2004-147

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 3, 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, dismisses the case on the basis of:

1. The records requested are not disclosable under N.J.S.A. 47:1A-10 as they are personnel and pension records and the Complainant is not an “individual in interest” of the records. 
2. Although the Custodian was not aware of the requests, the Chief of Police, as an employee of the public agency, has a statutory obligation to forward the request to the Custodian so that she may fulfill the request within the statutory time frame established by OPRA. 
3. The issue of a formal grievance being filed does not need to be addressed because the records are clearly not disclosable pursuant to N.J.S.A. 47:1A-10 as they are personnel and pension records. 

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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Supplemental Findings and Recommendations of the Executive Director

Records Requested:

1. “Any and all correspondence that I have had with you, Capt. Pacentrilli, and any supervisor (both with or without rank) regarding Dispatcher Rittwegger.  I am requesting that all these materials, regarding both negative and positive work related memos be provided to me and should be from the beginning of my employment to present.   I will also request that if you have generated any type of written record of my correspondence to you (i.e. regarding any verbal conversations that we may have had, but no action has been taken or has been taken) be included in this request.  I will also request memos, letters, or correspondence that I have submitted in my role as PBA President to present.” 

Request Made: August 12, 2004, August 19, 2004, and September 1, 2004[1]
Response Made: August 23, 2004, September 1, 2004 and September 2, 2004       
Custodian:   Kathleen Hewson, Clerk
GRC Complaint filed: September 10, 2004

Background

February 10, 2005

At the February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 3, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted not to adopt the findings and recommendations, but instead, voted unanimously to refer the case to Counsel for further amplification on the opinion concerning “individual in interest.”  The Council, therefore, held any decision in the case until the March 10, 2005 Council’s public meeting. 

March 4, 2005

The Department of Law maintains the advice previously given to GRC staff regarding “an individual in interest” for the February 10, 2005 Findings and Recommendations of the Executive Director.  The Department of Law asserts that additional research has reaffirmed that OPRA does not exempt or grant access to records based on the identity of an individual requesting the record.  Additionally, personnel and pension records, sought in this case, are exempt from disclosure based upon the letter and intent of the law.  The identity of an individual requesting access cannot alter the status of an exempt record. 

Conclusions and Recommendations

The Executive Director’s recommendation remains unchanged with the February 10, 2005 Findings and Recommendations. The Executive Director, therefore, respectfully recommends that the Council dismiss this case on the basis of:

1. The records requested are not disclosable under N.J.S.A. 47:1A-10 as they are personnel and pension records and the Complainant is not an “individual in interest” of the records. 
2. Although the Custodian was not aware of the requests, the Chief of Police, as an employee of the public agency, has a statutory obligation to forward the request to the Custodian so that she may fulfill the request within the statutory time frame established by OPRA. 
3. The issue of a formal grievance being filed does not need to be addressed because the records are clearly not disclosable pursuant to N.J.S.A. 47:1A-10 as they are personnel and pension records. 

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

March 3, 2005

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Interim Decision on Access

At the February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 3, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted not to adopt the findings and recommendations, but instead, voted unanimously to refer the case to Counsel for further amplification on the opinion concerning “individual in interest.”  The Council, therefore, will hold any decision in the case until the March 10, 2005 Council’s public meeting. 

Interim Decision Rendered by the
Government Records Council
On The 10^th Day of February, 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

Records Requested: 

1. “Any and all correspondence that I have had with you, Capt. Pacentrilli, and any supervisor (both with or without rank) regarding Dispatcher Rittwegger.  I am requesting that all these materials, regarding both negative and positive work related memos be provided to me and should be from the beginning of my employment to present.   I will also request that if you have generated any type of written record of my correspondence to you (i.e. regarding any verbal conversations that we may have had, but no action has been taken or has been taken) be included in this request.  I will also request memos, letters, or correspondence that I have submitted in my role as PBA President to present.” 

