2003-32

Final Decision

At its April 8, 2004 public meeting, the Government Records Council ("Council") considered the April 8, 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 Finding and Recommendations of the Executive Director. Therefore, the Council dismissed this complaint on the basis that the Custodian's March 8, 2004 certification adequately supports the Custodian's position that the subject documents are protected by attorney-client privilege and not disclosable under N.J.S.A. 47:1A-1 et seq.

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 on Access Rendered by the
Government Records Council
On The 8th Day of April, 2004

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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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: Copy of Written State-Wide Policy Prohibiting Prison Disciplinary Hearing Officers from Providing In-person, Physical Confrontation to Inmates of Adverse Witnesses
Custodian: Kathleen Wienchnik
Request Made: January 10, 2003
Response Made: January 31, 2003

GRC Complaint filed: March 18, 2003

Recommendations of the Executive Director

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 not accept said Findings and Recommendations.  Rather, the Council voted to direct the Executive Director to elicit a certification from the custodian regarding why the Council should consider the outline of the training session conducted by the Department of Corrections' attorneys for disciplinary hearing officers and supervisory staff to be attorney-client privileged and, therefore, not disclosable.

Subsequent to the Council's order, the custodian submitted a March 8, 2004 certification explaining that the documents in question contain counsel and advice for the hearing officers regarding legal requirements for the conduct of hearings and relevant court decisions relating thereto. 

Based on the description that has now been provided in regard to the training session activities conducted by the Division of Law to the Department of Corrections as set forth in the Custodian's certification, the Executive Director, after consultation with the GRC's legal advisors, concludes that the Custodian's assertion of privilege is appropriate and justified. 

In light of the foregoing, the Executive Director respectfully recommends that the Council dismiss the complaint. 

Analysis

No additional legal analysis is needed beyond that which was presented in the February 10, 2004 and December 31, 2003 Findings and Recommendations of the Executive Director.

Documents Reviewed

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

• January 30, 2004 - Legal Analysis from the Custodian's Counsel to the GRC
• March 8, 2004 - Certification and Letter from Custodian's Counsel in response to the March 1, 2004 decision
• March 8, 2004 - Letter from Complainant regarding the status of case 

Paul F. Dice, Executive Director
Government Records Council

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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 not accept said Findings and Recommendations. Rather, the Council voted to direct the Acting Executive Director to elicit a certification from the custodian regarding why the Council should consider the outline of the training session conducted by the Department of Corrections’ attorneys for disciplinary hearing officers and supervisory staff to be attorney-client privileged and, therefore, not disclosable.

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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Supplemental Findings and Recommendations of Executive Director

At its April 8, 2004 public meeting, the Government Records Council ("Council") considered the April 8, 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 Finding and Recommendations of the Executive Director. Therefore, the Council dismissed this complaint on the basis that the Custodian’s March 8, 2004 certification adequately supports the Custodian’s position that the subject documents are protected by attorney-client privilege and not disclosable under N.J.S.A. 47:1A-1 et seq. 

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 on Access Rendered by the
Government Records Council
On The 8th Day of April, 2004

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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Executive Director's Recommendation

Relevant Records Requested: Copy of Written State-Wide Policy Prohibiting Prison Disciplinary Hearing Officers from Providing In-person, Physical Confrontation to Inmates of Adverse Witnesses 
Request made: January 10, 2003
Response made: January 31, 2003
Number of Business Days for the Response: 14 business days
Custodian: Kathleen Wienchnik  
GRC Complaint filed:   March 18, 2003

Executive Director's Recommendation

The Council considered this case at its January 8, 2004 meeting. Following said meeting, the Council voted to:

1. Review the outline of the training session conducted by the department's attorneys for disciplinary hearing officers and supervisory staff, which the custodian claims is exempt under the Open Public Records Act ("OPRA"), in-camera at its February 10, 2004 meeting.
2. Order the custodian to testify at the February 10, 2004 Council meeting as to why the Council should conclude that the outline of the training session conducted by the department’s attorneys for disciplinary hearing officers and supervisory staff is attorney-client privileged and, therefore, not disclosable under OPRA.
3. Order the custodian to testify at the February 10, 2004 Council meeting regarding why it took the custodian 14 days to respond to the request and why the Council should not conclude that such actions are a knowing and willful violation of OPRA.

