2004-103

Final Decision

At its August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 2005 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, reaffirms its January 13, 2005 Final Decision on the alternative basis mentioned but not addressed in the January 13, 2004 Findings and Recommendations, and not relied upon in the final decision, regarding the requested government records being exempt from disclosure pursuant to N.J.S.A. 47:1A-3(a) because they pertain to investigations in progress and their disclosure would be inimical to public interest.

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 11^th Day of August, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  August 19, 2005

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. “The three most recently submitted complaint forms, without attachments, submitted to the NJ State Board of Architects complaining about a licensee.”
2. “The three most recent cover letters sent to licensee to submit detailed written responses to the allegations in the complaints.  Notes:  A. I make this request both under OPRA and the common law.  B. Please don’t trouble yourself to ensure that the documents you produce are precisely the “most recent” ones submitted.  I’m really just looking for representative samples of the documents.  It is perfectly fine if the documents produced are, say; any three of the most recently submitted twenty-five records.  C.  The Complaint forms and written answers I’m seeking copies of are those referred to on the Consumer Affairs website http://www.state.nj.us/lps/ca/complaint/archcom.pdf.”
3. “D. If the custodian claims that any parts of the requested record are exempt from disclosure, I specifically request access to those records, redacted only to the extent necessary to excise the exempt material.  E. I made this request by way of letter dated July 6, 2004.  I received voicemail from Lucie Moreria on July 9, 2004 asking me to resubmit the same request on-line.  This on-line submission is in response to Ms. Moreira’s request.” 

Request Made:  June 15, 2004 and July 9, 2004
Response Made:   June 24, 2004 and July 12, 2004
Custodian:  Robert Campanelli
GRC Complaint Filed:   July 22, 2004

Background

January 24, 2005
At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 7, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, found that:

1. The Custodian is not responsible for disclosing the records or making redactions pursuant to N.J.A.C. 13: 1E-3.2 (a) (9) (iii), which states that any investigation into a possible violation of law, civil or criminal, whether open, closed or inactive were to be confidential.
2. Pursuant to N.J.S.A. 47:1A-9, that “…[OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA], any statute…”
3. Executive Order 21 provides that “…State agencies are directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order.”
4. The Custodian did not violate the Open Public Records Act (“OPRA”) under the totality of the circumstances.
5. Based upon items #1-4 above, the complaint is dismissed.

February 9, 2005
The Complainant submitted a Motion for Reconsideration with a certification and letter brief in support of said motion to the Council requesting a reconsideration of the January 13, 2004 Final Decision.  Specifically, the Complainant stated that N.J.A.C. 13:1E-3.2(a)(9)(iii), which was recognized by the Council to exempt the requested records, had expired as an un-adopted proposed regulation one year after it was published in the New Jersey Register.

In his certification in support of the motion, the Complainant cites telephone conversations he had with Rae Hodge of the Office of Administrative Law and Deputy Attorney General Phil Hopkins that both confirmed the expiration of the proposed rule. 

June 14, 2005
The Custodian's Counsel submitted a response to the Complainant’s request for reconsideration.  In his response, the Custodian’s Counsel stated that the Custodian denied access to the records requested by the Complainant on the basis of the proposed regulation and on the basis that OPRA exempts records regarding ongoing investigations.

The Custodian's Counsel continues to argue that although the Complainant may be correct in that the proposed regulation, N.J.A.C. 13:1E-3.2 (a) (9) (iii), has expired, based upon the Administrative Procedures Act ("APA"), it became viable and effective upon the execution of Executive Order 21.  The Custodian's Counsel notes that in Executive Order 21, paragraph 4, indicates "the records exempted from disclosure by those proposed rules are exempt from disclosure by this order."  The Custodian's Counsel contends that within the scope of the proposed regulation, any records pertaining to investigations into possible violations of the law are exempt from disclosure being that Executive Order 21, paragraph 4 has not been modified or rescinded.  Further, the Custodian's Counsel indicates that the APA does not foreclose on the possibility that the regulation in its proposed form may be adopted upon resubmission. 

