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2004-22

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Interim Decision on Access
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Interim Decision on Access
- Findings and Recommendations of the Executive Director

Final Decision

Gerald Weimer
Complainant
      v.
Township of Middletown
   Custodian of Record

Complaint No. 2004-22

 

At its August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 2005 Supplemental 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, closed the case without any further action because:

  1. The Custodian has supplied the Complainant with all of the documents as required in the Council’s Interim Decision dated May 13, 2004;
  2. All issues in controversy have been fully settled; and
  3. The settlement is consistent with the law.

Final Decision Rendered by the
Government Records Council
On The 11th Day of August, 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:  August 19, 2005

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Supplemental Findings and Recommendations of the Executive Director

Gerald Weimer,
Complainant
v.
Township of Middletown,
Custodian of Record

Complaint No. 2004-22

Records Requested:

  1. All payroll records for currently employed patrolmen.  Records should start at date of hire and should include each year until December 31, 2003.
  2. Copy of outside work cards (green cards), overtime cards (yellow cards), submitted by Lt. Lenge for the year of 2003; attendance record for Lt. Lenge for 2003 to include all days present, vacation, comp. time and personal time used; daily work sheets for 2003; payroll record for 2003 for Lt. Lenge.
  3. List of all unpaid outside jobs from June 1, 2003 to December 31, 2003.  Including name of contractor, name of officer, who worked the job, number of hours worked, and amount of money owe; amount of money in outside work account; amount of money in account used to purchase cars. 
  4. Copy of all vehicle assignment sheets for the year 2003, January 1, 2003 through December 31, 2003 for all shifts. 

Request Made: December 13, 2003, January 13, 2004 and January 22, 2003.
Response Made: January 14, 2003
Custodian:  Bernard Riley, Township Attorney
GRC Complaint filed: March 11, 2004

Background

September 9, 2004
The Government Records Council (“Council”) referred GRC Complaint No. 2004-22 to the Office of Administrative Law (“OAL”) for a hearing to determine whether the Custodian knowingly and willfully violated the Open Public Records Act (“OPRA”) under the totality of the circumstances.

July 14, 2004
The OAL issued its initial decision in which the Administrative Law Judge (“ALJ”) found that:

  1. The parties have voluntarily agreed to a settlement as evidenced by their signatures or their representatives’ signature on the settlement agreement.
  2. The settlement fully disposes of all issues in controversy and is consistent wit the law.

The ALJ further concluded that the agreement meets the requirements of N.J.A.C. 1:1-19.1 and that the settlement should be approved.  He approved the settlement and ordered that the parties comply with its’ terms. 

The settlement agreement provides, among other things, that the Custodian has supplied the Complainant with all documents as required in the Council’s Interim Decision dated May 13, 2003.

Analysis

No analysis is required.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council close this case without any further action because:

  1. The Custodian has supplied the Complainant with all of the documents as required in the Council’s Interim Decision dated May 13, 2004;
  2. All issues in controversy have been fully settled; and
  3. The settlement is consistent with the law.


Prepared By: 
Catherine Starghill, Esq.
In-House Counsel

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

August 5, 2005

 

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Interim Decision on Access

Gerald Weimer,
Complainant
v.
Township of Middletown,
Custodian of Record

Complaint No. 2004-22

At the September 9, 2004 public meeting, the Government Records Council (“Council”) considered the September 3, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  An administrative change was made to said findings and recommendations under the Analysis that states “December 31, 2004” to read “December 31, 2003.” The Council voted unanimously to adopt the entirety of said findings and recommendations with modifications and the noted administrative change. Therefore, the Council hereby finds that the case will be referred to the Office of Administrative Law for a hearing to determine whether a “knowing and willful” violation exists in the totality of the circumstances pursuant to the Open Public Records Act and said determination will be remanded to the Council for a final decision.

