2004-150

Thomas Seibert

Complainant

Reading Township

Custodian of Record

Complaint No. 2004-150

At the July 25, 2007 public meeting, the Government Records Council (“Council”) considered the July 23, 2007 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, finds that:

1. The Custodian fully complied with the provisions of the Council’s February 10, 2005 Interim Order by delivering to the Council a redaction index in a timely manner.

2. The Denial of Access Complainant should be dismissed because the Custodian certifies on July 24, 2007 that the requested records will be made available to the Complainant in unredacted form because the legal matters encompassed by the services described in the bills have since been the subject of settlement, trial or other adjudication and/or disposition.

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., P.O. Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, P.O. Box 819, Trenton, NJ 08625-0819.

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

Supplemental Findings and Recommendations of the Executive Director

Records Requested: All payment vouchers for Parker, McCay and Criscuolo, for the years 2002, 2003, and 2004 to date.

Government Records Council’s ("Council") Interim Order. At its public meeting, the Council considered the February 2, 2005 Findings and Recommendations of the Executive Director including administrative changes to the dates appearing on pages 1 and 2 of the Background and all related documentation submitted by the parties. The date of October 5, 2005 was changed to October 5, 2004, the date of October 22, 2005 was changed to October 22, 2004 and the date of December 30, 2005 was changed to December 30, 2004. The Council voted unanimously to adopt the entirety of said findings and recommendations with the administrative changes and the amendment that the Custodian’s Counsel shall provide a Vaughn Index in the form required by the Council to the Executive Director by February 28 2005 which will be considered a peremptory date with no postponements. Therefore, the Council finds that:

Letter from the Custodian's Counsel to the GRC. The Custodian's Counsel provided to the GRC copies of the redacted and unredacted records requested by the Complainant along with a redaction index.

Telephone call from the GRC to the Custodian's Counsel. The GRC requested the present status of the Township’s litigation and asked whether the Custodian was willing to waive the asserted attorney-client privilege for concluded litigation matters and release the requested records without redactions. The Custodian’s Counsel indicated that he could review the records to determine if they can now be released in unredacted form by July 27, 2007.

Telephone call from the GRC to the Custodian. The GRC informed the Custodian of the earlier telephone conversation with the Custodian’s Counsel. Specifically, the GRC informed the Custodian that it asked whether the Custodian was willing to waive the attorney-client privilege for concluded litigation matters and release the requested records without redactions. The GRC further informed the Custodian that Counsel was re-evaluating the status of the unredacted records previously provided to the GRC to determine whether litigation matters contained therein had been concluded.

Letter from the GRC to the Custodian’s Counsel. The GRC forwarded copies of all redacted and unredacted records to the Custodian’s Counsel and requested that Counsel review the records and prepare an updated redaction index of all information for which the Custodian maintains the asserted attorney-client privilege.

Letter from Custodian's Counsel to the GRC. The Custodian's Counsel advised the GRC that he had completed his review of the records and determined that the requested records can be released to Complainant in unredacted form because the legal matters encompassed by the services described in the bills have since been the subject of settlement, trial or other adjudication and/or disposition. The Custodian's Counsel further states that the release of the requested records should not be construed as a waiver of the attorney-client privilege and/or attorney work product doctrine with respect to any other bills rendered by the law firm to the municipality.

Custodian's Certification. The Custodian certifies that the circumstances regarding the previously asserted attorney-client privilege exceptions have changed as described in Counsel’s July 23, 2007 letter to the GRC. The Custodian further certifies that the requested records are now being made available to the Complainant in unredacted form.

Pursuant to Council's February 10, 2005 Interim Order, the Council directed that the Custodian provide a redaction index explaining the basis for the asserted privilege of each record withheld from disclosure to the Complainant in unredacted form by February 28, 2005. A copy of the Interim Order was forwarded to the parties on February 16, 2005. On February 28, 2005 the Custodian’s Counsel provided to the GRC a redaction index in compliance with Council’s Interim Order. The Custodian also provided a copy of the unredacted records at the same time the Vaughn (or document) index was provided.

On July 23, 2007 the Custodian’s Counsel informed the GRC that the records could now be released to the Complainant in unredacted form because the legal matters encompassed by the services described in the bills have since been the subject of settlement, trial or other adjudication and/or disposition. The Custodian’s Counsel further states that the release of the requested records should not be construed as a waiver of the attorney-client privilege and/or attorney work product doctrine with respect to any other bills rendered by the law firm to the municipality. On July 24, 2007 the Custodian certifies that the circumstances regarding the previously asserted attorney-client privilege exceptions have changed as described in Counsel’s July 23, 2007 letter to the GRC. The Custodian further certifies that the requested records are now being made available to the Complainant in unredacted form.

1. The Custodian fully complied with the provisions of the Council's February 10, 2005 Interim Order by delivering to the Council a redaction index in a timely manner.

[1] No legal representation listed on record.

[2] Howard D. Cohen, Esq. of Parker McCay (Lawrenceville, NJ).

[3] The Custodian also provided a copy of the unredacted records at the same time the Vaughn (or document) index was provided.

Interim Decision on Access

At the February 10, 2005 public meeting, the Government Records Council ("Council") considered the February 2, 2005 Executive Director'
s Findings and Recommendations including administrative changes to the dates appearing on pages “1” and “2” of the Background and all related documents submitted by the parties. The date of “October 5, 2005” was changed to “October 5, 2004,” the date of “October 22, 2005” was changed to “October 22, 2004” and “December 30, 2005” was changed to “December 30, 2004.” The Council voted unanimously to adopt the entirety of said findings and recommendations with the administrative changes and the amendment that the Custodian’s Counsel shall provide a Vaughn Index in the form required by the Council to the Executive Director by the February 28 2005 which will be considered a peremptory date with no postponements.

