2004-49

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the January 31, 2005 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 the Custodian and Custodians Counsel certification that the requested records were not experiential job qualification requirements for those individuals identified in the records request. Therefore, the requested records are exempt from disclosure pursuant to N.J.S.A 47:1A-10.

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 10^th Day of February, 2005

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 Executive Director

Records Requested: (As stated by Complainant)
Proof of valid drivers license (not license number). Employment application
Custodian: William Paterson University – Dr. Marc Schaeffer
Request Made:   January and February, 2004/ Original Request – December 5, 2003[1]
Responses Made: February 2004
GRC Complaint filed: April 19, 2004

Background

The Denial of Access does not include the original request that was submitted on December 5, 2003. However, it does address ongoing e-mail correspondence regarding the original request and information being sought regarding driver’s license.

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on April 19, 2004 pursuant to N.J.S.A. 47:1A-1.1 et. seq. The complainant has also submitted a supplemental statement on November 14, 2004 that stated the following:

“… I am requesting records of the senior maintenance employees who did not produce (sic) a valid driver’s license during the period between 1995 and 2003.” Marc Schaeffer, Executive Assistant to the President and Board of Trustees, Custodian of Records claimed that, “ there are no government records responsive to this request because the University has no employees with the title ‘senior maintenance employee’.” The Complainant further stated, “This appears to be the first sign that the University might be trying to stonewall me. Mr. Schaeffer could have easily called me at my office and told me that he wanted the exact title: Senior Building Maintenance worker.  The job vacancy title: Senior Building Maintenance worker. The job vacancy title is Custodian.”

”… I requested that records showing whether Abibatu Kanu, a William Paterson University senior Building Maintenance employee, has a valid driver’s license.  Mr. Schaeffer denied the requestor access to that record. He hides behind the term ‘experiential’.”  “OPRA permits the public to get access to experiential data.”

“… I showed Mr. Schaeffer and Ms. Clark the custodian job advertisement that William Paterson University has posted outside Human Resources.  I showed both of them that the job vacancy announcement specifically states that a valid driver’s license is required to qualify for the job.  I visited HR and the clerk stated that all applicants for custodian or Senior Building Maintenance employees or custodians did not necessarily call for a driver’s license…”

Public Agency’s Case Position

In the November 4, 2004 Statement of Information, the Custodian and their counsel stated that, “… a drivers license was not an experiential requirement for employment for any of the employees named in his e-mail and that, consistent with N.J.S.A. 47:1A-10, personnel information regarding whether or not those individuals possessed a driver’s license at the time of their initial employment was not a government record under OPRA.  The personnel and pension records of State employees are not considered government records for the purposes of OPRA except for those records expressly deemed accessible under N.J.S.A. 47:1A-10…

Human Resources advises that a driver’s license was NOT an experiential requirement for employment for the individuals named in your 2/6/04 attachment.  Therefore, consistent with N.J.S.A. 47:1A-10, personnel information regarding whether or not those individuals possessed a driver’s license at the time of initial employment is not a government record under the OPRA.”

Since the information requested by the Complainant as to whether named employees possessed driver’s licenses at the time of their initial employment does not fall within any of the exceptions set forth in N.J.S.A. 47:1A-10, the University has not improperly denied the Complainant access to any government records.”

Analysis

The record requested by the Complainant was to obtain information regarding specific individual’s possession of a driver’s license at their time of application for employment with William Paterson University. The Complainant has stated that this information was required to obtain the position of “senior maintenance workers”.

The Custodian and Counsel has certified that the information being sought regarding those specific individuals identified by the Complainant in the records request is exempt from disclosure pursuant to N.J.S.A. 47:1A-10. In N.J.S.A. 47:1A-10 it states, “…the 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 and shall not be made available for public access, except that: … data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment…” The Custodian and Counsel has certified that the information requested, “was not an experiential requirement for those employees.”

Therefore, pursuant to N.J.S.A. 47:1A-10, the denial of the requested information was lawful, because the information was not an experiential requirement for those individuals in question.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:           

1. April 19, 2004 – Denial of Access Complaint
2. April 29, 2004 – Complainant’s Agreement to Mediate
3. April 20, 2004 – Custodian’s Agreement to Mediate
4. November 4, 2004 – Statement of Information
5. November 25, 2004 – Letter from Complainant in response to the Statement of Information
6. January 4, 2005 – Letter from Custodian in response to the Complainant’s letter
7. January 12, 2005 – Letter from Complainant in response to GRC staff request for any final submissions
8. January 24, 2005 – Letter from the Custodian’s Counsel in response to the January 12, 2005 submission from the Complainant to the GRC staff

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis that the Custodian and Custodians Counsel has certified that the requested records was not an experiential requirement for those individuals identified in the records request. Therefore, the requested records are exempt from disclosure pursuant to N.J.S.A 47:1A-10.

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

January 31, 2005

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Interim Decision on Access

At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the April 30, 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.  Therefore, the Council hereby finds that the Council and GRC staff will forego adjudicatory action in the case pending the outcome of mediation. 

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

Relevant Records Requested:

1. Proof of Valid Driver’s License (not number)
2. Employment Application

Request Made:  January & February 2004
Response Made: Not Listed
Custodian: Marc Schaeffer
GRC Complaint filed:   April 19, 2004

Acting Executive Director’s Findings and Recommendation

The requestor and the custodian voluntarily signed Agreements to Mediate on April 20 and April 29, 2004. Based on same, the Executive Director respectfully recommends that the Council and GRC staff forego any adjudicatory action pending the outcome of mediation.

Legal Analysis

Pursuant to N.J.S.A. 47:1A-7(b), there is no further legal analysis at this time.

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

• 4/20/04 – Custodian’s signed mediation agreement
• 4/29/04 – Complainant’s signed mediation agreement

Paul F. Dice, Executive Director
Government Records Council

April 30, 2004

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