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2004-68
Administrative Case Disposition – Withdrawal from OALGRC Complaint No: 2004-68Complainant: Jeffrey Sauter Custodian: Township of Colts Neck - Robert Bowden, Custodian Date of Request: February 24, 2004 Date of Complaint: May 19, 2004 Case Disposition: Type of Administrative Disposition: Complainant’s written withdrawal from OAL dated December 9, 2005. Effective Date of Disposition: January 27, 2006 Prepared By: Colleen McGann, Case Manager Approved By Executive Director: Paul Dice Date: January 19, 2006 Interim Decision on Access
At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Executive Director’s Supplemental 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 Custodian complied with the August 11, 2005 Interim Decision by providing the Complainant with the redacted records within ten (10) days of receipt of the decision. Decision Distribution Date: September 19, 2005 Supplemental Findings and Recommendations of the Executive DirectorJeffrey Sauter GRC Complaint No. 2004-68Complainant v. Township of Colts Neck Custodian of Records Records Requested:
Request Made: February 24, 2004 Background August 11, 2005 Interim Decision on Access. At its August 11, 2005 public meeting, the Council conducted an in camera inspection of the following un-redacted documents for a determination on access in the Complainant’s Open Public Records Act (OPRA) request:
After completing the in camera review of the un-redacted documents listed directly above in Closed Session, the Council concluded by a majority vote that Documents 1, 3 and 4 above were disclosable with the redaction of all information except the name, title and position of the police chief pursuant to N.J.S.A. 47:1A-10 and Executive Order 11, and Document 2 was not disclosable pursuant to N.J.S.A. 47:1A-1.1 under the exemption for attorney-client privilege. Compliance with the Council’s decision was required within ten (10) business days from receipt of the Council’s decision. The Custodian was to confirm to Executive Director Paul Dice that said document was released to the Complainant within the specified time period. At the August 11, 2005 public meeting, the Council also considered the July 28, 2005 Certification of the Custodian that stated there were no further documents in the possession of the Colts Neck Fire Department responsive to the request. The Council voted unanimously to accept the certification of the Custodian and found that there was no unlawful denial of access under the OPRA. August 19, 2005 Letter from the Custodian’s Counsel to the Complainant. The Custodian’s counsel released the documents to the Complainant with appropriate redactions to all information except for the name, title and position of the former fire chief. Analysis WHETHER the Custodian has complied with the Government Records Council’s August 11, 2005 Interim Decision? Based on the August 19, 2005 letter sent to the Complainant and copied to the Council, the Custodian has complied with the Council’s August 11, 2005 decision. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that the Custodian has complied with the August 11, 2005 Interim Decision by providing the Complainant with the redacted records within ten (10) days of receipt of the decision. Prepared By: Colleen McGann Approved By: September 2, 2005 [1] As stated in the Denial of Access Complaint Interim Decision on Access
At its August 11, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the following un-redacted documents for a determination on access in the Complainant’s OPRA request:
The Council conducted said review as concluded in their July 14, 2005 Interim Decision and pursuant to the provisions of N.J.S.A. 47:1A-7(c). Present during the in camera review were: Council Members: Mitchell Fishman Government Records Staff: Paul Dice, Executive Director Deputy Attorney General: Debra Allen After completing the in camera review of the un-redacted documents listed directly above in Closed Session, the Council concluded by a majority vote that Documents 1, 3 and 4 above are disclosable with the redaction of all information except the name, title and position of the police chief pursuant to N.J.S.A. 47:1A-10 and Executive Order 11, and Document 2 is not disclosable pursuant to N.J.S.A. 47:1A-1.1 under the exemption for attorney-client privilege. The Custodian shall disclose the requested documents 1, 3 and 4 above with appropriate redactions within ten (10) business days from receipt of the Council’s decision. The Custodian is to confirm to Executive Director Paul Dice that said document was released to the Complainant within the specified time period. At the August 11, 2005 public meeting, the Council also considered the July 28, 2005 Certification of the Custodian that stated there are no further documents in the possession of the Colts Neck Fire Department responsive to the request. The Council voted unanimously to accept the certification of the Custodian and finds that there was no unlawful denial of access under the Open Public Records Act. Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: August 17, 2005 Interim Decision on Access
