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2004-30
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Decision on Access |
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Findings and Recommendations of the Executive Director |
Final Decision
At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 4, 2004 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to affirm its May 13, 2004 decision ordering the custodian of records to provide the complainant with all the documents and information responsive to the request consistent with the provisions of N.J.S.A. 47:1A-10 of Open Public Records Act (“OPRA”) subject to appropriate redaction. The Council, therefore, dismissed the case, finding that the supplemental information provided by the custodian did not meet the burden of proof pursuant to N.J.S.A. 47:1A-6 and the documents sought are to be disclosed pursuant to N.J.S.A. 47:1A-10 subject to appropriate redaction. 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.
Supplemental Findings and Recommendations of the Executive DirectorArthur Mourad GRC Complaint No. 2004-30Complainant v. Borough of Saddle River Custodian of Records Relevant Records Requested: Full first name, middle initial, last name and title of all Borough of Saddle River police officers (on magnetic media in a common format such as acsii, dbase, access or whatever form is convenient for the custodian). Executive Director’s Recommendations At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 6, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of the Executive Director’s Findings and Recommendations with amendments. Therefore, the Council ordered the custodian of records to provide the complainant with all the documents and information responsive to the request consistent with the provisions of N.J.S.A. 47:1A-10 of Open Public Records Act (“OPRA”) subject to appropriate redaction. The custodian is ordered to provide a written certification to the Executive Director, Paul Dice, within five (5) business days from receipt of the Interim Decision that explains their response to the Council’s order. On May 27, 2004, the custodian contacted the Council’s staff by telephone regarding the Borough’s concerns about releasing the information. According to Council’s staff, the custodian alleges that due to the complainant’s past criminal history, it would be a risk to the security of the police department for the names and titles of the officers to be released. The Council’s staff advised the custodian to provide a detailed written explanation to the Council regarding the concerns over disclosing the records. The Council’s staff further advised the custodian to quickly prepare the explanation for the Council as the Final Decision has a date deadline to comply. The custodian provided supplemental information to the Council’s staff on May 27, 2004, however, no written explanation was provided. The Council’s staff on June 3, 2004, issued a letter to the custodian seeking a written response to the concerns she verbally conveyed to the Council’s staff. The letter issued a deadline of June 8, 2004 to be in receipt of a written explanation. The Executive Director respectfully recommends that the Council find: 1. 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 verbally contends that the disclosure of the records to the complainant will serve as a security risk; however, no written explanation was provided to the Council. The custodian must meet the burden of proving that a denial of access to the record is warranted under OPRA. The Council should order the custodian to comply with the staff’s June 3, 2004 letter to provide a written explanation in the form of a certification by June 8, 2004. The Council should order that failure to do so would result in determining that the records are disclosable pursuant to the Final Decision issued on May 13, 2004. Analysis “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). The custodian verbally conveyed to Council’s staff her concerns regarding disclosure of the full names and titles of the Borough police officers and provided supplemental information for the Council’s review. The custodian did not meet the burden of proof that the records should be denied. Documents Reviewed The following additional documents were reviewed in preparing the Supplemental Findings and Recommendations for this case:
Paul F. Dice June 4, 2004 [1] GRC was not in receipt of the Denial of Access Complaint until March 22, 2004. Interim Decision on Access
At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 6, 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. Therefore, the Council orders the custodian of records to provide the requestor with all the documents and information responsive to the request consistent with the provisions of N.J.S.A. 47:1A-10 of Open Public Records Act (“OPRA”) subject to appropriate redaction. Findings and Recommendations of the Executive DirectorArthur Mourad GRC Complaint No. 2004-30Complainant v. Borough of Saddle River Custodian of Records Relevant Records Requested: Full first name, middle initial, last name and title of all Borough of Saddle River police officers (on magnetic media in a common format such as acsii, dbase, access or whatever form is convenient for the custodian). Executive Director’s Recommendations This Open Public Records Act (“OPRA”) complaint alleges a denial of access regarding a request sent to the Borough of Saddle River. The requestor is seeking records regarding the first name, middle initial, last name and title of all police officers employed in the Borough of Saddle River. The requestor asserts that the information may be provided on magnetic media in a common format such as, acsii, dbase, and access or typed or printed on ordinary paper. The requestor also states that any medium in which is convenient for the custodian is acceptable. On February 17, 2004, the custodian denied the requestor’s OPRA request by claiming that the Borough of Saddle River does not provide information regarding their employees. Later, in the Statement of Information, the custodian further explains that the records being sought contain personnel information that is exempt under N.J.S.A. 47:1A-10. The custodian also claims that the records requested do not fall under the definition of a “government record” as provided in OPRA and that the requestor is seeking to have the Borough create records that do not exist. The Executive Director respectfully recommends that the Council order that if the custodian has a type of government record that may be responsive to the request it should be disclosed based on the following:
Legal Analysis “Government Records” as defined by OPRA include “…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...” N.J.S.A. 47:1A-10 provides that personnel and pension records are not disclosable, however, an exception is “…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 position received shall be a government record...” If the custodian has a type of record that is “…made, maintained or kept on file…” that may be responsive to the request it should be disclosed on the basis 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 position received” is deemed a public record under OPRA. Documents Reviewed The following documents were reviewed in preparing the Findings and Recommendations for this case:
________________________ Paul F. Dice May 6, 2004 [1] GRC was not in receipt of the Denial of Access Complaint until March 22, 2004. |
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