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2003-34

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Warren Cundiff,
    Complainant
    v.
NJ Department of Law & Public Safety,
    Custodian of Record
Complaint No. 2003-34

At the March 10, 2005 public meeting, the Government Records Council (Council) considered the March 3, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations, with the additional provision that the Custodian be placed on the “Matrix” if the response to the request was not done within the statutory time period pursuant to the Open Public Records Act (OPRA) – a fact to be determined by the Council’s Executive Director. Therefore, the Council hereby finds that:

a.    The DOL has not borne its burden of proving why its lack of engagement in pre-litigation discovery is a lawful reason for denying the subject OPRA request.

b.    Complainant counsel’s January 13, 2003 written request for records was a valid OPRA request and should have been accepted as such by the Division of Law (DOL).

c.    The DOL has borne its burden of proving that the following documents are work product privileged as they were, according to Custodian’s counsel, prepared in anticipation of litigation by an employee of the Tort Litigation Section of the Office of the Attorney General. Therefore, these documents are not disclosable:

NOTE: All of the numerals and descriptions in the following outline refer to those assigned and presented by the Custodian to the documents discussed in its July 3, 2003 attachment to item 10 of the Statement of Information and Custodian counsel’s March 23, 2004 clarification of selected items.

1.    Handwritten notes detailing investigation that was done (2 pages)

2.    Memo from Nancy Scarafile, Investigator to Dennis Villone, Supervisor detailing investigation that was done (2 pages)

3.    Memo from David J. Goss, Supervision Chemist to Don Roberts, DOC, dated 12/13/02 regarding Warren Cundiff, explaining results from urine analysis and from the NJ Dept of Health, along with a copy of the test result, prepared at Nancy Scarafile’s request (2 pages)

4.    A fax cover sheet sending the information in #1 above to Nancy Scarafile, investigator, from Cynthia R. Bartlett, MS, Program Coordinator

5.    Handwritten notes regarding Cundiff’s criminal history, prepared by Investigator Scarafile as part of her investigation – Not dated (1 page),

7.    Memo to file regarding meeting with representatives from Roche regarding the reliability of the Roche test at issue, prepared by Investigator Scarafile as part of her investigation, dated 11/27/02 (1 page),

8.    Handwritten notes regarding the subject drug test, prepared by Investigator Scarafile as part of her investigation, dated 11/27/02 (3pages),

9.    Memo to file regarding Investigator Scarafile’s meeting with Gary Gonzales, Senior Probation Officer regarding Cundiff’s drug test and his arrest, prepared by Investigator Scarafile as part of her investigation dated 11/21/02 (1 page),

10.    Memo to file regarding Investigator Scarafile’s meeting with Ron Berreman, Senior Parole Officer, regarding the drug test at issues, prepared by Investigator Scarafile as part of her investigation in November, 2002 (1 page),

11.    Fax transmittal sheet to Gary Gonzales, Senior Probation Officer, prepared by Investigator Scarafile as part of her investigation on 11/21/02 – It is also indicated that 3 additional pages were attached but which pages were attached are not noted (1 page),

12.    Memo to Randi Yaffee, Assistant District Supervisor, dated October 18, 2002 from Nancy Scarafile, Investigator, attaching notice of claim from plaintiff and asking to meet with several employees regarding Cundiff’s arrest. A fax cover sheet from Scarafile to Yaffee dated 10/18/02, is also attached (2 pages),

18.    Handwritten notes gathered by Investigator Scarafile detailing the work that she did on the Cundiff claim – dated from 10/18/02 to 7/15/03. Also, handwritten notes to file prepared by Investigator Scarafile regarding Roche urine sample test, not dated (4 pages),

20.    Computer printouts regarding plaintiff’s last incarceration, accessed on 11/25/02, gathered by Investigator Scarafile as part of her investigation. Also included, plaintiff’s NJ wage record for 2002 (accessed on 11/15/02) and a list of plaintiff’s debtors (date of access not given) (6 pages),

