2003-20

Final Decision

At its February 10, 2004 public meeting, the Government Records Council ("Council") considered the February 3, 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. The Council dismissed the complaint finding that:

1. The custodian provided the requestor with the training records responsive to the request and the Acting Chief of Police addressed the absence of records for two clerical employees and EMS training in his certification.
2. The custodian's January 9, 2004 certification adequately explains the delay in providing access to the requested documents.

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 Executive Director

Anna Marie Killino
Complainant
v.
Municipal Clerk, Delran Township
Custodian of Record

Relevant Records Requested: "Training records for firearms, vehicular pursuit and emergency medical service (EMS Training) for Delran Police Department." A list of Delran Officers and dates requested is attached to request.
Request Date: 1/23/03
Response Date: 1/29/03
Custodian: Bernadette McPhee
GRC Complaint Filed: 2/25/03

Executive Director's Recommendations

This case involves a request for "Training records for firearms, vehicular pursuit and emergency medical service (EMS Training) for Delran Police Department." The requestor provided a list containing 29 names of which 27 were identified as police officers and 2 names were identified as administrative personnel whose training records she was seeking. The dates of the requested training records varied for each listed name, but encompassed a period from 1997 to present. The request was submitted in writing to the Delran Township custodian for the Police Department on January 23, 2003 and a response given by the custodian on January 29, 2003 within 7 business days.

The custodian denied the records request on the advice of the Burlington County Prosecutor's Office stating that the records were "considered part of the Personnel files" and exempt from disclosure pursuant to N.J.S.A. 47:1A-10. In the statement of information, the custodian's counsel asserted further that disclosure of the requested information, which allegedly contained sensitive information, could present a safety risk, citing N.J.S.A. 47:1A-1.1 in support of the claim.

On November 21, 2003 the custodian informed the GRC that she had mailed the requestor copies of the training records because they reflected the named employees' compliance with experiential qualifications necessary to hold their jobs pursuant to N.J.S.A. 47:1A-10. There were no records for the two clerical employees, as they were not required to complete such training. No records existed for EMS training as such training was not provided. The requestor informed the GRC that the training records received from the township were incomplete. A certification was received from Delran Township's Acting Chief of Police stating that he provided copies of the requested documents to the Township Clerk for the requestor and that said records were the only records maintained by the department regarding firearm and vehicular pursuit training received by the police officers. He certified further that the clerical employees on the list did not receive said training and that the police department did not provide EMS training to its officers.

The Acting Executive Director recommends that the Council dismiss the complaint because:

1. The custodian provided the requestor with the training records responsive to the request and the Acting Chief of Police addressed the absence of records for two clerical employees and EMS training in his certification.
2. The custodian's January 9, 2004 certification adequately explains the delay in providing access to the requested documents.

Statement of Facts

January 23, 2003 - Written request for records

Requestor, Anna Marie Killino, submitted a written request to the records custodian of Delran Township for training records of the Delran police department pertaining to the firearms, vehicular pursuit and emergency medical service training taken by police officers named in the list accompanying the request and for the dates specified in the list.

The list consisted of 29 names of which 27 were identified as police officers and 2 names were identified as an administrative secretary and senior police clerk.

The dates of the requested training records varied for each listed name, but encompassed a period from 1997 to present.

January 29, 2003 - Written response from records custodian to requestor

The custodian's response to the request through legal advice received from the Burlington County Prosecutor's Office indicated the requested records were “considered part of Personnel files” and not accessible under the Open Public Records Act.

February 25, 2003 - Denial of Access Complaint filed with the GRC

The requestor filed a denial of access complaint with the GRC contending that the requested training records were “State mandated and therefore open public records,” She indicated further that she made the same request to the Riverside Township Police Department and received the requested records.

April 16, 2003 - Offer of Mediation to parties

April 17, 2003 - Custodian signed Agreement to Mediate

June 19, 2003 - Requestor's Supplemental to complaint

The requestor indicated that the New Jersey Police Vehicular Pursuit Policy details the police training requirements and contended that the requested records would indicate whether the Delran Township Police were in compliance. The requestor maintained that Riverside and Cinnaminson Township Police Departments had already released their training records, asserting that said records were not considered “personnel files.”

June 18, 2003 - Statement of Information (SOI) from custodian's counsel

The custodian's counsel contended that the requested training records were exempt from disclosure pursuant to N.J.S.A. 47:1A-10 “Personnel, pension records not considered public document; exceptions.” He asserted that the requested records were part of the officers' personnel records, which was exempt from disclosure and argued further that the requested records contained sensitive information that could create a safety risk pursuant to N.J.S.A. 47:1A-1.1.

Custodian's counsel indicated that the Killino family filed a Notice of Tort Claim with the Township of Delran on October 22, 2002 regarding the death of their son. In November, 2002 the Killino's made in a records request to the Township for the names of all employees of the Delran Police Department with their rank, length of service and salary and the requested information was provided pursuant to N.J.S.A. 47:1A-10.

