2003-43

Final Decision on Attorney's Fee

The Council found that Complainant's counsel withdrew the subject Open Public Records Act complaint on the grounds that the Custodian and Complainant have amicably resolved the issue of attorney's fees. Having no other outstanding Open Public Records Act matters at issue, the Council voted unanimously to dismiss the complaint.

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 Attorney's Fees 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

Executive Director's Recommendation

The Government Records Council ("Council") considered this case at its February 10, 2004 meeting. In a Revised Supplemental Decision on Attorney's Fees, the Council found that requestor's counsel should include the following in his application for attorney's fees:

1. Copies of all time sheets for each person in 0.1 increments (6 minutes)
2. Evidence that the rates charged are in accordance with prevailing market rates in the ‘relevant community,’ taking into account the skill level, similar experience and reputation.

Further, the Council voted to forego further adjudicatory action until the requestor provided the information in "1" and "2" above.

In a letter dated March 1, 2004, custodian's counsel advised the then Acting Executive Director Paul Dice that the parties have reached an agreement regarding the attorney's fee amount. The remaining issue is receipt of the final payment that has been agreed upon. The parties have asked the Council to continue the attorney's fee application for one month, however, so they can work out the administrative details between them.

At its March 11, 2004 public meeting, the Government Records Council ("Council") considered the March 11, 2004 Supplemental Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Recommendations of the Executive Director Dice that the parties have until April 7, 2004, by the close of business, to resolve their differences and provide the Council with written confirmation that the issue of Attorney fees has been resolved.

On March 16, 2004, the Executive Director, Paul Dice, received correspondence from the requestor's counsel withdrawing the complaint because the custodian has fulfilled the obligation with respect to the payment of attorney's fees. 

The Executive Director respectfully recommends that the Council dismiss the complaint on the basis that the requestor's counsel confirmed in their March 16, 2004 correspondence to the Government Records Council that the custodian has complied with the agreement to pay the agreed attorney's fees. 

Documents Reviewed

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

• March 16, 2004 - Correspondence (email) to the GRC from the custodian’s counsel stating their request to withdraw the complaint. 
• March 16, 2004 - Follow up letter to GRC from custodian’s counsel confirming withdraw of the complaint.

Paul F. Dice, Executive Director
Government Records Council

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Interim Supplemental Decision on Attorney's Fees

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Supplemental Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Recommendations of the Executive Director Dice that the parties have until April 7, 2004, by the close of business, to resolve their differences and provide the Council with written confirmation that the issue of Attorney fees has been resolved.

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

Executive Director’s Recommendation

The Council Considered this case at its February 10, 2004 meeting. In a Revised Supplemental Decision on Attorney's Fees, the Council found that requestor's counsel should include the following in his application for attorney's fees:

1. Copies of all time sheets for each person in 0.1 increments (6 minutes)
2. Evidence that the rates charged are in accordance with prevailing market rates in the 'relevant community,' taking into account the skill level, similar experience and reputation.

Further, the Council voted to forego further adjudicatory action until the requestor provides the information in "1" and "2" above.

In a letter dated March 1, 2004, custodian's counsel advised the then Acting Executive Director Paul Dice that the parties have reached an agreement regarding the attorney's fee amount. The remaining issue is receipt of the final payment that has been agreed upon. The parties have asked the Council to continue the attorney's fee application for one month, however, so they can work out the administrative details between them.

The Executive Director respectfully recommends that the Council advise the parties that they have until April 8, 2004 to resolve their differences and provide the Council with written confirmation of same. 

Paul F. Dice. Acting Executive Director
Government Records Council

Dated:  March 7, 2004

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Revised Supplemental Decision on Attorney's Fees

At its February 10, 2004 public meeting, the Government Records Council ("Council") considered the February 10, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to accept said Findings and Recommendations with one change in "1" below. The Council instructed the Acting Executive Director to insert "all time sheets" in "1" below in place of "weekly time sheets" shown in the February 10, 2004 Findings and Recommendations of Executive Director.

Therefore, the Council finds that requestor’s counsel should include the following in his application for attorney’s fees:

Further, the Council voted to forego further adjudicatory action until the requestor provides the information in "1" and "2" above.

