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State of NJ - Government Records Council Email Grc

2004-38

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Marc Kagan,
   Complainant
      v.
University of Medicine and Dentistry
of New Jersey,
   Custodian of Record

Complaint No. 2004-38


At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 2, 2004 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 has not met its burden of proving that the documents, “staff position requestion/evalution forms for grants writer position,” are exempt under N.J.S.A. 47:1A-1.1. The Custodian is ordered to disclose said documents.
  2. The Custodian certified that records concerning notifications to HPAE of determinations of Salary Administration and Joint Evaluation Committee regarding both the grants writer position and the former recruiter/counselor position (items “2” and “4” of Relevant Records Requested) do not exist and this portion of the complaint is dismissed.
  3. The custodian certified that the staff position request/evaluation form for former recruiter/counselor position as completed by the School of Nursing is exempt from disclosure pursuant to N.J.S.A. 47:1A-10 because it was part of an individual’s personnel file since July 10, 2003 and is  directly related to a grievance.
  4. The Custodian certified that records concerning notifications to HPAE of determinations of Salary Administration and Joint Evaluation Committee regarding both the grants writer position and the former recruiter/counselor position (items “2” and “4” of Relevant Records Requested) do not exist and this portion of the complaint is dismissed.

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 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

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Findings and Recommendations of the Executive Director

Marc Kagan                                                       GRC Complaint No. 2004-38
Complainant 
v.
University of Medicine and
Dentistry of New Jersey
Custodian of Records

Relevant Records Requested: 

  1. Staff position request/evaluation form for grants writer position as completed by School of Health Related Professions and Salary Administration.  Current and proposed organizational charts.  All documents pertaining to review of grants writer position by the Joint Evaluation Committee.  Likely dates of these documents are subsequent to 1/1/04.
  2. Notification to HPAE (“Health Professionals and Allied Employees”) Local 5094 of determinations of Salary Administration and Joint Evaluation Committee regarding position of grants writer.  Likely dates of these documents are subsequent to 1/1/04. 
  3. Staff position request/evaluation form as completed by the School of Nursing for reclassified job formerly recruiter/counselor in the School of Nursing.  Job description of the new/reclassified job.  Current and proposed organizational charts.  All documents pertaining to reviews of request by Salary Administration and the Job Evaluation Committee.  Likely dates of these documents are subsequent to 1/1/04.
  4. Notification of HPAE Local 5094 of determinations of Salary Administration and Joint Evaluation Committee regarding new job title.  Likely date of this document is subsequent to 1/1/04. 

Request Made:    March 4, 2204
Response Made: March 15, 2004
Custodian:   Susan Glick
GRC Complaint Filed:   March 17, 2004

Executive Director’s Recommendations

This complaint alleges a violation of the Open Public Records Act (“OPRA”) regarding records requested from University of Medicine and Dentistry of New Jersey (“UMDNJ”).  The complainant filed an eight point OPRA request, however, only cites a violation pertaining to four points of the request.  The complainant is seeking various information pertaining to staff position request/evaluation forms for grants writer position and former recruiter/counselor position as completed by the School of Nursing, all records pertaining to the reviews of the Salary Administration and Job Evaluation Committee and notifications to HPAE of the determinations regarding both positions, all records pertaining to the reviews of the Salary Administration and Job Evaluation Committee and notifications to HPAE of the determinations regarding both positions.  The complainant disputes the custodian’s position that access is denied because the records pertain to a grievance filed by HPAE against UMDNJ and is exempt under OPRA.  The complainant claims that the custodian’s argument is invalid because the records were not generated in connection with a grievance, but existed prior to the grievance being filed.  Additionally, the complainant asserts that the custodian also uses the argument that some of the records requested are also relating to personnel and pension records, which are also exempt under OPRA.  The complainant refutes the argument by claiming that none of the records requested are pertaining to an individual’s personnel or pension files or are generated in connection to a grievance and therefore should be considered public documents and subject to OPRA. 

