2004-45

Final Decision

At its July 8, 2004 public meeting, the Government Records Council (Council) considered the July 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, dismissed the case on the basis of:

1. The documents, which contain personal medical records, are exempt from disclosure pursuant to the Open Public Records Act (OPRA).
2. While the custodian violated N.J.S.A. 47:1A-5(g) by not providing the complainant with the specific basis for its denial of access in response to the request on February 18, 2004, an explanation was provided on April 6, 2004.  The Custodian’s actions did not rise to the level of knowing and willful under the totality of the circumstances.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W, Market St., PO Box  006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 8^th Day of 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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Findings and Recommendations of the Executive Director

Relevant Records Requested: All information relating to Police and Fire Retirement System (P&FRS) Board of Trustees meeting of Feb 9, 2004, item E-5, Schreppel, Arthur, #51642, Middletown Twp. (6/1/03 – 12/20/02), approval of his accidental disability pension, including, but not limited to, retirement application and supporting documents (certification of service, accident report, etc.)
Request Made:    February 11, 2004
Response Made:   February 18, 2004
Custodian:   Department of Treasury – Mary Beth Davies
GRC Complaint filed:  March 31, 2004

Recommendation of the Executive Director

The Executive Director respectfully recommends that the council dismiss the case on the basis that:

1. The documents, which contain personal medical information, are exempt from disclosure pursuant to the Open Public Records Act (OPRA).
2. The Custodian violated N.J.S.A.47:1A-5(g) by not providing the complainant with the specific basis for its denial of access in response to the request on February 18, 2004. While the basis of the denial was provided on April 6, 2004, it should have been provided in the February 18, 2004 response pursuant to N.J.S.A. 47:1A-5(g).

Background

This OPRA complaint involves a request for information concerning Mr. Arthur Schreppel, and approval of his accidental disability pension, including but not limited to, retirement application and supporting documents.

Complainant:

According to the Complainant the Custodian has released twelve (12) pages of documentation in respect to his request. He maintains that other documents that have been withheld should have been released with redactions.

Public Agency:

The Custodian provided a legal certification stating that the information withheld was done so under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.A. Section 1301, et seq., and the New Jersey Open Public Records Act, N.J.S.A. 47:1A-1, et seq.  The custodian maintained that said records were not disclosed as they contained personal medical information related to medical diagnosis, treatment and/or evaluation that was protected under HIPAA.  The following documents withheld were:

• Independent Medical Evaluation of Robert T. Dennis, M.D., 12/5/03-19 pages
• Medical Examination by Personal or Treating Physician, Dr. David Estin, M.D., 11/25/03 – 2 pages
• Medical Examination by Personal or Treating Physician, Dr. Shahid Faroogui, M.D., 11/4/03 – 2 pages
• David Estin, M.D., to Ross Ellis, M.D., 2/14/03 – 2 pages
• David Estin, M.D., copying Ross Ellis, M.D. 2/21/03 – 2/21/03 – 1 page
• Joseph Triolo, M.D., to Alfred Greisman, M.D., 1/21/03 – 2 pages
• Alfred Greisman, M.D., to Shahid Faroogui, M.D., 1/17/03 – 2 pages
• Ramesh Babu, M.D., to “To Whom It May Concern,” 1/29/03 – 1 page
• Paul Gennaro, M.D., to Alfred Greisman, M.D., 1/22/03 – 2 pages (There were two copies of this report inadvertently provided to the Board- total withheld – 4 pages)
• Atlantic Diagnostics to Alfred Greisman, M.D., 1/21/03 – 1 page
• Magnetic Resonance Imaging of Monmouth to Robert Rosen, M.D., 5/10/96 – 1 page
• Riverview Medical Center, “Discharge Instructions,” 12/20/02 – 4 pages
• Radiology Results, 1/20/03 – 1 page

The Custodian released the following 12 pages to the Complainant:

• Form – Disability Evaluation – Accidental – 1 page
• Form – Employer Certification for Disability Retirement – 2 pages
• Form – Workers Compensation – First Report of Injury or Illness – 1 page
• Form – Township of Middletown Workers Compensation – Employee Report – 1 page
• Form – Township of Middletown Workers Compensation – Supervisors Report – 1 page
• Form – Workers Compensation - first report of Injury or Illness – 1 page
• Form – Application for Disability Retirement – 2 pages
• Statement regarding fall and witnesses from employee – 1 page
• Form – Accidental Disability Retirement Medical Review board Determination – 1 page
• Form – Authorization for Release of medical Records – 1 page

While the Custodian did release the above listed twelve (12) pages of documents, they failed to identify the reason by which the remainder of the documents were being withheld. Pursuant to N.J.S.A. 47:1A-5(g), it is the responsibility of the Custodian to explain why documents are being withheld. Although the Custodian did provide a written response to the request on November 18, 2003, it was not until April 6, 2004 that the Complainant was given an explanation of why documents were withheld.

After receiving the legal certification, the Government Records Council received a supplemental Statement of Information and Legal Argument from the Custodian’s Counsel stating that the records are exempt from disclosure under N.J.S.A. 47:1A-10. The Counsel contends that the records, which were withheld, are personal medical records located in personnel files and therefore are not disclosable.

Analysis

1. Pursuant to N.J.S.A. 47:1A-10, states “ personnel or 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.”  The requested records are exempt from disclosure because, as listed in the Statement of Information, they appear to be personal medical records.
2. The Custodian violated N.J.S.A.47:1A-5(g) by not providing the Complainant with the specific basis for its denial of access in response to the request on February 18, 2004. While the basis of the denial was provided on April 6, 2004, it should have been provided in the February 18, 2004 response pursuant to N.J.S.A. 47:1A-5(g). While a violation of N.J.S.A. 47:1A-5(g) did occur, once brought to her attention, the Custodian rectified her action by promptly responding. Therefore, the GRC staff has found that the Custodian’s violation does not rise to the level of knowing and willful.

Documents Reviewed

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

1. February 11, 2004 - OPRA Records Request
2. February 18, 2004 - Custodian’s response to the request indicating documents to be released          
3. March 31, 2004  - Denial of Access Complaint
4. April 5, 2004 - Offer of Mediation to parties
5. April 5, 2004 - Complainant declines Mediation
6. April 6, 2004 - Custodian’s letter to complainant indicating additional documents identified for release and denial of access to the balance of documents sought
7. April 23, 2004 - Request for Custodian’s Statement of Information
8. April 28, 2004 - Statement of Information with attachments
9. May 17, 2004 - Request from GRC Staff to Custodian for certification explaining all documents released and those documents withheld with the legal basis for the exemption
10. May 19, 2004 - Legal certification of Custodian
11. June 1, 2004 – Supplemental Statement of Information from Custodian’s Counsel

Conclusion

The Council should dismiss the case because the Custodian and Counsel have provided documentation that cited relevant statutes in the Open Public Records Act. The OPRA exempts disclosure of medical information and personnel records that were requested. N.J.S.A. 47:1A-10. Executive Order 26, Paragraph 4. (b)(1) also prohibits disclosure of the requested records.

Paul F. Dice
Executive Director
Government Records Council

July 2, 2004

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