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2005-104
Final Decision
At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 2006 Second 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, finds that based on the February 7, 2006 response to the Council’s Interim Order, the Custodian has complied with the Council’s January 27, 2006 order in disclosing the requested “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey,” except Section 2, Portion "D" and "E" as indicated in the January 19, 2006 In Camera Findings and Recommendations and has appropriately done so within (10) business days from receipt of the Council’s Order. 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. Second Supplemental Findings and Recommendations of the Executive DireJohn McCormack GRC Complaint No. 2005-104Complainant v. NJ Department of Treasury Custodian of Records Records Relevant to Complaint: Copies of all documents (reports, memoranda, e-mails, etc.) written by either Edward Scheingold and/or Linda Hickey arising from a meeting on April 14, 2005 with John McCormack along with copies of the hand-written notes made by Linda Hickey during the meeting. Background January 27, 2006 Government Records Council’s (“Council”) Interim Order. At its January 27, 2006 public meeting, the Council considered the January 19, 2006 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, found that:
February 7, 2005 Custodian’s counsel response to the Council’s Interim Order. The Custodian’s counsel states that the “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey” have been released on behalf of the Custodian pursuant to the Council’s Interim Order. Analysis Whether the Custodian complied with the Council’s January 27, 2006 Interim Order? Based on the February 7, 2006 response to the Council’s Interim Order, the Custodian’s counsel has released the “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey” redacted pursuant to the Council’s Interim Order. Therefore the Custodian has complied with the Council’s January 27, 2006 decision. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that based on the February 7, 2006 response to the Council’s Interim Order, the Custodian has complied with the Council’s January 27, 2006 decision in disclosing the requested “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey,” except Section 2, Portion "D" and "E" as indicated in the January 19, 2006 In Camera Findings and Recommendations and has done so within (10) business days from receipt of the Council’s decision. Prepared By: Colleen McGann, Case Manager Approved By: March 3, 2006 [1] The Denial of Access indicates a Barbara O’Hare however; Maureen Adams is listed on the Statement of Information as the Records Custodian for the Division of Taxation. Second Interim Order
At the January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 2006 Executive Director’s In Camera Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said in camera findings and recommendations. Therefore, the Council hereby finds that:
Interim Order Rendered by the Decision Distribution Date: February 7, 2006 In Camera Findings and Recommendations of the Executive DirectorJohn McCormack GRC Complaint No. 2005-104Complainant v. NJ Department of Treasury, Custodian of Records Records Requested: Background December 8, 2005
December 14, 2005 December 22, 2005
The Custodian certifies that the two (2) memoranda from April 15, 2005 responsive to the Complainant’s request were released to the Complainant on December 22, 2005 pursuant to the Council’s December 8, 2005 Interim Decision. The Custodian also certifies that the index and the handwritten notes provided are the documents requested by the Council for in camera inspection. The Custodian’s certified index indicates that the requested “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey” are exempt from access pursuant to N.J.S.A. 47:1A-10 because the handwritten notes were taken in a meeting held to discuss the employee’s behavior and dealt with the same substance as if a grievance had been filed but only differs because a more informal procedure of a warning was initiated. Analysis After completing the in camera inspection of the unredacted document in closed session, the Council should order that the Custodian disclose the requested “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey,” except the information as specifically set forth on page “3” of this document, which is exempt from disclosure as “personnel” pursuant to N.J.S.A. 47:1A-10. Handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey The “handwritten notes taken of meeting between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda Hickey” consist of one (1) total page. Page 1:[3] Section 1) Disclosable Section 2)
Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Colleen McGann, Case Manager Approved By: January 19, 2006 [1] As stated in the Complainant’s Denial of Access Complaint. Interim Order
At the December 8, 2005 public meeting, the Government Records Council (“Council”) considered the December 2, 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. Therefore, the Council hereby finds that:
Interim Order Rendered by the Decision Distribution Date: December 14, 2005 Findings and Recommendations of Executive DirectorJohn McCormack GRC Complaint No. 2005-104Complainant v. NJ Department of Treasury, Custodian of Records Records Requested:
Custodian: Maureen Adams, Esq.[1] Background April 22, 2005 Complainant’s written Open Public Records Act (OPRA) request. The Complainant is requesting all reports, memoranda, e-mails, etc. concerning an April 14, 2005 meeting.[2] May 3, 2005 Letter from Barbara O’Hare, Manager of the Government Records Access Unit to the Complainant, “Reference: W14431.” Ms. O’Hare indicates the requested records are not government records subject to disclosure because they are “intra-agency advisory, consultative, or deliberative material [ACD].” Ms. O’Hare adds that in addition to the exemption for advisory, consultative, or deliberative material (ACD) all documents relating to this proposed change are also exempt under the OPRA as personnel records because they relate to workplace behavior. Ms. O’Hare also states that a privilege log is forthcoming within five (5) business days. May 6, 2005 Complainant’s Denial of Access Complaint with the following attachments:
The Complainant does not feel that the Custodian’s Denial of Access to the requested records was lawful. The Complainant cites the Government Records Council (GRC) case, Rademacher v. Borough of Eatontown, GRC Case No. 2004-18 (September 2005) in which the Council stated[3] that “the ACD exemption only applies to material that is ‘pre-decisional and deliberative in nature’ and that ‘deliberative material contains opinions, recommendations or advice about agency policies.’” The Complainant states that the requested records do not concern policy and should not be exempt from disclosure. The Complainant goes on to state that if there is any information contained in the documents that is in fact ACD or personnel that information should be redacted with a detailed explanation as to the reasons for the redaction per the Deluca v. Town of Guttenberg, GRC Case No. 2003-139 (April 2004) and the factual information contained therein should be released. The Complainant also states that the personnel exemption claimed by the Custodian is incorrect because the statute indicates the exemption applies only to “the personnel or pension records of any individual.”[4] The Complainant alleges that the records requested do not pertain to “the personal information of an employee but should simply be a factual recounting of what happened at a single specific meeting.” The Complainant goes on to state that since the requested records pertain to him he should be permitted to waive the exemption for his own request as it pertains to the documents at issue. May 25, 2005 Complainant’s signed Agreement to Mediate. May 27, 2005 Mediation forwarded to both parties. June 3, 2005 Custodian’s signed Agreement to Mediate. June 15, 2005 Complaint forwarded to the Office of Dispute Settlement. July 8, 2005 Administrative Case Disposition. August 25, 2005 Complainant’s e-mail requesting that the case be returned to the GRC for adjudication. September 23, 2005 Custodian’s Statement of Information with the following attachments:
Statement of Fact submitted as part of the Statement of Information on behalf of the Custodian by Deputy Attorney General, Daniel C. Munce The Custodian’s counsel asserts the Taxation Records Custodian denied access to the requested records in writing on May 3, 2005 indicating that the records requested were not available since the requested records fall under the exemption for ACD material as stated in the OPRA. The Custodian’s counsel asserts that the Custodian also informed the Complainant that the information fell under the exemption for personnel records stated in N.J.S.A. 47:1A-10 because they pertained to workplace behavior. The Custodian’s counsel states that on May 6, 2005 the Complainant was furnished with a privilege log listing the documents that were not released and the privilege asserted for each. The Custodian’s counsel asserts that there are certain exemptions to the right of public access under the OPRA; specifically in this case the exemption for personnel and pension records applies, N.J.S.A. 47:1A-10. The Custodian’s counsel asserts that the records requested in no way contain the limited exceptions to the personnel exemptions set forth in the OPRA. The Custodian’s counsel contends that the records requested pertain to a meeting between the Complainant and his supervisors in which he “received a warning that his workplace conduct was inappropriate.” Additionally the Custodian’s counsel argues that the requested records pertain specifically to “a grievance the Division initiated against [the Complainant].” The Custodian’s counsel asserts that the meeting was held in lieu of a formal disciplinary action in the hope that the meeting would help to change the Complainant’s behavior. The Custodian’s counsel