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

Gerald Weimer,
Complainant
v.
Township of Middletown,
Custodian of Record

Complaint No. 2004-22

Relevant Records Requested: 

  1. All payroll records for currently employed patrolmen.  Records should start at date of hire and should include each year until December 31, 2003.
  2. Copy of outside work cards (green cards), overtime cards (yellow cards), submitted by Lt. Lenge for the year of 2003; attendance record for Lt. Lenge for 2003 to include all days present, vacation, comp. time and personal time used; daily work sheets for 2003; payroll record for 2003 for Lt. Lenge.
  3. List of all unpaid outside jobs from June 1, 2003 to December 31, 2003.  Including name of contractor, name of officer, who worked the job, number of hours worked, and amount of money owe; amount of money in outside work account; amount of money in account used to purchase cars. 
  4. Copy of all vehicle assignment sheets for the year 2003, January 1, 2003 through December 31, 2003 for all shifts. 

Request Made:    December 31, 2003 (three requests), January 13, 2003 (one request), January 22, 2003 (clarification of the four requests per the custodian’s response)
Response Made: January 14, 2003
Custodian:   Bernard Riley, Township Attorney
GRC Complaint Filed:   March 11, 2004

Background

At its July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 30, 2004 Supplemental 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, found that:

  1. The Custodian fulfilled item #1 of the May 13, 2004 Interim Decision by responding, in writing, to the Complainant’s January 22, 2004 clarification of the original OPRA requests. 
  2. The Custodian did not meet the burden of proving that the total denial of access to overtime cards, including overtime, compensatory time and outside work time; daily worksheets, including assignments, time, overtime and reason for overtime; and officer in charge reports, including assignments of officers and police operations during the applicable shift in accordance with N.J.S.A. 47:1A-1 et seq.  The Custodian is ordered to disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 
  3. The Custodian supplied outside work records to the Complainant in the form of invoices, however, did not disclose the actual outside work cards.  The Custodian did not meet the burden of proving that outside work cards are not disclosable with redactions in accordance to N.J.S.A. 47:1A-1 et seq.  The Custodian is ordered to disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 
  4. The Custodian did not specifically address disclosure or redactions of vehicle assignment records as ordered by the May 13, 2004 Interim Decision. The Custodian did not meet the burden of proving that vehicle assignment records are not disclosable with or without redactions in accordance to N.J.S.A. 47:1A-1 et seq. The Custodian is ordered to disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 

The Council’s Final Decision was issued on July 15, 2004 and all parties involved received the “Findings and Recommendations of the Executive Director” and the “Final Decision.”  Accompanying the decision, the parties were informed, “all orders by the Council are to be completed within ten (10) days from receipt of the decision and a written confirmation transmitted to the GRC Staff that the ordered actions were completed.”  In reviewing the correspondence from the Custodian’s Counsel, Bernard Reilly, and the Complainant, the order has not been completed as of September 3, 2004.  A summary of the correspondence between the parties and to the Council staff subsequent to the Council’s order follows:

  1. August 10, 2004 – Letter from Custodian’s Counsel to the Complainant stating that he recently received the Council’s decision and informing the Complainant that fulfilling the request as ordered would be subject to a special service charge.  He asked that the Complainant to contact him to advise whether the requested records were still being sought so that the special service charge calculations and redactions could be made.
  2. August 24, 2004 – Letter from Custodian’s Counsel to the Council’s staff explaining that the documents referenced in the Council’s order spanned 20 years and required the review and redaction of confidential information for thousands of documents.  He also questioned whether the Complainant may still require said documents since the request arose out of a labor dispute that was now resolved.  He stated further that he spoke to the Complainant after his August 10, 2004 letter to the Complainant and his continuing interest in said documents and was waiting for his reply.
  3. August 31, 2004 – Letter from the Complainant to the Custodian’s Counsel requesting when he would be receiving the requested documents and the estimated cost for providing same.

Analysis

It is clear that the Custodian has not complied with the Council’s Final Decision of July 8, 2004.  That non-compliance has effectively resulted in a denial of access to records responsive to Complainant’s Open Public Records Act request dated December 31, 2004.  What is not clear from a review of the records is whether or not the Custodian committed a “knowing and willful” violation in the totality of the circumstances by not complying with the Council’s July 8, 2004 Final Decision.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council refer the case to the Office of Administrative Law for a hearing to determine whether the Custodian’s non-compliance with the Council’s order has effectively resulted in a denial of access to the requested records and a “knowing and willful” violation exists in the totality of the circumstances pursuant to the Open Public Records Act.

