2003-94

Final Decision

At its February 10, 2004 public meeting, the Government Records Council (“Council”) considered the February 4, 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. Therefore, the Council finds that:

1. The requested document containing personnel information is not subject to disclosure under the Open Public Records under N.J.S.A. 47:1A-10 and the case should be dismissed
2. The Government Records Council lacks jurisdiction to determine whether the requestor, by virtue of his status as a member of the municipal government, has a right to the requested document pursuant to law or rule unrelated to OPRA.

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

GRC Complaint No. 2003-94

Christopher Botta
Complainant
v.
Borough of Ramsey Clerk
Custodian of Records

Relevant Records Requested: Email Correspondence from Mayor Richard Muti to Borough of Ramsey Construction Code Official Robert Connell concerning Mr. Connell's use of the Borough email system for personal and political means
Request made: July 2, 2003
Response made: July 10, 2003
Custodian: Nance Ecke-Hohmann, Custodian of Records
GRC Complaint filed: July 28, 2003

Executive Director’s Recommendations

The requestor is seeking a copy of email correspondence from Borough of Ramsey Mayor Richard Muti to Borough of Ramsey Construction Code Official Robert Connell concerning Mr. Connell’s use of the Borough email system for personal and political purposes. The Mayor contends that this email is not a government record because it was sent from his home computer to Mr. Connell's home computer. The issues:

• Whether the request document containing personnel information is subject to disclosure under the Open Records Act (OPRA). N.J.S.A. 47:1A-10.
• Whether the requestor has a right to this document pursuant to a law or rule unrelated to OPRA, by virtue of his status as a member of the Municipal government.

The Acting Executive Director respectfully recommends the Council find that:

1. The requested document containing personnel information is not subject to disclosure under the Open Public Records under N.J.S.A. 47:1A-10 and the case should be dismissed
2. The Government Records Council lacks jurisdiction to determine whether the requestor, by virtue of his status as a member of the municipal government, has a right to the requested document pursuant to law or rule unrelated to OPRA.

Statement of Facts

July 2, 2003 – Records Request

The requestor, Christopher Botta, filed a Borough of Ramsey request form for government records to the Ramsey Clerk, Nance Ecke-Hohman. The request states that the record is for an email communication between Mayor Muti and an employee in or around April 2003 regarding use of the Borough email system.

July 10, 2003 – Custodian's Response

The custodian replied in writing to Mr. Botta and indicated that there is a disagreement on whether this email was a public record. For this reason, the custodian decided to request an advisory opinion from the GRC.

July 11, 2003 – Requestor's Email to Custodian

In this email, Mr. Botta requested a copy of the question that went to the GRC for an advisory opinion. In addition, he claimed that the clerk should be the individual responding to a request by the Borough Attorney.

July 11, 2003 – Mayor's Email to Councilman

Since the information was contained on the hard drive of his home computer, the mayor responded by saying that he is the custodian of records and not the clerk in this matter.

July 11, 2003 – Mayor's Email to GRC

The mayor described to the GRC the communications that he had with the employee in question. He detailed the email sent out by this individual to 34 people. Briefly, the mayor alleged that the email by the employee expressed his personal opinions about a recent Board of Education election and other school issues. Although not a recipient of this email, the mayor received a copy and responded by advising the employee of the inappropriateness of using the borough email system to send personal emails of that type. The mayor used his home email system and sent the message to the recipient’s personal email address. He concluded by posing the question if his email to his employee was a "government record".

July 14, 2003 – Custodian's Email to Requestor

Ms. Ecke-Hohmann wrote back to requestor stating that she will advise once she hears back from GRC.

July 14, 2003 – Custodian Attorney's Response to Township Clerk

The Borough Attorney, Harry Norton, responded to the clerk about this matter. He discussed the fact that he had handed down a prior decision - that once a public action takes place, any record generated is subject to OPRA. However, he also claimed that the problem lay in the fact that the clerk does not have access to the record since the mayor used his home email system. He concluded that as a “custodian of the record, I am not sure how you can produce a record that you do not possess”. He then advised the clerk to contact the GRC for an opinion.

July 14, 2003 – Custodian's Request for Advisory Opinion from GRC

July 14, 2003 – GRC's Response

GRC responded with three main points:

1. An email sent or received on a government computer, the content of which is not used for government purposes, is not a government record and not disclosable
2. The use of a home computer does not exempt what is sent or received if it is a government record
3. If the email is considered a personnel issue it could be part of the personnel record and therefore not disclosable

July 23, 2003 – Denial of Access and Supplemental Filed

August 26, 2003 – GRC Sent Complaint to Custodian

September 2, 2003 – Mediation Offered to Both Parties

September 4, 2003 – Mediation Declined by Custodian

September 16, 2003 – Statement of Information (SOI) Sent to Custodian

September 23, 2003 – Submission of Statement of Information (SOI)

Custodian’s counsel submitted the SOI to the GRC. In this response, he contends the township clerk had never been privy to, nor received, the document sought by Councilman Botta.

Legal Issues and Considerations

The requestor is seeking a copy of email correspondence from Borough of Ramsey Mayor Richard Muti to Borough of Ramsey Construction Code Official Robert Connell concerning Mr. Connell’s use of the Borough email system for personal and political purposes. The Mayor contends that this email is not a government record because it was sent from his home computer to Mr. Connell’s home computer. It is not necessary for the GRC to decide this issue at this time, because the document in question contains personnel information that is not subject to public disclosure even if it is considered a government record under OPRA. OPRA limits disclosure of personnel information to an individual’s name, title, position, salary, payroll record, length of service, date of separation and reason therefore, and the amount and type of any pension received. N.J.S.A. 47:1A-10. A document cautioning an employee not to utilize the employer’s computer system to transmit personal and political messages does not fall within any of these exceptions to the statutory personnel exemption.

In conclusion, the document containing personnel information is not subject to disclosure under OPRA, and Complaint No. 2003-94 must be dismissed. Whether the requestor has a right to this document pursuant to a law or rule unrelated to OPRA, by virtue of his status as a member of the municipal government, is outside the jurisdiction of the GRC.

Conclusion

The Acting Executive Director respectfully recommends the Council find that:

1. The requested document containing personnel information is not subject to disclosure under the Open Public Records and should be dismissed
2. The Government Records Council lacks jurisdiction to determine whether the requestor, by virtue of his status as a member of the municipal government, has a right to the requested document pursuant to law or rule unrelated to OPRA.

_______________________

Paul F. Dice

Acting Executive Director

Government Records Council

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