2003-57

Final Decision

At its October 9, 2003 public meeting, the Government Records Council considered whether to penalize the custodian in Complaint No. 2003-57 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., for failure to provide timely access to copies of the school superintendent's last two contracts and an audiotape of the open sessions of specific Board of Education meetings.

The Council originally considered this complaint at its August 14, 2003 meeting. By Order issued August 14, 2003, effective August 22nd, the Council:

1. Dismissed the portion of the Complaint seeking access to the contracts and audiotape as those records have since been provided;
   
   
2. Found that the custodian violated OPRA by failing to provide "immediate access" to the individual employment contracts of the school superintendent pursuant to N.J.S.A. 47:1A-5(e) and failing to provide access to the audiotape of the Board meeting no later than seven business days following receipt of the OPRA request;
   
   
3. Deferred decision on custodian penalty pursuant to N.J.S.A. 47:1A-7e and N.J.S.A. 47:1A-11; and
   
   
4. Chose to seek legal advice whether a Board attorney providing legal advice to a custodian is a "public official, officer or employee" subject to penalty under OPRA.

By affirmative vote of five members at its October 9th meeting, the Council finds:

1. The custodian knowingly and willfully violated OPRA given the custodian's extensive OPRA training regarding access to records such as audiotapes and superintendent contracts, but that the custodian's delay in providing access to these records is not unreasonable under the totality of the circumstances given the custodian's stated need to obtain legal advice concerning the OPRA request. Therefore, no fine is assessed against the custodian.
   
   
2. OPRA does not afford the Council authority to fine the Custodian's attorney, and, therefore,
   
   
3. The complaint is dismissed.

The custodian's initial decision to deny access was based, in part, upon incorrect legal advice that was retracted only after extended and unexplained delay. The custodian is warned that bad legal advice will not in the future excuse the custodian from complying with OPRA. A copy of this Order shall be served on the requester, the custodian and any legal counsel of record.

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

Dated: October 15, 2003

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Interim Decision

At its August 14, 2003 public meeting, the Government Records Council considered Complaint No. 2003-57 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide access to the last two employment contracts of the School Superintendent and an audiotape of the March 18, 2003 meeting of the Rahway Board of Education.

The Council considered the requestor's Complaint, the custodian's Statement of Information; an e-mail to the requestor from GRC dated April 8, 2003; communications to the requestor and custodian from the GRC dated July 24, 2003; communication on behalf of the custodian dated April 10, July 29 and August 11, 2003; communication from the requestor dated July 29, 2003; a May 22, 2003 article in the newspaper Rahway Progress concerning press attempts to access the Superintendent's contract; e-mail from the requestor dated August 9, 2003 and the Acting Executive Director's Finding and Recommendation dated August 8, 2003.

By affirmative vote of four Council members at its August 14, 2003 meeting, the Council voted:

• To dismiss the portion of the Complaint seeking access to the contracts and audiotape;
  
• To find that the custodian violated OPRA by failing to provide "immediate access" to the individual employment contract of the school superintendent pursuant to N.J.S.A. 47:1A-5(e) and failing to provide access to the audiotape of the Board meeting no later than seven business days following receipt of the OPRA request;
  
• To defer decision on custodian penalty;
  
• To seek legal counsel whether a Board attorney is a "public official, officer or employee" subject to penalty under N.J.S.A. 47:1A-11; and,
  
• To advise the Rahway Board of Education of the Council's decision.

A copy of this Order shall be provided to the requestor, the custodian, all legal counsel of record and the Rahway Board of Education.

VINCENT MALTESE, Chair
Government Records Council

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

Government Records Council
Dated: August 22, 2003

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Findings and Recommendation of Executive Director

Relevant Record(s) Requested: Copy of Superintendent of Schools last two contracts and audiotape of the March 18, 2003 Board of Education meeting.
Request made: March 19, 2003
Custodian: Frank Buglione, Assistant Superintendent/ Board Secretary
Request denial: March 25, 2003
GRC Complaint filed: April 30, 2003

This complaint involves an initial denial of access to the individual employment contracts of a school superintendent and to audiotapes of a public meeting of the Board of Education. After the initial denial, the requestor contacted the staff of the GRC for guidance on the denial. The requestor was advised that the records sought were government records subject to public access; in the case of the employment contract, access should have been provided immediately pursuant to N.J.S.A. 47:1A-5(e). The requestor provided a copy of the GRC's response to the custodian who requested that his attorney review the matter. The attorney eventually responded that the records should be disclosed.

Individual employment contracts are specifically addressed in OPRA as immediately accessible upon request. Denial of access to this record is an unreasonable violation in the face of the plain language of OPRA, public education efforts aimed at public school custodians made by the GRC, and the history of OPRA. The fact that the requestor was a candidate for the Board of Education, that the request was made prior to the election, and that the delays resulted in access after the election adds to an impression that access was illegally denied. However, there is no evidence that the initial denial of access in this case was a knowing and willful violation of OPRA.

