2003-44

Final Decision

At its April 8, 2004 public meeting, the Government Records Council (Council) considered the April 8, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said Finding and Recommendations of the Executive Director. Therefore, the Council dismisses this complaint on the grounds that the Complainant has not provided the Council with confirmation that he contacted the Custodian to arrange a time to inspect the records in question. The Council ordered such action in its Order following its February 10, 2004 public meeting.

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 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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Findings and Recommendations of Executive Director

Relevant Records Requested:
List of all investigators or detectives in the office of the Monmouth County Prosecutor, showing, as to each: name; salary for calendar years 2002 and 2003; law enforcement experience (employer and length of time) prior to employment by the Monmouth County Prosecutor.

Request made: March 18, 2003
Custodian: Patricia B. Quelch, Executive Prosecutor
Request granted in part and denied in part: March 27, 2003
GRC Complaint filed:  April 21, 2003

Executive Director’s Findings and Recommendation

The Government Records Council (“Council”) considered this case on follow-up at its January 8, 2004 meeting. At that meeting, the Council voted unanimously to find that:

1. The requestor has the right to inspect the records and not receive copies if he so chooses.
2. The custodian shall not charge an extraordinary labor charge for preparing the records for inspection given that the custodian has not explained the rationale for applying such charges.
3. Should the requestor require copies of all or parts of the subject documentation, such charges, pursuant to N.J.S.A. 47:1A –5(b), shall not exceed $79.75.

A Supplemental Order with an effective date of January 23, 2004 was issued in accordance with the Council’s vote.

Acting Executive Director Paul Dice wrote to the requestor on January 26, 2004 and asked if the Council’s January 8, 2004 Supplemental Order had been complied with and whether there were any outstanding issues surrounding the March 18, 2003 Open Public Records Act (“OPRA”) request. Dice copied the custodian in that communication. In response, the requestor verbally advised Dice that he expected to view the documents on January 28, 2004, weather permitting.

On February 2, 2004, Executive Director Dice again wrote to the requestor and asked if there were any outstanding issues in this complaint. The requestor responded on February 3, 2004 stating that he did not view the records on January 28, 2004 because of inclement weather. He said that he hoped to inspect the records in the next few days. Also, he plans on preparing a response to custodian’s certifications regarding the imposition of a penalty.

At its February 10, 2004 public meeting, the Council considered the Executive Director’s Findings and Recommendations of February 4, 2004 which states: 

“The Executive Director respectfully recommends that the Council:

1. Provide the parties with ten business days from the date of receipt of the order to be written for the February 10, 2004 meeting to finalize their positions with respect to the Council’s January 8, 2004 Supplemental Order.  Such positions must be provided in writing to Acting Executive Director by the close of said ten-day timeframe.
2. Direct the Acting Executive Director to process any issues identified by the parties in regard the January 8, 2004 Supplemental Order in the normal course of administrative action.
3. Find that a lack of presentation of issues within the ten-day timeframe stated in “1” above will result in the Council’s dismissal of this complaint.”

The Council voted to adopt the February 4, 2004 Findings and Recommendations of the Executive Director, but amended it to the following:

1. The parties have ten (10) business days from the effective date of this Final Decision to meet if the requestor seeks to inspect the records.
2. The parties have five (5) calendar days to confirm in writing to the Executive Director their positions in response to the Council’s January 8, 2004 Supplemental Order.  Such positions must be provided in writing to the Executive Director by the close of said five-day timeframe. 

To date, the requestor has not complied with the Council’s Final Decision effective March 1, 2004, even with follow-up from the GRC staff.  The Executive Director respectfully recommends that the Council dismiss the complaint.   On the basis that the requestor has not confirmed to the GRC that he made an attempt to contact the custodian to inspect the records. 

Analysis

The Government Records Council’s March 1, 2004 Final Decision ensured that the requestor would have had the opportunity to inspect the subject records during regular business hours (N.J.S.A. 47:1A-5(a)).  The requestor did not avail himself of that opportunity.  Therefore, the complaint should be dismissed. 

