2004-60

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 4, 2005 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’s certifications met the burden of proving that pursuant to HIPAA and Executive Order 26, paragraph 4 the Custodian’s denial of access to the requested records was proper and therefore, cannot be abrogated by the Open Public Records Act.   Additionally, the Custodian certified that the DHS has no records responsive to the Complainant’s request on the “Church of Scientology.”
2. The Department of Human Services’ proposed rule does not fall within the category addressed by Executive Order 21 and thus, provides no justification for the Department of Human Services to not consider the Complainant’s e-mail as a valid OPRA request.  Therefore, the Council’s June 10, 2004 decision stands as written “that the Custodian violated N.J.S.A. 47:1A-5(g) by not recognizing the Complainant’s e-mail as an OPRA request.  However, the action of the Custodian did not unreasonably deny access 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 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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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. Any records of the Complainant,
2. Any records on Mark C. Rathbun and also the name Mark Rothschild,
3. Any records of Scientology or Church of Scientology,
4. Any records on their deceased founder L. Ron Hubbard and
5. Any records on the former President Dwight David Eisenhower

Custodian: Mary Monteschio, Department of Human Services Custodian
Request Made: January 14, 2004
Response Made: January 15, 2004 (initial response requesting the Complainant file a request on the Dept. of Human Services’ OPRA form),January 20, 2004 (follow-up response to request) and February 27, 2004 (final response to request)
GRC Complaint Filed: May 3, 2004

Background

At the June 10, 2004 public meeting, the Government Records Council (“Council”) issued the following interim decision:

1. The Custodian is to provide a detailed explanation for each record not disclosed in whole or in part and the legal basis supporting the exemption under the Health Insurance Portability and Accountability Act (HIPAA) and the Open Public Records Act (OPRA).  The written explanation is to be provided to the Executive Director within five (5) business days after receipt of the Council’s Interim Decision.
2. The Custodian incorrectly used Executive Order 21, paragraph 3 as a basis for denying access since Executive Order 26 rescinded paragraph 3 of that Order.
3. The Custodian violated N.J.S.A. 47:1A-5(g) by not recognizing the Complainant’s e-mail as an OPRA request.  However, the action of the Custodian did not unreasonably deny access under the totality of the circumstances.

Public Agency

In response to the Council’s Interim Decision, the Custodian submitted a June 16, 2004 certification and two additional supplemental certifications dated July 19, 2004 and January 31, 2005 to the Government Records Council.  Further, on July 13, 2004 the Custodian’s Counsel provided a copy of the February 27, 2004 written response to the Complainant’s request that explained the basis for the denial of access concerning the specific identified individuals and that the DHS had no records regarding the “Church of Scientology.”  In the certifications, the Custodian addresses the confidentiality of the information sought concerning the specific identified individuals in the request and the basis of their position concerning HIPAA, Executive Orders 21 and 26 as a defense in the subject case.  The Custodian’s explanation is provided below:

1. The Custodian states that the DHS is regulated by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and other State laws and, as such, must ensure the confidentiality of its records in accordance with said laws, as it provides health insurance and is a health care provider to the Divisions it services.  The Custodian cites 45 CFR 164.502(a) of HIPAA and asserts, “none of the permitted or required reasons for disclosure pursuant to HIPAA includes disclosure for public information reasons.”  The Custodian cited various State Laws and contends that they confer a “stricter” responsibility on the DHS to ensure the confidentiality of information maintained on individuals:

   The Custodian contends that HIPAA and “many of these [above and other laws]  laws mandate that the DHS cannot provide information about whether an individual is a client of the DHS or one of its divisions, as that information would divulge confidential information about the individual.

   In the certification, the Custodian also addressed each named individual in the request and explained that under section 164.514(b)(2)(i) of HIPAA, their agency as a whole was required to keep confidential the records of individuals including the individual’s name.  The Custodian also cites Executive Order 26, paragraph 4(b) stating that the records maintained by the Department of Human Services concerns health information and therefore, said information is not a government record under OPRA.

   In the January 31, 2005 certification, the Custodian maintains that all the divisions under the DHS “handle medical information and, therefore, all divisions of the DHS are covered by HIPAA and Executive Order 26, paragraph 4. 