Alternatively, the Custodian's Counsel asserts that even if the regulation is not binding, the Council's decision should be upheld because the Complainant's request is for documents that pertain to investigations that are in progress by the public agency.  As previously argued, any contrary conclusion would have a "chilling impact upon the conduct of agency investigations, and may also compromise subsequent criminal investigations and/or actions which might be identified based upon agency investigations."  The Custodian’s Counsel goes on to state that the “GRC thus may affirm the decision reached in this matter on the grounds that Mr. Paff’s request was proprerly denied based upon the application of N.J.S.A. 47:1A-3, and need not decide herein whether N.J.A.C. 13:1E-3.2(a)(9)(iii) remains viable by operation of Executive Order 21.” 

Lastly, the Custodian's Counsel suggests that the request should also be denied on the basis that the request is too generic in nature.  The Custodian's Counsel argues that the Complainant's request is seeking unspecified requests for 3 complaints and OPRA does not allow for unspecified categorical requests.  Further, the Custodian's Counsel argues that the MAG v. Division of Alcohol and Beverage Control, 375 N.J. Super 534 (App. Div. 2005) decision supports the Division's denial on the basis that the Appellate court found that OPRA is not intended to be used as a research tool to force government agencies to identify and extract information which is deemed useful to the requestor.  The Custodian's Counsel notes that the MAG case determined that agencies must only disclose identifiable records and that OPRA does not provide for open-ended searches for records. 

July 26, 2005
The Complainant submitted a response to the Custodian’s response to the Motion for Reconsideration.  In his response, the Complainant asserts that the Council should not consider the Custodian’s response to the motion because it was submitted almost a month after its due date. 

The Complainant also puts forth additional arguments to be considered by the Council if, despite the lateness of the Custodian’s response, the Council does consider it.  Specifically, the Complainant asserts that the purpose of Executive Order 21 was to give immediate effect to proposed rules since the APA prohibited the adoption of proposed rules before the effective date of OPRA.  The Complainant concludes that the Governor did not mean to give permanent effect to proposed rules that were not properly adopted and promulgated within the one year time framed allowed after proposal pursuant to the APA. 

Analysis

Whether the Council may consider the Complainant’s Motion to Reconsider a final decision and what standard of review should be employed?

The Complainant asserts that the Council has the jurisdiction to reconsider its own final decisions due to its precedent of doing the same in other cases such as Janon Fisher v. Division of Law, GRC Complaint No. 2004-55 (where on December 22, 2004, the Division of Law filed, and the Council considered, a request for reconsideration of its final decision in that matter).  Most recently, the Council reconsidered its final decisions upon the request of the complainant in White v. William Paterson University, GRC Complaint No. 2003-113 (June 9, 2005) and White v. William Paterson University, GRC Complaint No. 2003-109 (July 14, 2005).

The Complainant also asserts that the standard for review should be that used in the New Jersey courts.  Specifically, the Complainant states that reconsideration should be used only for those cases in which either the Council has expressed its decision based upon a palpably incorrect or irrational basis, or it is obvious that the Council either did not consider or failed to appreciate the significance of probative, competent evidence.

In the case at hand, it is possible that the Council’s final decision was based upon an incorrect basis due to an unsettled point of law.  Therefore, it is recommended that the Council follow its precedent to reconsider this case and employ the standard of review suggested by the Complainant.   

Whether the Council’s final decision of January 13, 2005 withstands the standard of review for reconsideration?

If the Council employs the standard of review for reconsideration of its final decision as suggested by the Complainant, it may be determined that the Council’s decision was based upon an incorrect basis due to an unsettled point of law relating to the validity of proposed rules that were given effect by EO 21 before the effective date of OPRA.  As the Complainant argues (and supports by certification) in his motion for reconsideration, the proposed rule that the Council found precluded access to the government records requested was never adopted and expired one year after it was published in the New Jersey Register pursuant to the APA.  The Complainant further argues that a public agency’s ability to deny access to government records on the basis of an expired proposed rule is unlawful and goes beyond the scope of EO 21.

Given the Complainant’s astute arguments, it is not recommended that the Council affirm its final decision which relied upon the authority of EO 21 to give permanent effect to a proposed rule that was published, but ultimately not promulgated and adopted according to the rule-making procedures of the APA.  The validity of the proposed rules governing confidentiality of certain government records that were published, but not promulgated and adopted after the effective date of OPRA, is an unsettled point of law.