23.    Memo from Kathleen M. Bartus, DAG to Robert Sanguinetti, dated April 3, 2003 detailing why the requested investigation files are not subject to disclosure and explaining the work product doctrine,

27.    Division of Law case tracking sheet dated 9/5/02 – for internal use to keep track of claims in the Division of Law.

d.   The DOL has not borne its burden of proving that the following documents should be considered to be work product privileged, as the DOL has not demonstrated that they were prepared in anticipation of litigation or that disclosure would reveal legal analysis, strategy, judgment or opinions. Further, the DOL has not demonstrated that the dominant purpose for the documents is, or was, concern about actual or pending litigation or matters related thereto:

NOTE: All of the numerals and descriptions in the following outline refer to those assigned and presented by the Custodian to the documents discussed in its July 3, 2003 attachment to item 10 of the Statement of Information and Custodian counsel’s March 23, 2004 clarification of selected items.

6.    Correspondence from Nancy Scarafile to Allan Marain, Esq. enclosing a notice of claim form to be filled out and returned (1 page),

13.    Notice of Claim for Damages from Plaintiff (8 pages),

14.    Correspondence to Allan Marain, Esq. from Nancy Scarafile denying claim (1 page),

15.    Correspondence to Allan Marain, Esq. from Nancy Scarafile denying Marain’s request for documents with exhibits consisting of notice of claim, request for documents and internal memo from Gary Gonzalez (10 pages),

16.    Another copy of correspondence detailing plaintiff’s notice of claim (3 pages),

17.    Form labeled “continuity of evidence – urine specimen” (i.e. chain of custody) regarding Cundiff’s urine sample that was given on 6/25/02 and sent to the lab on 6/27/02 (3 pages),

19.    Denial of Access Complaint, NJ GRE [sic] and attachments (12 pages)

21.    Booklet and attachments from Roche regarding the type of urine test taken by Cundiff,

22.    Booklet from Roche detailing court cases involving Rapid Drug Testing,

24.    E-mail from GRC to Nancy Scarafile regarding GRC Complaint #2003-34 and attachments (10 pages),

25.    Two CD-Rom’s from Roche regarding “Testcup” and “Teststik” training,

26.    Sample Testcup and Teststik,

28.    Correspondence from David Goss, Supervising Chemist to Allan Marain

28.    With the exception of number “26a,” The DOL shall disclose the documents in number “d” immediately above within five (5) business days from receipt of the Council’s final order and confirm completion of same to the Executive Director. 

29.    Upon review of the factual information in the case, the Custodian responded two business days beyond the statutory time period.  Therefore, the Custodian’s name will be placed on the “Matrix.” 

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
Government Records Council
On The 10th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Diane Schonyers
Government Records Council


a Attorney Work Product notwithstanding, the Sample Testcup and Sample Teststik would not be disclosable under OPRA as they are not “government records” pursuant to N.J.S.A. 47:1A-1.

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Findings and Recommendations of the Executive Director

Warren Cundiff                              GRC Complaint No.: 2003-34 
            Complainant
                        v.
New Jersey Department of Law and Public Safety
            Custodian of Records

Relevant Records Requested: All documents generated, acquired and reviewed in the course of investigation of a Notice of Tort Claim dated August 27, 2002.

Complainant’s Counsel:  Allan Marain
Custodian:  Robert Sanguinetti
Custodian’s Counsel:  Kathleen Bartus, Deputy Attorney General
Request Made: January 13, 2003 – re-submitted in its entirety and without any changes on March 26, 2003
Response Made: January 24, 2003
GRC Complaint filed: March 18, 2003

Background

January 13, 2003
Complainant’s counsel’s letter to the Division of Law (DOL) requesting the subject records on behalf of his client.

January 24, 2003
DOL investigator’s letter to Complainant’s counsel denying the January 13, 2003 document request on the basis that the DOL “does not engage in pre-litigation discovery.”