2. In responding to item “3” of the Council’s Interim Decision, the Custodian seeks reconsideration of the Council’s decision and asserts that Executive Order 21, paragraph 4, is applicable based on a Department of Human Services proposed rule published in the New Jersey Register July 1, 2002, in section 10:1B-1.3(a), stating “all requests for access to government records pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented, held or controlled by the Department of Human Services or a division or agency thereof, shall be in writing on a form approved by the Department.”  The custodian asserts that they did not violate N.J.S.A. 47:1A-5(g) when it required the Complainant to submit their request on the DHS request form.

Complainant:

Subsequent to the Council’s Interim Decision, the Complainant submitted an e-mail to Government Records Council on July 27, 2004 in reply to the Custodian’s June 16, 2004 and July 19, 2004 certifications.  In the Complainant’s e-mail, she re-states her original request for records and asserts that the Custodian misspelled “Mark Rathbun” in the certification.  Additionally, she disagrees that the Department of Human Services (DHS) has no records on “Scientology or Church of Scientology.”

Analysis

WHETHER the Custodian of Records for the DHS has met the burden of proving the denial of access was proper under OPRA pursuant to HIPAA and Executive Order 26, paragraph 4.

In any denial of access to an OPRA request, the custodian has the burden to prove that OPRA or other law authorizes the denial of access.   OPRA states in relevant part: 

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 provisions of this act, P.L.2001, c.404 (C.47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order. N.J.S.A. 47:1A-9(a)

The Custodian cites the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Executive Order 26, paragraph 4 as the basis for the denial of access.  HIPAA provides that “[a] covered entity may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter.” 45 CFR 164.502(a) and 164.514(b)(2)(i).

Executive Order 26, paragraph 4(b) states in relevant part:

b.  Information concerning individuals as follows:

1. Information relating to medical, psychiatric or psychological history, diagnosis, treatment, evaluation;~

The Custodian’s certifications submitted on June 16 and July 19, 2004 explained the specific provisions of HIPAA that precludes DHS from disclosing to the public records of individuals including the names of individuals.  In addition, Executive Order provides that records containing information about an individual’s “medical, psychiatric or psychological history” is not a public record subject to public access.  However, it was not clear from these two certifications whether all divisions and areas of DHS were covered under HIPAA and Executive Order 26.  The Custodian has now explained in a supplemental certification dated January 31, 2005 that all the divisions of DHS “handle medical information” and therefore, are covered entities under HIPAA and Executive Order 26. 

The Custodian has met the burden of proving that pursuant to HIPAA and Executive Order 26, paragraph 4 the Custodian’s denial of access to the requested records was proper and therefore, cannot be abrogated by the Open Public Records Act.   Additionally, in the previous certifications, the Custodian states that the DHS has no records responsive to the Complainant’s request on the “Church of Scientology.” The Council should, therefore, find that access was properly withheld and that there were no records responsive to the OPRA request on the “Church of Scientology.”

WHETHER the DHS’s pending regulation provided a basis to deny the e-mail request from the Complainant because it was not on the DHS’s approved OPRA form.

Under OPRA, a request for records shall be in writing.  N.J.S.A. 47:1A-5(g) states in relevant part:

“A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted, electronically, or otherwise conveyed to the appropriate custodian.” 

The DHS asserts that the pending regulation requires that an OPRA request must be submitted on an approved form.  The referenced DHS pending regulation is   10:1B-1.3(a) and states:

“All requests for access to government records pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented, held or controlled by the Department of Human Services or a division or agency thereof, shall be in writing on a form approved by the Department.”

The DHS cites Executive Order 21, Section 4 as the basis for enforcing said pending regulation.  Executive Order 21, Section four, reads as follows: 

 “[i]n light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records request in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order.  Once those regulations have been adopted, they shall govern all government records requests filed thereafter.” (emphasis added)

Executive Order 21 is applicable in instances where the proposed rules are exempting certain government records from public disclosure.  In this case, the proposed rule referenced by the DHS does not address whether certain government records should be exempted from public disclosure.  The proposed rule deals only with how a request for records shall be made.  Thus, the DHS’s proposed rule does not fall within the category addressed by Executive Order 21 and does not justify the DHS’s not considering the Complainant’s e-mail as a valid OPRA request.   Further, the Council has determined in a previous decision, a request for access to a government record need only be in writing and an e-mail request meets the provisions of N.J.S.A. 47:1A-1 et seq.  See Wilcox v. Township of West Caldwell, GRC No. 2004-28.

The Council should, therefore, maintain that the Council’s June 10, 2004 decision should stand.

