2004-34

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 adopt the entirety of said findings and recommendations.  The Council, therefore, dismissed the case on the basis of:

1. The custodian certified that she did not willfully deny access to the records responsive to the December 10, 2003 request, as she was not aware that additional documents existed as reflected by the Project Services Department.  The custodian forwarded copies to the complainant on April 8, 2004 with the exception of the documents that were reflected in the Vaughn Index provided to the Council. Although the custodian should have complied with the December 10, 2003 OPRA request by providing all records that existed with the NJSCC at the time of the request, the denial of access should not be found to be knowing and willful in the totality of the circumstances.
2. The custodian certified that she did provide the complainant with all the records on April 8, 2004 respective to the December 10, 2003 OPRA request when she became aware of their existence with the exception of the records that were privileged and included in a Vaughn Index submitted to the Council on April 22, 2004.
3. The custodian certified and provided the Council with copies of the two documents provided on December 17, 2003 and the additional documents provided on April 8, 2004 in her April 22, 2004 certification and supplemental information.
4. The custodian certified that “steps” have been taken to ensure that the Project Department is included in any future requests for records relating to land acquisition.  
5. The custodian certified that the reference to “all records” in response to the complainant referred to “public records.”

Final Decision Rendered by the
Government Records Council
On The 10th Day of June, 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 

Decision Distribution Date:  June 21, 2004

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:  All copies in reference to the high school project on 39^th/40^th Streets in Union City (properties to be taken, who designated them, time frame for project, etc., etc., anything that exists).
Request Made:  December 10, 2003
Response Made: December 12, 2003
Custodian:  Carol Murphy, NJSCC records custodian
GRC Complaint Filed:   March 24, 2004
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 said findings and recommendations with an amendment to the recommendations detailed in #4 below.  Therefore, the Council found that:

1.   The custodian certified that no redactions were made to the two records supplied to the requestor on December 17, 2003.  Further, the custodian became aware that a darkened section of the form may have seemed to be redacted and submitted an additional copy of the records to the requestor in compliance with N.J.S.A 47:1A-1.1 et seq.  The Council dismissed this portion of the complaint on the basis of the custodian’s certification that another copy of the records was provided to the complainant as the first copy contained darkened sections that the complainant erroneously thought were redacted and that no redactions were made to the records released on December 17, 2003.

2.   The custodian certified that after the Denial of Access Complaint was filed on March 24, 2004, she “conducted a second search of records to determine whether any further documents might exist.”  Further, the custodian certifies that additional documents existed and were provided to the complainant on April 8, 2004.  The custodian was ordered to provide a certification explaining whether the records existed on December 10, 2003, the date of the original request, or if the records existed in NJSCC files after December 10, 2003, and provide a response to the Executive Director within five (5) business days after the receipt of the decision. 

3.   The custodian provided a Vaughn Index for the two records that were withheld and the one record that was redacted.  The Council dismisses this portion of the complaint as the custodian’s submission of the Vaughn Index has met the burden of proof in explaining that the records were confidential because they were “pre-decisional consultative, advisory and deliberative inter-agency documents” and should not be disclosed, pursuant to N.J.S.A 47:1A-1.1 et seq. 

4.   The custodian is ordered to provide a certification to the Executive Director, Paul Dice, within five (5) business days from receipt of the Interim Decision explaining why the first search for records in “2” above did not reveal any records responsive to the request and what specific records were found in the second search responsive to the request that were provided to the complainant.  

On May 21, 2004, the custodian’s counsel submitted a certification from the custodian addressing items 1-4 of the Interim Decision issued by the Council on May 13, 2004. 

The custodian asserts that a “diligent” search was conducted in response to the December 10, 2003 OPRA request.  The custodian certifies that she contacted the Jersey City Regional Office, the agency working on the project, and located two documents that were forwarded to the complainant on December 17, 2003.  After receiving the Denial of Access Complaint, the custodian asserts that she sought a more legible copy of the records, that the complainant alleges to have appeared to be redacted, from the Land Acquisition Department and then in turn from the Project Services Department.  The custodian asserts that at the time she contacted the Project Services Department regarding a more legible copy of the records disclosed on December 17, 2003, she was notified that an entire file existed respective to the December 10, 2003 OPRA request made by the complainant.  The custodian asserts that the additional records respective to the complainant’s December 10, 2003 request were forwarded to the complainant on April 6, 2004 with the exception of the documents considered privileged and reflected in the Vaughn Index submitted to the Council on April 22, 2004.  As to the additional records provided to the complainant, the custodian certifies that the Jersey City Regional Office never notified her of any additional records that existed and staff assured her that the two records provided to the complainant on December 17, 2003 were all that existed. 

It is the belief of the custodian as reflected in her certification that she never willfully intended to deny access to any records other than the records considered to be privileged.  The custodian also certifies that as a result of this case, steps have been taken to ensure that the Project Services Department is included in all future requests involving property acquisition. 

