2004-215

At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Executive Director’s Supplemental 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 Custodian complied with the August 11, 2005 Interim Decision by providing the Complainant with the unredacted records within ten (10) days of receipt of the 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 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

Supplemental Findings and Recommendations of the Executive Director

Request Made: November 2004[2]
Response Made: December 2, 2004
Custodian: Kathleen Wiechnik
GRC Complaint filed: December 12, 2004

Interim Decision on Access. At its August 11, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the un-redacted “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” for a determination on access in the Complainant’s OPRA request. The Council conducted said review as concluded in their June 9, 2005 Interim Decision and pursuant to the provisions of N.J.S.A. 47:1A-7(c).

After completing the in camera review of the un-redacted “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” in Closed Session, the Council concluded that the redacted information contained in the requested record was neither “inter-agency or intra-agency advisory, consultative, or deliberative material” or otherwise exempt from disclosure under the Open Public Records Act. N.J.S.A. 47:1A-1 et seq. The Council, therefore, voted unanimously that the requested document be disclosed in its entirety without redactions within ten (10) business days from receipt of the Council’s decision. The Custodian is to confirm to the Executive Director that said document was released to the Complainant within the specified time period.

Letter from the Custodian’s counsel to the Executive Director. The Custodian’s counsel asserted that ‘the true, accurate and unredacted “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni’ was released to the Complainant on August 18, 2005.”

Whether the Custodian has complied with the Council’s Interim Decision on Access?

Based on the August 18, 2005 letter sent to the Complainant and copied to the Council, the Custodian has complied with the Council’s August 11, 2005 decision.

The Executive Director respectfully recommends that the Council close the case with no further action because the Custodian has complied with the August 11, 2005 Interim Decision by providing the Complainant with the unredacted records within ten (10) days of receipt of the Council’s decision.

[1] As stated by the Complainant in the Denial of Access Complaint.
[2] As stated by the Complainant in the Denial of Access Complaint.

Interim Decision on Access

At its August 11, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the un-redacted “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” for a determination on access in the Complainant’s OPRA request. The Council conducted said review as concluded in their June 9, 2005 Interim Decision and pursuant to the provisions of N.J.S.A. 47:1A-7(c). Present during the in camera review were:

Council Members:                    Vincent Maltese
                                           Mitchell Fishman
                                           DeAnna Minus-Vincent
                                           Diane Schonyers
                                           Robin Berg Tabakin

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

After completing the in camera review of the un-redacted “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” in Closed Session, the Council concluded that the redacted information contained in the requested record was neither “inter-agency or intra-agency advisory, consultative, or deliberative material” or otherwise exempt from disclosure under the Open Public Records Act. N.J.S.A. 47:1A-1 et seq. The Council, therefore, voted unanimously that the requested document be disclosed in its entirety without redactions within ten (10) business days from receipt of the Council’s decision. The Custodian is to confirm to Executive Director Paul Dice that said document was released to the Complainant within the specified time period.

Interim Decision Rendered by the
Government Records Council
On The 11^th Day of August, 2005

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

DeAnna Minus-Vincent, Secretary
Government Records Council

Interim Decision on Access

At the June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt said findings and recommendations with the amendment that an in camera inspection shall be conducted at the July 14, 2005 meeting.

Therefore, the Council finds that the Council shall conduct an in camera inspection of the November 18, 2004 e-mail from Gail Reed to Natalie Jaroni to determine what, if any, factual information contained in the requested document remains to be released.

The in camera inspection will be conducted at the July 14, 2005 meeting at which time the Custodian is to provide said records without redactions to the Council in a sealed envelope with an index identifying said document in the form of a certification.