Documents Reviewed

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

1. June 10, 2004 - Interim Decision
2. June 18, 2004 – Custodian’s Certification in response to Interim Decision
3. July 6, 2004 – GRC E-mail to Custodian and Counsel a clarification/explanation for denying documents requested
4. July 12, 2004 – Supplemental Certification from Custodian
5. July 13, 2004 – Copy of Custodian’s response to Complainant on February 27, 2004
6. July 27, 2004 – Complainant’s response to Custodian’s Certifications
7. January 24, 2004 – E-mail request to Custodian’s Counsel for a clarifying certification
8. January 31, 2005 – Custodian’s Supplemental Certification

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council should dismiss the case on the basis of:

1. The Custodian’s certifications met the burden of proving that pursuant to HIPAA and Executive Order 26, paragraph 4 the Custodian’s denial of access to the requested records was proper and therefore, cannot be abrogated by the Open Public Records Act.   Additionally, the Custodian certifies that the DHS has no records responsive to the Complainant’s request on the “Church of Scientology.”
2. The Department of Human Services’ proposed rule does not fall within the category addressed by Executive Order 21.  Therefore, Executive Order 21 provides no justification for the Department of Human Services to not consider the Complainant’s e-mail as a valid OPRA request.  The Council’s June 10, 2004 decision should stand as written “that the Custodian violated N.J.S.A. 47:1A-5(g) by not recognizing the Complainant’s e-mail as an OPRA request.  However, the action of the Custodian did not unreasonably deny access under the totality of the circumstances.”

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

February 4, 2005

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Interim Decision on Access

Barbara Schwarz,                                                         Complaint No. 2004-60
Complainant
v.
New Jersey Department of Human Services,
Custodian of Record

At the June 10, 2004 public meeting, the Government Records Council (“Council”) considered the June 4, 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 orders that:

1. The Custodian is to provide a detailed explanation for each record not disclosed in whole or in part and the legal basis supporting the exemption under HIPAA and OPRA.  The written explanation is to be provided to the Executive Director within five (5) business days after receipt of the Council’s Interim Decision.
2. The Custodian incorrectly used Executive Order 21, paragraph 3 as a basis for denying access since Executive Order 26 rescinded paragraph 3 of that Order.
3. The Custodian violated N.J.S.A. 47:1A-5(g) by not recognizing the Complainant’s email as an OPRA request.  However, the action of the Custodian did not unreasonably deny access under the totality of the circumstances.

Interim 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

Relevant Records Requested: Any records of the Complainant, any records on Mark C. Rathbun and also the name Mark Rothschild, any records of Scientology or Church of Scientology, any records on their deceased founder L. Ron Hubbard and any records on the former President Dwight David Eisenhower
Custodian: Mary Monteschio, Department of Human Services Custodian
Request Made: January 14, 2004
Response Made: January 15, 2004 (initial response requesting the Complainant file a request on the Dept. of Human Services’ OPRA form ), January 20, 2004 (follow-up response to request) and February 27, 2004 (final response to request)
GRC Complaint Filed: May 3, 2004

Recommendations of Executive Director

The Complainant filed a Denial of Access complaint on May 3, 2004 asserting that an OPRA request made on January 14, 2004 by email to the New Jersey Department of Human Services (DHS) remains unfulfilled.  The request was for the Complainant’s own records, any records on Mark C. Rathbun and also the name Mark Rothschild, any records of Scientology or Church of Scientology, any records on their deceased founder L. Ron Hubbard and any records on the former President Dwight D. Eisenhower. 

On January 15, 2004, the Custodian responded and required the Complainant to fill out and mail into the DHS an OPRA request form pursuant to Governor McGreevey’s Executive Order 21, paragraph 4.  According to the Custodian, the DHS does not accept email OPRA requests.  Email correspondences continued after January 15, 2004 and on January 20, 2004, the Custodian again indicated that an OPRA request form was required and also denied the Complainant access to the requested information.  In this response, the Custodian stated that the DHS could not provide any information about persons who receive services from the Department.

Following further email exchanges between both parties, the Custodian accepted Ms. Schwarz’s email as an OPRA request on Friday, February 20, 2004. 