It is recommended, however, that the Council affirm its final decision pursuant to the alternative statutory exemption offered by the Custodian (and included in the Executive Director’s Findings and Recommendations), but not relied upon in the final decision.  Specifically, the Custodian asserted that the records requested were exempt from disclosure pursuant to N.J.S.A. 47:1A-3 because the records pertain to on-going investigations by a public agency.  OPRA provides, in part,

“… where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access … provided may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest …”  N.J.S.A. 47:1-3(a).              

The Custodian asserted in the Statement of Information that the records requested by the Complainant pertain to investigations in progress by the State Board of Architects.  The Custodian goes on to assert that the release of records concerning ongoing investigations of any professional licensing board would clearly be inimical to the public interest.  Disclosure of such records is inimical to the public interest, according to the Custodian, because there is a compelling interest in protecting the reputation and privacy interests of the consumer, complainant and the licensee who is the subject of the complaint.  Additionally, the Custodian asserted that disclosure of such records would be inimical to the public interest because it would hinder the promotion of frank and unfettered consideration of individual testimony and discussion of matters under investigation among board members.  All these interests would be compromised, according to the Custodian, if licensing boards were required to disclose documents concerning investigations in progress.

Inimical to the Public Interest – Reputation of Licensee

The Custodian explained that if information about ongoing investigations were not held confidentially, the reputation of an individual licensee could be unfairly or inappropriately tarnished by the disclosure of the fact of a pending investigation.  This is especially true, according to the Custodian, if the board investigation ultimately determines that the complaint submitted was without merit.  The Custodian further asserts that a disgruntled consumer could attempt to cause economic or other harm to a licensee by filing a complaint with a licensing board for the sole purpose of having that licensee identified as being “under investigation.”  The concern for the unfair or inappropriate tarnish of a licensee’s reputation is significantly diminished at the conclusion of an investigation when the veil of confidentiality is lifted and the records of the investigation are open to the public.

Inimical to the Public Interest – Privacy Interest of Consumers Making Complaints

The Custodian also asserted a related concern militating against public disclosure of government records concerning ongoing investigations – that such disclosure may chill the willingness of members of the public to come forward to licensing boards with complaints against professionals.  The Custodian explained that while in most cases the licensee is provided a copy of a consumer’s complaint, there are situations where efforts are made to protect the identity of a complainant during an investigation.  This is true when there is cause to conduct an undercover investigation of a licensee or when a consumer advises a board that he or she fears retaliation from the licensee.  The Custodian concluded that if the Council determines that a licensing board must disclose records concerning ongoing investigations, the knowledge that the veil of confidentiality afforded investigations could be pierced would likely have a direct chilling impact upon the conduct of agency investigations.

Potential Disclosure of Criminal Investigatory Records

The Custodian also asserted that in some instances, information may be revealed during the course of a professional licensing board investigation that suggests that a licensee has engaged in criminal conduct.  In such cases, according to the Custodian, documents maintained initially by a licensing board must be relinquished to criminal investigatory authorities for further investigation and possibly prosecution.  As provided in OPRA, criminal investigatory records are confidential and entitled to absolute statutory protection from disclosure.  N.J.S.A. 47:1A-1.1. 

Thus, the Custodian concluded that requiring the disclosure of documents concerning an ongoing investigation by a professional licensing board prior to the conclusion of such investigation (i.e. the point at which a determination has been made as to whether or not any potentially criminal conduct has be engaged in by the licensee for referral to criminal investigatory authorities) could result in the disclosure of records that are explicitly exempt from disclosure under OPRA.

Given the explanation of the denial of access to the request government records by the Custodian’s Counsel as asserted in the Statement of Information and mentioned but not relied upon, in the Council’s January 13, 2005 final decision, it is recommended that that the Council reaffirm its final decision on the alternative exemption from disclosure for records of ongoing investigations by public agencies pursuant to N.J.S.A. 47:1A-3(a).

Conclusions and Recommendation of the Executive Director

The Executive Director respectfully recommends that the Council reaffirm its January 13, 2005 Final Decision on the alternative basis mentioned but not addressed in the January 13, 2004 Findings and Recommendations, and not relied upon in the final decision, regarding the requested government records being exempt from disclosure pursuant to N.J.S.A. 47:1A-3(a) because they pertain to investigations in progress and their disclosure would be inimical to public interest.