March 18, 2003
Complainant’s counsel files a Denial of Access Complaint with the Government Records Council (GRC) on behalf of his client.

March 26, 2003
DOL confirmation that Complainant counsel’s letter was entered into the DOL’s database as an Open Public Records Act (OPRA) request

NOTE: Complainant’s Denial of Access form states that DOL personnel advised Complainant’s counsel that OPRA requests must be on agency forms. Further, DOL personnel offered to prepare the form and Custodian’s counsel accepted the offer on the date it was offered – March 26, 2003.

April 4, 2003
Custodian’s denial of the March 26, 2003 request on the basis that “The documents requested are attorney work product and protected by the Attorney-Client Privilege. In addition, this request is subject to the Tort Claims Act and not OPRA.”

April 7, 2003
GRC’s offer of mediation

April 23, 2003
Custodian advised Complainant’s counsel that in keeping with OPRA a “certification was sent to the requestor on April 4, 2003.”

April 23, 2003
Complainant counsel’s acknowledgement of the Custodian’s April 23, 2003 communication

April 29, 2003
Complainant counsel’s letter regarding a further response from the DOL and a statement that he will not be pursuing mediation

May 7, 2003
Custodian counsel’s denial of mediation

June 18, 2003
Complainant counsel’s letter to the GRC providing information and materials requested by the GRC staff

June 23, 2003
GRC transmittal of Complainant’s Denial of Access Complaint to Custodian

July 1, 2003
Custodian’s Statement of Information denying access to the requested documentation on the basis that the records are preempted from disclosure pursuant to the attorney work product privilege.

January 22, 2004
E-mail from Custodian’s counsel outlining what documents the Division of Law (DOL) has on file from Roche.

March 16, 2004
GRC staff requests additional information regarding why selected records should be considered exempt from disclosure pursuant to the attorney work product privilege

March 23, 2004
Custodian’s counsel responds to GRC staff’s March 16, 2004 request for additional information regarding why the records should be considered privileged.

April 11, 2004
Custodian’s counsel requests a status report on the case from GRC staff.

Analysis

The Division of Law (DOL) initially denied this OPRA request on January 24, 2003 on the basis that the DOL  “does not engage in pre-litigation discovery.”

WHETHER the Division of Law’s January 24, 2003 denial of access to records on the basis that the DOL “does not engage in pre-litigation discovery” constitutes a lawful preemption to OPRA

OPRA states the public agency bears the burden of proving that the denial of access is lawful. N.J.S.A. 47:1A-6. OPRA further states that court rules will preempt OPRA. N.J.S.A. 47:1A-9(a).

Custodian’s counsel verbally cited court rule R 4-11-1 as the applicable preemption. However, she did not support that statement via any legal argument, nor has she committed the defense to writing. Further, the Custodian did not raise the defense in any of his submissions to the GRC.

The DOL has not borne its burden of proving why its lack of engagement in pre-litigation discovery is a lawful reason for denying the subject OPRA request.

At the time of the initial request, and according to Complainant’s counsel, the DOL was not considering Complainant counsel’s January 13, 2003 written request as a valid OPRA request, despite the fact that Complainant’s counsel indicated that it was an OPRA request.

On March 26, 2003, following submission of a Denial of Access Complaint with the GRC, custodian’s counsel re-filed the same request he made on January 13, 2003; this time he filed it using the DOL’s OPRA request form. The DOL again denied the request. However, this time the DOL stated the basis for its denial as, “The documents requested are Attorney Work Product and protected by the Attorney Client Privilege. In addition,

this request is subject to the Tort Claims act and not OPRA.”

WHETHER Complainant counsel’s January 13, 2003 written OPRA request to the DOL is a valid OPRA request, even though it was not on the DOL’s OPRA form

OPRA states that custodians shall adopt OPRA request forms. However, it does not state that the requestors must utilize same.