Prepared by:  

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

September 3, 2004

 

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Final Decision

Gerald Weimer,
   Complainant
      v.
Township of Middletown,
   Custodian of Record

Complaint No. 2004-22

 

At its July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 30, 2004 Supplemental 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:

 

  1. The Custodian fulfilled item #1 of the May 13, 2004 Interim Decision by responding, in writing, to the Complainant’s January 22, 2004 clarification of the original OPRA requests. 
  2. The Custodian did not meet the burden of proving that the total denial of access to overtime cards, including overtime, compensatory time and outside work time; daily worksheets, including assignments, time, overtime and reason for overtime; and officer in charge reports, including assignments of officers and police operations during the applicable shift in accordance with N.J.S.A. 47:1A-1 et seq.  The Custodian is ordered to disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 
  3. The Custodian supplied outside work records to the Complainant in the form of invoices, however, did not disclose the actual outside work cards.  The Custodian did not meet the burden of proving that outside work cards are not disclosable with redactions in accordance to N.J.S.A. 47:1A-1 et seq.  The Custodian is ordered to disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 
  4. The Custodian did not specifically address disclosure or redactions of vehicle assignment records as ordered by the May 13, 2004 Interim Decision. The Custodian did not meet the burden of proving that vehicle assignment records are not disclosable with or without redactions in accordance to N.J.S.A. 47:1A-1 et seq. The Custodian is ordered to disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 

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 Day of July, 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

Gerald Weimer                                                   GRC Complaint No. 2004-22
Complainant
         v.
Township of Middletown
Custodian of Records

Relevant Records Requested: 

  1. All payroll records for currently employed patrolmen.  Records should start at date of hire and should include each year until December 31, 2003.
  2. Copy of outside work cards (green cards), overtime cards (yellow cards), submitted by Lt. Lenge for the year of 2003; attendance record for Lt. Lenge for 2003 to include all days present, vacation, comp. time and personal time used; daily work sheets for 2003; payroll record for 2003 for Lt. Lenge.
  3. List of all unpaid outside jobs from June 1, 2003 to December 31, 2003.  Including name of contractor, name of officer, who worked the job, number of hours worked, and amount of money owe; amount of money in outside work account; amount of money in account used to purchase cars. 
  4. Copy of all vehicle assignment sheets for the year 2003, January 1, 2003 through December 31, 2003 for all shifts. 
    Request Made:    December 31, 2003 (three requests), January 13, 2003 (one request), January 22, 2003 (clarification of the four requests per the custodian’s response)

Response Made: January 14, 2003
Custodian:   Bernard Riley, Township Attorney
GRC Complaint Filed:   March 11, 2004

Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

  1. The Custodian fulfilled item #1 of the May 13, 2004 Interim Decision by responding, in writing, to the Complainant’s January 22, 2004 clarification of the original OPRA requests. 
  2. The Custodian did not meet the burden of proving that the total denial of access to overtime cards, including overtime, compensatory time and outside work time; daily worksheets, including assignments, time, overtime and reason for overtime; and officer in charge reports, including assignments of officers and police operations during the applicable shift in accordance with N.J.S.A. 47:1A-1 et seq.  The Custodian should disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 
  3. The Custodian supplied outside work records to the Complainant in the form of invoices, however, did not disclose the actual outside work cards.  The Custodian did not meet the burden of proving that outside work cards are not disclosable with redactions in accordance to N.J.S.A. 47:1A-1 et seq.  The Custodian should disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 
  4. The Custodian did not specifically address disclosure or redactions of vehicle assignment records as ordered by the May 13, 2004 Interim Decision. The Custodian did not meet the burden of proving that vehicle assignment records are not disclosable with or without redactions in accordance to N.J.S.A. 47:1A-1 et seq. The Custodian should disclose the records responsive to the requests with appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 

Background

At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 7, 2004 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 with amendments to the recommendations that all certifications and supporting information are to come from the Custodian of Records and responses are to be provided within fifteen (15) calendar days from receipt of the Interim Decision.  The Council found that:

