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2005-123
Final DecisionFINAL DECISION
November 15, 2006 Government Records Council Meeting
At the November 15, 2006 public meeting, the Government Records Council (“Council”) considered the November 8, 2006 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 Custodian’s October 31, 2006 submission to GRC staff, the Custodian has complied with the Council’s Interim Order by providing the Complainant the March 1, 2004 executive session minutes with redactions, as indicated in the Council’s October 19, 2006 Interim Order, within five (5) 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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 15th Day of November, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Decision Distribution Date: November 21, 2006
Supplemental Findings and Recommendations of the Executive DirectorNovember 15, 2006 Council Meeting
John Paff[1] GRC Complaint No. 2005-123 Complainant
v.
Township of Old Bridge[2] Custodian of Records
Records Relevant to Complaint: Minutes from the Township Council's closed (executive) sessions held on December 1, 2003 and March 1, 2004.[3]
Request Made: March 15, 2005; March 28, 2005; March 29, 2005 Response Made: March 16, 2005; March 23, 2005; April 4, 2005 Custodian: Rose Marie Saracino Complaint filed: June 13, 2005
Background
October 19, 2006 Government Records Council's ("Council") Interim Order. At the October 19, 2006 public meeting, the Government Records Council ("Council") considered the October 5, 2006 In Camera 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:
October 25, 2006 Council's Interim Order distributed to the parties.
October 31, 2006 Custodian's response to the Council's Interim Order with the following attachment:
The Custodian states that the requested executive session minutes have been redacted as indicated in the Council's October 19, 2006 Interim Order and released to the Complainant.
Analysis
Whether the Custodian complied with the Council's October 19, 2006 Interim Order?
Based on the Custodian's October 31, 2006 submission to GRC staff, the Custodian has complied with the Council's Interim Order by providing the Complainant the March 1, 2004 executive session minutes with redactions, as indicated in the Council's October 19, 2006 Interim Order, within five (5) business days from receipt of the Council's order.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that based on the Custodian's October 31, 2006 submission to GRC staff, the Custodian has complied with the Council's Interim Order by providing the Complainant the March 1, 2004 executive session minutes with redactions, as indicated in the Council's October 19, 2006 Interim Order, within five (5) business days from receipt of the Council's order.
Prepared By: Colleen C. McGann Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
November 8, 2006
[1] No legal representation listed. [2] Represented by Jerome Convery, Esq. located in Old Bridge, NJ. [3] Other records were requested and disclosed in accordance with OPRA requirements. Interim Order
At the October 19, 2006 public meeting, the Government Records Council ("Council") considered the October 5, 2006 In Camera 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:
Interim Order Rendered by the Government Records Council On The 19th Day of October, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Decision Distribution Date: October 25, 2006 In Camera Findings and Recommendations of the Executive DirectorJohn Paff[1] GRC Complaint No. 2005-123Complainant
v.
Township of Old Bridge[2] Custodian of Records
Records Relevant to Complaint: Minutes from the Township Council's closed (executive) sessions held on December 1, 2003 and March 1, 2004.[3]
Request Made: March 15, 2005; March 28, 2005; March 29, 2005 Response Made: March 16, 2005; March 23, 2005; April 4, 2005 Custodian: Rose Marie Saracino Complaint filed: June 13, 2005
Background July 13, 2006 Interim Order of the Government Records Council. At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 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 found that:
July 19, 2006 Interim Decision and in camera letter requesting documents sent to both parties.
July 25, 2006 Certification of the Custodian with the following attachments:
Analysis
The March 1, 2004 executive session minutes regarding the Woodland Trails matter consist of three (3) pages. The Custodian redacted 15 separate items contained within these minutes, relying upon exemptions from disclosure for advisory, consultative and deliberative material and attorney-client privilege.
OPRA provides that:
"'[g]overnment 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...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.) UN.J.S.A.U 47:1A-1.1.
OPRA also provides that:
"[a] government record shall not include the following information which is deemed to be confidential for the purposes of [OPRA] as amended and supplemented... any record within the attorney-client privilege." N.J.S.A. 47:1A-1.1.
After completing the in camera inspection of the March 1, 2004 executive session minutes regarding the Woodland Trails matter, the Council should find:
Redaction 1, page 1 (6 sentences): This portion of the requested minutes is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 as attorney-client privileged information. The exempt portion of the records is attorney-client privileged in that it contains advice from the Township Attorney to the Township Council as to how to proceed with the Cedar Ridge/Woodland Trails litigation. This portion of the requested record is a frank discussion of strategy as it relates to the Woodland Trails matter. Therefore, the Custodian lawfully denied access to this portion of the requested minutes as attorney-client privileged information pursuant to N.J.S.A. 47:1A-1.1. The advisory, consultative and deliberative material ("ACD") exemption does not apply to this information as claimed by the Custodian.
Redaction 2, page 1 (1 sentence): This portion is not exempt from disclosure because the statement made is neither attorney-client privileged nor ACD as claimed by the Custodian. Therefore, the Custodian unlawfully denied access to this portion of the requested minutes.
Redaction 3, page 1 (1 sentence): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. and attorney-client privileged information. This information contains the opinion of the Township Attorney as it relates to the Woodland Trails matter and the opinion of the Attorney regarding the likelihood of resolving the case. Therefore, the Custodian lawfully denied access to this portion of the requested minutes pursuant to N.J.S.A. 47:1A-1.1.
Redaction 4, page 2 (1 sentence): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 5, page 2 (5 sentences): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 6, page 2 (2 sentences): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 7, page 2 (1 sentence): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 8, page 2 (2 sentences): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 9, page 2 (1 sentence): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 10, page 2 (1 sentence): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information contains suggestions and recommendations that reflect the personal opinions of the speaker and those that would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian.
