2003-96

Final Decision

At its February 10, 2004 public meeting, the Government Records Council ("Council") considered the February 2, 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 custodian has provided credible information that the requested records are confidential pursuant to N.J.S.A. 30:4-24.3 and N.J.A.C. 10:41-2.4, and, therefore, the denial of access was in accordance with the law and the requested records should not be disclosed.
2. The requested reports are not accessible under N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9 and the complaint should be dismissed.

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 Number 2003-96

Kathleen Cannon
Complainant
v.
Division of Development Disabilities, Department of Human Services
Records Custodian

Relevant Records Requested: All Major Incident Reports from the New Lisbon Developmental Center for years 2000, 2001, 2002 and so far in 2003
Request made: June 27, 2003
Response made: July 7, 2003
Custodian: Janet Hand
GRC Complaint filed: July 7, 2002

Executive Director’s Recommendation

The requestor requested the major incident reports from the New Lisbon Developmental Center for years 2000, 2001, 2002 and so far in 2003. The custodian maintains that the reports contain confidential client information pursuant to N.J.S.A. 30:4-24.3, N.J.S.A. 30:6D-4f, N.J.A.C. 10:41-2 and 45 C.F.R. Section 164 et. seq. and thus are not accessible under OPRA. The custodian also maintains that the reports are risk management documents which are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9 affirmed that the information in the SOI was true to the best of her knowledge and belief and that she is subject to penalty for any deliberate misstatement of fact.

The Acting Executive Director respectfully recommends the Council find that:

1. The custodian has provided credible information that the requested records are confidential pursuant to N.J.S.A. 30:4-24.3 and N.J.A.C. 10:41-2.4, and, therefore, the denial of access was in accordance with the law and the requested records should not be disclosed.
2. The requested reports are not accessible under N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9 and the complaint should be dismissed.

Statement of Facts

June 27, 2003 - Records Request

The complainant, Kathleen Cannon, requested records from the Division of Development Disabilities regarding major incident reports from the New Lisbon Development Center for years 2000, 2001, 2002 and so far in 2003.

July 7, 2003 - Custodian's Response to Request

The custodian, Janet Hand, denied the request. She cited that this information contained client information that is not disclosable under N.J.A.C. 10:41-2 and Federal Regulation 45 CFR 164.

July 29, 2003 - Denial of Access Complaint Filed (Supplemental Included)

In this document, the requestor also included a supplemental form that detailed her initial communication with the custodian and the GRC. In her July 18, 2003 telephone conversation with the Dept. of Human Services Spokeswoman, Pam Ronan, Ms. Ronan allegedly said that these reports would not be released "in any way, shape or form".

August 6, 2003 - Letter from DAG

Barbara Harned, Deputy Attorney General at the Department of Law and Public Safety submitted a letter to the GRC informing them that she would represent Ms. Hand in this case. She also requested that the GRC address all correspondences and inquiries to her attention.

The GRC sent a fax to Mary Monteschio, Esq. attaching complaint and supporting evidence.

A verbal communication was made to the GRC from custodian declining mediation.

The GRC faxed to Barbara Harned, Janet Hand and Mary Monteschio the statement of information forms and complaint.

September 15, 2003 - Submission of Statement of Information

Ms. Harned filed the custodian's Statement of Information with the GRC.

In section 10 of this form, Ms. Hand contended that the documents that Ms. Cannon requested contained confidential client information pursuant to N.J.S.A. 30:4-24.3, N.J.S.A. 30: 6D-4f, N.J.A.C. 10:41-2 and 45 C.F.R. 164 et seq. and thus were not accessible under N.J.S.A. 47:1A-1.1. The custodian reported that an aggregate data report had been provided to the requestor on August 11, 2003, by the Department's Office of Public Information. In addition, the custodian attached two unreported decisions which she argued supported the agency's position on the confidentiality of the requested documents under the cited statutes and their nature as risk management reports. The cases submitted in this SOI included: North Jersey Media Group D/B/A The Record v. Department of Human Services, State of New Jersey, filed in the Superior Court of New Jersey, Mercer County, Law Division, Docket No. MER-L-2505-02, and Jane Doe, et. Al. v. State of New Jersey, Department of Human Services, filed in the United States District Court for the District of New Jersey, Civil action No. 01-3607 (GEB).

The GRC wrote a letter to the custodian’s counsel requesting to know with respect to Section 9 of the Statement of Information, what the aggregate data report contains, if it is a response to the request and why the information was provided to the requestor.

GRC requested information describing the major incident reports and why the documents contain information that cannot be disclosed under OPRA and a specification of the particular regulations asserted.

Legal Issues and Considerations

The requestor requested the major incident reports from the New Lisbon Developmental Center for years 2000, 2001, 2002 and so far in 2003. Pursuant to the Statement of Information, the custodian stated that the reports contain confidential client information pursuant to N.J.S.A. 30:4-24.3, N.J.S.A. 30:6D-4f, N.J.A.C. 10:41-2 and 45 C.F.R. Section 164 et. seq. and thus are not accessible under OPRA. The custodian also stated that the reports are risk management documents which are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. By signing the Statement of Information (SOI), the custodian affirmed that the information in the SOI is true to the best of her knowledge and belief and that she is subject to penalty for any deliberate misstatement of fact.

The New Lisbon Developmental Center is a facility established under Title 30 of the New Jersey Statutes. See N.J.S.A. 30:1-7. N.J.S.A. 30:4-24.3 provides, in part, that:

All certificates, applications, records, and reports made pursuant to the provisions of Title 30 of the Revised Statutes and directly or indirectly identifying any individual presently or formerly receiving services in a noncorrectional institution under Title 30 of the Revised Statutes, or for whom services in a noncorrectional institution shall be sought under this act shall be kept confidential and shall not be disclosed by and person, except insofar as,[1]

N.J.A.C. 10:41-2.4 provides, in part, that:

Records may be released in accordance with N.J.S.A. 30:4-24.3 which mandates that all certificates, applications, records and reports that directly or indirectly identify an individual currently or formerly receiving services from the Division[2] be kept confidential and not subject to public disclosure.

Based upon the credible information submitted, the reports are confidential pursuant to N.J.S.A. 30:4-24.3 and N.J.A.C. 10:41-2.4. The Open Public Records Act does not abrogate other state law that restricts public access to public records. See N.J.S.A. 47:1A-9. Therefore, the custodian’s denial of access was in accordance with the law and the requested records should not be disclosed.

Conclusion

The Acting Executive Director respectfully recommends the Council find that:

1. The custodian has provided credible information that the requested records are confidential pursuant to N.J.S.A. 30:4-24.3 and N.J.A.C. 10:41-2.4, and, therefore, the denial of access was in accordance with the law and the requested records should not be disclosed.
2. The requested reports are not accessible under OPRA and the complaint should be dismissed.

____________________________

Paul F. Dice, Acting Executive Director

Government Records Council

Date: February 2, 2004

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