2003-80

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 2, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The following administrative changes are noted in said findings and recommendations:  pages 2 and 4, “they” was changed to “custodian” and on page 7; February 20, 2003 was changed to February 20, 2005.  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.”  The Council, therefore, dismisses the case on the basis of:

1. The record does not support that University personnel signed for receipt of the May 8, 2003 OPRA request.
2. The Custodian violated N.J.S.A. 47:1A-5(i) by not responding to the June 30, 2003 OPRA request until July 14, 2003. Further, the Custodian did not provide access until July 28, 2003. However the Custodian’s delay in providing access does not rise to the level of knowing and willful under the totality of the circumstances given the issues surrounding receipt of the OPRA request and the technical difficulties faced in making the necessary redactions of the tape.
3. The Custodian acted properly and in accordance with N.J.S.A. 47:1A-1.1 in making and explaining the redactions of the tape.
4. The Custodian’s alleged imposition of the use of OPRA request forms did not hinder the Complainant’s access to the requested documentation.
5. The Custodian did provide the record under the OPRA request, however FERPA is a valid pre-emption to the records request.
6. 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 10^th 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 

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Tape recording of a May 8, 2003 residence disciplinary hearing.
Request Made: May 8, 2003 [1]
Response Made: July 14, 2003
Custodian:  William Paterson University - Marc Schaeffer
GRC Complaint filed:   June 18, 2003

Background
The Council heard this case at its February 10, 2004 meeting. It was then referred to mediation at the request of the parties. The issues were not resolved in mediation and the case was subsequently referred back to the Government Records Council (GRC) for adjudication.

Complainant’s Case Position
The Complainant submitted a May 8, 2003 records request to William Paterson University (University) via the U. S. Postal Service. The Complainant acknowledges that he received a tape with redactions, but he thought that the tape was inappropriately redacted. He then agreed to enter into mediation with the University in hopes of obtaining a tape with markers. While he ultimately received a tape with “markers” after mediation had concluded, he still maintains the following issues with regard to his complaint:

1. Failure to provide access to a government record in accordance with the seven-day requirement under the Open Public Records Act (OPRA),
2. Failure to provide a complete government record by undertaking an improper redaction to a government record thereby obstructing lawful access to that record as provided by the provisions of OPRA,
3. Unlawful refusal to provide a “Marker”denoting:
   1. That a redaction was made, and,
   2. Where the reaction was made on the government record.
4. Unlawful denial of access to government records by demanding that the requestor utilize the Custodian’s record request form.

In a February 20, 2005 letter to the GRC, the Complainant defends his position that the requested record could be obtained through OPRA. He stated that, “the interpretation offered by the Respondent is misguided relative to [FERPA] and the provisions of FERPA have been materially misapplied and mischaracterized relative to this case.” The complainant feels that this request was a valid OPRA request.

Public Agency’s Case Position
On September 4, 2004 the Custodian’s counsel submitted a Statement of Information indicating that the University did not receive the May 8, 2003 request of the Complainant. However, the University did receive it on June 30, 2003 after being sent same by a staff member of the GRC.

Custodian’s counsel argues that because the University did not receive the request until June 30, 2004, the response time frame should not start until July 11, 2003. Counsel further asserts that the GRC granted “an opportunity to respond to the request”…“After it was found that the Complainant misdirected his request.”

On July 22, 2003, the Custodian informed the Complainant that he would be releasing the records requested to the Complainant via mail by July 30, 2003. The Custodian further advised the Complainant that the tape had one sentence redacted from it. The Custodian wrote out what sentence, redacting the name of the student in question pursuant to N.J.S.A. 47:1A-1.1.

On September 23, 2004 Custodian’s counsel released a supplemental statement indicating that, “The Complainant initially consented to the redaction as described by the Custodian in his e-mail dated July 22, 2004. Upon receiving the copy of the tape recording, the Complainant modified his request in various e-mails to the Custodian…” The university, by letter dated August 13, 2004, then provided a second version of the tape that “contained a second blank space as a ‘marker’ for the redaction and limited the redaction to the student’s name in the sentence which had been previously redacted.”  