states, “The Division maintains that the meeting was a de facto disciplinary action and as such falls within the scope of a ‘grievance’ within the meaning of N.J.S.A. 47:1A-10,” which specifically states that the exemption applies to records relating to any grievance filed by or against any individual. The Custodian’s counsel argues that as a result all documents generated from the meeting and corresponding disciplinary actions would be exempt. The Custodian’s counsel asserts that the courts recognize a “significant public interest” in maintaining the confidentiality of personnel records and mentions the Custodian’s obligation to consider an individual’s reasonable expectation of privacy, citing numerous cases supporting this assertion. For the above mentioned reasons, the Custodian’s counsel claims the records requested are not government records because they involve a personnel action, placing it within the exemption stated under N.J.S.A. 47:1A-10. The Custodian’s counsel likens this case to Nero v. Hyland, 76 N.J. 213 (1978) in which a requestor asked for a copy of a character and background check but was denied when the Court reasoned that the disclosure of such information might “thwart the integrity and reliability of character and background checks.” The Custodian’s counsel claims that the knowledge that notes and correspondence relating to an informal disciplinary matter may be released to the public might deter a supervisor from using informal disciplinary measures. The Custodian’s counsel argues that supervisors may then be inclined to file all formal grievances, possibly interfering with day-to-day operations as even small matters would end up as subject of a formal disciplinary proceeding. As such the release of such records could delay the completion of assignments and erode work-place relationships. The Custodian’s counsel goes on to state that “[t]he subject of the contested records pertains to several Division employees, so [the Complainant] is not the sole and exclusive ‘individual in interest’ capable of authorizing access to these documents under N.J.S.A. 47:1A-10. The Custodian’s counsel asserts that the OPRA permits access to personnel records “when authorized by an individual in interest” and states that pursuant to Hewitt v. Longport Police Department, GRC Case No. 2004-148 (March 2005) an “individual in interest” refers to a person who is the subject of the personnel action. The Custodian’s counsel contends that while the Complainant asserts that he should be allowed to waive his right to privacy as it pertains to these records he is not the “sole and exclusive ‘individual in interest’ in the personnel records he seeks.” The Custodian’s counsel states that because these records document the meeting itself and the observations of the supervisors present during the meeting as well as what was said to the Complainant and the responses to same, the supervisors are also “individuals in interest.” The Custodian asserts that based on what the GRC established in 2004-148, all individuals in interest must give consent prior to the release of the records. The Custodian’s counsel states that “even though [the Complainant] waived his privacy right in the foregoing personnel records, Mr. Scheingold and Ms. Hickey have not consented to the disclosure of these documents. Because all three individuals collectively provide the “subject” of these records, all three must consent to disclosure of the target personnel records before the Division could release them without violating N.J.S.A. 47:1A-10.” Custodian’s certification “Government Records Council Case No. GRC 2004-102.” The Custodian asserts that the Complainant’s request is for documents generated by the Complainant’s direct supervisors; Edward Scheingold, Chief of the Customer Service branch and Linda Hickey, Manager of the Call Center as a result of a meeting between them and the Complainant. The Custodian asserts that these documents memorialize a meeting regarding inappropriate conduct of the Complainant contrary to State policy and are confidential pursuant to exemptions outlined in OPRA. The Custodian asserts that the documents “included handwritten notes made during the meeting, [Ms. Hickey’s] memorandum to Mr. Scheingold and Mr. Scheingold’s memorandum memorializing the events of the meeting.” The Custodian argues that these records are not subject to disclosure pursuant to N.J.S.A. 47:1A-10 because they concern personnel issues as they relate to workplace behaviors. The Custodian contends that “because the requested documents consist of notes taken by [the Complainant’s] supervisor regarding the meeting they had… other exemptions appear to apply.” The Custodian asserts that because these documents included personal, handwritten and typed notes they are also ACD in nature and are exempt pursuant to N.J.S.A. 47:1A-1.1. “Privilege Log for OPRA request W14431 and corresponding complaint 2005-104.” The Custodian asserts that there are 3 documents responsive to the request. The Custodian claims the following privileges for each:
October 4, 2005 Complainant’s e-mail to the GRC staff, “RE: GRC Complaint #2005-104.” The Complainant states that the Custodian’s assertion that the requested records are covered under the exemption for a grievance is erroneous since the collective bargaining agreement between the State and the union indicates that a grievance is that which is filed by an employee against it’s employer. The Complainant also argues that according to the collective bargaining agreement between the State and it’s union, “a disciplinary action is defined as an ‘official reprimand, fine, suspension without pay, reduction in grade or dismissal from service’” and “when an appointing authority or his designee imposes or intends to impose discipline, written notice of such discipline shall be given to the employee” and “such notice shall contain a reasonable specification of the nature of the charge, a general description of the alleged acts and/or conduct upon which the charge is based and the nature of the discipline;” therefore, there cannot be a de facto disciplinary action as the Custodian claims because none of these requirements have been met. The Complainant also states that while the Treasury contends that the documents pertain to several employees the Complainant is in fact the person subject of the personnel file that is being requested. The Complainant states that Ms. Hickey and Mr. Scheingold are not subject of the documents in question but are rather the authors and as such do not qualify as an “individual in interest” pursuant to Hewitt v. Longport Police Department, GRC Case No. 2004-148 (March 2005), which the Complainant contends the Custodian incorrectly cited. Additionally, the Complainant would like to have the council consider a knowing and willful violation of the OPRA based on the unreasonable denial of access to the records requested in this case. Analysis WHETHER the Custodian unlawfully denied access to the requested memoranda and hand written notes pursuant to the OPRA? The OPRA provides that: “…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” N.J.S.A. 47:1A-1. Additionally, the OPRA 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 any copy thereof, that has been made, maintained or kept on file… or that has been received in the course of his or its official business… The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (Emphasis added.) N.J.S.A. 47:1A-1.1. The OPRA places the onus on the Custodian to prove that a denial of access is lawful. 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. N.J.S.A. 47:1A-10 states in part: "Notwithstanding the provisions of [OPRA] 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… personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest…" (Emphasis added.) Memoranda Requested The Complainant states that because he is the subject of the requested record these records should be released to him pursuant to N.J.S.A. 47:1A-10, which states that an individual in interest may authorize the release of otherwise exempted personnel or pension records. Additionally, the Complainant states the assertion that the records do not concern policy and should not be exempt from disclosure. The Custodian asserts that based on what the GRC established in Hewitt v. Longport Police Department, GRC Case No. 2004-148 (March 2005), all individuals in interest must give consent prior to the release of the records. The Custodian’s counsel states that “even though [the Complainant] waived his privacy right in the foregoing personnel records, Mr. Scheingold and Ms. Hickey have not consented to the disclosure of these documents.” The Custodian’s counsel asserts that since all three individuals collectively provide the “subject” of these records because they were at the meeting to which the documents refer, all three must consent to disclosure of the target personnel records before the Division could release them without violating N.J.S.A. 47:1A-10.” The Custodian in this case is incorrect in the assertion that the authors of the documents are considered “individuals in interest” because they took part in the meeting from which the records are based, therefore must give permission for the documents release. In Hewitt v. Longport Police Department, GRC Case No. 2004-148 (March 2005) the Council determined that an “individual in interest” is to mean the person who is the subject of the personnel file, furthermore, that person may accept to waive their privacy right and authorize the disclosure of their personnel records. In this case, the Council applied N.J.S.A. 47:1A-10 and determined that that the only individuals who have access to personnel and pension records are specific public officials and the person who is the subject of the personnel file. In considering N.J.S.A. 47:1A-10 in its entirety, the term “individual” refers to the person who is the subject of the personnel or pension record. The Custodian has not presented any specific basis for claiming the exemption for ACD as it relates to the requested memoranda. No information has been supplied indicating how