  • N.J.S.A. 47:1A-5(f) states “The custodian of a public agency shall adopt (emphasis added) a form for the use of any person who requests access to a government record held or controlled by the public agency…”

The DOL did in fact adopt an OPRA request form. Complainant’s counsel did not utilize it for his January 13, 2003 request, nor was he obligated to, as OPRA does not state that the “adopted” form must be used.

Complainant’s counsel submitted a written request to the DOL stating, in part, that “On behalf of Warren Cundiff, and pursuant to the New Jersey Examination an Copies of Public Records Act, N.J.S. 47:1A et seq., and the common law right of access to government records, I request that you provide the materials listed below.” The DOL acknowledges receipt of same. Complainant counsel’s January 13, 2003 request is, therefore, a valid OPRA request.

Custodian’s counsel states that the subject request involves records from a State Investigator employed by the Tort Litigation Section of the Office of the Attorney General – Nancy Scarafile. According to Custodian’s counsel, the DOL gave Scarafile the assignment to investigate the “incident” following the service of a Notice of Claim by plaintiff’s counsel. Also, and again according to Custodian’s counsel, “Scarafile’s file is covered by the work product doctrine because this file was prepared at the request of this [Division of Law] office…As a threshold matter, the investigation files at issue were prepared in anticipation of litigation. Thus, these files fall within the work product privilege.”

Complainant’s counsel states, “Acquisition of pre-existing documents is not subject to the work product doctrine. Review of pre-existing documents is not subject to the work product doctrine. Materials generated in the course of the investigation of a Tort Claim Notice may fall within the Attorney Client Privilege. However, such generated records should still be identified.”

Work Product Privilege explained

The following quotation explains the policy underlying the work product privilege: In performing his various duties, . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference . . . This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other intangible ways.”  Miller v. J.B. Hunt Transport, Inc., 339 N.J. Super. 144,148 (App. Div. 2001) (citing to Hickman, supra, 329 U.S. at 510-511, 67 S. Ct. at 393, 91 L. Ed. at 462.)

The work product privilege is found in R. 4:10-2, which provides that, “a party may obtain discovery of documents and tangible things otherwise discoverable under R. 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

“In order for the work product doctrine to apply, the materials must have been prepared in anticipation of litigation and not in the ordinary course of business.”  Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997).  However, a document may be found to have been prepared in anticipation of litigation even though litigation had not been commenced or even threatened when the document was prepared.  Miller, 339 N.J. Super. at 149 (App. Div. 2001).  Moreover, “a statement or other document will be considered to have been prepared in anticipation of litigation if the ‘dominant purpose’ in preparing the document was concern about potential litigation and the anticipation of litigation was ‘objectively reasonable’.  Id. at 150.

Work Product Privilege applied to documents prepared pursuant to investigation of a notice of claim under the Tort Claims Act

Filing a notice of claim is a condition precedent to bringing an action against a public entity.  N.J.S.A. 59:8-3.  Pursuant to N.J.S.A. 59:8-4, a notice of claim is required to include, among other information, a description of the circumstances giving rise to the claim, a general description of the injury or damage incurred, and who caused the injury or damage.  Additionally, “[a] claim for damage or injury arising under this act against the State shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission.”             

Based on the fact that a notice of claim is a prerequisite to litigation and that the notice identifies the nature and cause of the claim and damages, it is objectively reasonable for the receiver of the claim, here the Attorney General, to anticipate litigation once he has received a Notice.   (See Miller, supra., where a trucking company’s statement of a truck driver involved in an accident was work product privileged, because the trucking company’s dominant purpose in taking the statement was to prepare for potential litigation and the company had an objectively reasonable basis for anticipating that suit would be brought by the other driver.)   Therefore, in this case, the work product privilege does apply to documents prepared pursuant to investigation of a notice of claim where the dominant purpose in preparing the document was to prepare for the anticipated litigation by the claimant. 