At the July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 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 as amended. Therefore, the Council hereby finds that:
Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. DeAnna Minus-Vincent, Secretary Decision Distribution Date: July 21, 2005 Supplemental Findings and Recommendations of the Executive DirectorJeffrey Sauter GRC Complaint No. 2004-68Complainant v. Township of Colts Neck Custodian of Records Records Requested:
Request Made: February 24, 2004 Background May 12,
2005
May 25, 2005 The Custodian, after speaking with the Complainant in April 2004, contacted; (1)the Chief Financial Officer for copies of any bills paid for the repair of the Fire Chief’s vehicle resulting from the accident in April 2001; and (2)the Township attorney and Fire Chief for records relative to any disciplinary action taken against former Fire Chief Piotrowski. The Custodian asserts these records were archived, resulting in further delay in access. After receiving the GRC Complaint on May 20, 2004 the Custodian initiated three calls to the Complainant, one on May 21, 2004 and two on May 26, 2004. The Custodian then gave those requested documents that could be released to the Complainant’s brother Kevin Sauter for delivery to the Complainant and left a message on May 27, 2004 for the Complainant indicating that the requested documents had been given to his brother. A follow up letter was sent to the Complainant on June 1, 2004 stating, “he should have the requested information in his possession and further explaining that [the Custodian] believed some of the documents to be exempt from disclosure.” On or about November 9, 2004, another document thought to be non-disclosable was released to the Complainant on advice from the Township attorney. The Custodian certified that there are no further records responsive to the request other than those records claimed to be exempt from access for the following reasons:
June 3, 2005 The Complainant goes on to state that pursuant to OPRA, the municipal clerk is the Records Custodian for the Township. The Custodian filed his request away after forwarding it on to other township officials. The Complainant asserts this and the failure by the Custodian to follow up on the request is evidence of a knowing and willful violation of the law. The Complainant notes that the Custodian fails to mention in the certification that a follow-up letter was sent to the Custodian on April 13, 2004 inquiring about the status of the February 24 request and no response was received. The Complainant states that the Custodian did not acknowledge his request until they met up in town hall on April 20, 2004 and the Complainant again inquired about his request. Still no records were received and so on May 20, 2004 the Complainant filed a Denial of Access Complaint with the GRC. “It was not until this formal complaint was made did [the Custodian] finally make an effort to contact [the Complainant] on Friday May 21, 2004.” The Complainant states that while the Custodian states that he went to the Fire House to expedite the delivery of the documents, the Complainant questions the Custodian’s truthfulness in this statement. The Complainant states that the Custodian was aware that the Complainant had been suspended from duty and was not permitted in the Fire House at that time. The Complainant asserts that since the Custodian was aware that the Complainant would not be at the Fire House, the attempt to deliver documents to him at the Fire House was a knowing and willful attempt to further delay releasing the documents. In his submission to the GRC the Complainant attached a copy of the letter advising the Custodian of the suspension. The Complainant asserts that if the Custodian were truly attempting to expedite the delivery, he could have delivered the documents to the Complainant’s home, no more than 300 yards from the fire house. The Custodian states he gave the documents to the Complainant’s brother, Chief Sauter to expedite their delivery but the Complainant does not believe that the reason was to expedite the process. The Complainant alleges the Custodian gave the documents to the Complainant’s brother in the hope that he would attempt to convince the Complainant to drop the case with the GRC. The Complainant did not receive the documents delivered to his brother for another 30 days due to a traffic accident that prevented the documents from being retrieved from his brother’s vehicle until a later date. The Complainant states that he has received no documents or itemized list of exemptions for any documents in possession of the Fire Department. The Complainant asserts that the Custodian has knowingly and willfully violated OPRA in his untimely access to records, denial of access and goes on to state that the Custodian, “did not want to disclose the documents due to pending litigation [Sauter v. Township of Colts Neck et al., Docket No. MON-L-3158-04].” June 21, 2005 The Custodian’s counsel contends that the Custodian forwarded the request to those officials who may have records responsive and never knowingly filed away the request for records or purposefully failed to follow up. The Custodian’s counsel asserts that the failure to respond within the statutory time period was an oversight and does not rise to the