these documents are pre-decisional or deliberative in nature and as such the Custodian has not born the burden of proving that the exemption may apply. Therefore, the memoranda requested in the case before the Council now should be disclosed to the Complainant because he is the only individual in interest to whom the personnel records may be released. Handwritten Notes Requested The Custodian also contends that “because the requested documents consist of notes taken by [the Complainant’s] supervisor regarding the meeting they had… other exemptions appear to apply.” The Custodian asserts that the handwritten and typed notes are ACD in nature and are exempt pursuant to N.J.S.A. 47:1A-1.1. In O’Shea v. West Milford Board of Education, GRC Case No. 2004-93 the Council stated that “neither the statute nor the courts have defined the terms “intra-agency” or “advisory, consultative, or deliberative” in the context of the public records law. The Council looks to an analogous concept, the deliberative process privilege, for guidance in the implementation of OPRA’s ACD exemption. Both the ACD exemption and the deliberative process privilege enable a governmental entity to shield from disclosure material that is pre-decisional and deliberative in nature. Deliberative material contains opinions, recommendations, or advice about agency policies. Strictly factual segments of an otherwise deliberative document are not exempted from disclosure. In re the Liquidation of Integrity Insurance Company, 165 N.J. 75, 88 (2000); In re Readoption With Amendments of Death Penalty Regulations, supra at 73 (App. Div. 2004).” However, simply declaring a communication ACD does not automatically make it so. Thus, the Council should conduct an in camera review of the handwritten notes in order to verify if the Custodian’s claimed ACD exemption was valid. Paff v. Department of Labor, 379 N.J. Super. 346, 354-355 (App. Div. 2005). Based on the above considerations the Council should find that the two (2) memoranda from April 15, 2005 should be released to the Complainant as the “individual in interest” of the personnel record pursuant to N.J.S.A. 47:1A-10. Additionally the Council should conduct and in camera review of the requested handwritten notes to determine if the ACD exemption set forth in N.J.S.A. 47:1A-1.1 applies. WHETHER the Custodian’s actions rise to the level of a knowing and willful violation of the OPRA and unreasonable denial of access under the totality of the circumstances? The OPRA states that; “A public official, officer, employee or custodian who knowingly and willfully violates (OPRA), 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. OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states: “…If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e. The Complainant contends that the Custodian’s denial of access to the requested records constitutes a knowing and willful violation of the OPRA. The Custodian in this case certified that the records requested are not disclosable pursuant to N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-10. Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107). The Custodian in this case responded to the request in writing and in a timely manner, informing the Complainant that the documents are not disclosable because they contain ACD material and are personnel records. Based on the legal standard for a knowing and willful violation of the OPRA the Complainant has not provided sufficient evidence that the Custodian’s actions “had a positive element of conscious wrongdoing” or that they were, “intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional.” In view of the facts that the Custodian in this case did inform the Complainant as to the reason for the Denial of Access in a timely manner and there is no evidence that the Custodian’s actions “had a positive element of conscious wrongdoing” or were, “intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional” it is concluded that the Custodian’s actions do not rise to the level of a knowing and willful violation of the OPRA and unreasonable denial of access under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that:
Prepared By:Colleen McGann, Case Manager Approved By: December 2, 2005 Administrative Case DispositionGRC Complaint No: 2005-104Complainant: John McCormack Public Agency: NJ Department of the Treasury Case Disposition: The Complainant withdrew his agreement to mediate and the case was referred back to the Government Records Council for adjudication on August 29, 2005. Date of Disposition: August 29, 2005 Assistant Executive Director: Gloria Luzzatto Date: November 16, 2005 Administrative Case DispositionGRC Complaint No: 2005-104Complainant: John M. McCormack Custodian: New Jersey Department of Treasury – Maureen Adams Case Disposition: Parties mutually agreed to
mediation The case was forwarded to the Office of Dispute Settlement on June 15, 2005 Date of Disposition: June 3, 2005 Case Manager: Erin M. Knoedler Date: July 8, 2005 |
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