2004-21

Final Decision

At its November 9, 2004 public meeting, the Government Records Council (Council) considered the Custodian Counsel’s September 22, 2004 response to the Council’s September 9, 2004 Interim Decision. In response to the Interim Decision, the Custodian certified that the February 23, 2004 Agenda Meeting was a public meeting and the requested financial documents for the “Early Retirement Incentive” were distributed to the Council Members at said meeting.  Pursuant to the provisions of N.J.S.A. 47:1A-7(c) the Council conducted an in camera inspection of the records responsive to the request for a determination on access.  Present during the in camera review were:

After completing the in camera inspection, the Council voted unanimously to dismiss the case following the Custodian providing the Complainant access to the requested records as follows:

1. Document C-1a (Memorandum from Township’s Administrator):      Disclose document in its entirety with the exception of the last two sentences in the second paragraph.
2. Document C-1b (Chart of Employees Sick and Vacation Under ERI 2004 For those who indicated non-retirement and/or an extension in retirement. For Comparison – if they were to retire):      Redact the names and disclose all other information in the document
3. Document C-1c (Chart of Employees Sick and Vacation Under ERI 2004 For those who indicated non-retirement and/or an extension in retirement. For Comparison – if they were to reture):      Redact the names and disclose all other information in the document
4. Document C-1d (Annualized Impact of Early Reitrements, Nonparticipants, 5 Year Bond Payout):      Disclose the document’s heading and all category descriptions; redact all dollar figure information
5. Document C-1e (Annualized Impact of Early Retirements, Nonparticipants, 7 Year Bond Payout):      Disclose the document’s heading and all category descriptions; redact all dollar figure information
6. Document C-1f (Annualized Impact of Early Retirements, Nonparticipants, 10 Year Bond Payout:      Disclose the document’s heading and all category descriptions; redact all dollar figure information
7. Document C-1g (Impact of Early Retirement Program):      Disclose entire document
8. Document C-1h (Impact of Early Retirement 15 Bond Payout):      Disclose the document’s heading and all category descriptions; redact all dollar figure information
9. Document C-1i (Impact of Early Retirement 15 Bond Payout):      Disclose the document’s heading and all category descriptions; redact all dollar figure information

The Custodian is to provide Complainant access to the requested records within  ten (10) business days from receipt of the decision on the basis of the Council’s above determination and with confirmation to the Executive Director that the Custodian complied with the Council’s decision.

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 9^th Day of November, 2004

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

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Interim Decision on Access

At the September 9, 2004 public meeting, the Government Records Council (“Council”) considered the August 31, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to not adopt the recommendation of the Executive Director and hold, instead, that:

1. The Council staff is to inquire of the Custodian if the February 23, 2004 “agenda meeting” referenced in the Complainant’s “Denial of Access Complaint” was a public meeting and whether the requested documents were distributed in said meeting.
2. If the February 23, 2004 meeting was, in fact, a public meeting and the requested documents were distributed in said meeting, they are to be disclosed within ten (10) business days of the Council’s Interim Decision pursuant to the Open Public Meetings Act.
3. If said meeting was not a public meeting, then, the Council’s legal counsel will coordinate with the Custodian for the requested documents to be submitted to the Council for an “in-camera” review and determination on access.

Interim Decision Rendered by the
Government Records Council
On The 9th Day of September, 2004

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 

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: Copies of the financial documents submitted by the mayor to council at the 2/23/04 agenda meeting, supporting the early retirement proposal. I do not want any information that identifies individuals, I seek aggregate data that provides estimated savings, costs, ad other aggregate information.
Request Made: 2/24/2004
Response Made: 3/2/04
Custodian:   Etta Kimbrough
GRC Complaint Filed:  3/8/2004

Background

The Government Records Council  (“Council”) heard this case at its April 8, 2004 public meeting and deferred any adjudicatory action pending the outcome of mediation.  The case was not settled in mediation. The case was not settled in mediation, and therefore has now been prepared for adjudication.

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on March 8, 2004 pursuant to N.J.S.A. 47:1A-1 et seq. alleging the following:

1. The Complainant feels that he should be provided access to the “financial documents submitted by the mayor to council at the 2/23/04 agenda meeting, supporting the early retirement proposal.”  He does not want individual identifying information, but seeks “aggregate data that provides estimated savings, costs, and other aggregate information.”  He asserts that he does not believe that the information he is seeking is “inter-agency or intra-agency advisory, consultative, or deliberative material.”
2. He contends that the early-retirement supporting financial documentation (estimates of costs and savings was not “inter-agency or intra-agency advisory, consultative, or deliberative material” because:
   1. It was used by the Township Council as a basis for including the early-retirement resolution on the 2/24/04 agenda
   2. It was used by Township Council as a basis for passing the early-retirement resolution.