level of knowing and willful that OPRA requires. The Custodian’s counsel states that the decision to deliver the documents to the Complainant’s brother was meant to expedite their delivery and not delay access. The Custodian’s counsel indicates that the Complainant’s brother, the Colts Neck Township Chief of Police, confirmed that the documents had been passed on and the Custodian had no reason to believe that this had not taken place. “[The Custodian] was under the impression, at all times that [the Complainant] was in possession of the documents prior to Chief Sauter’s accident.” The Custodian’s counsel contends that had the Custodian delivered the documents to the Complainant’s residence he could easily have said that he did not receive them. Additionally, the Custodian’s counsel states that the lawsuit filed by the Complainant is not an issue in this case nor was the Custodian attempting to have the Complainant’s brother talk him out of the GRC Complaint. The Custodian’s counsel states that there was no lengthy discussion between the Custodian and the Complainant’s brother regarding the document request. The Custodian’s counsel asserts that those documents for which privilege is being claimed are believed to be exempt from access and the Custodian has always maintained that, should the GRC determine the records should be released, he would do so. The Custodian’s counsel states, “I would think that the Custodian’s desire to comply with the Act’s rules with respect to nondisclosure is commendable.” The Custodian’s counsel asserts that it is the Township’s position that the Custodian did not knowingly and willfully violate the law in the handling of this Complaint and “has attempted, albeit not within the seven day requirement, to comply with [the Complainant’s] request.” June 28, 2005 The Custodian acts as the Townships Administrator and in that capacity directly oversees the Complainant’s brother. The Complainant believes that the Custodian’s involvement of the Chief of Police was intended to “place indirect pressure on [the Complainant] to drop the complaint.” The Complainant states that the involvement of his brother in the request did cause problems between the two and so placed “indirect pressure” on the Complainant to drop the complaint. The Complainant contends the Custodian could have easily hand-delivered the documents or sent then via certified mail to ensure the receipt of the documents. The Complainant states that the Custodian’s actions rise above the level of negligence and should be treated as a knowing and willful violation of OPRA. Three letters, a verbal conversation, a Complaint and 17 months have passed and the Complainant is still attempting to obtain the records he requested. The Complainant alleges the Custodian intended to withhold the documents and made efforts to avoid disclosure. June 29,
2005 Analysis WHETHER the Custodian has met the burden of proving the records requested are exempt from access pursuant to N.J.S.A. 47:1A-1 et. seq.? The Open Public Records Act places the onus on the Custodian to prove a denial of access is permissible under the law. Specifically, OPRA states: “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 Custodian asserts that the requested records are privileged as personnel records under N.J.S.A. 47:1A-10 and Executive Order 11, Section 2, as well as attorney-client privilege. While the Custodian has complied with the Council’s May 12, 2005 Interim Decision in providing a certification explaining the claimed exemption for each document the information provided is insufficient to determine whether the requested documents fall under the exemptions claimed. Additionally, the Custodian has not certified as to the existence of documents in the possession of the Fire Department. While the GRC staff has received a letter from the Fire Chief stating that there are no other documents responsive to the request this information has not been provided in the form of a certification. Therefore the Custodian should provide the requested documents for an in camera inspection by the Government Records Council to determine what documents, if any, remain to be released to the Complainant. The Custodian must also provide a certification regarding the existence of documents in the possession of the Fire Department. WHETHER the Custodian’s failure to provide the Complainant written notification of the delay in access and untimely response rises to the level of a knowing and willful violation of OPRA under the totality of the circumstances? The Open Public Records Act (OPRA) provides for “immediate access” to bills. Specifically, OPRA states: “Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.” (emphasis added) N.J.S.A. 47:1A-5(e). OPRA mandates that a Custodian must grant access to requested records within seven days of receipt of the request. N.J.S.A. 47:1A-5(i) explicitly states: “…In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor...” N.J.S.A. 47:1A-5(i). If a Custodian is unable to comply within seven days it is required that the Complainant be given a reason for the delay. OPRA states: “…If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor...” N.J.S.A. 47:1A-5(g). OPRA states; “A public official, officer, employee or custodian