  1. The Custodian is to respond to the complainant’s letter dated January 22, 2004, pursuant to N.J.S.A. 47:1A-1.1 et seq. 
  2. The Custodian of records is to provide a certification and supporting information as to the specific reason work cards, overtime cards and attendance records are not disclosable pursuant to N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-1.1 and Executive Order #9 should be considered “…criminal investigatory records…” and exempt from disclosure or appropriate redactions under N.J.S.A. 47:1A-1 et seq. 
  3. The Custodian of records is to provide a certification as to the records that are responsive “unpaid work cards for 2003,” with exceptions provided under OPRA, were disclosed to the complainant as previously stated.
  4. The Custodian of records is to provide a certification with supporting information that explains why the vehicle assignments should be exempt from disclosure on the basis of security issues under OPRA. 

Public Agency:

On June 2, 2004, the Custodian asserts a response to the Complainant’s January 22, 2004 clarification the original OPRA requests dated December 31, 2003 and January 13, 2004. 

The Custodian contends that the payroll information for currently employed police officers can be disclosed.    More in depth information or information including former officers, however, may be in storage or need redactions, as a result, a special service charge may be applicable respective to these records.  The Custodian further contends that overtime, compensatory time, outside work cards, records for individual officers, daily work sheets and Officer in Charge reports are all exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1, N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-10, Executive Order #9 and Executive Order #21 and would cause a security breach and jeopardize criminal investigations if released.  The Custodian additionally, contends that these records are part of an officers “personnel” file.  Further, the Custodian enclosed outside work invoices and noted that more detailed records would not be disclosable for security reasons. 

The Custodian, in response to the May 13, 2004 Interim Decision, provided a certification dated June 3, 2004.  The Custodian certified that he is serving as the records custodian in this case because the appointed records custodian has not been available due to illness and case is legally sensitive. 

Regarding payroll records, the Custodian affirms that this information is disclosable to the Complainant for officers currently employed by the Township, however, more in depth information may require a special service charge due to the extraordinary amount of time in assembling the items for review or copies.  

The Custodian explains that the “outside work records” have been supplied to the Complainant on June 2, 2004. 

The Custodian also submitted a certification from Deputy Police Chief, Robert Oches, explaining the potential danger in disclosing the information contained in overtime cards, compensatory time cards, outside work cards, daily work sheets and Officer in Charge reports.  Deputy Chief Oches asserts that this information could impact the security and safety of the police officer and investigation and would potentially be advantageous for those planning a  “terrorist or major criminal attack or incident.”

On June 19, 2004, the Custodian submitted additional information in response to Council’s staff’s letter seeking clarification of each record and the reason for exemptions or redactions, in whole or part. 

In his response, the Custodian certified that the request for attendance and work records include overtime cards, which list overtime, compensatory time and outside work time.  The requests for daily work sheets include assignments, date and time spent on assignments, overtime and reason for overtime.  Additionally, the officers in charge reports include information on the assignments of officers and police operations during the applicable shift.  The Custodian supplied examples of work cards as supplemental information and contends that disclosing these records would jeopardize on-going investigations, homeland security operations and juvenile arrestees.  Regarding the possibility of redactions, the Custodian asserts that the records responsive to the request are too voluminous and would warrant a special service charge.  The Custodian further argues that disclosing the records would interfere with the State’s ability to protect citizens against sabotage and terrorism and would potentially increase these risks, therefore, are exempt under Executive Order 21. 

Analysis

1. The Custodian fulfilled the May 13, 2004 Interim Order by responding to the Complainant’s January 22, 2004 clarification of the original OPRA requests. 

2. The Custodian poses the argument that work cards, overtime cards and attendance records are not disclosable under N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-1.1, N.J.S.A. 47:1A-10, Executive Order #9 and Executive Order #21 for being personnel and pension records and for security and criminal investigatory reasons.  The Custodian provided detailed information as to the type of information contained in each record.  The Custodian asserts that the records are part of an officer’s personnel file and exempt under OPRA.  Additionally, the Custodian contends that the records, if disclosed, would cause a security breach and jeopardize criminal investigations in that some of the information pertains to on-going investigations, homeland security operations and juvenile arrestees.  Further, the Custodian affirms that the information contained in the records could impact the security and safety of the police officer and investigation and could potentially be advantageous for use in sabotage and terrorism. 