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

Relevant Records Requested:  Documents indicating turnstile numbers for events held by the Devils and Nets at the Continental Arena October 1, 2002 to present.
Request Date:  February 7, 2003
Custodian:  George Zoffinger
GRC Complaint Filed:  April 17, 2003

Executive Director's Recommendation

The Council Considered this case at its January 8, 2004 meeting. Per the January 26, 2004 e-mail from requestor's counsel to Acting Executive Director Paul Dice, the New Jersey Sports and Exposition Authority has "complied with the Order of the GRC giving the Star-Ledger access to turnstile figures for the Continental Arena relating to the Nets and the Devils."

The remaining issue before the Council is the issue of requestor's attorney's fees as the requestor is the prevailing party.

Requestor's counsel submitted an application on behalf of his client for reasonable attorney’s fees under N.J.S.A. 47:1A-6 to the GRC on January 26, 2004. He sent a copy of the application to requestor’s counsel on the same date.

On January 27, 2004, and in response to a review of the requestor's application for attorney’s fees, custodian's counsel wrote to Acting Executive Director and asked the GRC to elicit “…a more detailed accounting, as required by the GRC in L.E. Fisher v. City of Paterson, GRC No. 2002-46 and 2002-55 (decision issued August 14, 2003). More specifically, we would like you to request a detailed description of the services rendered with the corresponding time expended for each service.

Acting Executive Director Paul Dice wrote to requestor's counsel on February 2, 2004 seeking the following information regarding attorney’s fees:

1.    "Copies of weekly time sheets for each person in 0.1 increments (6 minutes)

2.    Evidence that the rates charged are in accordance with prevailing market rates in the 'relevant community.' Please take into account the skill level, similar experience and reputation."

The Acting Executive Director respectfully recommends that the Council forego further adjudicatory action until the requestor provides the information requested by the GRC on February 2, 2004 and the custodian and its counsel have an opportunity to review same.

Paul F. Dice. Acting Executive Director
Government Records Council

Dated:  February 10, 2004

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Final Decision on Access; Interim Decision on Attorney Fees

At its January 8, 2004 public meeting, the Government Records Council considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council, without Mr. Monzo's participation as he had stepped out the room, voted to adopt said Findings and Recommendations with a clarification in the period of time that the records are being requested. Therefore, the Council finds that:

1. The requested information (the turnstile numbers) is a government record pursuant to N.J.S.A. 47:1A-1.1 as the turnstile numbers are made, maintained and kept by the New Jersey Sports and Exposition Authority ("NJSEA").
2. The NJSEA has failed to meet its burden of proof that the turnstile numbers are a trade secret or proprietary commercial or financial information pursuant to N.J.S.A. 47:1A-1.1.
3. The NJSEA has failed to meet its burden of proof that disclosure of the turnstile numbers would give an advantage to competitors or bidders.
4. The requested information is subject to public access under the Open Public Records Act (OPRA).  Therefore, the custodian will provide the requestor with the turnstile numbers for the Devils and Nets games from October 1, 2002 to the date of the request - February 7, 2003.
5. The response by the custodian to the requestor was made in a timely manner in 7- business days.
6. The requestor is a prevailing party. If attorney's fees for which the requestor seeks compensation have been incurred, the requestor shall submit documentation supporting the basis for such fees for determination by the Government Records Council pursuant to N.J.S.A. 47:1A-7(f).

The custodian shall provide Acting Executive Director Paul Dice and the requestor with a response indicating compliance with numbers "1" through "5" of this order no later than the January 23, 2004.

The requestor shall provide Acting Executive Director Paul Dice a response to number "6" of this order no later than January 23, 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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Findings and Recommendations of Executive Director

Relevant Records Requested:  Documents indicating turnstile numbers for events held by the Devils and Nets at the Continental Arena October 1, 2002 to present.
Request Date:  February 7, 2003
Response Date:  February 19, 2003
Number of Business Days for Response:  7 business days (February 18, 2003 was President's Day Holiday)
Custodian:  George Zoffinger
GRC Complaint Filed:  April 17, 2003

Executive Director's Recommendation

The requestor (Star Ledger) stipulated that this case involved only a request for the turnstile numbers (the number of actual people passing through the gate) for events at which the New Jersey Devils and New Jersey Nets ("Teams") were playing a game in the NJSEA Continental Arena from October 1, 2002 to present.  The custodian's counsel argued that the requested information was exempt from disclosure under N.J.S.A. 47:1A-1.1 as said information constituted a trade secret, and was proprietary information of the "Teams", and would give an advantage to competitors if disclosed, citing the New York Knicks basketball team and New York Rangers Hockey team as examples.  The custodian's counsel further asserted that if the requested documents were not deemed a trade secret, they were still exempt from disclosure as proprietary information under the Open Public Records Act (OPRA), since the requested information was used in developing the "Teams" advertising, ticket pricing and broadcast strategies.  