Paul F. Dice, Executive Director
Government Records Council

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Final Decision

The Council considered this case on follow-up at its January 8, 2004 meeting. At that meeting, the Council voted unanimously to find that:

1. The requestor has the right to inspect the records and not receive copies if he so chooses.
2. The custodian shall not charge an extraordinary labor charge for preparing the records for inspection given that the custodian has not explained the rationale for applying such charges.
3. Should the requestor require copies of all or parts of the subject documentation, such charges, pursuant to N.J.S.A. 47:1A –5(b), shall not exceed $79.75.

By the February 11, 2004 Council meeting the requestor had not inspected the records.

At its February 10, 2004 public meeting, the Government Records Council (“Council”) considered the February 4, 2004 Findings and Recommendations of Executive Director which states:

“The Acting Executive Director respectfully recommends that the Council:

1. Provide the parties with ten business days from the date of receipt of the order to be written for the February 10, 2004 meeting to finalize their positions with respect to the Council’s January 8, 2004 Supplemental Order.  Such positions must be provided in writing to Acting Executive Director by the close of said ten-day timeframe.
2. Direct the Acting Executive Director to process any issues identified by the parties in regard the January 8, 2004 Supplemental Order in the normal course of administrative action.
3. Find that a lack of presentation of issues within the ten-day timeframe stated in “1” above will result in the Council’s dismissal of this complaint.”

The Council voted to accept the February 4, 2004 Findings and Recommendations of Executive Director but amended the Acting Executive Director’s recommendations to the following:

1. The parties have ten (10) business days from the effective date of this Final Decision to meet if the requestor seeks to inspect the records.
2. The parties have five (5) calendar days to confirm that “1” immediately above has been complied with.

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 Recommendation of Executive Director

Relevant Records Requested:
List of all investigators or detectives in the office of the Monmouth County Prosecutor, showing, as to each: name; salary for calendar years 2002 and 2003; law enforcement experience (employer and length of time) prior to employment by the Monmouth County Prosecutor.

Request made: March 18, 2003
Custodian: Patricia B. Quelch, Executive Prosecutor
Request granted in part and denied in part: March 27, 2003
GRC Complaint filed:  April 21, 2003

Executive Director’s Recommendation

The Council considered this case on follow-up at its January 8, 2004 meeting. At that meeting, the Council voted unanimously to find that:

1. The requestor has the right to inspect the records and not receive copies if he so chooses.
2. The custodian shall not charge an extraordinary labor charge for preparing the records for inspection given that the custodian has not explained the rationale for applying such charges.
3. Should the requestor require copies of all or parts of the subject documentation, such charges, pursuant to N.J.S.A. 47:1A –5(b), shall not exceed $79.75.

A Supplemental Order with an effective date of January 23, 2004 was issued in accordance with the Council's vote.

Acting Executive Director Paul Dice wrote to the requestor on January 26, 2004 and asked if the Council's January 8, 2004 Supplemental order had been complied with and whether there were any outstanding issues surrounding the March 18, 2003 Open Public Records Act ("OPRA") request. Dice copied the custodian in that communication. In response, the requestor verbally advised Dice that he expected to view the documents on January 28, 2004, weather permitting.

On February 2, 2004, Acting Executive Director Dice again wrote to the requestor and asked if there were any outstanding issues in this complaint. The requestor responded on February 3, 2004 stating that he did not view the records on January 28, 2004 because of inclement weather. He said that he hoped to inspect the records in the next few days. Also, he plans on preparing a response to custodian’s certifications regarding the imposition of a penalty.

The Acting Executive Director respectfully recommends that the Council:

1. Provide the parties with ten business days from the date of receipt of the order to be written for the February 10, 2004 meeting to finalize their positions with respect to the Council’s January 8, 2004 Supplemental Order.  Such positions must be provided in writing to Acting Executive Director by the close of said ten-day timeframe.
2. Direct the Acting Executive Director to process any issues identified by the parties in regard the January 8, 2004 Supplemental Order in the normal course of administrative action.
3. Find that a lack of presentation of issues within the ten-day timeframe stated in “1” above will result in the Council’s dismissal of this complaint.