who knowingly and willfully violates P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…” N.J.S.A. 47:1A-11(a). At its May 12, 2005 public meeting, the Government Records Council found that the Custodian did violate N.J.S.A. 47:1A-5(e) by not providing the Complainant immediate access to the requested bills, N.J.S.A. 47:1A-5(i) in not releasing those documents responsive to the request within the statutorily required seven business days and N.J.S.A. 47:1A-5(g) in not promptly notifying the Complainant in writing of the reasons for the denial. The Custodian certified that he did not intentionally neglect to respond to the request. He asserts that he forwarded copies of the request to the Chief of Police, the Fire Chief and the Township attorney, “thinking the requested information would be forwarded to [the Complainant] by the Chief of Police and the Fire Chief.” The Complainant alleges the Custodian intended to withhold the documents and made efforts to avoid disclosure. Due to the contested facts surrounding this case, it is recommended that the case be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends that the Council:
Prepared By: Colleen McGann, Case Manager Approved By: July 8, 2005 [1] As stated in the Denial of Access Complaint Interim Decision on Access
At the May 12, 2005 public meeting, the Government Records Council (“Council”) considered the May 6, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. By a majority vote, the Council adopted the entirety of said findings and recommendations. Therefore, the Council finds that:
Interim Decision Rendered by the Diane Schonyers, I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: May 18, 2005 Findings and Recommendations of the Executive DirectorJeffrey Sauter GRC Complaint No. 2004-68Complainant v. Township of Colts Neck Custodian of Records Records Requested:
Request Made: February 24, 2004 Background February 24, 2004 February 25, 2004 April 13, 2004 April 21, 2004 May 11, 2004 May 19, 2004 May 19, 2004 Complainant’s Denial of Access Complaint. Complainant filed a Denial of Access complaint alleging a denial of access to government records with the following attachments:
The Complainant states that he never received a response to the February 24, 2005 request for records. He did receive police reports pursuant to the November 22, 2003 request listed above. May 26, 2004 May 27, 2004 June 1, 2004 June 1, 2005 June 17, 2004 July 8, 2004 December 27, 2004 January 7, 2005
The Custodian states that it is his position that the Township has released to the Complainant all of the documents to which he is entitled under OPRA. The Complainant was given the former Fire Chief’s letter of resignation indicating the date of separation, as well as financial documents related to the repair of the Fire Chief’s vehicle. The Complainant is seeking documents related to a disciplinary action. Those documents not yet released are exempt from access as personnel records under N.J.S.A. 47:1A-10. Additionally, any documents representing communication “between the Township and its own attorneys or those between the Township attorneys and legal representatives for other parties” are not subject to disclosure due to attorney-client privilege as stated in N.J.S.A. 47:1A-1.1 and GRC 2003-142, Wilcox v. Township of West Caldwell. January 30, 2005
The Complainant confirms that he has received the accident report, resignation letter and legal letter from Scott Eskwitt, Esq. The Complainant questions which documents the Custodian was asserting a privilege under Executive Order 11 as he alleges he was only aware of 2 of the documents mentioned as not disclosed in the Statement of Information. The Complainant asks that the Government Records Council review the documents and determine which are and are not disclosable. The Complainant never received the documents requested from the Fire Department and promised in the September 15, 2004 letter from the Custodian’s counsel to the Complainant. Additionally the Complainant has not been informed, “according to law what documents they have in their possession and why they would not be provided.” The Complainant alleges the Fire Department is withholding records. The Complainant raises the issue of timeliness. He did not receive a response to his request until June 1, 2005, more than 3 months after his request was made. After 3 written inquiries and 1 verbal discussion, nothing was given to the Complainant, nor was he made aware of the reasons for a denial or delay in access. Only after submission of the Denial of Access Complaint did the Custodian attempt to make contact with the Complainant, via telephone on 4 occasions. The final message left on May 27, 2004 instructing the Complainant to “return his call and to advise that (1) (The Custodian) left copies of certain documents with the Police Chief to expedite the documents to (the Complainant’s) attention, (2) wanted me to participate in mediation to hopefully resolve the Complaint and (3) was not sure if I was entitled to other personnel information which was ‘very limited anyway.’” Around July 2, 2004, the Complainant did receive some documents responsive to the request. The Complainant asserts that the actions of the Custodian in delaying access and withholding documents are evidence of a knowing and willful violation of the law. February 10, 2005 February 28, 2005 April 14, 2005 April 14, 2005