N.J.S.A. 47:1A-10 provides that personnel and pension records are not disclosable exempt that “…an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record…” Information contained in payroll records is disclosable pursuant to OPRA.  It is reasonable that attendance, overtime and compensatory time records are within the realm of payroll records.  As indicated by the Custodian, attendance, overtime and compensatory time may be contained in an officer’s personnel file, however, should not be considered exempt under the “personnel and pension” provision of OPRA.  The content of the record is applicable in this case and not the potential location of the record. 

N.J.S.A. 47:1A-6 provides that “[t]he public agency shall have the burden of proving that the denial of access is authorized by law.”  The Custodian took the position that all records relating to work cards, overtime cards and attendance records are not disclosable.  Samples of work cards were included in the Custodian’s response to the Interim Order containing date of assignment, hours worked on assignment, designation of type of time worked, signature of officer, signature of supervisor and brief description of assignment.  It is obvious that records pertaining to police procedure are sensitive in nature, however, it is important to distinguish if records are exempt from disclosure in whole or in part.  After reviewing the sample, it is reasonable to assume that potential redactions, in accordance with OPRA, could be made so that the confidential information contained within the record would remain confidential and not interfere with on-going investigations or security procedures. 

In a letter dated June 15, 2004, the Council’s staff requested an explanation of each record, the exemption applicable, in whole or in part and the reason the exemption applies. 

Regarding potential redactions, the Custodian asserts that the records are too voluminous to redact without a special service charge.  OPRA provides for instances where a special service charge may be applied if it involves an “…extraordinary expenditure of time and effort to accommodate the request…” N.J.S.A. 47:1A-5 (c).  The Custodian should establish if a special service charge is warranted and provide a quote to the Complainant prior to incurring the copy costs. 

The Custodian did not meet the burden of proving the total denial of access to the work cards; overtime cards and attendance records, in their entirety, is warranted.  

3. The Custodian addresses the issue of “unpaid outside work for 2003” by attaching two (2) invoices to the Statement of Information and additional invoices in his letter to the Complainant dated June 2, 2004.  The Custodian, additionally, contends that additional information responsive to outside work cards are not disclosable due to on-going criminal investigations and security procedures under N.J.S.A 47:1A-1.1, N.J.S.A 47:1A-3 (a), Executive Order #9 and Executive Order #21.  The Custodian, however, did not address if the records, in whole or part, could be redacted, therefore, did not meet the burden of proving the denial of access to the outside work cards is warranted, pursuant to N.J.S.A. 47:1A-6.  It is reasonable to assume that redactions could be made to these records without disclosing information that could potentially interfere with on-going criminal investigations and security procedures.   

4. In the Statement of Information, the Custodian poses the argument that vehicle assignment records are exempt under N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-3 (a) in that disclosure of the records could jeopardize surveillance techniques and criminal investigations.  The Custodian did not, however, comply with the May 13, 2004 Interim Order by providing supporting information explaining the reason vehicle assignment records cannot be disclosed, in whole or part.  The Custodian did not address vehicle assignment records in response to the Interim Order or Council’s staff’s letter dated June 15, 2004.  Pursuant to N.J.S.A. 47:1A-6, the Custodian did not meet the burden of proving that the vehicle assignment records are not disclosable or redactable.  

Documents Reviewed

The following additional documents were reviewed in preparing the Findings and Recommendations for this case:

  1. June 3, 2004 – Custodian’s response to the Interim Decision including his certification as the records Custodian, certification of the Deputy Police Chief and letter to complainant dated June 2, 2004.
  2. June 15, 2004 – Council’s staff’s letter seeking clarification of Interim Decision response dated June 3, 2004.
  3. June 19, 2004 – Custodian’s response to Council’s staff’s letter dated June 15, 2004 seeking clarification.