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

Findings and Recommendations of the Executive Director

1. All payment vouchers for Parker, McCay and Criscuolo, for the years 2002, 2003, 2004 to date.
Request Made: June 3, 2004
Response Made: June 7, 2004, Sept. 28, 2004
Custodian: Vita Mekovetz, Administrator Municipal Clerk
GRC: September 26, 2004

Complainant submitted a written Open Public Records Act (OPRA) Request to the Custodian seeking all payment vouchers for Parker, McCay and Criscuolo for the years 2002,2003,2004 to date.

The Custodian responded to the Complainant with a copy of the Vendor Activity report for Parker, McCay & Criscuolo for 2002, 2003,2004.

The Custodian responded to the Complainant with redacted copies of the bills rendered to the Township by Parker, McCay and Criscuolo for 2002, 2003 through June 16, 2004. A fee of $112.50 was submitted for the coping of the documents, which were in excess of 400 pages.

The Complainant sent a letter to the Government Records Council with a copy of his original Denial of Access Complaint and copies of some of the redacted documents.

The Government Records Council received from the Custodian their Statement of Information including all correspondence sent to the Complainant and all correspondence between the Custodian and Mr. Cohen, the attorney responsible for the redaction of the documents.

The Government Records Council sent a letter to the Custodian indicating that it was necessary for her to give a general nature description of each redaction with legal justification on the documents that were sent to the Complainant. Although the Custodian’s counsel was responsible for making the redactions, the Custodian was advised that it was her responsibility for seeing this issue addressed in a timely manner. The Custodian was given until January 14, 2005 to respond.

The Government Records Council received a letter from the Custodian confirming that the Assistant Executive Director Ms. Luzzatto granted an extension to the Special Litigation Council of Readington Township until January 24, 2005 to explain the redacted documents.

The Government Records Council received a letter from Mr. Cohen Special Litigation Counsel to Readington Township that gave some explanation of the redacted documents referring to attorney-client privilege as a reason for the redactions and reference N.J.S.A. 47:1A-1. This letter also contained a request for and extension of time.

The Government Records Council sent Mr. Cohen, Special Litigation counsel to Readington Township a letter in response to his January 21, 2005 letter inform him that this case was scheduled for the February 10, 2005 agenda and that there would be no further extension give to him as the representative of Reading Township. The Custodian was has informed of the situation at the same time.

The Government Records Council sent a response referencing a conversation that the case manager had with the Custodian

The Government Records Council received a letter from the Mr. Cohen dated January 26, 2005 indicating again that he is in a very lengthy trial, referred again to attorney client privilege and sent the Government Records Council the un-redacted documents requesting that the Council conduct and in-camera review of said documents.[1][1]

The Government Records Council responded with a letter to Mr. Cohen acknowledging receipt of the January 26, 2005 letter and the un-redacted documents. It was reinforced in the January 31, 2005 letter that the Government Records Council does not conduct in-camera inspections of documents, unless a valid Vaughn Index has been submitted. As of January 31, 2005 neither the Custodian nor counsel as submitted a

The Government Records Council received additional correspondence form Mr. Cohen that this case be adjourned to a date after the trial he is involved in is concluded. The trial is expected to conclude by the end of February. He has also requested that Council be provided with the un-redacted and his January 26, 2005 letter prior to any decision in this matter.

WHETHER the Custodian has meet the burden of proving that the redacted documents have been properly satisfied under OPRA.

Under OPRA the public agency bears the burden of proving that the redactions to the requested documents are authorized by law. N.J.S.A.47:1A-6 states in relevant part:

The public agency shall have the burden of proving that the denial of access authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed.

The Custodian responded to the Complainant’s request with over 400 pages of redacted document, and maintains that all redactions are considered by the to be attorney-client privilege pursuant to N.J.S.A 47:1A-1 et seq.

In various correspondence to both the Custodian and the Custodian’s counsel the GRC staff has made numerous requests to the Custodian and the Custodian’s counsel for a proper Vaughn Index to explain each redaction and the reason it is exempt from disclosure. The Custodian’s counsel has not explained the basis of attorney-client privilege with his redactions, nor has he provided sufficient information to justify the basis for each redaction. The Custodian’s counsel has requested an extension of time stating that the information contained in the redacted documents are part of the litigation in the trial that he is currently involved with. He also contends that this trial will not be completed until the end of February.

The Custodian’s counsel has also provided to the Council all of the un-redacted documents and seeks a decision from the Council based on an in-camera review. There are Court decisions, which determined that in order to proceed with an in-camera review an appropriate Vaughn Index must be submitted. In this instance the Custodian’s counsel has not supplied a Vaughn Index to the Council with the necessary information. Therefore, it is not appropriate for the Council to consider an in-camera review at this time.

Considering the voluminous amount of documents pertaining to this OPRA request which require explanations concerning the redactions, the Executive Director respectfully request that the Council order the Custodian to provide to the Executive Director and the GRC staff a proper Vaughn Index within (15) business days from receipt of the Council’s decision.

The Executive Director respectfully recommends that the Council order the Custodian and the Custodian’s counsel to provide a proper Vaughn Index to the Executive Director within (15) fifteen business days from receipt of the Councils decision.

2004-150

Final Decision

Supplemental Findings and Recommendations of the Executive Director

Interim Decision on Access

Findings and Recommendations of the Executive Director