2004-196

At its January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 2006 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 because the document requested was not made, maintained or kept on file…or received at the time of the request, as well as the ruling in Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (March 2005), the Custodian did not unlawfully deny access to the requested 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 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council

Findings and Recommendations of Executive Dir

Records Requested: List of fulltime African American faculty (by department) at Kean University as of October 1, 2004 as well as the head count for each department. Also, if possible, the names of fulltime African American Faculty at Kean University.[1]
Request Made: May 20, 2005
Response Made: May 23, 2005
Custodian: Patricia Quelch
GRC Complaint filed: June 8, 2005

Custodian’s e-mail to the Custodian. In an October 6, 2004 e-mail to the Complainant, the Custodian states that she is unable to release the names of the African American faculty members because an individual’s race and/or ethnicity is not defined under N.J.S.A. 47:1A-10 as a government record. Consequently, she states that while she was able to provide him with the head count of the African American faculty members she was not able to fulfill all elements of the request.

The Complainant states that he is requesting information that has been provided routinely in the past by the Kean University Administration. (He includes a copy of a list dated April 24, 2000 titled Ethnicity A, which seemingly lists the full time African American faculty.) The Complainant also cites N.J.S.A. 47:1A-10 and concludes that this provision of the OPRA gives him access to the records because he is requesting the names of African American faculty.

In a February 18, 2005 certification to the GRC the Custodian certifies that an issue has arisen with respect to Kean University’s standard practices for reporting information to outside entities about the racial and ethnic background of its faculty. She also certifies that Kean University does not provide a list of names of African American faculty by race or ethnicity to outside Federal, State, or any other public agency.

Custodian’s counsel cites N.J.S.A. 47:1A-10 and states that in general, personnel and pension records of any individual are not government records and shall not be made available for public access. He asserts that individual race identification information is not one of the personnel or pension record entries specifically excluded from protection. He further asserts that Kean University is obligated to safeguard from public access individual personal information which is deemed not to be a government record, particularly in this case where disclosure of the personal information would violate the individual’s reasonable expectation of privacy.

Custodian’s counsel asserts that ordinarily, providing the individual names of faculty would be appropriate since personnel name records are in fact government records. Custodian’s counsel goes on to allege that in this instance the request for Kean University to provide the names of faculty who have self-identified as African American is not a request for government records, (individual names), but rather, a request for non-government records, the race of individuals.

Custodian’s certification to the GRC. The Custodian certifies that that the document released to the Complainant was not one that was made, maintained or kept on file. She states that the information was created from information stored in an electronic database and configured specifically to respond to the Complainant’s request for information.

WHETHER the Custodian unlawfully denied access to the names of fulltime African American Faculty at Kean University?

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

The OPRA states that a public agency has the responsibility to safeguard a citizen’s personal information. Specifically, OPRA states:

“…a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy…” N.J.S.A. 47:1A-1

“ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …” (Emphasis added.) N.J.S.A. 47:1A-1.1.

Also, the OPRA states that the Custodian has to prove that a denial of access is authorized by law. Specifically, OPRA states:

“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: an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount..." (Emphasis added.)

In his Denial of Access Complaint, the Complainant alleges that he is requesting information that has been provided routinely in the past by the Kean University Administration as well as cites N.J.S.A. 47:1A-10, and concludes that this provision of the OPRA gives him access to the records because he is requesting the names of African American faculty.

The Custodian provided two separate certifications to the GRC. In the first, the Custodian certifies that the document released to the Complainant was not one that was made, maintained or kept on file. She states that the information was created from information stored in an electronic database. In her second certification, the Custodian claims that Kean University does not maintain on file (nor did they maintain at the time of the original request) a paper document or a document stored in electronic form which is a list of African American faculty by department head count for each department with names, as of October 1, 2004.

The OPRA specifically defines a government record as one that has been made, maintained or kept on file…or that has been received…” In Colby v. Pittsgrove Township, (Fire Commissioners District #1) GRC Case No. 2005-88 (November, 2005) the Council held that that pursuant to the fact that the record requested did not exist at the time of the request, there would not have been an unlawful denial of access. Here, because the Custodian certifies that Kean University does not maintain a paper document or a document stored in electronic form, which is a list of African American faculty by department, head count for each department with names, as of October 1, 2004 there was no unlawful denial of access.

Also, in reference to the document that was released to the Complainant that was created from information stored in an electronic database, it should be noted that in Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super 537 (March 2005), the New Jersey Supreme Court stated (among other things) that the Government Records Council (Council), … has explained that 'OPRA does not require record custodians to conduct research among its records for a requestor and correlate data from various government records in the custodian's possession.'

Therefore, because the document requested was not made, maintained or kept on file…or received, at the time of the request, as well as the ruling in Mag, there was no unlawful denial of access to the names of fulltime African American Faculty at Kean University.

The Executive Director respectfully recommends that the Council find that because the document requested was not made, maintained or kept on file…or received at the time of the request, as well as the ruling in Mag, the Custodian did not unlawfully deny access to the records requested.

[1] As stated by the Complainant on his request form.

Administrative Case Disposition

Parties mutually agreed to mediation
Custodian signed mediation 12/20/2004
Complainant agreement received 11/30/2004

Date of Disposition: 02/10/2005