2004-194

Final Decision

The Government Records Council (“Council”) first considered this case at the September 8, 2005 public meeting in conjunction with the Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  By a unanimous vote the Council concluded that the Custodians in this case had not proven that the Open Public Records Act (“OPRA”) or another law authorizes the redactions to the requested document and an in camera inspection of the requested consultant’s report performed by Victor Augestia on July 20 and 21, 2004 pertaining to the media center at the Richard Stockton College of New Jersey would be conducted pursuant to the provisions of N.J.S.A. 47:1A-7.c. 

At its November 10, 2005 public meeting, the Council conducted the in camera inspection of the unredacted consultant’s report performed by Victor Augestia on July 20 and 21, 2004 pertaining to the media center at the Richard Stockton College of New Jersey October 27, 2004 sought in the OPRA request.  Present during the in camera review were: 

Council Members:                    Vincent Maltese – Chair
                                           DeAnna Minus-Vincent
                                           Robin Berg Tabakin

Government Records Staff:       Paul Dice, Executive Director
                                           Gloria Luzzatto, Assistant Executive Director
                                           Catherine Starghill, In-House Counsel
                                           Chris Malloy, Case Manager

Deputy Attorney General:         Debra Allen

After completing the in camera review of the unredacted record in closed session, the Council concluded that, all the redacted information in the document was properly withheld pursuant to N.J.S.A. 47:1A-10 as the information related to employee evaluations, managerial recommendations for disciplinary action and terminations with the exception of the redaction on Page 1 of the report in the upper right hand corner for which there was no lawful basis for not disclosing same.  The Council noted further that the redacted document was stamped “confidential” on each page of said report, however, the unredacted document did not contain a “confidential” stamp on all pages. 

Therefore by a unanimous vote, the Council finds that pursuant to N.J.S.A. 47:1A-10 there was a lawful basis for the denial of access to all the redacted information contained in the requested document with the exception of the information appearing in the upper right hand corner of Page 1 of said document and that the Custodian is to provide the Executive Director with an explanation of why the redacted document was stamped “confidential” on each page of said report, but the unredacted document did not contain a “confidential” stamp on all pages. 

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 November, 2005

Vincent 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:  December 2, 2005

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Interim Decision on Access

At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations Therefore, the Council hereby finds that the Council will conduct an in camera review of the unredacted copy of the consultant’s report performed by Victor Augestia on July 20 and 21, 2004 pertaining to the media center at the Richard Stockton College of New Jersey sought in the OPRA request at the October 13, 2005 Council meeting to determine whether the redacted information is exempt from disclosure under OPRA. 

Interim Decision Rendered by the
Government Records Council
On The 8^th Day of September, 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:  September 19, 2005

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Findings and Recommendations of Executive Dir

Records Requested: “A copy of the consultant report performed by Victor Aulestia on July 20 and 21^st 2004 regarding the media center at the Richard Stockton College of New Jersey.”
Request Made: Dated, September 9, 2004; provided to Custodian o September 16, 2004[1]
Response Made:  Confirmation of receipt of request – September 16, 2004; Final response – September 27, 2004
First Custodian: Richard N. Hale, Vice President, Division of Administration, Finance and Institutional Advancement
Second Custodian: Charles E. Klein, Interim Vice President for Administration and Finance
GRC Complaint filed: December 13, 2004

Background

September 9, 2004
The Complainant filed an Open Public Records Act (“OPRA”) request with the Richard Stockton College of New Jersey.

September 16, 2004
The First Custodian acknowledges receipt of the September 9, 2004 request and states “[y]ou may expect a response from this office within seven business days.” The Custodian states “the request was received in this office on September 16, 2004.”

September 27, 2004
The First Custodian denied access to the requested report “because it results from the investigation of a complaint relating to a hostile environment in the workplace.”

December 13, 2004
The Complainant filed a Denial of Access Complaint with the Government Records Council.

December 17, 2005
The GRC distributed offers of mediation to the parties.

December 17, 2005
The Complainant agreed to mediation.

December 20, 2004
The Custodian agreed to mediation.

June 16, 2005
The mediator referred the case back for adjudication, as the parties could not reach a settlement agreement.