Conclusion

Based upon N.J.S.A. 47:1A-6, the Custodian did not meet the burden of proving that overtime cards, including overtime, compensatory time and outside work time; daily worksheets, including assignments, time, overtime and reason for overtime; officer in charge reports, including assignments of officers and police operations during the applicable shift; outside work cards and vehicle assignments are not disclosable in whole or part in accordance with N.J.S.A. 47:1A-1 et seq.  The Council should order the records disclosable with the appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq. 

_________________________

Paul F. Dice
Executive Director
Government Records Council

June 30, 2004

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Interim Decision on Access

Gerald Weimer,
Complainant
v.
Township of Middletown,
Custodian of Record

 

Complaint No. 2004-22

 

At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 7, 2004 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 with amendments to the recommendations that all certifications and supporting information are to come from the Custodian of Records and responses are to be provided within fifteen (15) calendar days from receipt of the Interim Decision.  Therefore, the Council finds that:

 

  1. The custodian is to respond to the complainant’s letter dated January 22, 2004, pursuant to N.J.S.A. 47:1A-1.1 et seq.  The custodian of records is directed to comply with the order within fifteen  (15) days from the receipt of the Interim Decision with a response to the Executive Director. 
  2. The claim by the custodian’s counsel that records pertaining to work cards, overtime cards and attendance records are not disclosable pursuant to N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-1.1 and Executive Order #9 for security and criminal investigatory reasons needs further clarification.  The custodian of records is to provide a certification and supporting information as to the specific reason these records should be considered “…criminal investigatory records…” and a security risk and exempt from disclosure or appropriate redactions, pursuant to N.J.S.A. 47:1A-1 et seq.  The custodian of records is to provide definitive statements and supporting information explaining the reasons the records are exempt.  The custodian of records is to provide the certification to the Executive Director within fifteen (15) days from the receipt of the Interim Decision.     
  3. The custodian’s counsel contends the invoices of “unpaid outside work for 2003” were submitted as supplemental information to the GRC.  The custodian of records is to provide a certification as to the records that are responsive to this request and certify that all records responsive to this request, with exceptions provided under OPRA, were disclosed to the complainant.    The custodian of records is to provide the certification to the Executive Director within fifteen (15) days from the receipt of the Interim Decision.     
  4. The custodian’s counsel asserts that vehicle assignments are not disclosable for security and surveillance reasons pursuant to N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-3 (a).  The custodian of record is to provide a certification with supporting information that explains why the vehicle assignments should be exempt from disclosure on the basis of security issues under OPRA.  The custodian of records is to provide the certification to the Executive Director within fifteen (15) days from the receipt of the Interim Decision.     

Interim Decision Rendered by the
Government Records Council
On The 13th Day of May, 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

Gerald Weimer                                                   GRC Complaint No. 2004-22
Complainant
         v.
Township of Middletown
Custodian of Records

Relevant Records Requested: 

  1. All payroll records for currently employed patrolmen.  Records should start at date of hire and should include each year until December 31, 2003.
  2. Copy of outside work cards (green cards), overtime cards (yellow cards), submitted by Lt. Lenge for the year of 2003; attendance record for Lt. Lenge for 2003 to include all days present, vacation, comp. time and personal time used; daily work sheets for 2003; payroll record for 2003 for Lt. Lenge.
  3. List of all unpaid outside jobs from June 1, 2003 to December 31, 2003.  Including name of contractor, name of officer, who worked the job, number of hours worked, and amount of money owe; amount of money in outside work account; amount of money in account used to purchase cars. 
  4. Copy of all vehicle assignment sheets for the year 2003, January 1, 2003 through December 31, 2003 for all shifts. 

Request Made:    December 31, 2003 (three requests), January 13, 2003 (one request), January 22, 2003 (clarification of the four requests per the custodian’s response)
Response Made: January 14, 2003
Custodian:   Rose Crowley, Township Clerk
GRC Complaint Filed:   March 11, 2004

Executive Director’s Recommendations

This Open Public Records Act (“OPRA”) complaint alleges a denial of access regarding four requests to the Township of Middletown.  The complainant is seeking various records from the Middletown Township Police Department, including payroll information, outside work contracts, vehicle assignment information and specific payroll information regarding a Lt. Lenge. 