The requestor's counsel contended that the requested information was made, maintained and kept by the NJSEA and is not confidential and exempt from disclosure under the OPRA.  The requestor's counsel asserted that the custodian's counsel had not established how the requested information was proprietary to the NJSEA and could present an advantage to NJSEA competitors. Requestor's counsel indicated further that since the information pertaining to the number of tickets sold and distributed was "widely reported" to the public then it did not see how the actual number of attendees (the turnstile numbers) counted by the NJSEA and provided to the "Teams" could be viewed as confidential and exempt from disclosure pursuant to OPRA. 

Clearly the requested "turnstile numbers" for the games played at the Continental Arena by the Devils and Nets are "Government records" pursuant to N.J.S.A. 47:1A-1.1, as the requested records are made, maintained and kept by the New Jersey Sports and Exposition Authority (NJSEA).  While there is a claim that the requested information is confidential as a trade secret and a number of citations were referenced that defined trade secrets, there was no evidence presented to explain how the turnstile numbers were a trade secret.  In fact, the custodian's counsel acknowledged that it might not meet this provision.   Furthermore, it has not been established how the turnstile numbers were proprietary information and how the turnstile numbers correlated to developing the "Teams" advertising, ticket pricing and broadcast strategies.  Noteworthy, the number of tickets sold is already available on the Internet.  The claim that the requested information, if released, could give an advantage to competitors, was not established.   Therefore, the requested records must be considered accessible to the public pursuant to N.J.S.A. 47:1A-1 et seq.

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

1. The requested information (the turnstile numbers) is a government record pursuant to N.J.S.A. 47:1A-1.1 as the turnstile numbers are made, maintained and kept by the New Jersey Sports and Exposition Authority.
2. The NJSEA has failed to meet its burden of proof that the turnstile numbers are a trade secret or proprietary commercial or financial information pursuant to N.J.S.A. 47:1A-1.1.
3. The NJSEA has failed to meet its burden of proof that disclosure of the turnstile numbers would give an advantage to competitors or bidders.
4. The requested information is subject to public access under the Open Public Records Act (OPRA).  Therefore, the custodian will provide the requestor with the turnstile numbers for the Devils and Nets games from October 1, 2002 to present.
5. The response by the custodian to the requestor was made in a timely manner in 7- business days.
6. The requestor is a prevailing party and is to submit documentation regarding their reasonable attorney’s fees for determination by the Government Records Council pursuant to N.J.S.A. 47:1A-6.

Statement of Facts

February 7, 2003 - Request to view records

A request was made by the Star Ledger to the records custodian for the New Jersey Sports & Exposition Authority (NJSEA) “to view” post event reports received by the chief executive that included general information about every event and its turnstile numbers.  The request did not indicate a specific date or event for which the requestor was seeking this information.  The request was submitted by Email to the record custodian of the New Jersey Sports & Exposition Authority. 

February 18, 2003 - Request for written response from custodian pertaining to denial of access

The requestor asked for a written response detailing the statute in which the request was being denied. 

February 19, 2003 - Custodian’s written denial to the requested information

The custodian advised the requestor in writing that it was denying access to the requested records, indicating the information was confidential as it was proprietary in nature and would "give an undue advantage to competitors of the NJSEA" and exempt from disclosure pursuant to the Open Public Records Act.   Regarding the specific request for attendance figures of home games conducted by the New Jersey Devils and the New Jersey Nets ("Teams") at the Continental Arena, the custodian’s counsel contended that this information was the property of the New Jersey Devils National Hockey League and New Jersey Nets National Basketball Association and not the NJSEA, so that disclosure was dictated by the “Teams” and not under the control of NJSEA.