Based on the legal advice sought in the above matters following the Council's January 8, 2004 meeting, the Acting Executive Director respectfully recommends that the Council find:

1. [1] As such, there is no basis for testimony or an in camera proceeding.
2. The custodian’s testimony before the Council regarding the issue of a potential knowing and willful violation would jeopardize her right to an evidentiary hearing to which she is entitled. The Council should request a certification from the custodian to determine whether a plenary hearing should be arranged.

Paul F. Dice, Acting Executive Director
Government Records Council

February 10, 2004

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Interim Order

At its January 8, 2004 public meeting, the Government Records Council ("Council") considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to:

1. Review the outline of the training session conducted by the department's attorneys for disciplinary hearing officers and supervisory staff, which the custodian claims is exempt under the Open Public Records Act ("OPRA"), in-camera at its February 10, 2004 meeting.
2. Order the custodian to testify at the February 10, 2004 Council meeting as to why the Council should conclude that the outline of the training session conducted by the department’s attorneys for disciplinary hearing officers and supervisory staff is attorney-client privileged and, therefore, not disclosable under OPRA.
3. Order the custodian to testify at the February 10, 2004 Council meeting regarding why it took the custodian 14 days to respond to the request and why the Council should not conclude that such actions are a knowing and willful violation of OPRA.

The Council hereby directs Acting Executive Director Dice to coordinate the details of the in-camera and testimony proceedings on behalf of the Council.

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

Relevant Records Requested: Copy of Written State-Wide Policy Prohibiting Prison Disciplinary Hearing Officers from Providing In-person, Physical Confrontation to Inmates of Adverse Witnesses 
Request made: January 10, 2003
Response made: January 31, 2003
Number of Business Days for the Response: 14 business days
Custodian: Kathleen Wienchnik  
GRC Complaint filed:   March 18, 2003

Executive Director's Recommendation

This case involves the complainant, Gregory Perry, requesting a copy of a written statewide policy prohibiting prison disciplinary hearing officers from providing in-person, physical confrontation to inmates of adverse witnesses.  The requestor made the request to the Department of Corrections. 

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends the Council find that:

1. Per the credible evidence submitted by the custodian, there are no copies of a letter, memorandum, directive and/or written policy governing the department’s statewide procedure of denying inmates physical, in-person, confrontation with adverse witnesses at prison disciplinary hearings.
2. An outline of a training session conducted by the department’s attorneys for disciplinary hearing officers and supervisory staff may be responsive to the requestor’s inquiry, but this document is subject to attorney-client privilege.  N.J.S.A. 47:1A-1.1 provides that any record within the attorney-client privilege is not a government record.
3. The response by the custodian was not within the seven-business day deadline.     

Statement of Facts

January 10, 2003  - Records Request
The complainant, Mr. Gregory Perry, requested a copy of a letter, memorandum, directive and/or written policy authorizing the Disciplinary Hearing Officers in the Department of Corrections to require an inmate submission of a list of questions to adverse witnesses at prison disciplinary hearings; as opposed to physical, in-person confrontation.  Specifically, he requested the letter, memorandum, directive and/or written policy governing the department’s statewide procedure disallowing physical, in-person confrontation with adverse witnesses at prison disciplinary hearings. 

January 31, 2003  - Denial of Request
The custodian in this case, Ms. Kathleen Wiechnik, submitted a letter to the requestor stating that his request had been denied.  The custodian further stated that since the document was inter-agency or advisory material, it was excluded from the definition of government record set forth in N.J.S.A. 47:1A-1 et seq.

February 10, 2003  - Requestor Appeals to GRC
Seeking information from the GRC, the requestor sought to file a complaint against the custodian.

February 24, 2003  - GRC's Response to Appeal

March 18, 2003  - Denial of Access Filed with Supplemental
The requestor submitted a denial of access form and supplemental to the GRC.  In this information, he detailed his correspondences with the custodian and GRC.  He argued in this letter that the reason for this denial was vague.  “Since there are no precise definitions on what constitutes advisory material, the custodian can not shield its disclosure requirement by labeling documents under the vague category of advisory material.”