The Custodian denied the request in its entirety on Friday, February 27, 2004.  The Custodian certified that the request for personnel information was denied under the Health Insurance Portability and Accountability Act of 1996 (PL 104-91) (HIPAA) and its regulations (45 CFR Parts 160 and 164) and Governor McGreevey’s Executive Order 21, paragraph 3.  The Custodian contends that HIPPA covers the confidentiality of documents regarding all people who receive services from the Department of Human Services.  Therefore, HIPPA insures the confidentiality of health records; and DHS provides health insurance and direct health services to clients.  

In addition, the Custodian denied the portion of the request for documents relating to the Church of Scientology certifying that the DHS does not “make, maintain, or keep on file” documents regarding the Church of Scientology. 

The Executive Director respectfully recommends that the Council find that:

1. The Custodian shall explain in detail for each record not disclosed in whole or in part the legal basis supporting the exemption under HIPAA and OPRA.  The written explanation is to be provided to the Executive Director within five (5) business days after receipt of the Council’s decision.
2. The Custodian incorrectly used Executive Order 21, paragraph 3 as evidence for denying access since this section of the Order was rescinded in Governor McGreevey’s Executive Order 26.
3. The Custodian violated N.J.S.A. 47:1A-5(g) by not recognizing the Complainant’s email as an OPRA request.  However, the action of the Custodian did not unreasonably deny access under the totality of the circumstances.

Analysis

The Custodian denied the Complainant’s January 14, 2004 email request on January 15, 2004 stating that pursuant to Governor McGreevey’s Executive Order 21, paragraph 4, the DHS does not accept emailed requests.  This portion of the Order reads as the following:

“In light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by those proposed rules that are exempt from disclosure by this Order.  Once those regulations have been adopted, they shall govern all government records requests filed thereafter.” 

The Custodian incorrectly applied Executive Order 21 as it does not address what constitutes a proper OPRA request.  The Complainant satisfied the OPRA requirement by submitting a written request via email pursuant to N.J.S.A. 47:1A-5(g).  OPRA does not require that a request be submitted on the Custodian’s OPRA form.  While the Custodian did not accept the Complainant’s email request until February 20, 2004, the Custodian did respond to the initial email request on January 15, 2004 and again on January 20, 2004 with a denial of access response.   

On February 27, 2004, the Custodian denied once again the request in its entirety.  The Custodian certified that the request for personnel information was denied under the Health Insurance Portability and Accountability Act of 1996 (PL 104-91) (HIPAA) and its regulations (45 CFR Parts 160 and 164) and Governor McGreevey’s Executive Order 21, paragraph 3.  The Custodian explains that HIPAA insures the confidentiality of health records and covers the confidentiality of documents regarding all people who receive services through the Department of Human Services.  The Custodian has failed to explain with specificity the legal basis for the claimed non-disclosure of documents under HIPAA.  The Custodian maintains the burden of proof that denial of access is authorized under law pursuant to N.J.S.A. 47:1A-6.    

In regards to Governor McGreevey’s Executive Order 21, paragraph 3, this Order reads as the following:   

“In order to effectuate the legislative directive that a public governmental agency has the responsibility and the obligation to safeguard from public access a citizen's personal information with which it has been entrusted, an individual's home address and home telephone number, as well as his or her social security number, shall not be disclosed by a public agency at any level of government to anyone other than a person duly authorized by this State or the United States, except as otherwise provided by law, when essential to the performance of official duties, or when authorized by a person in interest. Moreover, no public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing, and thereafter in the case of unsuccessful candidates.”

Although the Custodian used this Order as supportive evidence against disclosure, this section of Order 21 was rescinded in Governor McGreevey’s Executive Order 26.

In addition, the Custodian denied access to a portion of the records pertaining to the Church of Scientology.  Regarding this part of the request, the Custodian certified that the DHS does not “make, maintain, or keep on file” documents regarding the Church of Scientology.  This certification references N.J.S.A. 47:1A-1.1 which states the following:

“Government record" or "record" means 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 by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received 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. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.”

Records Reviewed

• May 3, 2004 – Denial of Access Complaint submitted to GRC with Supplemental
• May 10, 2004 – Mediation sent to both parties
• May 11, 2004 – Custodian’s Counsel declined mediation
• May 14, 2004 – Statement of Information sent to Custodian’s Counsel
• May 14, 2004 – Email Correspondences between GRC staff and Complainant
• May 18, 2004 – Email Correspondences between GRC staff and Complainant
• May 25, 2004 – Statement of Information submitted to GRC

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

June 2, 2004

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