Legal Analysis

No further legal analysis is required in this case.

Paul F. Dice, Acting Executive Director
Government Records Council

Dated: February 4, 2004         

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Supplemental Order

At its January 8, 2004 public meeting, the Government Records Council (“Council”) considered the following documents received in response to the Council’s November 13, 2003 Final Decision:

1. December 15, 2003 certification from the custodian outlining and explaining the events that gave rise to a delay in providing the requestor with the requested 2002 name and salary information.
2. December 15, 2003 certification from the custodian explaining that she never received the Council’s November 13, 2003 Final Decision on Access; Interim Decision on Custodian Penalty which had been sent to her by the Council’s staff via e-mail.
3. December 18, 2003 letter from custodian to Gloria Luzzatto of the Council explaining that the charges for the requested information would be $79.75 for copying and $415.83 for labor.
4. December 22 2003 letter from Requestor objecting to the charges outlined in the custodian’s December 18, 2003 letter and stating that he had not been offered the option of inspecting the records rather than receiving copies.

The Council voted unanimously to find that:

1. The requestor has the right to inspect the records and not receive copies if he so chooses.
2. The custodian shall not charge an extraordinary labor charge for preparing the records for inspection given that the custodian has not explained the rationale for applying such charges.
3. Should the requestor require copies of all or parts of the subject documentation, such charges, pursuant to N.J.S.A. 47:1A –5(b), shall not exceed $79.75.

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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Final Decision on Access

At its November 13, 2003 public meeting, the Government Records Council considered the November 6, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties.

The Council voted unanimously to order the custodian to:

1. Disclose the "law enforcement experience (employer and length of service) prior to employment by the Monmouth County Prosecutor" to the extent it represents conformity with specific experiential, educational or medical qualifications required for the position of detective. Such disclosure should be made pursuant to the provisions of pursuant to N.J.S.A. 47:1A-10.
   
2. Submit a certification to the Council detailing why the 2002 name and salary information was not disclosed in a timely manner and why the delay should not be considered by the Council as a knowing and willful violation of the Open Public Records Act in the totality of the circumstances. Said certification shall be submitted to the Government Record Council's Acting Executive Director Dice no later than December 1, 2003.

The custodian shall comply with "1" above no later than 10 business days following receipt of this decision by the Monmouth County Prosecutor's Office.

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 Recommendation of Executive Director

Relevant Records Requested:
List of all investigators or detectives in the office of the Monmouth County Prosecutor, showing, as to each: name; salary for calendar years 2002 and 2003; law enforcement experience (employer and length of time) prior to employment by the Monmouth County Prosecutor.
Request made: March 18, 2003
Custodian: Patricia B. Quelch, Executive Prosecutor
Request granted in part and denied in part: March 27, 2003
GRC Complaint filed: April 21, 2003

Executive Director's Recommendation

In part, this case involves a request for names and salaries of detectives in the Monmouth County Prosecutor's Office for 2002 and 2003. The custodian does not dispute the requester's right to access this information and provided the 2003 information in a timely manner. However, the requester did not receive the 2002 information until after he filed a Denial of Access Complaint.

The case also involves a request for documents that evidence prior law enforcement experience of the subject detectives. The custodian does not believe that the requester is entitled to same and has denied that portion of the request. She argues that the only documentation that exists that is responsive to this portion of the request are non-disclosable applications for employment. The custodian argues that the applications should not be disclosed pursuant to N.J.S.A. 47:1A-10.

The Executive Director respectfully recommends that the Council find that:

1. The timeliness of the custodian's response regarding access to the documentation that was not in dispute must be addressed in two sections:
   

1. The requester received the 2003 name and salary information seven-business days following the request.
   
2. The requester received the 2002 name and salary information 26 days following the request. The custodian stated that this was an error that her office found after receiving the requester's Denial of Access Complaint. The custodian released the 2002 name and salary information three days following receipt of the Denial of Access Complaint.