February 24, 2003 - Requestor's counsel request for reconsideration

The requestor's counsel objected to the denial of access to the attendance figures for events held at the Continental Arena, contending that said records met the OPRA definition of "government records," and no factual explanation was given in support the denial on the basis it would put the NJSEA's client at a competitive disadvantage under N.J.S.A. 47:1A-1.1.  The requestor's counsel contended further that the attendance figures held by the "Teams" revealed the number of sold tickets, but the actual turnstile numbers were received and retained by the NJSEA.  Counsel challenged how the actual number of people attending an event that was received and retained by NJSEA would provide a competitor with any special information or advantage.   The requestor’s counsel maintained that the requestor was not seeking information pertaining to ticket distribution.  The requestor's counsel further challenged that the denial of access was an unreasonable denial of access under N.J.S.A. 47:1A-11, contending that it potentially may subject the custodian to a civil penalty.

March 18, 2003 - Custodian Counsel’s response to February 24, 2003 letter

In response, the custodian's counsel maintained that the reports received by the Chief Executive Officer of the NJSEA pertaining to events taking place at the Continental Arena were confidential for the following reasons:

• "The information is proprietary commercial information"
• Competitors of the NJSEA, its contractors, vendors, tenants and licensees would gain advantage if the information were disclosed
• The reports of home game attendance involving the New Jersey Nets and the New Jersey Devils was the property of the playing teams.

April 17, 2003 - Denial of Access Complaint filed

In the Denial of Access Complaint, the requestor's counsel submitted a Stipulation-Agreement agreed to by the parties and their counsel setting forth the specific records requested, the reasons for the denial, and the parties decline for mediation.   It was stipulated that:

1. Pursuant to N.J.S.A. 47:1A-1 et seq., a request was made for "certain documents kept on file at the NJSEA in the course of its official business."
2. The request pertained only to documents showing the "turnstile numbers for events held by the Devils and Nets at the Continental Area from October 1, 2002 to the present."  The requestor maintained that all other information [with the exception of the turnstile numbers] appearing on said documents could be redacted and was not sought in the request. 
3. N.J.S.A. 47:1A-1.1 for the following reasons:
   1. The requested information [turnstile numbers] constituted a trade secret of the Devils and Nets organizations
   2. The requested information was proprietary in nature and would give an advantage to competitors if disclosed.  
4. The parties declined mediation
5. The parties agreed that the complaint was not frivolous or without reasonable fact basis, and that the Government Records Council had jurisdiction.

May 30, 2003 - Custodian Counsels Statement of Information (SOI)

In the SOI, the custodian counsel asserted that the requested turnstile numbers must be considered confidential as they represent trade secrets and disclosure of this information would present an advantage to competitors as set forth in N.J.S.A. 47:1A-1 and 47:1A-1.1.  Custodian’s counsel cited Trump's Castle Assocs. V. Tallone, 275 N.J. Super. 159, 162 (app. Div. 1994) and Suncoast Tours, Inc. V. Lambert Group, Inc., 1999 WL 1034683, at *7 (D.N.J. 1999) in support of his client’s position, and contended that the turnstile numbers were exempt from disclosure based on one of the following categories of exemptions under N.J.S.A. 47:1A1.1:

• A trade secret
• Proprietary information, or
• Information that if released would give an advantage to competitors

The custodian's counsel indicated further that the NJSEA recorded the turnstile numbers on behalf of the Devils and Nets organization and then provided the numbers to the respective teams.   Included in the SOI, the Executive Vice President, Christopher Modrzynski, of the New Jersey Devils and the New Jersey Nets certified to the following:

1. The Devils and Nets entered into a contract with NJSEA for use of the Continental Arena by the "Teams."
2. The NJSEA recorded the turnstile numbers on behalf of the Devils and Nets for each event and provided the numbers to the respective "Teams."
3. The Devils and Nets used the turnstile numbers for advertising, ticket pricing and broadcast strategy.
4. The turnstile numbers were to be "treated" as confidential information and the NJSEA was not authorized to disclose the information, except to the "Teams."
5. The disclosure of said information could have a negative financial impact on the "Teams" through the pricing and marketing of tickets, merchandising of the "Teams" branded products and marketing of broadcast rights. 
6. The disclosure of these numbers “would give a marketing advantage to competitors, such as the New York Knicks basketball team and New York Rangers hockey team.” 