The University asserts it has provided the Complainant with the record that he is entitled to receive under OPRA.  However, in a December 22, 2004 letter to GRC staff they have stated that the requested record is protected under the Family Educational Rights and Privacy Act (FERPA). Specifically, they have cited 20 U.S.C. §1232g, and the regulations promulgated thereunder, 34 CFR Part 99. They have identified the requested record as an education record as defined in U.S.C. §1232g(a) (4) (A). Counsel has also stated that FERPA, “generally prohibits the nonconsensual disclosure of education records or personally identifiable information from education records… 20 U.S.C. §1232g(b) (1) and (b) (2) (A).  Furthermore they state that, “the exemption to the disclosure of public documents created by other laws such as FERPA are given deference by OPRA…” Also in their February 10, 2005 submission to the GRC staff, they maintain that since this is an “education record” as defined by FERPA, it does not fall under the jurisdiction of the Council.

Analysis
Pursuant to N.J.S.A. 47:1A-5(h), “Any officer or employee of a public agency who receives a request for access to a government records shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.” The Complainant submitted a U.S. Postal Service Delivery Confirmation Receipt dated May 8, 2004 as proof that he mailed the first OPRA request to the University.  The Custodian claims that he never received same and characterizes the mailing as having been “misdirected.” This file, however, is without proof positive that the Custodian did in fact receive said request. Further, if University personnel received same, as the delivery receipt indicates, who that person is cannot be determined, as the Complainant’s submission does not indicate that University personnel signed for the May 8, 2004 mailing. Absent such proof, the Custodian’s position of non-receipt has not been rebutted. The party submissions support the Custodian’s assertion that the University’s first receipt of the Complainant’s subject OPRA request was on June 30, 2004 following receipt of same from the GRC.

The Custodian acknowledges receipt of the request via the complaint on June 30, 2003, but does not believe that OPRA’s seven-day response requirement should start until July 11, 2003 because GRC personnel allegedly granted an “opportunity to respond to the request” on that date. The file does not reflect that the GRC staff did anything more than suggest that the University consider the Complainant’s request. There is no indication that GRC staff attempted to impose or approve time frames for response. As such, the time frame for response should begin on June 30, 2003.

The Custodian responded to the Complainant on July 14, 2003 stating that an agreement had been reached on July 11, 2004 between the GRC and the University to the effect that the University should respond to the OPRA request. Further, “You will be notified within seven (7) business days, beginning Monday, July 14, (note that Fridays are not business days a the University over the summer) of the University’s decision regarding release of the tape.  Here, the University erred in two ways. One, GRC staff involvement early on in this case did not and could not, extend, alter or amend in any way the statutory provisions of N.J.S.A. 47: 1A-1 et seq. Two, the Custodian had a duty to respond as soon as possible, but no later than seven days from June 30, 2003, not July 14, 2003. N.J.S.A. 47:1A-5(i).

On July 22, 2003, the Custodian advised the Complainant that he would be receiving the requested tape on or before July 30, 2004. The Custodian explained that the sentence where the Complainant spoke “XXX XXXX [where XXX XXXX is the name of a specific student] got me a 40 ouncer” would be redacted. That redaction was made in accordance with the OPRA’s provision that records involving “[i]nformation concerning student records or grievance or disciplinary proceedings against a student to the extent that disclosure would reveal the identity of the student” shall not be disclosed. N.J.S.A. 47:1A-1.1. The records indicate that the University subsequently mailed said tape to the Complainant on July 28, 2003.

With regard to the response to the Complainant’s OPRA request, the University violated N.J.S.A. 47:1A-5(i) by not providing the tape until July 28, 2003 when the OPRA request was received on June 30, 2004. However, there is no evidence that this is a knowing and willful violation. The Custodian seemingly worked diligently with his legal counsel to resolve the issue of non-receipt of the OPRA request and to determine how best to address the issue.