April 18, 2005 April 27, 2005
The Custodian certifies that sometime in April he spoke with the Complainant about his request, apologizing for the delay in response and advising that he would locate the documents as soon as possible. On June 1, 2004, the Custodian provided the Complainant with a copy of the former Fire Chief’s resignation, as well as copies of an estimate of repair for the Fire Chief’s vehicle and a copy of the invoice. On September 15, 2004 in a letter submitted to the Complainant, the Custodian indicated that other documents including a grievance letter concerning Chief Piotrowski were claimed exempt as personnel records pursuant to Executive Order 11, Section 2 and should these other documents be deemed public by the GRC, they would be immediately released. In the same correspondence it was relayed to the Complainant that “several letters from the attorney for the Township of Colts Neck directed to the Township and directed to Mr. Piotrowski’s counsel, as well as a letter from Mr. Piotrowski’s counsel to the Township Attorney are exempt under attorney-client privilege, N.J.S.A. 47:1A-1.1. On November 19, 2004, the Complainant was given the letter from Mr. Scott Eskwitt, Esq. after the Township Attorney determined it was disclosable. Moreover, the Complainant was informed that the Township does not maintain the disciplinary records of members of the Fire Department and that he would have to contact the Executive Fire council, the Fire Department, or the individual fire companies for those records. Section 10 of the Statement of Information identified what documents were exempt and the specific basis for their exemption. April 30, 2005 May 3, 2005 May 3, 2005 May 3, 2005 May 3, 2005 Analysis Whether the Custodian provided immediate access to the requested bills pursuant to N.J.S.A. 47:1A-5(e)? The Open Public Records Act (OPRA) provides for “immediate access” to bills. Specifically, OPRA states: “Immediate access ordinarily shall be granted to budgets, bills (emphasis added), vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.” N.J.S.A. 47:1A-5(e). The Complainant requested any and all bills associated with the repair of the Fire Chief’s vehicle. The Custodian certified that this information was provided to the Complainant on June 1, 2004. The Complainant was not notified of a reason for the delay in access and the Custodian has not presented a reason for the delay. Therefore, the Custodian did violate N.J.S.A. 47:1A-5(e) by not providing the Complainant immediate access to the requested bills. WHETHER the Custodian responded to the request for disciplinary records within the statutory time period pursuant to OPRA? OPRA mandates that a Custodian must grant access to requested records within seven days of receipt of the request. N.J.S.A. 47:1A-5(i) explicitly states: “In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor.” N.J.S.A. 47:1A-5(i). If a Custodian is unable to comply within seven days it is required that the Complainant be given a reason for the delay. OPRA states: “If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor.” N.J.S.A. 47:1A-5(g). The Complainant asserts that the Custodian did not respond to the OPRA request within seven business days. The Custodian certifies that no contact was made with the Complainant until he “ran into” the Complainant “on or about April, 2004” (approximately two months after the request was made).[4] While the Custodian did speak with the Complainant at a chance meeting on or about April 20, 2004, there is no indication that Complainant received a reason for the delay in access. No written specific basis for a denial of access was given to the Complainant until June 1, 2004 when the Custodian released the resignation letter and bills for the repair of the Fire Chief’s vehicle and asserted that all documents that had not yet been released were not subject to disclosure due to an exemption for personnel records. In light of the fact that the Custodian did not release those documents responsive to the request within the statutorily required seven business days it is found that the Custodian did violate N.J.S.A. 47:1A-5(i). Additionally, the Custodian violated N.J.S.A. 47:1A-5(g) in not promptly notifying the Complainant in writing of the reasons for the denial of access. WHETHER the Custodian’s failure to provide the Complainant written notification of the delay in access and untimely response rises to the level of knowing and willful violations of OPRA under the totality of the circumstances? OPRA provides that: “If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in section 12 of P.L.2001, c.404 (C.47:1A-6).” N.J.S.A. 47:1A-7(e). The Complainant alleges that the Custodian committed knowing and willful violations of OPRA on the basis of the delay in access and untimely response to his request. The Custodian has not provided the Complainant or the GRC staff with a reason for the delay in access. Therefore, the Custodian must certify to the reasons for the delay in access to bills and the lack of timely response to the Complainant’s request for records. WHETHER