On March 16, 2004, the custodian asserts that some of the records requested will be provided to the complainant, however, specifically the items relating to staff position request/evaluation forms for the grants writer position and former recruiter/counselor position as completed by the School of Nursing and all records pertaining to the reviews of the Salary Administration and Job Evaluation Committee will not be released because they are in connection to the grievance filed by HPAE on March 3, 2004.  Specifically, the custodian claims that the organizational charts, job descriptions, 2003 and 2004 budgets were released to the complainant on March 15, 2004 and March 16, 2004. The custodian also claims that the records relating to staff position request/evaluation forms for the former recruiter/counselor position are exempt under OPRA because they are related to a grievance and completed and signed by the appropriate staff becoming part of an individual’s personnel file.  Regarding the notifications to HPAE of the determinations regarding both the grants writer position and the former recruiter/counselor position, the custodian asserts that these records do not exist because the contract between UMDNJ and HPAE does not require it unless the job position is new and not reclassified or revised. 

On May 18, 2004, the Government Records Council (“Council”) staff sent a letter to the custodian seeking clarification of the Statement of Information submitted on April 16, 2004.  The Council’s staff inquired as to what records are included in the custodian’s assertion that “some of the documents [requested] do not exist or are part of an individual’s personnel file.”  The Council’s staff also inquired as to what records relating to the position of grant writer, recruiter/counselor, the agency (UMDNJ) and specific individuals were withheld in whole or in part from disclosure.  Additionally, the Council’s staff inquired as to what records did and did not exist prior to the filing of the grievance. 

The custodian provided a certification on June 1, 2004 in reference to the Council’s staff’s letter dated May 18, 2004.  The custodian certified that on May 3, 2004, the complainant filed a grievance on behalf of HPAE regarding the release of an individual and the subsequent revision and reclassification of two positions within UMDNJ.  Regarding the staff position request/evaluation form pertaining to the grants writer position, the custodian certifies that it was requested subsequent to the initiation of the grievance and directly relates to the grievance.  The custodian also certifies that no other documents exist pertaining to the review of the grants writer position.  The custodian certifies that no record exists regarding the notification of Salary Administration & Joint Evaluation Committee referencing the position of grants writer and that in the HPAE contract with UMDNJ these records are not required for positions that have been reclassified or revised.  According to the custodian, the position of grants writer is a reclassified position.  The custodian certifies that the request for the staff position request form as completed by the School of Nursing for reclassification of the job formerly referred to, as recruiter/counselor was not released because it directly relates to the grievance filed by HPAE on May 3, 2004.  Further, the custodian certifies that this records has been completed and signed by relevant personnel and has become part of the individual’s personnel file, therefore not disclosable under OPRA.  The custodian continues to certify that no other documents exist pertaining to the review of the grants writer position and former recruiter/counselor position.  Regarding the notification of the Salary Administration & Joint Evaluation Committee record referencing the recruiter/counselor position in the School of Nursing, the custodian certifies that no record exists as this position is reclassified and UMDNJ is not required to notify HPAE of the reclassification of the position.  The custodian certifies that the staff position request/evaluation form for the recruiter/counselor position has been a part of a personnel record since July 10, 2003 and the form for the grants writer position was filled out on February 4, 2004.  According to the custodian, the grants writer form had never been made public and became a part of a formal grievance as of March 3, 2004.  The custodian certifies that any part of a record that is part of a grievance, whether it was public before or after the grievance was filed is considered exempt under OPRA until the grievance is resolved.  

The Executive Director respectfully recommends the following:

  1. In the June 1, 2004 certification, the custodian asserts that the records pertaining to the staff position request/evaluation forms for grants writer position (item #1 above) is exempt under OPRA because it is directly related to filing of a grievance and should not be disclosed.   N.J.S.A. 47:1A –1.1 provides that “a government record shall not include the following information which is deemed to be confidential for the purposes of N.J.S.A. 47:1A-1 et. seq. as amended and supplemented…information generated by or on behalf of public employers or employees…in connection with any grievance filed by or against an individual.”  The records requested pertaining to staff position request/evaluation forms for grants writer position were not generated in connection with or as part of the grievance procedure, but were in existence prior to the filing of the grievance. The records pertaining to the staff position request/evaluation forms for the grants writer position are also not a part of a individual’s personnel or pension file as is the staff position request/evaluation form for former recruiter/counselor position, as indicated in the Statement of Information and the custodian’s June 1, 2004 certification.  The custodian has not meet the burden of proof in that the staff position request/evaluation forms for grants writer position are exempt under OPRA (N.J.S.A.47: 1A-6).  The Council should order that the staff position request/evaluation forms for grants writer position be disclosed.
  2. The custodian certifies that the notifications to HPAE of determinations of Salary Administration and Joint Evaluation Committee regarding both the grants writer position and the former recruiter/counselor position (items #2 and 4 above) do not exist and should not be subject to OPRA because it does not meet the definition of a government record as defined in N.J.S.A. 47:1A-1.1. The Council should dismiss the portion of the complaint regarding the notifications to HPAE of determinations of Salary Administration and Joint Evaluation Committee regarding both the grants writer position and the former recruiter/counselor position, as the records do not exist.    
  3. The custodian’s certification dated June 1, 2004, contends that the staff position request/evaluation form for former recruiter/counselor position as completed by the School of Nursing (item #3 above) is exempt under OPRA because it is part of an individual’s personnel file since July 10, 2003 and is also directly related to a grievance.   N.J.S.A. 47:1A-10 provides that “…the personnel and pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access.”  The Council should order that the staff position request/evaluation form for former recruiter/counselor position as completed by the School of Nursing is not disclosable pursuant to N.J.S.A. 47:1A-10.  
  4. The custodian certifies that the notifications to HPAE of determinations of Salary Administration and Joint Evaluation Committee regarding both the grants writer position and the former recruiter/counselor position (items #2 and 4 above) do not exist and should not be subject to OPRA because it does not meet the definition of a government record as defined in N.J.S.A. 47:1A-1.1. The Council should dismiss the portion of the complaint regarding the notifications to HPAE of determinations of Salary Administration and Joint Evaluation Committee regarding both the grants writer position and the former recruiter/counselor position, as the records do not exist. 

Legal Analysis

  “…[T]he personnel and pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access” (N.J.S.A. 47:1A-10).  The custodian’s certification of June 1, 2004 contends that the staff position request/evaluation form for former recruiter/counselor position as completed by the School of Nursing is exempt under OPRA because it is part of an individual’s personnel file and related to a grievance. 

N.J.S.A. 47:1A-1.1 provides, however, that records “…generated by or on behalf of public employers or employees…in connection with any grievance filed by or against an individual…” are exempt.  The records requested were not generated as part of the grievance procedure.  Although the records were generated on behalf of the public employee, they existed prior to the grievance being filed and were not generated in connection with the grievance.  The staff position request/evaluation forms for grants writer position do not fall under this exemption as defined pursuant to N.J.S.A. 47:1A-1.1 because the record was not generated on behalf of the public employee and was not generated in connection with the grievance.   Further, pursuant to N.J.S.A 47:1A-6, the custodian did not “…meet the burden of proving…” that the staff position request/evaluation forms for grants writer position was part of an individual’s personnel file and exempt under N.J.S.A. 47:1A-10 as is the records pertaining to the former recruiter/counselor position. 

N.J.S.A. 47:1A-1.1 defines a government record as “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards, thereof...”  As certified by the custodian, the notifications to the HPAE regarding the Salary Administration and Joint Evaluation Committee for both positions of the grants writer and former recruiter/counselor do not exist as a government record as defined 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:

  • March 17, 2004 – Denial of Access Complaint filed with supplemental information
  • March 30, 2004 – Offer of Mediation to complainant and custodian
  • April 5, 2003 – Custodian’s Agreement to Mediate
  • April 8, 2004 – Government Records Council request for Statement of Information
  • April 16, 2004 – Statement of Information with supplemental information
  • May 18, 2004 – Government Records Council staff letter seeking clarification of Statement of Information
  • June 1, 2004 – Custodian’s certification in response to Council’s staff letter dated May 18, 2004

________________________

Paul F. Dice
Executive Director
Government Records Council

June 2, 2004

 

 

 

 

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