Generally, documents in existence prior to the filing of the Notice of Claim which the investigator obtained and that do not include the investigator’s thoughts, theories, notes or memoranda are not work product privileged.  Torraco v. Torraco, 236 N.J. Super. 500 (Chancery Div. 1989). (See also In re: Grand Jury Subpoenas, 318 F.3d 379, 384-385 (2d Cir. 2003), where the court stated that “work product does not extend to documents in an attorney’s possession that were prepared by a third party in the ordinary course of business and that would have been created in essentially similar form irrespective of any litigation anticipated by the counsel.”)  There is an exception to the above generality where the selection and compilation of documents by counsel is in preparation for the case, for example where a lawyer selects documents for witness review prior to a deposition.  There, the concern is that revealing the attorney’s grouping will reveal opinion work product.  See Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), cert. den. 474 US 903, 106 S. Ct. 232, 88 L. Ed.2d 230 (1985).   However, in the present case, there has been no showing of an exercise of a legal analysis or judgment selectively grouping documents for a particular purpose.

WHETHER the following documents should be considered Attorney Work Product and, therefore, privileged from disclosure

OPRA states that documents within the Attorney Client Privilege shall be exempt from disclosure. N.J.S.A. 47:1A-1.1. The Attorney Work Product privilege is included in the Attorney Client Privilege.

NOTE: All of the numerals and descriptions in the following outline refer to those assigned and presented by the Custodian to the documents discussed in its July 3, 2003 attachment to item 10 of the Statement of Information and Custodian counsel’s March 23, 2004 clarification of selected items.

The following Documents should be considered work product privileged as they were, according to Custodian’s counsel, prepared in anticipation of litigation by an employee of the Tort Litigation Section of the Office of the Attorney General:

  1. Handwritten notes detailing investigation that was done (2 pages)
  2. Memo from Nancy Scarafile, Investigator to Dennis Villone, Supervisor detailing investigation that was done (2 pages)
  3. Memo from David J. Goss, Supervision Chemist to Don Roberts, DOC, dated 12/13/02 regarding Warren Cundiff, explaining results from urine analysis and from the NJ Dept of Health, along with a copy of the test result, prepared at Nancy Scarafile’s request (2 pages)
  4. A fax cover sheet sending the information in #1 above to Nancy Scarafile, investigator, from Cynthia R. Bartlett, MS, Program Coordinator
  5. Handwritten notes regarding Cundiff’s criminal history, prepared by Investigator Scarafile as part of her investigation – Not dated (1 page),
  6. Memo to file regarding meeting with representatives from Roche regarding the reliability of the Roche test at issue, prepared by Investigator Scarafile as part of her investigation, dated 11/27/02 (1 page),
  7. Handwritten notes regarding the subject drug test, prepared by Investigator Scarafile as part of her investigation, dated 11/27/02 (3pages), 
  8. Memo to file regarding Investigator Scarafile’s meeting with Gary Gonzales, Senior Probation Officer regarding Cundiff’s drug test and his arrest, prepared by Investigator Scarafile as part of her investigation dated 11/21/02 (1 page), 
  9. Memo to file regarding Investigator Scarafile’s meeting with Ron Berreman, Senior Parole Officer, regarding the drug test at issues, prepared by Investigator Scarafile as part of her investigation in November, 2002 (1 page), 
  10. Fax transmittal sheet to Gary Gonzales, Senior Probation Officer, prepared by Investigator Scarafile as part of her investigation on 11/21/02 – It is also indicated that 3 additional pages were attached but which pages were attached are not noted (1 page), 
  11. Memo to Randi Yaffee, Assistant District Supervisor, dated October 18, 2002 from Nancy Scarafile, Investigator, attaching notice of claim from plaintiff and asking to meet with several employees regarding Cundiff’s arrest. A fax cover sheet from Scarafile to Yaffee dated 10/18/02, is also attached (2 pages),
  12. Handwritten notes gathered by Investigator Scarafile detailing the work that she did on the Cundiff claim – dated from 10/18/02 to 7/15/03. Also, handwritten notes to file prepared by Investigator Scarafile regarding Roche urine sample test, not dated (4 pages), 
  13. Computer printouts regarding plaintiff’s last incarceration, accessed on 11/25/02, gathered by Investigator Scarafile as part of her investigation. Also included, plaintiff’s NJ wage record for 2002 (accessed on 11/15/02) and a list of plaintiff’s debtors (date of access not given) (6 pages),
  14. Me  mo from Kathleen M. Bartus, DAG to Robert Sanguinetti, dated April 3, 2003 detailing why the requested investigation files are not subject to disclosure and explaining the work product doctrine, 
  15. Division of Law case tracking sheet dated 9/5/02 – for internal use to keep track of claims in the Division of Law.