Regarding item #4 of the Interim Order, the custodian certifies that two records were provided to the complainant on December 17, 2003 and that “these were the only records responsive to the request that [she] knew at the time existed.”  The custodian lastly certifies that the records provided on April 8, 2004 were provided in the April 22, 2004 certification submitted to the Council and included a legible copy of the DOE transmittal provided to the complainant on December 17, 2003. 

The Executive Director respectfully recommends that the Council find that:

1. The custodian certified that she did not willfully deny access to the records responsive to the December 10, 2003 request, as she was not aware that additional documents existed as reflected by the Project Services Department.  The custodian forwarded copies to the complainant on April 8, 2004 with the exception of the documents that were reflected in the Vaughn Index provided to the Council. Although the custodian should have complied with the December 10, 2003 OPRA request by providing all records that existed with the NJSCC at the time of the request, the denial of access should not be found to be knowing and willful in the totality of the circumstances.
2. The custodian certified that she did provide the complainant with all the records on April 8, 2004 respective to the December 10, 2003 OPRA request when she became aware of their existence with the exception of the records that were privileged and included in a Vaughn Index submitted to the Council on April 22, 2004.
3. The custodian certified and provided the Council with copies of the two documents provided on December 17, 2003 and the additional documents provided on April 8, 2004 in her April 22, 2004 certification and supplemental information.
4. The custodian certified that “steps” have been taken to ensure that the Project Department is included in any future requests for records relating to land acquisition.  
5. The case should be dismissed.

Analysis

Pursuant to N.J.S.A. 47:1A-11 (a), “[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA] as amended and supplemented, and is found to have unreasonably denied access totality of the circumstances shall be subject to a civil penalty…” The custodian certified that the records eventually provided to the complainant on April 8, 2004 should have been provided to the complainant in response to the December 10, 2003 OPRA request.  The custodian certified that she did not willfully deny access to the records responsive to the December 10, 2003 request, as she was not aware that additional documents existed as reflected by the Project Services Department and forwarded copies to the complainant with the exception of the documents that were reflected in the Vaughn Index provided to the Council.  The custodian should not be found to have “…knowingly and willfully…”violated OPRA by “…unreasonably den[ing] access…” under the “…totality of the circumstances…” 

Documents Reviewed

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

• June 3, 2004 - Certification provided by custodian in response to the Council’s May 13, 2004 Interim Order.

Paul F. Dice
Executive Director
Government Records Council
June 4, 2004

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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 an amendment to the recommendations detailed in #4 below.  Therefore, the Council finds that:

1. The custodian certifies that no redactions were made to the two records supplied to the requestor on December 17, 2003.  Further, the custodian became aware that a darkened section of the form may have seemed to be redacted and submitted an additional copy of the records to the requestor in compliance with N.J.S.A 47:1A-1.1 et seq.  The Council dismisses this portion of the complaint on the basis of the custodian’s certification that another copy of the records was provided to the complainant as the first copy contained darkened sections that the complainant erroneously thought were redacted and that no redactions were made to the records released on December 17, 2003. 
2. The custodian certifies that after the Denial of Access Complaint was filed on March 24, 2004, she “conducted a second search of records to determine whether any further documents might exist.”  Further, the custodian certifies that additional documents existed and were provided to the complainant on April 8, 2004.  The custodian is ordered to provide a certification explaining whether the records existed on December 10, 2003, the date of the original request, or if the records existed in NJSCC files after December 10, 2003, and provide a response to the Executive Director within five (5) business days after the receipt of the decision. 
3. The custodian provided a Vaughn Index for the two records that were withheld and the one record that was redacted.  The Council dismisses this portion of the complaint as the custodian’s submission of the Vaughn Index has met the burden of proof in explaining that the records were confidential because they were “pre-decisional consultative, advisory and deliberative inter-agency documents” and should not be disclosed, pursuant to N.J.S.A 47:1A-1.1 et seq. 
4. The custodian is ordered to provide a certification to the Executive Director, Paul Dice, within five (5) business days from receipt of the Interim Decision explaining why the first search for records in “2” above did not reveal any records responsive to the request and what specific records were found in the second search responsive to the request that were provided to the complainant.  

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

Relevant Records Requested:  All copies in reference to the high school project on 39^th/40^th Streets in Union City (properties to be taken, who designated them, time frame for project, etc., etc., anything that exists). 
Request Made:    December 10, 2003
Response Made: December 12, 2003
Custodian:   Carol Murphy, NJSCC records custodian
GRC Complaint Filed:   March 24, 2004

Executive Director’s Recommendations

This complaint alleges a violation of the Open Public Records Act (“OPRA”) regarding records requested from the New Jersey School Construction Corporation (“NJSCC”).  The requestor claims that the information provided pursuant to the December 10, 2003 OPRA request contained erroneous redactions, therefore, denying the requestor access to the records.  The requestor claims that the custodian stated that the redactions were made because the information was privileged.  The requestor also claims that the records provided were minimal.  