Prepared By: 
Catherine Starghill, Esq.
In-House Counsel

Approved By:
Paul F. Dice
Executive Director
Government Records Council

August 5, 2005

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Final Administrative Action

At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 7, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, found that:

1. The Custodian is not responsible for disclosing the records or making redactions pursuant to N.J.A.C. 13: 1E-3.2 (a) (9) (iii), which states that any investigation into a possible violation of law, civil or criminal, whether open, closed or inactive were to be confidential. 
2. Pursuant to N.J.S.A. 47:1A-9, that “…[OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA], any statute…” 
3. Executive Order 21 provides that “…State agencies are directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order.” 
4. The Custodian did not violate OPRA under the totality of the circumstances.
5. Based upon items #1-4 above, the complaint is dismissed. 

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 13^th Day of January, 2005

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 the Executive Director

Relevant Records Requested:

1. “The three most recently submitted complaint forms, without attachments, submitted to the NJ State Board of Architects complaining about a licensee.”
2. “The three most recent cover letters sent to licensee to submit detailed written responses to the allegations in the complaints.  Notes:  A. I make this request both under OPRA and the common law.  B. Please don’t trouble yourself to ensure that the documents you produce are precisely the “most recent” ones submitted.  I’m really just looking for representative samples of the documents.  It is perfectly fine if the documents produced are, say; any three of the most recently submitted twenty-five records.  C.  The Complaint forms and written answers I’m seeking copies of are those referred to on the Consumer Affairs website http://www.state.nj.us/lps/ca/complaint/archcom.pdf.”
3. “D. If the custodian claims that any parts of the requested record are exempt from disclosure, I specifically request access to those records, redacted only to the extent necessary to excise the exempt material.  E. I made this request by way of letter dated July 6, 2004.  I received voicemail from Lucie Moreria on July 9, 2004 asking me to resubmit the same request on-line.  This on-line submission is in response to Ms. Moreira’s request.” 

Request Made:  June 15, 2004 and July 9, 2004
Response Made:    June 24, 2004 and July 12, 2004
Custodian:   Robert Campanelli
GRC Complaint Filed:   July 22, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council (“Council”) on July 22, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian denied access to the three complaints and cover letters to the Board of Architects by claiming that an investigation is ongoing.  Further, the Complainant asserts that redactions were not offered to excise the information exempt from disclosure; therefore serving as another violation of OPRA. 

The Complainant claims that the Custodian’s argument as the disclosure of the records would be “inimical to the public interest” is invalid because the records would be disclosed after the investigation was complete.  Further, the Complainant asserts that the exemption under OPRA is for ongoing investigation and not just investigations.  The Complainant claims that the Custodian did not determine whether the release or redactions of these records are actually a threat to pubic interest.  The Complainant, in a letter to the GRC dated September 15, 2004, cites New Jerseyans for a Death Penalty Moratorium v. NJ Department of Corrections, Docket No. MER-L-1740-02 and, in doing so, asks the Council to adopt the reasoning in which a common law balancing test be applied even when a statutory exemption applies.  

The Complainant states that a telephone conversation with Lucie Moreria, a Division staff member, concluded that the Division can only provide closed complaints and not open complaints and the request should be resubmitted.  

The Complainant claims that cover letters outling allegations should be disclosable as well. 

The Complainant asserts that the Council should consider the Custodian as having knowingly and willfully violated OPRA. 

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian contends that the records pertaining to the Complainant’s requests are to be considered confidential pursuant to OPRA, as they are a part of an ongoing investigation. N.J.S.A. 47:1A-3.  The Custodian’s counsel maintains the importance of confidentiality in the process to protect the “privacy and reputation” of both parties involved and to “promote frank and unfettered testimony.” 

The Custodian’s counsel also asserts that pursuant to N.J.S.A. 10:4-6, the Board of Architects shall conduct investigations in closed session meetings.  Further, the Custodian’s counsel claims that N.J.S.A. 10:4-12 (b) (9) provides that the public can be excluded from the portion of an otherwise open session meeting to discuss any investigations. 