Interim Decision Rendered by the
Government Records Council
On The 9^th Day of June, 2005

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

Supplemental Findings and Recommendations of the Executive Director

Records Requested:
OPRA Tracking Request 1572 E-mail from Gail Reed (DOC) to Natalie Jaroni (DOC) between 11/01/04 to 11/18/04.[1]
Request Made: November 2004[2]
Response Made: December 2, 2004
Custodian: Kathleen Wiechnik
GRC Complaint filed: December 12, 2004

April 14, 2005
Interim Decision on Access. At the April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt said findings and recommendations, however, amended same that the requested document be released with appropriate redactions within ten (10) calendar days from receipt of the Council’s decision unless the Custodian declares that the entire document contains advisory, consultative or deliberative material; in which case, the document is to be presented to the Council in a sealed envelope at the May 12, 2005 meeting for an “in-camera” review. The Council voted unanimously to amend said findings and recommendations and found that:

May 18, 2005
Custodian’s counsel response to the GRC Interim Decision. The Custodian’s counsel released the redacted document to the Complainant on May 18, 2005.[3] The document contained the sender and recipient information; the date and time of the e-mail; and the subject line “Lt. Disciplinary Actions.”

WHETHER the Custodian has complied with the April 14, 2005 Interim Decision of the Government Records Council?

The Open Public Records Act places the onus on the Custodian to prove a denial of access is permissible under the law. Specifically, OPRA states:

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

In the Statement of Information the Custodian stated that the requested e-mail contains information that was pre-decisional advice and recommendations on how to handle the discipline of a particular lieutenant. The April 7, 2005 analysis of the Findings and Recommendations of the Executive Director states: “Pursuant to the definition of a ‘government record’, which specifically states, ‘The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material’ those portions of the requested document that fall under this definition should be redacted and the factual information contained in the requested document should be released to the Complainant.”

Based on the legal certification received on May 18, 2005 the Custodian has released the requested “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” with redaction of all information with the exception of the following; subject, page number, recipient and sender information, and the date and time of the requested e-mail. The Custodian has not provided an explanation of the redactions made to the document.

Therefore the custodian should provide the requested document for an in camera inspection by the Government Records Council to determine what factual information, if any, remains to be released to the Complainant.

Conclusions and Recommendations
The Executive Director respectfully recommends that the Council conduct an in camera inspection of the “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” to determine what, if any, factual information contained in the requested document remains to be released.

[1] As stated by the Complainant in the Denial of Access Complaint.
[2] As stated by the Complainant in the Denial of Access Complaint.
[3] The Custodian’s Counsel states she did not receive the Interim decision until May 12, 2005. The decision was sent directly to the Custodian.

Interim Decision on Access

At the April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt said findings and recommendations, however, amended same that the requested document is released with appropriate redactions within ten (10) calendar days from receipt of the Council’s decision unless the Custodian declares that the entire document contains advisory, consultative or deliberative material; in which case, the document is to be presented to the Council in a sealed envelope at the May 12, 2005 meeting for an “in-camera” review.

Interim Decision Rendered by the
Government Records Council
On The 14^th Day of April, 2005

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary

Findings and Recommendations of the Executive Director

1. OPRA Tracking Request 1572 E-mail from Gail Reed (DOC) to Natalie Jaroni (DOC) between 11/01/04 to 11/18/04[1]

Request Made: November 2004[2]
Response Made: December 2, 2004
Custodian: Kathleen Wiechnik
GRC Complaint filed: December 12, 2004

November 2004[3]
Written Open Public Records Act (OPRA) Request seeking all e-mails from or to James Zito personnel manager from or to Gail Reed personnel SSCF from 9/28/04 thru 10/5/04. All e-mails from or to James Zito from or to Natalie Jaroni, DOC from 9/28/04 thru 10/05/04. All e-mails from or to Gail Reed from or to Natalie Joroni from 9/28/04 thru 10/05/04.[4]

December 2, 2004
Custodian’s written response to the OPRA request. The Custodian states that the e-mails were being released without their attachments as the attachments reflect disciplinary charges, which fall under the exemption for personnel records under OPRA. The name of an employee is also being redacted from an e-mail as it is referencing a disciplinary action. An e-mail to Natalie Jaroni from Gail Reed exists but will not be released, as the information contained therein is consultative and deliberative in content.