Request Made:  August 12, 2004, August 19, 2004, and September 1, 2004[1]
Response Made: August 23, 2004, September 1, 2004 and September 2, 2004  
Custodian:   Kathleen Hewson, Clerk
GRC Complaint filed: September 10, 2004

Background

August 12, 2004

The Complainant submits a written Open Public Records Act (“OPRA”) Request seeking various correspondence authored by him to Chief A. Scott Porter, Capt. Pacentrilli and any supervisor regarding Dispatcher Rittwegger.

August 19, 2004

The Complainant submits a letter to Chief A. Scott Porter regarding his non-response to his OPRA request of August 12, 2004.  The Complainant also states that he is additionally submitting a copy of OPRA for Chief Porter’s review. 

August 23, 2004

Chief A. Scott Porter responds to the Complainant’s August 12, 2004 OPRA request and August 19, 2004 letter by memorandum, informing the Complainant that he received the correspondence and is searching the files for the requested information.  Chief Porter states that the search for the requested records should be completed by August 31, 2004. 

August 31, 2004

The Complainant submits another OPRA request to the Custodian, Kathleen Hewson, regarding his August 12, 2004 request.

August 31, 2004

Chief A. Scott Porter responds to the Complainant’s August 31, 2004 OPRA request and denies the Complainant access to the records.  Chief Porter states that N.J.S.A. 47:1A-10 and N.J.S.A. 47:1A-1.1 provide that records “…relating to any grievance filed by an individual are not considered government records...”

September 1, 2004

The Complainant submits a letter to the Custodian regarding his August 12, 2004 OPRA request and Chief Porter’s denial of access to the records dated August 31, 2004.  The Complainant states that he was unaware that the proper official overseeing OPRA requests is the Custodian.  The Complainant contends that he is entitled to the record pursuant to N.J.S.A. 47:1A-10 as he authored the record and is an “…individual in interest…” of the record.  The Complainant further states that he was advised that the only person who could officially deny access to public records for the Borough is the Custodian and therefore, he asks the Custodian to consider his August 12, 2004 OPRA request. 

September 1, 2004

The Custodian submits a memorandum to the Complainant notifying him that he should send future requests directly to her, as she was not aware of the request.  The Custodian also states that the requests were not on the appropriate form. 

September 2, 2004

The Custodian responds to the Complainant’s August 12, 2004 OPRA request stating that the records requested are denied pursuant to N.J.S.A. 47:1A-10 as they are personnel and pension records and are not considered a government record under OPRA. 

September 9, 2004

The Complainant files a Denial of Access Complaint with the Government Records Council (“GRC”) claiming that the Custodian improperly denied him access to any and all correspondence authored by him to Chief A. Scott Porter, Capt. Pacentrilli, and any supervisor (both with or without rank) regarding Dispatcher Rittwegger.  The Complainant claims that pursuant to N.J.S.A. 47:1A-10 he should be granted access to personnel and pension files because these files are not exempt “…when authorized by an individual in interest…” The Complainant contends that he is an individual in interest of the files because he is the author of the records in which he is seeking.  The Complainant also states that it is his opinion that the Custodian also agrees that he should have access to the records he requested.  The Complainant further asserts that no formal grievance has been filed in connection with this matter and Chief Porter’s claim that N.J.S.A. 47:1A-1.1 is applicable because a grievance has been filed is invalid. 

October 20, 2004

The Custodian asserts, in the Statement of Information, that she received the Complainant’s OPRA request on September 2, 2004[2].  The Custodian stated that the request was denied because the records were confidential in nature.  The Custodian’s counsel states that the Custodian acted properly in denying the records pursuant to N.J.S.A. 47:1A-10 and N.J.S.A. 47:1A-1.1 as the records are “…relating to any grievance files by or against the individual…” The Custodian’s counsel further argues that N.J.S.A. 47:1A-10 provides that the records requested are personnel and pension records and therefore are confidential records.  The Custodian’s counsel notes that pursuant to N.J.S.A. 47:1A-1.1 the requested records do not constitute government records and are not disclosable under OPRA.  The Custodian’s counsel asserts that OPRA does not provide an exception for releasing personnel and pension records because the requestor authors them.  The Custodian’s counsel lastly cites GRC case 2003-155, Floyd Fredrick Allen v. County of Warren noting that the Council upheld the confidentiality of personnel and pension records. 