Therefore, the Executive Director recommends the Council find that:

1. The requestor ultimately received access to the requested records, albeit several weeks after the request was submitted;
   
2. The initial denial of access by the custodian or any other public official, officer or employee was unreasonable, but not a knowing and willful violation of OPRA;
   
3. The custodian be cautioned to promptly discuss with the GRC any legal advice which appears inconsistent with any provision of OPRA, the Custodian Handbook, GRC Final Decisions or GRC advice to the requestor; and,
   
4. Therefore, the complaint be dismissed.

Further, the Board of Education, its custodian, and its attorney should carefully review its OPRA procedures to ensure timely, accurate responses, and are herewith warned that future violations will be considered in light of this case.

Statement of Facts

On March 19, 2003, the requestor sought a number of records from the custodian of the Rahway Board of Education. While other records were either provided or access properly denied, access to the last two contracts for the School District's Superintendent of Schools and an audiotape of the March 18 meeting of the Rahway Board of Education were denied by letter from the custodian dated March 25, 2003.

The custodian stated that only "limited personnel information is available to the public" under OPRA and that "information does not include employment contracts…" He denied access to the audiotape because audiotapes "are not the official record of the meetings and are not subject to disclosure under OPRA." In the Statement of Information (SOI) responding to the complaint, the attorney for the custodian claims this response was based on attorney guidance (though this was not mentioned in the custodian's March 25th letter).

On April 8, 2003, the requester e-mailed an inquiry to the Council about the denial of access to these records. The GRC advised that audiotapes of public meetings are government records subject to disclosure under OPRA, as is a superintendent employment contract, subject to redaction of certain personnel information. The GRC advised that under OPRA, the contract is to be made available immediately.

The custodian was provided a copy of the GRC e-mail by the requester the same day. The custodian sent the requestor an April 10, 2003 letter advising her that according to the Board's attorney, although the response from the Council is neither a legal opinion nor a final decision and is not binding on the Rahway Board of Education (here, quoting the standard disclaimer used by the Council in response to inquires), they would thoroughly review the response and further research the issues. The custodian stated that upon the attorneys' review, he would forward a final decision to her concerning her request.

The custodian wrote to the requestor on April 21, 2003 and stated that the Board's attorney had advised him that while OPRA limits the personnel records that can be released, it is silent as to what is defined as a "personnel record". The Board's attorney advised him that despite the ambiguity, the custodian could disclose the Superintendent's contract and asked the requestor to set up a time to come and view it.

The requestor filed a Denial of Access Complaint on April 30, 2003 stating that she had been denied access to the Superintendent's contract and the audiotape and outlined the events cited above. The requestor also claimed that the custodian's actions interfered with her campaign for a seat on the Rahway Board of Education, as she did not have information concerning certain issues. She asserted that the Board's attorney should have contacted the GRC upon receipt of the e-mail and that the custodian's behavior was arrogant. She stated she was not interested in mediation because the district had the chance to avoid a complaint when she forwarded a copy of the GRC e-mail a week before the election.

The custodian wrote to the requestor on May 2, 2003 that he had been advised on April 30, 2003 that the Board's legal counsel had reviewed the GRC's e-mail on audiotapes and determined that the audiotape was a government record accessible under OPRA. He asked the requestor to set up a time to pick up a copy of the audiotape.

The requestor's complaint to the GRC is described in a May 22, 2003 newspaper article in the Rahway Progress. The article (written by the managing editor of the newspaper) also describes the newspaper's own effort to obtain the superintendent's contract:

On April 7, this newspaper mailed a letter requesting a copy of Petrino's contract. An official OPRA request form was received April 11, and returned via fax. An estimate of $8 for a copy of the contract was received April 22 and promptly returned with payment. This newspaper received a cost of Petrino's contract, dated April 29 on May 1.

As related in this article, it took the custodian five working days to send a copy of the request form to the newspaper, seven working days to respond with an estimate (OPRA does not permit a requirement of payment in advance in these circumstances), and then, five more days to mail the copy of the contract.

The custodian's attorney filed a Statement of Information on June 17, 2003 stating that the complainant's requests were originally denied based upon advice of the Board's counsel, but after review of the GRC e-mail, the Board's attorney reexamined the requests and ultimately advised that the records should be disclosed and were made available to the requestor.

As part of investigation of the case, Council staff contacted the custodian on July 24, 2003 and asked for a description of all efforts by the custodian and attorney to learn the provisions of OPRA and to provide all available information concerning communications with the requestor regarding her request. At the same time, the requestor was asked for all evidence that she informed the Board that she required the requested records for use in her campaign.

In a July 29, 2003 letter, the custodian's counsel provided the following:

• A statement that all written communications from the requestor to the custodian had already been provided to the GRC.
  
• A statement that the custodian may have had one or more conversations with the requestor regarding her request but that the requestor never advised that the records were needed for her campaign.
  
• The OPRA seminars/workshops the custodian had attended and a statement that the custodian had also read the GRC Custodian's Handbook and GRC website in detail.
  
• Affirmation that it is Board practice for the custodian to forward all OPRA requests to legal counsel for review prior to response and that Board counsel reviews OPRA provisions in detail every time an OPRA request is submitted for review.