April 1, 2003 - Complaint Sent to DAG and Custodian

April 1, 2003 - Mediation Forms Sent to Custodian and Requestor

April 3, 2003 - Mediation Declined by Requestor

April 7, 2003 - Mediation Declined by Custodian
The Deputy Attorney General, Ms. Lisa Puglisi, responded to the mediation request form by stating that she will represent the custodian in this matter.  She also did not agree to mediation because the documents requested either did not exist or fell under the auspices of attorney-client privilege.

April 29, 2003  - Supplemental Sent to Requestor

May 7, 2003  - Statement of Information Submitted to GRC
In responding to #10 of this form, the custodian's representative claimed "there is no letter, memorandum, directive and/or written policy regarding physical in-person confrontation with adverse witnesses during disciplinary hearings.  The hearings are conducted in accordance with N.J.A.C. 10A: 4-1.1 et seq. and applicable case law, not internal Department policy or procedure.  On October 4, 2001, the Attorney General's Office, Division of Law provided counsel to the disciplinary hearing officers regarding confrontation/cross-examination.  The outline of the advice rendered by the Division of Law was not produced to the requestor because of attorney-client privilege"
May 13, 2003  - Supplemental #2 Submitted to GRC
After receiving a copy of the SOI, the requestor criticized the responses by the custodian.  He called the given reasons for denial contradictory and irreconcilable citing the three responses by the custodian as the following:

1. The document does not exist
2. The document deemed inter-agency advisory material
3. The outline of the advice rendered by the Division of Law was not produced to Complainant because it is attorney-client privilege

July 2, 2003  - Follow-up Letter by Requestor to GRC
The requestor sent a follow-up letter to the GRC for discovering the status of the case.

July 24, 2003  - Response by GRC to Requestor
The GRC responded to this request by writing a letter to Mr. Perry indicating that the case was undergoing legal analysis and would hopefully be heard in October. 

November 12, 2003  - Letter to GRC from Requestor
The requestor inquired with the GRC concerning the status of his case. 

Legal Issues and Considerations
The requestor is seeking a copy of the letter, memorandum, directive and/or written policy governing the department’s statewide procedure of denying inmates physical, in-person, confrontation with adverse witnesses at prison disciplinary hearings.  Department's counsel asserts that no such letter, memorandum, directive or written policy exists within the records of the department.  An outline of a training session conducted by the department’s attorneys for disciplinary hearing officers and supervisory staff may be responsive to the requestor's inquiry, but this document is subject to attorney-client privilege.  N.J.S.A. 47:1A-1.1 provides that any record within the attorney-client privilege is not a government record. "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law . . . Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."  Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed. 2d 584 (1980).  New Jersey Rule of Evidence 504(3) provides that a "communication made in the course of a relationship between lawyer and client shall be presumed to have been made in professional confidence unless knowingly made within the hearing of some person whose presence nullified the privilege."  Further, "{I}f the purpose of the communication is to aid the attorney in giving advice to his client or to prepare for litigation, then the privilege applies."  Hannan v. St. Joseph's Hospital & Med. Center, 318 N.J. Super. 22, 27 (App. Div. 1999).  Additionally, the comment to Rule of Professional Conduct 1.6, which addresses a lawyer's ethical obligations to a client regarding confidentiality of information, explicitly applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever the source.

The outline of the training session prepared by the department's attorneys memorializes attorney advice communicated to department hearing officers and supervisors.  This is exactly the type of document that the attorney-client privilege is intended to protect.  Contrary to the arguments of the requester, whether or not the attorney advice concerning the limitation on cross-examination by inmates at disciplinary hearings was correct is irrelevant to the application of the attorney-client privilege.  The correctness of the advice contained in the privileged document is not within the jurisdiction of the Government Records Council.  The requester had other alternatives to challenge the procedures followed at his disciplinary hearing.

Conclusions

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends the Council find that:

1. Per the credible evidence submitted by the custodian, there are no copies of a letter, memorandum, directive and/or written policy governing the department’s statewide procedure of denying inmates physical, in-person, confrontation with adverse witnesses at prison disciplinary hearings.
2. An outline of a training session conducted by the department’s attorneys for disciplinary hearing officers and supervisory staff may be responsive to the requestor's inquiry, but this document is subject to attorney-client privilege.  N.J.S.A. 47:1A-1.1 provides that any record within the attorney-client privilege is not a government record.
3. The response by the custodian was not within the seven-business day deadline.     

Paul F. Dice, Acting Executive Director
Government Records Council

December 31, 2003

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