The custodian has denied access to the harassment complaint against the complainant under the provisions of OPRA, N.J.S.A. 47:1A-10 and N.J.S.A. 47:1A-1.1. 

The Acting Executive Director respectfully recommends the Council dismiss this case because:

1. The complainant was provided access to all requested personnel records pursuant to the County’s policy to permit County employees to review their own personnel files.
2. Access to the harassment complaint against complainant was properly denied pursuant to:
a.  N.J.S.A. 47:1A-10 “…records relating to any grievance filed by or against the individual are not considered a government record…;” and
b. The disclosure exception under N.J.S.A. 47:1A-1.1, which includes “grievances” filed against an individual.
c. The information requested by the complainant is not a valid OPRA request as it does not constitute a “Government record” under the provisions of N.J.S.A. 47:1A-1.1.

Legal Analysis

Pursuant to N.J.S.A. 47:1A-10:

Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of the public agency, including but not limited to records relating to any grievance filed by or against the individual, shall not be considered a government record and shall not be made available for the public access, except that: an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record …

The custodian counsel relies on this statutory exception to OPRA to partially deny the complainant’s request.  The custodian also relies on the exception found within the definitions of OPRA, N.J.S.A. 47:1A-1.1, wherein:

…information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in collective bargaining negotiations, including documents and statements of strategy or negotiation position; … [Emphasis added]

Although neither the custodian nor the complainant refer to the harassment complaint as a “sexual” harassment complaint, the distinction is not necessary because the remainder of the exception under N.J.S.A. 47:1A-1.1 includes “grievances” filed against an individual. 

The information requested by the complainant is not a valid OPRA request as it does not constitute a “Government record” under the provisions of N.J.S.A. 47:1A-1.1.

A plain reading of OPRA finds that an exception exists, under the law, to deny complainant’s access to the record(s) regarding the harassment complaint filed against him.  

Documents Reviewed

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

• December 1, 2003 – OPRA Records Request
• December 5, 2003 – Custodian’s response to requestor’s records request
• December 27, 2003 – Denial of Access Complaint filed
• December 29, 2003 – Additional Information from Requestor
• January 14, 2004 – Offer of Mediation provided to Requestor and Custodian
• January 28, 2004 – Request from GRC for Custodian’s Statement of Information
• February 2, 2004 – Custodian’s Statement of Information filed with supporting information

_________________________

Paul F. Dice
Executive Director
Government Records Council

March 7, 2004

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