   The Executive Director finds that the custodian violated N.J.S.A. 47:1A-5(i) by not providing the 2002 salary and name information to the requester within the prescribed seven business days. However, the custodian's actions do not rise to the level of a knowing and willful violation given the custodian's explanation regarding her confusion surrounding the salary negotiations. She corrected her mistake within three days of being notified of same.

2. The custodian has provided the requested list of all detectives in the Office of the Monmouth County Prosecutor showing as to each their names and salaries for calendar years 2002 and 2003.
   
3. While the custodian is not required to disclose the unredacted employment application, pursuant to N.J.S.A. 47:1A-10, she must disclose the requested "law enforcement experience (employer and length of service) prior to employment by the Monmouth County Prosecutor" to the extent it discloses conformity with specific experiential, educational or medical qualifications required for the position of detective.
   
4. The custodian has ten business days from the date of receipt of the Council's Order to comply with #3 above. The custodian or counsel of record shall also provide the Acting Executive Director with written notice of compliance within said timeframe.
   
5. The complaint should be dismissed upon the custodian's compliance with "3" and "4" above.

Statement of Facts

On March 18, 2003, the requestor made an OPRA request to the Clerk of the Board of Chosen Freeholders of Monmouth County for a list of all investigators or detectives in the office of the Monmouth County Prosecutor, showing, as to each: name; salary for calendar years 2002 and 2003; and law enforcement experience (employer and length of time) prior to employment by the Monmouth County Prosecutor.

The Clerk of the Board of Chosen Freeholders of the County of Monmouth sent the requestor a March 20, 2003, letter stating that he had forwarded the OPRA request to Ms. Patricia Quelch at the Monmouth County Prosecutor's Office.

Patricia Quelch, the Executive Prosecutor, sent the requestor a March 27, 2003, letter stating that she was enclosing the name, rank, salary and years of service in the Monmouth County Prosecutor's Office for the detectives.¹ She stated that a review of N.J.S.A. 47:1A-10 indicates that the requestor is not entitled to information concerning the detective's law enforcement experience.

The requestor sent the Executive Prosecutor a letter stating that the County Administrator had made representations, at Chosen Board of Freeholder meetings and in the press, as to prior law enforcement experience of county investigators, and that there is a clear public interest in knowing the details upon which his statements are based. He stated that the Prosecutor's office has previously made the information available for at least three of its employees. He requested that the Prosecutor reconsider her refusal to provide the information.

The Executive Prosecutor sent the requestor an April 14, 2003, letter denying the request for further information, as the statute does not require its release. Further, she stated that the voluntary release of the information did not negate the effect of the statute.

The requestor filed a Denial of Access Complaint dated April 21, 2003. The requestor alleged that he has received the base salary for 2003 with no benefit or longevity information and has received no 2002 information. He further alleged that he received the time for the current position and no information regarding prior experience.

The requestor declined mediation on April 29, 2003.

The Executive Prosecutor/custodian filed a Statement of Information dated May 22, 2003, identifying herself as the custodian and stating that the Monmouth County Prosecutor's Office provided the requestor with a chart on March 27, 2003, detailing the name, rank, salary and years of service for each detective in the Prosecutor's office as of March 2003. Additionally, she stated that on April 24, 2003, the Prosecutor's office provided an additional chart providing the salaries as of 2002. She explained that due to the timing of the request, she initially thought the salaries she provided in March 2003, were for 2002 and that the negotiations for 2003 salaries had not been completed. She rectified her error after receiving the Complaint. She argued that N.J.S.A. 47:1A-10 does not require the disclosure of the prior law enforcement experience of the detectives. Additionally, no such record exists. She asserted that the prior law enforcement experience is included in the individual detectives' applications for employment that is part of the personnel file, which is not a public record pursuant to N.J.S.A. 47:1A-10. She asserted that there is no factual basis for the claims in the Complaint or the relief requested.