The complainant alleges he filed three OPRA requests with the Township of Middletown on December 31, 2003.  In the first request, the complainant was seeking payroll records for patrolmen since their date of hire through December 31, 2003.  The second request was for work cards, overtime cards, attendance records for Lt. Lenge for 2003, daily work sheets for 2003, and payroll records for 2003 for Lt. Lenge.  The third request was for a list of unpaid outside jobs from June 1, 2003 through December 31, 2003, name of contractors, name of officer, person who worked the job, number of hours worked, amount of money owed, amount of money in outside work account and amount of money in account used to purchase cars.   On January 13, 2004, the complainant filed the fourth OPRA request for copies of all vehicle assignment sheets for the year 2003 (January 1, 2003 – December 31, 2003) for all shifts.  

The custodian’s counsel addresses all four OPRA requests in a letter dated January 14, 2004, in which the custodian requested clarification of the requests.  The custodian’s counsel claims that the request regarding “all payroll records” needs to be defined by the complainant and that disclosable information would include the individual’s name and amount paid as it reflects on the individual’s W-2 form.  In addition, the custodian’s counsel seeks specific names of the individual’s in which payroll information is sought and asserts that a special service charge will be applicable because the records are either in storage, are too voluminous or are no longer retained.  Regarding the second request, dated December 31, 2003, the custodian’s counsel alleges that specific work schedule information pertaining to Lt. Lenge is confidential per the Government Records Council (“GRC”).  According to the custodian’s counsel, the third request, dated December 31, 2003, cannot be addressed because the employee responsible for scheduling outside work contracts has been on leave for several weeks, however, the custodian’s counsel asserts that he will be in contact with the employee and respond to the complainant within two weeks.  The custodian’s counsel also claims that the January 13, 2004 OPRA request, the fourth request, is currently being reviewed and the complainant will receive a response within two weeks.  The custodian’s counsel submitted to the GRC, in the Statement of Information, two invoices for “unpaid outside work.”  Further, the custodian’s counsel asserts in the Statement of Information, that as of January 13, 2004, the complainant did not respond to the request for clarification and that he believed the request to have been retracted.   

On January 22, 2004, however, the complainant claims that correspondence was sent to the custodian’s counsel in an attempt to clarify the original requests.  The complainant includes five separate requests for records.  In reference to the first request for “all payroll records,” the complainant alleges that the records requested should include “each employees base or regular salary for each calendar year employed,” as well as, “any stipends, educational incentives and longevity.” The complainant specifies, in reference to the second OPRA request, that he requests “all overtime cards,” which “should include all overtime, comp-time and outside work cards.”  In reference to the third OPRA request, the complainant seeks access to “all daily work sheets for 2003,” which “are forms that include every police employee’s daily assignment, attendance and any overtime worked.”  Additionally, the complainant seeks information pertaining to “all officer in charge (OIC) daily reports for 2003,” which “are the daily reports prepared by the OIC for every shift.”  The OIC records were not included in the original OPRA request.  The last request made by the complainant included “a detailed record of all unpaid outside work for 2003,” which “should include the officer who worked detail and the corporation/person responsible for payment.”  The complainant acknowledges that the requested information is voluminous and claims to have made arrangements to have a copy machine brought into the Municipal complex when the records are made available. 

As a rebuttal to the Statement of Information submitted by the custodian’s counsel on April 15, 2004, the complainant submitted supplemental information to the GRC.  The complainant disputes that the custodian’s counsel did not receive a response to the January 14, 2004 request for clarification.  The complainant asserts that a letter dated January 22, 2004 was sent to the custodian’s counsel by facsimile and US mail and in support of his argument, submits a facsimile activity report.  The complainant also claims that the custodian’s counsel verbally confirmed the receipt of the letter on tape in the union negotiations of February 2, 2004, which are in the process of being transcribed.  

