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2004-165
Final Decision
At its May 12, 2005 public meeting, the Government Records Council (Council) considered the April 25, 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, dismissed the case on the basis that:
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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: May 18, 2005 Supplemental Findings and Recommendations of the Executive DirectorLarry Loigman GRC Complaint No. 2004-165Complainant v. Township of Middletown Custodian of Records Records Requested:
Request Made: 9/1/2004 Background February 10, 2005
February 28, 2005 [1]
The final three (3) listed documents above are all part of the Settlement Agreement. Said documents are in the litigation file of Dominick Carmagnola, Esq. who was the attorney representing the Township of Middletown in this suit. Some of the same documents “may also be in the litigation file of Francis Vernoia, Esq.” who represented Parkinson. The Settlement Agreement is also in the files of Diamond State Insurance Company. The Custodian asserts that none of the documents in question are in the possession or control of the Township. As to the status of Francis Vernoia, Esq. the Cusotdian states that “the Township and its officials were insured (by Diamond State Insurance Company) for the claims made in said lawsuit by a Public Officials and Public Entity Liability Insurance Policy” providing for the public entity to appoint an attorney subject to the insurer’s written consent. Defense expenses, including attorney fees, are within the coverage and limit of liability. Mr. Vernoia, Esq. was appointed by the Township by Resolution with the consent of the insurer to represent Mr. Parkinson in this suit. The Township has paid periodic payments to this attorney and is currently negotiating the reimbursement of fees incurred in this case. As per the above-mentioned insurance policy, Domineck Carmagnola, Esq. was appointed by the Township by Resolution with consent of the insurer to represent the Township in Garcia v. Parkinson. The Township has paid periodic payments to this attorney and is currently negotiating the reimbursement of fees incurred in this case. Diamond State Insurance Company acts as the insurance company to the Township of Middletown and it’s officials. The insurer directed the defense and settlement of the claim. “The Settlement Agreement was negotiated and executed directly by the insurer Diamond State with the plaintiff Garcia, and all monies paid to the plaintiff by settlement were paid by insurer Diamond State.” The Township does not control the insurance company. March 10, 2005 March 24, 2005
March 30, 2005 The Interrogatories, Deposition Transcripts and Settlement Agreement that have not been released are not in the possession and control of the township “as stated in the Agreement between the Requestor and Custodian” and therefore cannot be released. Additionally the Custodian asserts that under N.J.S.A. 47:1A-10, these documents “arising from a complaint by former Township Clerk Rosa Crowley alleging sexual harassment” contain information of a private personal nature far beyond the limited personnel information releasable under the Open Public Records Act (OPRA). The Custodian goes on to state that N.J.S.A. 47:1A-1.1 “specifically precludes the release of information generated by or on behalf of public employees in connection with any sexual harassment complaint filed with a public employer” and as such the documents should not be disclosed. April 4, 2005 Analysis The Agreement/Response to GRC Interim Decision dated February 10, 2005 was signed and dated February 28, 2005. The GRC staff received the document on March 17, 2005. WHETHER Domenick Carmagnola, Esq., Francis J. Vernioa, Esq. and Diamond State Insurance Company are public agencies required to release interrogatories, deposition transcripts, and the settlement agreement pursuant to OPRA? OPRA defines a public agency in N.J.S.A. 47:1A-1.1. Specifically OPRA defines a public agency in the following way;
The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions. The Custodian asserts that the requested documents are not in the possession or control of the Township of Middletown and are therefore not government records pursuant to N.J.S.A. 47:1A-1 et. seq. The Custodian states that the Complainant has been provided with all documents within its possession and control. The Complainant alleges that the documents in the litigation files of Domenick Carmagnola, Esq., Francis J. Vernioa, Esq. and Diamond State Insurance Company are public documents and should be obtained and released by the Township. He goes on to state that any documents generated by the attorneys appointed in this litigation “are the Township’s papers and, therefore, the public’s papers.” Most definitions of "public agency" under NJ statutes and the Administrative Code resemble that contained in OPRA. However, the definition of "public body" under the Open Public Meetings Act (OPMA) requires that an entity, "... (1) consist of 'two or more persons' and (2) be 'collectively empowered as a voting body' (3) 'to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds.' N.J.S.A. 10:4-8a..." The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 30, 2004), at 433, 664. In this case, the court held that: (1) a private, non-profit corporation created for the express purpose of redeveloping property donated to it by the city of Trenton, (2) having a Board of Trustees appointed by the Mayor and City Council, (3) with the mandated reversion of the donated property after the completion of the project and repayment of the debt, (4) having corporate bylaws requiring the distribution of all assets to the city upon the dissolution or liquidation of the corporation, (5) having a Disposition Agreement with the city that designates the city as the "agency" and the corporation as the "redeveloper" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, and (6) having the authority to issue tax-exempt bonds for the financing of the project qualified the corporation as a "public body" under the OPMA. The court further held that the corporation was "an 'instrumentality' created by the City and a 'public agency' under the OPRA for essentially the same reasons that it is a 'public body' under the OPMA." Id. at 442, 670. Other NJ case law is consistent with this holding. See Snyder v. American Association of Blood Banks, 144 N.J. 269, 676 A.2d 1036 (1996)(finding that the legislature did not create or authorize the AABB to perform a specific governmental purpose); Williams v. National Car Rental System, Inc., 225 N.J.Super. 164, 541 A.2d 1125 (1988)(finding that the broad powers conferred upon the Port Authority leave no doubt that it is a public authority or public agency); Blazer Corporation v. NJ Sports and Exposition Authority, 195 N.J.Super. 542, 480 A.2d 953 (1984) (citing Wade v. N.J. Turnpike Authority, 132 N.J.Super. 