No additional comment was provided regarding how the attorney reached the conclusions that access should be denied for both the contract and the audiotapes.

The requestor responded in a letter dated July 29, 2003 stating that she had been given a copy of a Citizen's Guide to the Open Public Records Act upon filing her request. After the custodian wrote and denied her request, she asked the custodian's secretary to tell him that a Rahway City Council member had advised her that any contract paid for with public funds was a public record. She also read the secretary pertinent sections from the Citizen's Guide. The custodian telephoned her the next day and told her he was repeating what the Board's attorney told him, and stated he would raise the issue again with the attorney. The requestor advised the custodian that he could e-mail the GRC to clarify the issue.

Analysis and Conclusion

Based on the custodian's claims, which are not disputed by the requestor, the requestor was eventually granted access to the records in question; the Council must consider the timeliness of the response to the request and the custodian's initial denial of access.

The Open Public Records Act makes it clear that contracts including "individual employment contracts" are subject to public access, and are part of a special category of records to which access is to be provided "immediately" upon request:

Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.
[N.J.S.A. 47:1A-5(e) (emphasis added)]

The Council has emphasized this point since OPRA was passed. The Council's Handbook for Records Custodians, issued in July of 2002, on page 16, specifically highlights employment contracts as being subject to immediate disclosure. Council staff has repeatedly highlighted the specific disclosability of school superintendent contracts in a series of statewide seminars provided to school business administrators under the sponsorship of the State's Association of School Business Officials in the spring and fall of 2002. The Council's web site has copies of the Custodian Handbook as well as the slide shows used in the presentations. The submissions from the custodian indicate that the custodian had taken GRC-sponsored seminars and was familiar with the Custodian Handbook.

The initial (undocumented) opinion of the Board's attorney was that a superintendent's contract would not be disclosable because it was a "personnel record" under N.J.S.A. 47:1A-10. This advice indicates that despite the plain reading of the law, the custodian's training, the availability of the GRC staff to assist, and the attorney's statement that "the Board's legal counsel reviews the Act's provisions in detail every time a request for a (OPRA) legal opinion is made…" there was either laxity in the Board's procedures in handling OPRA requests, or an effort was made to deny timely access to important documents during a school board election.

Only prodding from the requestor (and apparently from the newspaper) led to the eventual reconsideration and advice to disclose the contract. The Council has not been provided with any written advice the attorney may have been provided to the custodian.

It is also of more than a curious historical note, that in the three years leading to OPRA's enactment, several of the State's major newspapers ran multi-part series on the problems of public access to government records, which highlighted abuse by school officials of OPRA's predecessor, the Right-To-Know Act, by placing obstacles in the way of public access to public documents of which, school superintendent contracts were a specific example.

Based on the foregoing, the custodian should have known that superintendents' employment contracts are publicly accessible. Facing legal advice that contradicted the plain language of OPRA, the Custodian Handbook and GRC e-mail advice to the requestor, the custodian could easily have resolved the matter by contacting the GRC.

Beyond the contract, is the issue of the audiotapes. While access to audiotapes is an issue not as easily resolved as access to employment contracts, the custodian received poor advice from the Board attorney to deny access to the tapes because they were "not the official record of such meetings and are not subject to disclosure under OPRA."

Audio tapes meet the definition of a government record, as they are a "…sound recording… made or kept in the course of …official business…by any …agency…" (N.J.S.A. 47:1A-1.1). While not the "official" record of the Board, audiotapes are clearly accessible government records with no exception to disclosure being apparent in this case.

Also relevant to the circumstances of this case is the fact that the requestor was a known candidate for the school board and was asking for information that would, logically (though not apparently stated by the requestor), be considered relevant to a campaign.

The custodian responded to the OPRA request in a timely fashion, basing his response upon advice from the Board's attorney, consistent with the Board's practice of forwarding OPRA requests to legal counsel for review prior to response. The Custodian could, however, have analyzed his counsel's advice in light of his own knowledge of OPRA and promptly discussed with GRC staff any legal advice that contradicted the plain provisions of OPRA, the Custodian Handbook or any GRC communication to the requestor. The custodian's lack of initiative in this regard is an additional factor to be considered by the Council.

However, in viewing the facts and circumstances, while there is clear negligence in the handling of this OPRA request and an unreasonable denial of access, there is no evidence that the initial denial of access in this case was a knowing and willful violation of OPRA.

Therefore, the Executive Director recommends the Council find that:

1. The requestor ultimately received access to the requested records, albeit several weeks after the request was submitted;
   
2. The initial denial of access by the custodian or any other public official, officer or employee handling this request was unreasonable, but not a knowing and willful violation of OPRA;
   
3. The custodian be cautioned to promptly discuss with the GRC any legal advice which appears inconsistent with any of OPRA's provisions, the Custodian Handbook, GRC Final Decisions or GRC advice the requestor; and,
   
4. Therefore, the complaint be dismissed.

Further, the Board of Education, its custodian, and its attorney should carefully review its OPRA procedures to ensure timely, accurate responses, and are herewith warned that future violations will be considered in light of this case.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: August 8, 2003

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