The custodian's counsel contended that its denial of access to the requested record pursuant to the Open Public Records Act did not preclude access under common law.

November 12, 2003 - Letter to Delran Police Department from GRC pertaining to records request

The GRC requested the department to explain whether the training information was required as a condition for continued employment, the correct names for the requested training records, whether records were maintained, and the frequency of the training.

November 21, 2003 - Custodian counsel's response to the 11/12/03 letter and response letter to requestor

Custodian's counsel indicated that it revisited the records request and determined that the training records requested could be disclosed and on November 21, 2003 mailed training records of firearm and vehicle pursuit training completed by the Delran policemen for the time period 1999 through January 2003. The custodian explained that the emergency medical service training was not required training and they did not retain records of this training.

December 11, 2003 - Email to GRC from the requestor

The requestor indicated that she wished to pursue its complaint for the following reasons:

1. The vehicular pursuit training records received from the custodian's counsel were not complete (ref. letter dated 11/21/03 from custodian to requestor)
2. The custodian was not timely in providing the requested records and there was no discussion of an extension

December 29, 2003 - Letter to custodian's counsel from GRC requesting detailed explanation of records provided to requestor and certification on untimely access to records.

December 31, 2003 - Custodian's response to GRC

The custodian's counsel provided the GRC with a copy of the documents provided to the requestor and the letter that accompanied the documents. The custodian's counsel asserted that the records provided to the requestor were the only records that existed pertaining to Firearms and Vehicular Pursuit training for police officers in the Delran Police Department during 1999 through 2002. The custodian's counsel explained that the missing training records for Ms. Kraemer and Pfeffer was due to their not being officers and said training was not required for their administrative positions. He indicated that Patrolman Upton was attending the Police Training Academy from July to December 1999 where he received his Firearm and Vehicular training.

January 8, 2004 - GRC forwards copy of requestor's 12/11/03 Email and request custodian counsel's response

January 9, 2004 - Certification from records custodian and statement regarding the failure to provide the records sought in a timely manner

In the custodian's certification, she indicates that when she received the request, the Chief of Police advised her that the only requirement involving training was the officers' graduation from the Police Academy and the Prosecutor's Office advised that the requested records were exempt from disclosure under “Personnel Records.” The custodian indicated further that in November 2003 she was informed by the Acting Chief of Police upon advice from the County Prosecutor's office that the guidelines from the Attorney General indicated that semi-annual training in firearms and vehicular pursuit was required to demonstrate competency by each police officer. She maintained that upon advice that the requested records could be released; copies were forwarded to the requestor on November 21, 2003.

January 16, 2004 - Custodian Counsel's response to GRC 1/8/04 letter and requestor's Email

The custodian's counsel asserts that the requestor received all the training records pertaining to vehicular pursuit and firearms maintained by the Delran Police Department concerning the individuals identified in the OPRA request.

January 20, 2004 - GRC sent requestor copies of correspondence received from the custodian's counsel during the period November 12, 2003 and January 16, 2004

January 21, 2004 - Certification from Delran's Acting Chief of Police concerning records provided to requestor

January 23, 2004 - Requestor's response concerning custodian information provided to GRC

In the response, the requestor maintained that the records she sought are public records and had “readily” received similar records from other townships. She questioned the completeness of the records provided to her by the custodian and the delay in providing them to her. The requestor asserted that her complaint was not processed in a “timely and efficient manner.”

Legal Issues and Considerations

The training records were provided to requestor in November 2003. Requestor alleges the documents are not responsive to the request. No further detail was provided.

The Acting Chief of Police has certified that all the records in the possession of the Delran PD are responsive to the request have been provided to the requestor. The custodian's attorney states that there are no records for one individual who was in police academy for the time period in question.

In Jackson v. Kean University, GRC No. 2002-98, the requestor challenged the sufficiency of the records provided, alleging a name was "missing" from the records. The GRC dismissed the Complaint, relying on the custodian's certification that all records in the custodian's possession that were responsive to the request had been provided the requestor.

Based upon the facts here, the Council should dismiss the portion of the Killino complaint seeking access to records based upon the custodian's certification that all records in the custodian's possession responsive to the request have been provided requestor. Custodian counsel's statements confirming the absence of records for specific individuals in Police Academy and the inapplicability of EMS training for the individuals in question are consistent with the certification and, therefore, support it.

Conclusion

The Acting Executive Director recommends that the Council dismiss the complaint because:

1. The custodian provided the requestor with the training records responsive to the request and the Acting Chief of Police addressed the absence of records for two clerical employees and EMS training in his certification.
2. The custodian's January 9, 2004 certification adequately explains the delay in providing access to the requested documents.

_____________________________

Paul F. Dice, Acting Executive Director

Government Records Council

Dated: February 3, 2004

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