December 12, 2004
Complainant’s Denial of Access Complaint. The Complainant alleges a Denial of Acccess to the e-mail to Natalie Jaroni from Gail Reed for which the Custodian asserts and exemption for “consultative and deliberative” materials. The Complainant states, “since ‘consultative and deliberative in content’ is not a legal reason for denying government records the e-mail should be released.” The following attachments were included:

December 22, 2004
Offer of Mediation. Sent to the Custodian and Complainant.

December 27, 2004
E-mail from the Complainant to the Government Records Council (GRC). Complainant declines mediation.

January 4, 2005
Statement of Information submitted by Custodian’s counsel with the following attachments:

The Custodian’s counsel states in the Statement of Information that the Complainant was advised that 18 pages of e-mails responsive to the request were available upon receipt of payment of $11.50 for copying costs. The Custodian states in the certification that payment was received on December 13, 2004. The Custodian subsequently provided all documents responsive to the request to the Complainant “with the exception of one e-mail from Gail Reed to Natalie Jaroni which was not provided because it contained consultative and deliberative material.” The Custodian asserts that this is not a public record subject to disclosure pursuant to N.J.S.A. 47:1A-1.1, which stated, “a government record does not include ‘inter-agency or intra-agency advisory, consultative, or deliberative material.’” The Custodian certifies that all public records responsive to the Complainant’s request have been provided.

March 24, 2005
Letter from the GRC staff to the Custodian. The GRC staff request for the Custodian’s certification to include “a description of the document requested, a general nature description of the content and the basis for the claimed privilege in whole or in part.”

March 28, 2005
Certification of the Custodian. The Custodian states the e-mail that was not released to the Complainant was dated November 18, 2004 from Gail Reed to Natalie Jaroni. The document “discusses an interpretation of an agency disciplinary policy as to a particular lieutenant. It was made pre-decisional, that is, before the decision was made as to how to handle the lieutenant’s discipline, and requests a recommendation or advice on how to interpret the disciplinary policy.” The Custodian asserts the e-mail contains consultative and deliberative materials and as such does not fit the definition of a government record pursuant to N.J.S.A. 47:1A-1.1.

Whether the Complainant has been unlawfully denied access to a government record?

The Open Public Records Act (OPRA) defines a “government record” in N.J.S.A. 47:1A-1.1 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 devise, 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, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” N.J.S.A. 47:1A-1.1.

The Custodian asserts in the March 28, 2005 Certification that the e-mail that was not released to the Complainant is consultative and deliberative in nature and therefore does not fit the definition of a government records pursuant to N.J.S.A. 47:1A-1.1. The Custodian goes on to state that the requested e-mail contains information that was pre-decisional advice and recommendations on how to handle the discipline of a particular lieutenant.

OPRA states that the burden of proving an exemption under the law rests with the Custodian. N.J.S.A. 47:1A-6 states:

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

While the Custodian asserts a privilege under OPRA the Custodian has not demonstrated that the entirety of the requested document is consultative and deliberative. Factual information contained in the document that is not exempt from disclosure under OPRA or any other law should be released to the Complainant, including but not limited to sender and recipient information and the date of the requested e-mail.

Pursuant to the definition of a “government record”, which specifically states, “The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material” those portions of the requested document that fall under this definition should be redacted and the factual information contained in the requested document should be released to the complainant.

The Executive Director respectfully recommends that the Council find that the requested document be released to the Complainant with redaction of materials that are consultative and deliberative in content.

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 7, 2005

[1] As stated in the Denial of Access complaint
[2] As stated by the Complainant in the Denial of Access complaint
[3] As stated by the Complainant in the Denial of Access complaint
[4] From original OPRA request
[5] As stated by the Complainant in the Denial of Access complaint; the request itself is undated.