The following documents should not be considered to be work product privileged, as the DOL has not borne its burden of proving that they were prepared in anticipation of litigation or that disclosure would reveal legal analysis, strategy, judgment or opinions. Further, the DOL has not demonstrated that the documents’ dominant purpose is, or was, concern about actual or pending litigation or matters related thereto:

NOTE: Allan Marain, Esq. serves as Complainant’s counsel. “Plaintiff” refers to Complainant.

  1. Correspondence from Nancy Scarafile to Allan Marain, Esq. enclosing a notice of claim form to be filled out and returned (1 page),
  2. Notice of Claim for Damages from Plaintiff (8 pages),
  3. Correspondence to Allan Marain, Esq. from Nancy Scarafile denying claim (1 page),
  4. Correspondence to Allan Marain, Esq. from Nancy Scarafile denying Marain’s request for documents with exhibits consisting of notice of claim, request for documents and internal memo from Gary Gonzalez (10 pages),
  5. Another copy of correspondence detailing plaintiff’s notice of claim (3 pages),
  6. Form labeled “continuity of evidence – urine specimen” (i.e. chain of custody) regarding Cundiff’s urine sample that was given on 6/25/02 and sent to the lab on 6/27/02 (3 pages),
  7. Denial of Access Complaint, NJ GRE [sic] and attachments (12 pages)
  8. Booklet and attachments from Roche regarding the type of urine test taken by Cundiff,
  9. Booklet from Roche detailing court cases involving Rapid Drug Testing,
  10. E-mail from GRC to Nancy Scarafile regarding GRC Complaint #2003-34 and attachments (10 pages),
  11. Two CD-Rom’s from Roche regarding “Testcup” and “Teststik” training,
  12. Sample Testcup and Teststik,[1]

Correspondence from David Goss, Supervising Chemist to Allan Marain,

Conclusions and Recommendations

Based on the foregoing, the Executive Director respectfully recommends the Council find that:

  1. The DOL has not borne its burden of proving why its lack of engagement in pre-litigation discovery is a lawful reason for denying the subject OPRA request.
  2. Complainant counsel’s January 13, 2003 written request for records was a valid OPRA request and should have been accepted as such by the DOL.
  3. The DOL has borne its burden of proving that documents numbered 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 18, 20, 23, 27 are privileged by Attorney Work Product and are, therefore, not disclosable.
  4. The DOL has not borne its burden of proving that documents numbered 6, 13, 14, 15, 16, 17, 19, 21, 22, 24, 25, 26, 28 are privileged by Attorney Work Product and are, therefore, disclosable.
  5. The Council should order the DOL to disclose the documents in number “4.” Immediately above within five (5) business days from receipt of the Council’s final order.

Paul F. Dice
Executive Director
Government Records Council
March 3, 2005



[1] Attorney Work Product notwithstanding, the Sample Testcup and Sample Teststik would not be disclosable under OPRA as they are not “government records” pursuant to N.J.S.A. 47:1A-1.

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