The Executive Director respectfully recommends the following:

  1. The Council should order the custodian to respond to the complainant’s letter dated January 22, 2004, which will be forwarded to the custodian by the GRC staff, pursuant to N.J.S.A. 47:1A-1.1 et seq.  The Council should direct the custodian to comply with the order within five (5) business days from the receipt of the Interim Decision and notification of this should be provided to the Executive Director. 
  2. The argument provided by the custodian’s counsel that records pertaining to work cards, overtime cards and attendance records are not disclosable pursuant to N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-1.1 and Executive Order #9 for security and criminal investigatory reasons needs further clarification.  The Council should order the custodian to provide a certification as to the specific reason these records should be considered “…criminal investigatory records…” and exempt from disclosure or should contain appropriate redactions, pursuant to N.J.S.A. 47:1A-1.1 et seq.  The custodian should provide definitive statements explaining the reasons the records are exempt.  The Council should order the custodian to comply with the request for a certification within five (5) business days from the receipt of the order.     
  3. Based upon the Statement of Information submitted by the custodian’s counsel, the invoices of “unpaid outside work for 2003” were submitted as supplemental information to the GRC.  The Council should order the custodian to provide a certification as to the records that are responsive to this request and certify that all records responsive to this request, with exceptions provided under OPRA, were disclosed to the complainant.    The Council should order the custodian to comply with the certification within five (5) business days from the receipt of the order.     
  4. The custodian’s counsel argues that vehicle assignments are not disclosable for security and surveillance reasons pursuant to N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-3 (a).  The Council should order the custodian to provide further explanation as to the relationship between vehicle assignments and security and surveillance techniques.  The Council should order the custodian to comply with the certification within five (5) business days from the receipt of the order.     

Legal Analysis

The custodian’s counsel maintains that the complainant did not respond to the request for clarification regarding the four OPRA requests.  The complainant, however, has provided the GRC with the correspondence, dated January 22, 2004, clarifying the information, which has not been addressed by the custodian’s counsel.  In order to determine if the clarification provides the custodian with the appropriate information to fulfill the request, the custodian should review the correspondence and have the opportunity to respond to the complainant, pursuant to N.J.S.A. 47:1A-1.1 et seq. 

The custodian’s counsel poses the argument that work cards, overtime cards and attendance records are not disclosable under N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-1.1 and Executive Order #9 for security and criminal investigatory reasons.  The custodian’s counsel is vague in stating that “it appears” the information is not disclosable and that the records “implicate exemptions” from disclosure.  To determine if the records are, in fact, not disclosable, the custodian should provide a definitive explanation as to the reasons that the exemption of security and criminal investigations should be considered or if the records in question should be redacted appropriately, pursuant to N.J.S.A. 47:1A-1.1 et seq.

The custodian’s counsel addresses the issue of “unpaid outside work for 2003” by attaching two (2) invoices that were not collected and stated that the complainant was “presumably” aware of the invoices.  The custodian, however, did not address if the complainant received all the records responsive to the request, but makes an assumption that the complainant is aware of the records.  To determine if the custodian’s counsel responded to the request, further explanation is needed.  The custodian’s counsel should certify to the records the complainant did receive and if any other records “…made, maintained and kept on file…” are responsive to the request, pursuant to N.J.S.A 47:1A-1.1. 

The custodian’s counsel poses the argument that vehicle assignment records are exempt under N.J.S.A. 47:1A-1.1 and 47:1A-3 (a) in that disclosure of the records could jeopardize surveillance techniques and criminal investigations.  The correlation between vehicle assignments, surveillance techniques and criminal investigations requires further explanation from the custodian’s counsel. The certification should include the reasons the records are exempt from disclosure and or redactions made. 

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

  • December 31, 2003 – Complainant’s three original OPRA requests to custodian
  • January 13, 2004 – Complainant’s fourth OPRA request to custodian
  • January 14, 2004 – Custodian’s response to four OPRA requests
  • January 22, 2004 – Complainant’s letter to custodian’s counsel clarifying OPRA requests
  • March 11, 2004 – Denial of Access Complaint
  • March 15, 2004 – Offer of Mediation sent to complainant and custodian
  • March 25, 2004 – GRC request for Statement of Information
  • April 15, 2004 – Statement of Information & supplemental information
  • April 20, 2004 – Complainant’s supplemental information

_________________________

Paul F. Dice
Executive Director
Government Records Council

May 7, 2004

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