As a result of investigations by the Board of Architects, the Custodian’s counsel claims that in some instances records may be found to be criminal investigatory records, therefore, exempt under N.J.S.A. 47:1A-1.1.   

Further, the Custodian’s counsel contends that a proposed Department of Law and Public Safety regulation provides that “…information compiled and identifiable as part of an inquiry or investigation into a possible violation of law, civil or criminal, whether open or closed or inactive…” shall be confidential.  N.J.A.C. 13:1E-3.2 (a) (9) (iii). 

Lastly, the Custodian’s counsel cites GRC case 2003-126, Newark Star Ledger v. NJ Department of Corrections, in that proposed regulations were upheld by the GRC under Executive Order 21. 

Analysis

The following corresponds directly with the “Conclusion and Recommendations of the Executive Director” listed below.

1. N.J.A.C. 13: 1E-3.2 (a) (9) (iii) states that “[i]nformation compiled and identified as a part of an inquiry or investigation into a possible violation of law, civil or criminal, except to the extent necessary to prosecute the violation or continue the investigation, whether open, closed or inactive.”   The Custodian’s counsel maintains that the records sought by the Complainant are not disclosable in whole or in part pursuant to N.J.A.C. 13: 1E-3.2 (a) (9) (iii). 
2. N.J.S.A. 47:1A-9 provides that “…[OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA], any statute…” The Custodian cites N.J.A.C. 13:1E-3.2 (a) (9) (iii), a proposed regulation, which exempts disclosure of the records requested.  OPRA provides that the proposed regulation as indicated by the Custodian’s counsel negates the right to access under OPRA. 
3. Under Executive Order 21, “…[s]tate agencies are directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order.”  Executive Order 21 indicates that the agency shall proceed in a “…manner consistent with the rules that they have proposed…” consequently, the proposed regulation, N.J.A.C. 13:1E-3.2 (a) (9) (iii), provides that the records requested in whole or in part are deemed to be confidential and not subject to disclosure.  
4. The Custodian’s counsel argues that N.J.S.A. 47:1A-3 is also relevant in denying access to the requested records because “…it shall appear that the records which are sought to be inspected, copied or examined shall pertain to an investigation in progress by a public agency, right of access provided for in [OPRA] as amended and supplemented may be denied inspection, copying or examination of such record or records shall be inimical to the public interest.”  It is apparent that the proposed regulation, N.J.A.C. 13:1E-3.2 (a) (9) (iii), provides that the records requested in whole or in part are deemed to be confidential and not subject to disclosure.  This argument offered by the Custodian does not need to be addressed because the proposed regulation along with Executive Order 21 and N.J.S.A. 47:1A-9 clearly provides that the records requested are exempt from disclosure. 

Documents Reviewed

The following records were reviewed in preparation for this “Findings and Recommendations of the Executive Director”

1. June 15, 2004– Complainant’s OPRA request
2. June 24, 2004– Custodian’s response to June 15, 2004 OPRA request
3. July 9, 2004– Complainant’s OPRA request
4. July 12, 2004– Custodian’s response to July 9, 2004 OPRA request
5. July 22, 2004 – Complainant’s Denial of Access Complaint form
6. July 27, 2004 – Complainant & Custodian Offer of Mediation
7. August 5, 2004 – Request for Statement of Information
8. September 14, 2004 – Custodian’s Statement of Information
9. September 15, 2004 – Complainant’s supplemental information

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Council should find that the Custodian is not responsible for disclosing the records or making redactions pursuant to N.J.A.C. 13: 1E-3.2 (a) (9) (iii), which states that any investigation into a possible violation of law, civil or criminal, whether open, closed or inactive were to be confidential. 
2. The Council should find that pursuant to N.J.S.A. 47:1A-9, that “…[OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA], any statute…” 
3. The Council should find that Executive Order 21 provides that “…State agencies are directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order.” 
4. The Council should find that the Custodian did not violate OPRA under the totality of the circumstances.
5. Based upon items #1-4 above, the Council should dismiss the complaint. 

Prepared By:
Approved By:
Paul F. Dice
Executive Director
Government Records Council

January 7, 2005

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