July 25, 2005
The Executive Director of the Government Records Council wrote to the Second Custodian and requested:

• The specific legal basis, including citation(s), pertaining to the non-disclosure of the consultant’s report at issue.
• A statement regarding whether the defense(s) to non-disclosure apply to the consultant’s report in whole or in part.

A certification signed by the Custodian that encompasses the totality of the SOI submission.

July 26, 2005
The Second Custodian submitted his Statement of Information (“SOI”) to the Government Records Council. The SOI is dated July 21, 2005. The Second Custodian certifies that a redacted copy of the report was provided to the Complainant on March 22, 2005. The submission also indicates that the record was “deemed inaccessible” because “much of the report in question” pertains to “employee evaluations and related information, Managerial and supervisory recommendations of disciplinary action or for termination of classified, unclassified, tenured, untenured, temporary or summer employees.”

Analysis

WHETHER the Custodian has borne his burden of proving that the subject consultant’s report is a personnel record exempt from disclosure under the Open Public Records Act?

The OPRA provides that:

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …”  (Emphasis added) N.J.S.A. 47:1A-1.

The OPRA also provides that:

 “… 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:

• an individual’s name, title, position, salary, payroll record, length of service, date of separation and reason ….
• personnel or pension records ….
• Data contained in formation which … experiential, educational or medical qualifications required … employment … but not … medical or psychological information …”  (Emphasis added) N.J.S.A. 47:1A-10

OPRA places the responsibility for proving a claimed exemption on the Custodian. N.J.S.A. 47:1A-6 states in relevant part:

 “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.

The First Custodian asserted in a letter to the Complainant that the consultant’s report would not be released because it relates to “an investigation of a complaint relating to a hostile environment in the workplace.”  No other details were provided.

The Second Custodian certified in the SOI that the First Custodian’s authority for non-disclosure was N.J.S.A. 47:1A-10. That information, the Second Custodian asserts, was gleaned from correspondence between the First Custodian and the mediator assigned to this case by the Council. The Council need not consider this statement, as information arising from confidential mediation proceedings must remain within that forum.

The Second Custodian certified that a redacted copy of the Consultant’s report was provided to the Complainant on March 22, 2005. However, he does not indicate what was redacted and the legal rationale for same. Rather, The Second Custodian states, without legal citation, that Office of the Attorney General has advised that the following types of records are not disclosable:

1. Employee evaluations and related information
2. Managerial and supervisory recommendations of disciplinary action or for termination of classified, unclassified, tenured, untenured, temporary or summer employees.

Further, “much of the report in question” falls within the above categories.

The Open Public Records Act (“OPRA”) states that the public agency has the burden of proving that the denial of access is authorized by law. N.J.S.A. 47:1A-6.

Neither Custodian bore their burden of proving that the consultant’s report was lawfully denied. The First Custodian couples a general exemption with an inadequate explanation of how said exemption would lawfully preclude disclosure of the subject report. It is not enough to simply assert that the consultant’s report relates to an investigation of a hostile work environment. For example, OPRA places limitations on the disclosure of personnel records of “individuals.” N.J.S.A. 47:1A-10. The First Custodian did not provide any rationale to support a finding that the consultant’s report is a personnel record of an individual(s).

The Second Custodian offers exemptions, but does not provide any legal basis to support how application of those exemptions form a legal basis for nondisclosure. It is not enough to state that the Office of the Attorney deems a grouping of records nondisclosable. The Second Custodian had the duty to present the legal rationale the Office of the Attorney General employed to arrive at its conclusions. The Second Custodian simply states that “much of the report [emphasis added] in question” is exempt from disclosure.

The Custodians in this case have not proven that OPRA or another law authorizes the redactions to the requested document.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council order an in camera inspection of the consultant’s report sought in the OPRA request.

By: Paul F. Dice
Executive Director
Government Records Council

September 2, 2005

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Administrative Case Disposition

Case Disposition:

On December 17, 2004 and December 20, 2004, the Complainant and Custodian both agreed to enter into the mediation process. 

Date of Disposition:  March 10, 2005

Case Manager: Erin M. Knoedler

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