the Custodian is responsible for the records of the Colts Neck Fire Department? OPRA designates the municipal clerk as the Custodian for a municipality. OPRA provides: "Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be.” N.J.S.A. 47:1A-1.1. The Custodian certified that the Township does not maintain the disciplinary records of members of the Fire Department and that the Complainant was notified of this and told that he would have to contact the Executive Fire Council, the Fire Department or the individual fire companies for those records. Upon further questioning the Custodian’s counsel indicated that Chapter 28 of the Colts Neck Code created the Fire Department and their budgets are submitted to and paid for by the Township. Thus, the Fire Department is part of the municipality. Unless another records Custodian has been appointed by the Fire Department, which, according to the Custodian’s counsel it has not; the municipal clerk is the Records Custodian for the Fire Department. In GRC Case 2003-119, Calogero v. Borough of Emerson, it was found that the municipal clerk, as Custodian for the Borough, is responsible for responding to OPRA requests and/or coordinating responses to said requests. The Custodian shall not place the burden of a request back on the Complainant to contact an individual for their records. That being said, it is the responsibility of the municipal clerk, pursuant to N.J.S.A. 47:1A-1.1 to respond to the request and obtain any records responsive held by the Fire Department necessary to fulfill the records request. WHETHER the Custodian lawfully denied access to records pursuant to N.J.S.A. 47:1A-1.1 et. seq.? OPRA exempts from public access certain individual personnel records. Specifically, N.J.S.A. 47:1A-10 states: “Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) or any other law to the contrary, 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:
The Complainant alleges that the Custodian is unlawfully withholding records responsive to his request. The Custodian asserts that the undisclosed records fall under an exemption to disclosure as attorney-client privilege and/or an exemption for personnel records under Executive Order 11, Section 2. The documents claimed exempt under both the attorney-client privilege and Executive Order 11, Section 2 that have not been released are several letters from the Township counsel directed to the Township and the former Fire Chief’s counsel as well as a letter from the former Fire Chief’s counsel, to the Township counsel. The Custodian claims the above exemptions for the following documents:
OPRA places the responsibility for proving a claimed exemption on the Custodian. N.J.S.A. 47:1A-6 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 Custodian has provided that the requested records are exempt from disclosure pursuant to Executive Order 11, Section 2 and attorney-client privilege. The Custodian has not, however, indicated the specific exemption for each document and it is not clear to which document the Custodian is claiming exemptions. The Custodian’s Council has not met the burden of proving that the denial of access to the redacted information was authorized by law pursuant to N.J.S.A.47:1A-6. There is insufficient information provided by the Custodian’s Counsel to determine whether each document falls within one of the asserted privileges. Therefore, the Council should order the Custodian to provide an itemized list of all documents for which the Township is claiming an exemption, including any documents maintained by the Colts Neck, with a general nature description for each document, identification of the asserted privilege for each individual document, and the basis for same. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Colleen McGann, Case Manager Approved By: May 6, 2005 [1] As stated in the Denial of Access Complaint Interim Decision on Access
At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 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. The Council hereby finds that the Government Records Council and staff will forgo adjudicatory action in this case pending the outcome of mediation. Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Findings and Recommendations of the Executive DirectorJeffrey Sauter GRC Complaint No. 2004-68Complainant v. Township of Colts Neck Custodian of Records Relevant Records Requested: Copies any and all vouchers, invoices, checks etc. for the repair of the Colts Neck Township Fire Chief’s Vehicle and copies of any and all disciplinary records or any action taken against ex-fire chief as a result of the motor vehicle violations. Request Made: 3/24/2004 Executive Director’s Recommendations The Complainant and the Custodian voluntarily signed Agreements to Mediate on June 1 and May 27, 2004, respectively. The Executive Director respectfully recommends that the Council forego adjudicatory action pending the outcome of mediation. Legal Analysis Pursuant to N.J.S.A. 47:1A-7 (d), no legal analysis is needed at this time. Documents Reviewed The following documents were reviewed in the preparing the Findings and Recommendations for this case:
_________________________ Paul F. Dice June 30, 2004 |
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