June 10, 2003 - Requestor counsel’s response to custodian counsel's SOI

In response to the custodian counsel’s SOI, the requestor’s counsel contended that:

1. The turnstile numbers could not be only provided to the "Teams", as the NJSEA would be required to record the actual number of attendees for other reasons, such as safety, fire law compliance and occupancy, regardless of any agreement it may have with the "Teams."   (Julie, Counsel noted this in response letter)
2. The turnstile numbers could not be "protectable as a trade secret" when information is "readily ascertainable" by anyone that may choose to count the number of people entering the arena for an event and cited Restatement (Third) of Unfair Competition, 43, d., p.495, in support of its client’s position.
3. N.J.S.A. 47:1A-6, in its denial of access to the requested documents (i.e., turnstile numbers). Supporting law on the public's right to access was noted in Hammock by Hammock v. Hoffman LaRoche, Inc., 142 N.J. 356, 386 (1995).

July 8, 2003 - Custodian counsel's response to GRC's Email dated 6/23/03

In an Email to the custodian, the GRC requested a copy of the licensing agreements referenced in the SOI and to provide any additional document in support of the confidentiality claim.  The custodian’s counsel responded that the NJSEA and the "Teams" had an unwritten agreement to maintain the confidentiality of the turnstile numbers but had not reduced their agreement to writing. 

August 4, 2003 - Custodian counsel’s response to requestor counsel's June 10, 2003 letter

The custodian's counsel maintained that even if the requested documents were not "technically trade secrets", they (the turnstile numbers) were treated as proprietary information and exempt from disclosure under N.J.S.A. 47:1A-1.1, as such disclosure would result in irreparable harm to the "Teams" and would give the "Teams" competitors an advantage.  The counsel references various case law in their defense regarding the proprietary nature and confidentiality of the requested information.  In addition, the custodian counsels submitted copies of the "Teams" License Agreements with the NJSEA and indicated that despite the "Entire Agreement" clauses of the License Agreements, case law otherwise protected confidential and proprietary information.

August 8, 2003 - Requestor Counsel's response to custodian counsel's

In response, the requestor's counsel asserted that the NJSEA has not identified any competitors that would be given an advantage if the requested information were disclosed.  Requestor's counsel contended further that the number of tickets sold or distributed was already available to the public and therefore accessible to competitive advertisers and broadcasters, and questioned how the actual turnstile numbers differed and would be deemed proprietary and confidential.  

December 17, 2003 - GRC requests response to custodian’' counsel claim the turnstile numbers are secret

The GRC requested a written response from the custodian's counsel stating why the NJSEA claim the turnstile numbers were secret when the NJSEA released other attendance figures. 

December 19, 2003- Custodian counsel’s response to the GRC's 12/17/03 letter

The custodian's counsel indicated there was a distinction between the turnstile numbers and the other attendance figures released by the NJSEA.  He indicated the turnstile numbers reflected the number of people passing through the turnstile and "used in pricing advertising, tickets, and broadcast considerations" while the other attendance figures were the number of tickets sold.  He maintained it was the turnstile numbers that were "confidential proprietary information by the Nets, Devils, and NJSEA."  Custodian's counsel argued that the NJSEA could "waive its claim of confidentiality with respect to certain information without implicating its ability to enforce its right to confidentiality with respect to other protectable information in the future" and cited in support of its client's position, Biunno, Current New Jersey Rules of Evidence, cmt. on N.J.R.E. 530.

December 30, 2003 - Custodian counsel's Email to GRC requesting extension of deadline for response to Preliminary Findings and Recommendations (PFR) and response from GRC

Custodian's counsel requested extension of deadline for response to PFR in that he was on vacation and did not receive the PFR until 12/30/03.  The Acting Executive Director responded that it could not extend the deadline. 

December 31, 2003 - Custodian counsel's response to PFR

The custodian counsel’s response to PFR and the denied request for an extension are as follows:

1. The GRC's denial of an extension "failed to provide the NJSEA with a meaningful opportunity to be heard concerning the Findings."
2. The custodian's counsel disagreed with PFR findings that it did not present evidence to explain how the turnstile numbers were a "trade secret" and confidential and maintained that the certification by Executive Vice President of the Devils/Nets was undisputed proof. 
3. Current New Jersey Rules of Evidence, cmt. of N.J.R.E. 530 ("the holder of a trade secret my divulge certain aspects of the secret to certain people without losing his trade secret privilege").
4. The custodian's counsel asserted that the certification by Executive Vice President was "uncontradicted evidence" of its explanation of how the release of turnstile numbers would give an advantage to competitors and bidders. 