The Custodian has borne its duty to defend its position with regard to redaction (the first redaction) of the sentence from the requested tape. OPRA does not state that a “marker” needs to be placed in a tape when redactions are made. The Custodian adequately explained what was redacted, and why, in its July 22, 2003 letter to the Complainant. The redaction is not unlawful. Access, therefore, has been granted in an appropriate manner, albeit late.

The Complainant’s issue with the Custodian’s alleged imposition of the University’s use of OPRA request forms is without merit. The Council’s role in such matters is limited to adjudicating issues surrounding denial of access to government records. N.J.S.A. 47:1A-7(b). The issue here is whether the University’s alleged actions resulted in, or contributed to, a denial of access to records. In this situation, the Complainant’s access to the requested records was not hindered by the University’s use of an OPRA request form and protocol.

Following the Custodian’s release of the requested tape on July 28, 2003, the Complainant took the position that the redaction was not proper. The parties entered into mediation. Failing to resolve the issue, the case was ultimately referred back for adjudication. On August 13, 2004, the Custodian offered “a copy of the recording to the Complainant with only the student’s name redacted and several second blank space as a ‘marker.’ The Custodians actions on July 28, 2003 satisfied its duty under N.J.S.A. 47:1A-1 et seq. However, as of December 22, 2004, they have raised the issue of the Family Educational Rights and Privacy Act (FERPA).

In a December 22, 2004 letter to the GRC staff, the Custodian’s Counsel stated, “the tape recording of his disciplinary hearing held on February 13, 2003 was not a request for a “government record” under the Open Public Records Act (OPRA) but instead a request for an “educational record” protected under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. sec. 1232g, and the regulations promulgated thereunder, 34 CFR Part 99”, and upon this basis, counsel stated that the Council lacks jurisdiction over this matter. However, N.J.S.A. 47:1A-1.1 defines a government record as something that is, “made, maintained or kept on file.”  Since the requested record is maintained and kept on file, it may also be defined as a “government record.”

The Custodian has borne their burden of proof that the document was released in accordance with N.J.S.A. 47:1A-1 et seq. Although the document was originally released, FERPA does provide a valid pre-emption to disclosure.