¹ Although, the request was made of the Board of Chosen Freeholders of Monmouth County, the Monmouth County Prosecutor’s Office has accepted the request and has voluntarily responded to it.

Analysis

The credible information shows that the requestor has received the requested information with the exception of the requested law enforcement experience (employer and length of time) prior to employment by the Monmouth County Prosecutor. Because the custodian states that some of the information is contained in employment applications, we review whether those employment applications are disclosable under OPRA in their unredacted form. In this regard, Executive Order (EO) #26 addresses employment applications. It provides that:

No public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing. The resumes of successful candidates shall be disclosed once the successful candidate is hired. The resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure.

The paragraph begins with a prohibition against disclosure of applicant information while a recruitment is ongoing. However, after a candidate is hired, the Order lifts the prohibition with respect to resumes of the successful candidate. The Order does not specifically lift the prohibition for "employment applications". Based on the specific language of the Order, it is not unreasonable to conclude that the Governor intended for only resumes to be disclosed for successful candidates and not employment applications.

Additionally, EO #26 amends EO #21, which allowed for the disclosure of resumes, applications for employment or other information concerning job applicants for successful candidates. EO #21 provided that, "no public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing, and thereafter in the case of unsuccessful candidates." EO #26 amendment's specific direction that resumes will be disclosed for successful candidates, while excluding any mention of applications for employment or other information concerning job applicants, evinces an intent to narrow and limit the disclosure of applicant records for successful candidates.

The above, literal interpretation is consistent with the fact that employment applications are more apt to contain more personally sensitive information than a resume, such as criminal history or bankruptcy filings. Resumes generally contain positive information about the applicant such as achievements, recognitions and awards. Additionally, the applicant can control the nature and extent of the private information that is contained within the resume.
The next question becomes, even though the requestor is not entitled to the unredacted employment application, is he entitled to information which shows law enforcement experience (employer and length of service) of the detectives prior to employment with the Monmouth County Prosecutor's Office. In this regard, N.J.S.A. 47:1A-10 provides that,

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information shall be a government record.

Therefore, notwithstanding whether or not the employment application is located within the personnel file, the requestor is entitled to the requested "law enforcement experience (employer and length of service) prior to employment by the Monmouth County Prosecutor" to the extent it discloses conformity with specific experiential, educational or medical qualifications required for the position of detective.

Conclusion

The Executive Director respectfully recommends that the Council find that:

1. The timeliness of the custodian's response regarding access to the documentation that was not in dispute must be addressed in two sections:
   
   1. The requester received the 2003 name and salary information seven-business days following the request.
      
   2. The requester received the 2002 name and salary information 26 days following the request. The custodian stated that this was an error that her office found after receiving the requester's Denial of Access Complaint. The custodian released the 2002 name and salary information three days following receipt of the Denial of Access Complaint.
      
   3. The Executive Director finds that the custodian violated N.J.S.A. 47:1A-5(i) by not providing the 2002 salary and name information to the requester within the prescribed seven business days. However, the custodian's actions do not rise to the level of a knowing and willful violation given the custodian's explanation regarding her confusion surrounding the salary negotiations. She corrected her mistake within three days of being notified of same.
      
2. The custodian has provided the requested list of all detectives in the Office of the Monmouth County Prosecutor showing as to each their names and salaries for calendar years 2002 and 2003.
   
3. While the custodian is not required to disclose the unredacted employment application, pursuant to N.J.S.A. 47:1A-10, she must disclose the requested "law enforcement experience (employer and length of service) prior to employment by the Monmouth County Prosecutor" to the extent it discloses conformity with specific experiential, educational or medical qualifications required for the position of detective.
   
4. The custodian has ten business days from the date of receipt of the Council's Order to comply with #3 above. The custodian or counsel of record shall also provide the Acting Executive Director with written notice of compliance within said timeframe.
   
5. The complaint should be dismissed upon the custodian's compliance with "3" and "4" above.

________________________________
Paul F. Dice, Acting Executive Director
Government Records Council
Dated: November 6, 2003

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