Legal Issues and Considerations

The New Jersey Sports & Exposition Authority (NJSEA) claims that the requested turnstile numbers fall within two possible OPRA exemptions, which are "trade secrets and propriety commercial or financial information obtained from any source" or "information which, if disclosed, would give an advantage to competitors or bidders".  NJSEA has the burden to prove that denial of access pursuant to those exemptions is proper.  N.J.S.A. 47:1A-6.    NJSEA has failed to meet this burden of proof.  First, they have failed to demonstrate that the requested information constitutes trade secret or proprietary information.  New Jersey law cites to the Restatement of Torts Section 757 for a definition of a trade secret.  That Section provides:

A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.  It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. 

Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356 (1995) and Rycoline Products, Inc., 334 N.J. Super. 62 (App. Div. 2000).  Further, "[I]n all instances, a substantial measure of secrecy must exist in order for information to be treated as a trade secret."  LaMorte Burns & Co., Inc. v. Walters, 167 N.J. 285 (2001).    Additionally, proprietary information needs to be confidential information.  Subcarrier Communications, Inc. v. L.Day, 299 N.J. Super. 634 (App. Div. 1997). 

Rather than explaining how the turnstile numbers fall within the exemptions, NJSEA makes conclusory allegations.  For example, they broadly and vaguely state in their May 30, 2003, letter to the GRC that, "The Devils/Nets use these turnstile numbers as an element for their respective advertising pricing structure, ticket pricing, and broadcast considerations."   However, the requestor is not asking for an explanation of how tenants of NJSEA use the turnstile numbers for purposes of the advertising pricing structure, ticket pricing or broadcast considerations.  The requestor is only asking for the turnstile numbers.  NJSEA never explains how the actual numbers in and of themselves are trade secrets or proprietary information.     Moreover, NJSEA never submits evidence in support of their position that the numbers are the confidential property of the teams.  Additionally, they admit that while they maintain that NJSEA has an unwritten agreement with the Devils and Nets to treat the numbers as confidential, the written agreement between the parties is silent on the subject.   

Additionally, although NJSEA claims that the numbers are treated confidentially, based on the undisputed submission by the requestor, "the attendance figures" are released to the public.  After making the attendance figures public, to then claim that the actual, physical attendance is a trade secret or proprietary information would appear to be, at the very least, an inconsistent position.  Further, while NJSEA tries to draw a qualitative distinction between the attendance figures released to the public and the actual, physical attendance records, it is clear that one is merely a subset of the other.  Additionally, the alleged secrecy and confidentiality of the turnstile numbers is belied by the fact that these numbers could be known by simple observance, a point argued by the requestor.  

Further, regarding the exemption for information which would give an advantage to competitors and bidders, NJSEA has failed to prove that the numbers, which are not confidential or secret and which are in fact required to be known for public safety, would give an advantage to competitors and bidders.  Logically, an advantage can be obtained only by disclosure of information that should remain confidential.  Additionally, because the “attendance figures” are already publicly released, a claim that the physical attendance is exempt because it would provide an advantage to bidders and competitors would appear to be, at the very least, an inconsistent position.[1] 

Based on the above, NJSEA should disclose the requested turnstile numbers.   If the Council renders a decision in accordance with this advice, the requestor is a prevailing party under OPRA and should be required to submit documentation concerning the reasonable attorney’s fees to be awarded.   

Conclusions

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

1. The requested information (the turnstile numbers) is a government record pursuant to N.J.S.A. 47:1A-1.1 as the turnstile numbers are made, maintained and kept by the New Jersey Sports and Exposition Authority.
2. The NJSEA has failed to meet its burden of proof that the turnstile numbers are a trade secret or proprietary commercial or financial information pursuant to N.J.S.A. 47:1A-1.1.
3. The NJSEA has failed to meet its burden of proof that disclosure of the turnstile numbers would give an advantage to competitors or bidders.
4. The requested information is subject to public access under the Open Public Records Act (OPRA).  Therefore, the custodian will provide the requestor with the turnstile numbers for the Devils and Nets games from October 1, 2002 to present.
5. The response by the custodian to the requestor was made in a timely manner in 7- business days.
6. The requestor is a prevailing party and is to submit documentation regarding their reasonable attorney’s fees for determination by the Government Records Council pursuant to N.J.S.A. 47:1A-6.

Paul F. Dice. Acting Executive Director
Government Records Council

Dated:  December 31, 2003

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