2004-174

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 1, 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 Custodian provided the Complainant with the information necessary to obtain the requested records.
2. The requested records are exempt from disclosure because N.J.S.A. 47:1A-9(a) states that an Executive Order preempts disclosure and Executive Order #26 sec. 4 (b) 1 states that medical records are exempt from disclosure.

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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Findings and Recommendations of the Executive Director

Records Requested:A copy of personal medical records located at Northern State Prison and Burlington County jail, including but not limited to, Health Care Summary, Medical Test Summary, X-ray Summary; Pharmacy History, and EKG
Request Made:   September 25, 2003[1]
Response Made: October 8, 2003
Custodian:   Kathleen Wiechnik
GRC Complaint filed: October 4, 2004

Background
September 25, 2003
Written Open Public Records Act (OPRA) Request Complainant seeks a copy of his personal medical records
October 8, 2003
Custodian’s response advising the Complainant that he needed to request his medical records on a specific medical records form provided by Correctional Medical Services.  
October 4, 2004
Denial of Access Complaint Form submitted by Complainant that contained a copy of a letter sent to him on October 8, 2003, advising him of that he needed to request his medical records on a specific medical records form provided by Correctional Medical Services.
November 16, 2004
Offer of mediation sent to the Complainant and the Custodian         
November 23, 2004
Statement of Information and certification from the Custodian. Custodian advised the Complainant in writing on October 8, 2003 that his request cannot be made pursuant to OPRA and Executive Order #26, however he needed to file a medical request form at his prison.

Analysis

Whether requested records are exempt from disclosure under OPRA pursuant to N.J.S.A. 47:1A-9(a):

The provisions of this act, P.L.2001, c.404 (C.47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.

The requested records are medical and are therefore government records because they are, “made, maintained, and kept on file…” However, these records are exempt from disclosure pursuant to Executive Order #26 sec. 4 (b) 1. Executive Order #26 states that certain information relating to individuals is exempt from disclosure under OPRA. It specifically identifies medical information as an exempted record. However, the Custodian has certified that the Complainant was notified of the proper procedure by which he may obtain his medical records.

N.J.S.A. 47:1A-1.1 defines a government record as being “made, maintained and kept on file.” Pursuant to that definition, the requested records are government records. However, the requested records are exempt from disclosure under N.J.S.A. 47:1A-9(a) that states an Executive Order can preempt disclosure. In Executive Order # 26 sec. 4(b) 1 it specifically states that medical records are exempt from disclosure under OPRA.          

The Custodian has certified that the proper way to request medical records was provided to the Complainant.  Therefore, the complainant has not been denied access to any records pursuant to OPRA, and this case should be dismissed.

Conclusions and Recommendations

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

1. The Custodian provided the Complainant with the information necessary to obtain the requested records
2. The requested records are exempt from disclosure because N.J.S.A. 47:1A-9(a) states that an Executive Order preempts disclosure and Executive Order #26 sec. 4 (b) 1 states that medical records are exempt from disclosure.

Prepared By: 
Approved By:
Paul F. Dice
Executive Director
Government Records Council
March 1, 2005

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