The custodian asserts that she spoke with the requestor on December 12, 2003 in order to clarify the OPRA request dated December 10, 2003 as there was no record of the project in NJSCC as written by the requestor.  The custodian then certifies that two records, without redactions, were provided to the requestor on December 17, 2003 as a response to the OPRA request of December 10, 2003.   The records provided were the “Department of Education Project Transmittal” and the “Transmittal of Project Information.”  The custodian asserts that after receiving a copy of the requestor’s Denial of Access Complaint filed with the Government Records Council (“GRC”) on March 24, 2004, she re-evaluated the documents sent to the requestor and noticed that a section of the form was dark shaded, which may have appeared to be “blacked out.”  The custodian claims that another copy of the records was sent to the requestor at no additional charge.  Additionally, the custodian asserts to have conducted another search for additional records regarding the OPRA request and found additional records, which were forwarded to her by the Project Officer on March 31, 2004.  On April 8, 2004, the custodian asserts that the supplemental information was provided to the requestor, however, three records were withheld and one record was redacted pursuant to OPRA in that the documents contained information that was to be considered “pre-decisional consultative, advisory and deliberative inter-agency documents” and disclosure would “violate the reasonable expectation of privacy of individual property owners and lessees who own or occupy or are otherwise impacted by this project and acquisition of the property contemplated therein.”[1]  The custodian also certifies that, exempt from OPRA, the requestor received a letter dated January 2, 2004 pertaining to her status as a property owner regarding the NJSCC project.  Additionally, the custodian supplied the GRC a Vaughn Index for the three records withheld from the requestor and the one record that was redacted. 

The Executive Director respectfully recommends:

1. The custodian certifies that no redactions were made to the two records supplied to the requestor on December 17, 2003.  Further, the custodian became aware that a darkened section of the form may have seemed to be redacted and submitted an additional copy of the records to the requestor in compliance with N.J.S.A 47:1A-1.1 et seq.  The Council should accept the custodian certifies that another copy of the records was provided to the complainant as the first copy contained darkened sections that the complainant erroneously thought were redacted.  The Council should also accept that the custodian certifies that no redactions were made to the records released on December 17, 2003. 
2. The custodian certifies that after the Denial of Access Complaint was filed on March 24, 2004, she “conducted a second search of records to determine whether any further documents might exist.”  Further, the custodian certifies that additional documents existed and were provided to the complainant on April 8, 2004.  The Council should order the custodian to provide a certification as to if the records existed on December 10, 2003, the date of the original request, or if the records existed in NJSCC files after December 10, 2003.  The Council should order that the custodian comply with the order within five (5) business days after the receipt of the decision. 
3. The custodian provided a Vaughn Index for the two records that were withheld and the one record that was redacted.  The Council should accept that the Vaughn Index as it has met the burden of proof in that the records were confidential because the records are “pre-decisional consultative, advisory and deliberative inter-agency documents” and should not be disclosed, pursuant to N.J.S.A 47:1A-1.1 et seq. 

Legal Analysis

Regarding the two documents provided to the complainant on December 17, 2003, the custodian certifies that the copy provided to the complainant, by facsimile, was darkened in areas and may have appeared to be redacted.  The custodian remedied the complainant’s copy of the record by providing another copy to the complainant in compliance with N.J.S.A. 47:1A-1.1 et seq.

To determine if the custodian provided all the documents respective to the complainant’s OPRA request, further clarification is needed to explain when the additional records, submitted to the complainant on April 8, 2004, were “…made, maintained and kept on file…” with the NJSCC, pursuant to N.J.S.A. 47:1A-1.1 et seq. 

The two records withheld and one record redacted, by the custodian, should be considered “privileged” as the custodian submitted a Vaughn Index.  Information presented in the Vaughn Index did meet the burden of proof that the records in question are covered by the privilege established for attorney client communications and exempt from disclosure, pursuant to N.J.S.A. 47:1A-1.1 et seq.

Documents Reviewed

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

• December 10, 2003 – Requestor’s OPRA request
• December 17, 2003 – Custodian’s response to request dated December 10, 2003
• March 23, 2004 – Denial of Access Complaint filed
• March 23, 2004 – Offer of Mediation to requestor and custodian
• March 30, 2004 – Custodian’s Agreement to Mediate
• April 1, 2004 – GRC request for Statement of Information
• April 8, 2004 – Custodian’s Statement of Information including letter to requestor with supplemental information dated April 8, 2004
• April 22, 2004 – Custodian’s supplemental information and re-certification

Paul F. Dice
Executive Director
Government Records Council

May 6, 2004

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