Analysis

Whether the Custodian responded to the Complainant’ August 12, 2004 OPRA request within the statutory seven-business day time period provided under OPRA. 

N.J.S.A. 47:1A-5(i) provides that “[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.” 

“Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.” (N.J.S.A. 47:1A-5(h)). 

In a memorandum to the Complainant dated September 1, 2004, the Custodian notified the Complainant that she received his August 12, 2004 request and August 19, 2004 letter on August 31, 2004 from Chief A. Scott Porter.  The Custodian noted that she “cannot guarantee that the parameters of the law are met if [she] is unaware of the submission of requests.”  The Custodian asked that future requests be sent directly to her office. 

The Custodian clearly was unable to respond within the statutory seven business day time period provided by OPRA since she was not aware of the requests, however, Chief A. Scott Porter, an employee of the public agency, has a statutory obligation under OPRA to forward the request in a timely fashion so as not to prohibit the Custodian to meet her statutory deadlines in responding to requests. 

WHETHER the Custodian should release the requested records pursuant to N.J.S.A. 47:1A-10 as personnel and pension records are not disclosable except “…when authorized by an individual in interest…” 

“Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:  personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest…” (N.J.S.A. 47:1A-10).

The Complainant argues that he is entitled to the requested records pursuant to N.J.S.A. 47:1A-10 as he is an “individual in interest.”  The Complainant contends that he is only requesting records in which he is the author of the record; therefore; he is an individual in interest of the records. 

The Custodian’s counsel states that OPRA does not provide an exception to the disclosure of personnel and pension records that includes the author of the records. 

N.J.S.A. 47:1A-10 clearly states that personnel and pension records are not available for public access. 

N.J.S.A. 47:1A-10 is a codified version of Executive Order 11 (1974) and has been applied and understood that only individuals who have access to personnel and pension records are specific public officials and the person who is the subject of the personnel file.  An “individual in interest” is to mean the person who is the subject of the personnel file, furthermore, that person may accept to waive their privacy right and authorize the disclosure of their personnel records.  In considering N.J.S.A. 47:1A-10 in its entirety, the term “individual” refers to the person who is the subject of the personnel or pension record.

The Custodian’s counsel is correct in that OPRA does not have a stipulation for those who author records to obtain access to personnel and pension records, but more importantly, the Complainant is not an “individual in interest” and should not have access to the records under N.J.S.A. 47:1A-10. 

WHETHER the Custodian should deny access to the requested records pursuant to N.J.S.A. 47:1A-10 and N.J.S.A. 47:1A-1.1 as the records are “…relating to any grievance filed by or against an individual…”

“A government record shall not include the following information which is deemed to be confidential for the purposes of [OPRA] as amended and supplemented: information generated by or on behalf of public employers or public employees in connection with any grievance filed by or against an individual…” (N.J.S.A. 47:1A-1.1).

N.J.S.A. 47:1A-10 provides that records “…including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access…”

The Complainant contends that the records he is requesting are not connected to any grievance filed by or against an individual.  The Complainant also notes that the records authored by him may be regarding incidents with another employee. 

The Custodian’s counsel asserts that the records requested do concern a grievance filed by the Complainant. 

It is unclear if a formal grievance has been filed by or against an individual involved in this case, however, the issue does not need to be addressed by the Council at this time.  The requested records are undoubtedly personnel and pension records and are not to be disclosed to the Complainant, furthermore, he is not an “individual in interest” of the records pursuant to N.J.S.A. 47:1A-10.   

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case based on the following:

1. The records requested are not disclosable under N.J.S.A. 47:1A-10 as they are personnel and pension records and the Complainant is not an “individual in interest” of the records. 
2. Although the Custodian was not aware of the requests, the Chief of Police, as an employee of the public agency, has a statutory obligation to forward the request to the Custodian so that she may fulfill the request within the statutory time frame established by OPRA. 
3. The issue of a formal grievance being filed does not need to be addressed because the records are clearly not disclosable pursuant to N.J.S.A. 47:1A-10 as they are personnel and pension records. 

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

February 3, 2005

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