Public Agency’s Position

In response to the Complainant’s allegations, the Custodian’s Counsel asserts the following:

1. The records being sought are, “inter-agency or intra-agency advisory, consultative, or deliberative material”, and therefore pursuant to the definition of a “Government Record” found in N.J.S.A. 47:1A-1.1 they are not disclosable.
   1. The documents contained sick and vacation time of employees and analyses performed by the “Administration” to estimate the annualized impact of various potential early retirement situations
   2. Opinions of the Chief Financial Officer and the “Administration” on the fiscal impact of the early retirements, replacements and estimated salaries for replacements.
   3. The analyses were deliberative materials created for the Township Council to assist in their decision-making process.
   4. The documents are pre-decisional to the adoption of the early retirement program.
   5. Any factual material contained in the analyses was “inextricably intertwined” in the deliberative material created for the Township Council.

2. During the mediation process, the Township provided the Complainant with copies of documents responsive to his request with redactions of employee vacation and sick time and the analyses performed to estimate the annualized impact of various potential early retirement situations.  These redacted documents were provided to the Complainant on April 15, 2004.  The Custodian’s Counsel certified that because the underlying factual information contained in the documents is intertwined with the analyses developed by the Chief Financial Officer, there was no factual information that could be disclosed.
3. Counsel further certified that, “the information provided consists of opinions as to the fiscal impact, incorporating estimated data such as the estimated number of likely retirees, the likelihood of them being replaced, an estimate of the salaries for those replacements, and the bonding selected.”  He stated further that “as the underlying factual information contained in the document appears in the document only after being the subject of Mr. Elliott’s analysis, and is therefore inextricably intertwined with the analyses developed by him…and subject to intra-agency deliberative, consultative and advisory material privilege …”
4. The Chief Financial Officer, Stephen Elliott, submitted a supplemental certification that provided the methods by which he conducted his analysis and  his conclusions. He also certified that, “the “factual” information was based on the Administration’s estimations, assumptions and analysis and cannot be separated from the opinions and conclusions provided.”
   

The Custodian’s Counsel denied the Complainant access to the financial documents supporting the early retirement proposal on the grounds that it constitutes consultative, deliberative or advisory material exempt from disclosure under N.J.S.A.  47:1A-1.1.

The Open Public Records Act (“OPRA”) defines a government record as

…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 in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof....

[N.J.S.A. 47:1A-1].

This definition of a government record explicitly “does not include inter-agency or intra-agency advisory, consultative, or deliberative material.”  Id. 

The Custodian’s Counsel explains that the documents are pre-decisional to the Township Council’s adoption of the early retirement program.  Furthermore, the analyses were deliberative materials created for the Township Council to assist in their decision-making process and contain opinions of the Chief Financial Officer and the “Administration” on the fiscal impact of the early retirements, replacements and estimated salaries for replacements.  The Chief Financial Officer certified that any factual information contained in the requested documents was based on estimations, assumptions and analyses of the “Administration” and was “inextricably intertwined” and could not be separated from the opinions and conclusions.  

Based on the foregoing, the Custodian’s Counsel has met the burden of proving that the requested documents, in whole or in part, are deliberative, consultative or advisory material exempt from disclosure under N.J.S.A.  47:1A-1.1.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

1. March 8, 2004 – Denial of Access Complaint
2. March 8, 2004 – Mediation sent to both parties
3. March 12, 2004 – Complainant’s signed mediation agreement
4. March 29, 2004 – Custodian’s Counsel signed mediation agreement
5. July 12, 2004 – Statement of Information (Inclusive of but not limited too):
   • Certification of Chief Financial Officer
   • Copy of redacted documents
   • Supporting Background Information
6. July 19, 2004 – Government Records Council letter requesting clarification
7. July 28, 2004 – Certification from counsel and supplemental certification of the Chief Financial Officer

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the council dismiss the case on the basis that the requested documents could not be released in whole or in part because they are, “inter-agency or intra-agency advisory, consultative, or deliberative material” and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

Prepared By: 
Approved by:
Paul F. Dice
Executive Director
Government Records Council

August 31, 2004

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Interim Decision

Interim Decision Rendered by the
Government Records Council
On The 8th Day of April, 2004

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 

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Copies of the financial documents submitted by the mayor to council at the 2/23/04 agenda meeting, supporting the early retirement proposal. I do not want any information that identifies individuals, I seek aggregate data that provides estimated savings, costs, ad other aggregate information.
Request Made: 2/24/2004
Response Made: 2/27/2004
Custodian:   Ewing Township
GRC Complaint Filed:  3/8/2004

Executive Director’s Recommendations

The requestor and the custodian voluntarily signed Agreements to Mediate on March 12 & 29, 2004. Based on same, the Executive Director respectfully recommends that the Council and GRC staff forego adjudicatory action pending the outcome of mediation.

Legal Analysis

Pursuant to N.J.S.A. 47:1A-7(d), no legal analysis is needed at this time.

_________________________

Paul F. Dice
Executive Director
Government Records Council

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