92, 332 A.2d 232 (Law Div. 1975), "The Court noted the official comment to N.J.S.A. 59:1-3: 'The definition of 'Public Entity' provided in this section is intended to be all inclusive and to apply uniformly throughout the State of New Jersey to all entities exercising governmental functions”). Also, two rules in the Administrative Code define "public agency" more precisely than other rules and statutes by adding the following language to the usual definition, "... agencies exercising sovereign powers of government." We find this language very illustrative of the meaning of public agencies, as explained by the court in the Times of Trenton case cited above. While other state statutes and rules do not include this language, it appears that "exercising sovereign powers of government" is required for an entity to be deemed a public body or agency. The outside attorneys and insurance company in this GRC case were hired by the Township to do a particular job, but clearly were not expected to "exercise sovereign powers of government" in the execution of that job. As such, OPRA does not apply to the outside attorneys and insurance company in this case because they do not qualify as "public agencies" as defined under OPRA. Therefore, the requested documents are not government records and should not be disclosed. WHETHER the Custodian’s counsel has authority to respond on behalf of the Custodian regarding records requests. OPRA provides that the Council’s powers and duties include that of determining the type of complaints that are within its jurisdiction. Specifically, N.J.S.A. 47:1A-7(b) states that the GRC shall: “receive, hear, review and adjudicate a compliant filed by any person concerning a denial of access to a government record by a records custodian …” The complainant raises a concern about the authority of the records Custodian being usurped by the Custodian’s counsel in matters pertaining to records requests. The Custodian of Records has the right to manage records requests and defer to counsel for any issues arising from a records request. OPRA does not give the GRC the authority to govern how a Custodian internally handles records requests. Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC does not have jurisdiction to regulate how a Custodian utilizes its counsel in its response to a records request. Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council find:
Prepared By: Colleen McGann, Case Manager Approved By: May 6, 2005 [1] The Government Records Council staff did not receive this document until March 17, 2005. Interim Decision on Access
At the March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 1, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to amend said findings and recommendations and, hereby, finds that the Council will conduct a fact-finding hearing on May 12, 2005 due to the lack of submission from either party in response to the Council’s February 10, 2005 Interim Decision. Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Diane Schonyers Supplemental Findings and Recommendations of Executive DirectorLarry Loigman GRC Complaint No. 2004-165Complainant v. Township of Middletown Custodian of Records Records Requested:
Request Made: 9/1/2004 Background February 10, 2005 At the February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 1, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties including the February 2, 2005 letter from the Complainant to Executive Director Paul Dice. The Council voted unanimously to amend said findings and recommendations. The Council found that:
Analysis No submission was received from either party in response to the February 10, 2005 Interim Decision. The parties have not reached an agreement on the facts. Therefore, the Council should conduct a fact-finding hearing at the Government Records Council meeting on April 14, 2005. Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council conduct a fact-finding hearing at the April 14, 2005 meeting as set forth in the February 10, 2005 Interim Decision of the Government Records Council. Prepared By: Interim Decision on Access
At the February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 1, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties including the February 2, 2005 letter from the Complainant to Executive Director Paul Dice. The Council voted unanimously to amend said findings and recommendations and, hereby, finds that:
Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Virginia Hook, Secretary Findings and Recommendations of the Executive DirectorLarry Loigman GRC Complaint No. 2004-165Complainant v. Township of Middletown Custodian of Records Records Requested:
Request Made: 9/1/2004 Response Made: 9/10/2004 Custodian: Heidi Abs GRC Complaint filed: 10/12/04 Background Complainant’s Case Position The Complainant filed a Denial of Access Complaint with the Government Records Council on October 12, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging denial of access to the following:
In an e-mail dated January 25, 2005 the Complainant states, “the initial response was received on September 10, 2004, granting access to minutes of the Township Committee Meeting. The response also offered access to the court complaint, answer and stipulations of dismissal.” December 15, 2004 the resignation letter of Rosa Crowley was released along with the stipulations for dismissal. “Other documents requested – including correspondence, settlement agreements, releases, and any other information as to the Township’s handling of Ms. Garcia’s resignation – have not been received.” Public Agency’s Case Position In response to the Complainant’s allegations, the Attorney for the Township asserts the following:
All documents relating to the civil suit have been offered to the Complainant and include; Stipulation for dismissal, Tort Claim, Minutes of Meetings when the Garcia v. Parkinson was discussed and attorney invoices are also available as redacted for previous requestors- redacted information referred to the names of person’s involved in the litigation. The civil action was discussed in closed session and the minutes were redacted regarding any items that did not involve the case requested. “Other correspondence with this office from and with attorneys representing the Township would be exempt from disclosure under the ‘government record’ definition for attorney/client and/or the information/correspondence generated as to a sexual harassment complaint.” Neither the Township Office nor the Attorney has possession of any “settlement agreement, releases, or confidentiality agreements.” Francis J. Vernoia, Esq. represented the defendant, a Committeeman for the Township of Middletown who was sued both personally and officially. Neither the office nor the Township is in possession of the litigation file of Mr. Vernoia. Additionally Mr. Vernoia stated to the Attorney for the Township that it is his understanding that the settlement was negotiated directly by Diamond State Insurance Company and any settlement agreement or confidentiality agreement, if it exists, is in their possession. The Attorney for the Township states, “In discussion with Mr. Vernoia, it was expressed as his position and belief that his litigation file (other than pleadings) in representing Mr. Parkinson personally and officially is not a government record but are attorney work product documents within the attorney-client privilege and personnel record exemption.” He goes on to state that for those reasons such records are “not within the permissive records releasable under N.J.S.A. 47:1A-10. Analysis The following correspond directly with the “Findings and Recommendations of the Executive Director” listed below.
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