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

1. May 25, 2003 – Letter to GRC staff from the Complainant
2. June 6, 2003 – E-mail correspondence between GRC staff and the Complainant
3. June 10, 2003 - E-mail correspondence between GRC staff and the Complainant
4. June 11, 2003 – E-mail correspondence between GRC staff and the Complainant
5. June 18, 2003 – Denial of Access Complaint
6. July 1, 2003 – E-mail correspondence between GRC staff and the Complainant
7. July 3, 2003 – E-mail correspondence between Custodian, Custodian’s Counsel and GRC staff
8. July 11, 2003 – Contact log of GRC staff
9. July 14, 2003 – E-mail correspondence between the Custodian and the Complainant
10. July 14, 2003 – Letter to the Complainant from the Custodian
11. July 15, 2003 – Letter from the Complainant to GRC staff
12. July 22, 2003 – Letter to the Complainant from the Custodian
13. July 24, 2003 – E-mail correspondence between the Custodian and GRC staff
14. July 24, 2003 – E-mail correspondence between the GRC staff and the Complainant
15. July 29, 2003 – E-mail correspondence between the Custodian and the Complainant
16. July 30, 2003 - E-mail correspondence between the Custodian and the Complainant
17. July 31, 2003 – E-mail correspondence between GRC staff and the Complainant
18. August 7, 2003 - E-mail correspondence between the Custodian and the Complainant
19. August 26, 2003 – E-mail correspondence between the Custodian and GRC staff
20. August 27, 2003 – Letter from GRC staff to the Complainant
21. August 27, 2003 – letter from GRC staff to the Custodian
22. September 4, 2003 – Letter to GRC staff from the Custodian’s Counsel
23. October 26, 2003 – Letter from the Complainant to GRC staff
24. November 19, 2003 – Letter from Custodian to staff at William Paterson University
25. November 27, 2003 – Letter to GRC staff from the Complainant
26. December 2, 2003 – Letter from the Complainant to William Paterson University staff
27. December 5, 2003 – Letter to Complainant from William Paterson University staff
28. December 16, 2003 – Letter to GRC staff from Complainant
29. January 20, 2004 – Letter from GRC staff to Custodian
30. January 21, 2004 – E-mail correspondence between the Complainant and GRC staff
31. January 22, 2004 – Complainant and Custodian’s signed Agreement to Mediate
32. February 10, 2004 – Findings and Recommendations of Government Records Council
33. July 26, 2004 – Letter to the Complainant from the Custodian’s Counsel Office
34. August 4, 2004 – Letter to GRC staff from the Complainant
35. August 5, 2004 – Letter to Custodian’s Counsel office from the Complainant
36. August 13, 2004 – Letter to Complainant from the Custodian’s Counsel
37. August 31, 2004 – E-mail correspondence between the GRC staff and the Complainant
38. September 1, 2004 - E-mail correspondence between the GRC staff and the Complainant
39. September 14, 2004 – Letter to Complainant from GRC staff
40. September 23, 2004 – Statement of Information from Custodian’s Counsel
41. October 28, 2004 – Letter/Statement of Information to GRC staff from Complainant
42. November 29, 2004 – Letter to Complainant from GRC staff
43. December 6, 2004 – Letter to Custodian’s Counsel from GRC staff
44. December 15, 2004 – Letter to GRC staff from the Custodian’s Counsel
45. December 15, 2004 – E-mail correspondence between the Complainant and GRC staff
46. December 22, 2004 – Letter and Certification to GRC staff from Custodian and Custodian’s Counsel
47. December 28, 2004 – Certification of Records Custodian
48. January 1, 2005 – Letter from the Complainant to GRC staff
49. February 10, 2005 – Letter to GRC staff from Custodian’s Counsel
50. February 14, 2005 – E-mail correspondence between GRC staff and Complainant
51. February 20, 2003 – Letter to GRC staff from the Complainant

Conclusion
The Executive Director respectfully recommends that the council dismiss the case on the basis that:

1. The record does not support that University personnel signed for receipt of the May 8, 2003 OPRA request.
2. The Custodian violated N.J.S.A. 47:1A-5(i) by not responding to the June 30, 2003 OPRA request until July 14, 2003. Further, the Custodian did not provide access until July 28, 2003. However the Custodian’s delay in providing access does not rise to the level of knowing and willful under the totality of the circumstances given the issues surrounding receipt of the OPRA request and the technical difficulties faced in making the necessary redactions of the tape.
3. The Custodian acted properly and in accordance with N.J.S.A. 47:1A-1.1 in making and explaining the redactions of the tape.
4. The Custodian’s alleged imposition of the use of OPRA request forms did not hinder the Complainant’s access to the requested documentation.
5. The Custodian did provide the record under the OPRA request, however FERPA is a valid pre-emption to the records request.

Prepared by:

Approved by:
Paul F. Dice, Executive Director
Government Records Council

March 2, 2005

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Final Decision

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 adopt the entirety of said Findings and Recommendations. The Council voted to forego any further adjudicatory action pending the outcome of mediation given that the requestor and the custodian voluntarily signed Agreements to Mediate on January 22, 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

Relevant Records Requested: Tape recording of May 8, 2003 residence disciplinary hearing.
Custodian: Marc Schaeffer
GRC Complaint filed:   June 18, 2003

Acting Executive Director’s Findings and Recommendation

The requestor and the custodian voluntarily signed Agreements to Mediate on January 22, 2004. Based on same, the Acting Executive Director respectfully recommends that the Council and GRC staff forego any adjudicatory action pending the outcome of mediation.

Legal Analysis

Pursuant to N.J.S.A. 47:1A-7(b), there is no further legal analysis at this time.

Paul F. Dice, Acting Executive Director
Government Records Council
February 10, 2004

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