Redaction 11, page 2 (1 sentence): This portion of the requested minutes is exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1. with the exception of the speakers name, which should be disclosed. The exempt information would inaccurately reflect or prematurely disclose the view of the agency, suggesting as agency opinion that which is only personal in nature. Therefore, the Custodian unlawfully denied access to the name of the speaker but lawfully denied access to the remainder of this redacted portion pursuant to N.J.S.A. 47:1A-1.1. The attorney-client privilege exemption does not apply to this information as claimed by the Custodian. Redaction 12, page 2 (2 sentences): This portion of the requested minutes is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 as attorney-client privileged information. The exempt portion of the records is attorney-client privileged in that it contains advice from the Township Attorney to the Township Council as to how to proceed with the Cedar Ridge/Woodland Trails litigation. This portion of the requested record is a frank discussion of strategy as it relates to the Woodland Trails matter. Therefore, the Custodian lawfully denied access to this portion of the requested minutes pursuant to N.J.S.A. 47:1A-1.1. The ACD exemption does not apply to this information as claimed by the Custodian.
Redaction 13, page 2 (2 sentences): This portion of the requested minutes is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 as attorney-client privileged information. The exempt portion of the records is attorney-client privileged in that it contains advice from the Township Attorney to the Township Council as to how to proceed with the Cedar Ridge/Woodland Trails litigation. This portion of the requested record is a frank discussion of strategy as it relates to the Woodland Trails matter. Therefore, the Custodian lawfully denied access to this portion of the requested minutes pursuant to N.J.S.A. 47:1A-1.1. The ACD exemption does not apply to this information as claimed by the Custodian.
Redaction 14, page 2 (1 sentence): This portion of the requested minutes is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 as attorney-client privileged information. The exempt portion of the records is attorney-client privileged in that it contains advice from the Township Attorney to the Township Council as to how to proceed with the Cedar Ridge/Woodland Trails litigation. This portion of the requested record is a frank discussion of strategy as it relates to the Woodland Trails matter. Therefore, the Custodian lawfully denied access to this portion of the requested minutes pursuant to N.J.S.A. 47:1A-1.1. The ACD exemption does not apply to this information as claimed by the Custodian.
Redaction 15, page 3 (1 sentence): This portion of the requested minutes is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 as attorney-client privileged information. The exempt portion of the records is attorney-client privileged in that it contains advice from the Township Attorney to the Township Council as to how to proceed with the Cedar Ridge/Woodland Trails litigation. This portion of the requested record is a frank discussion of strategy as it relates to the Woodland Trails matter. Therefore, the Custodian lawfully denied access to this portion of the requested minutes pursuant to N.J.S.A. 47:1A-1.1. The ACD exemption does not apply to this information as claimed by the Custodian.
The GRC recognizes that some of the information disclosed to the Complainant by the Custodian prior to the in camera inspection conducted by the GRC could qualify as advisory, consultative or deliberative material exemption under N.J.S.A. 47:1A-1.1. Thus, this information may have been properly redacted under N.J.S.A. 47:1A-5.g. (... the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record ...) and N.J.S.A. 47:1A-6 (... [t]he public agency shall have the burden of proving that the denial of access is authorized by law...). Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:
Prepared By: Colleen C. McGann Case Manager
Approved By: Catherine Starghill Executive Director Government Records Council
October 5, 2006 [1] No legal representation listed. [2] Represented by Jerome Convery, Esq. located in Old Bridge, NJ. [3] Other records were requested and disclosed in accordance with OPRA requirements. Interim Order
At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 2006 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:
Interim Order Rendered by the Government Records Council On The 19th Day of July, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Secretary Supplemental Findings and Recommendations of the Executive Director
Records Relevant to Complaint: Minutes from the Township Council's closed (executive) sessions held on December 1, 2003 and March 1, 2004.[1] Request Made: March 15, 2005; March 28, 2005; March 29, 2005 Response Made: March 16, 2005; March 23, 2005; April 4, 2005 Custodian: Rose Marie Saracino Complaint filed: June 13, 2005
Background April 11, 2006 Government Records Council's ("Council") Interim Order. At its April 11, 2006 public meeting, the Council considered the April 4, 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 with an amendment to "1." of the "Conclusions and Recommendations." The Council, therefore, found that:
April 13, 2006 Interim Order forwarded to the all parties via e-mail.
April 20, 2006 Custodian's response to the Council's Interim Order. The Custodian is providing the redacted minutes from the Township Council's executive sessions held on December 1, 2003 and March 1, 2004, as well as the Complainant's OPRA request letters and Custodian responses. Additionally, the Custodian is submitting interoffice memorandums from the Township Attorney stating that the redacted portions of the executive session minutes should not be disclosed pursuant to the exemption for attorney-client privilege, litigation and information in connection with collective negotiations provided in N.J.S.A. 47:1A-1.1.
May 2, 2006 Custodian's second response to the Council's Interim Order. The Custodian is providing a copy of the Township's new OPRA form which mirrors the GRC Model Request Form with the addition of a space for a tracking number and a notation regarding e-mail format. The Custodian also states that the Custodian's counsel is sending a separate letter to clarify the Township's position regarding the redaction of the requested executive session minutes.
May 5, 2006 The Custodian's counsel's supplemental submission. The Custodian indicates the following exemptions to the redacted portions of the requested executive session minutes:
Analysis
Whether the Custodian complied with the Council's April 11, 2006 Interim Order?
Pursuant to the Council's April 11, 2006 Interim Order, the Custodian was required to disclose the requested December 1, 2003 and March 1, 2004 executive session minutes with appropriate redactions pursuant to OPRA and provide a detailed and lawful basis for each redaction. The Custodian was also ordered to amend the agency's OPRA request form to fully comply with N.J.S.A. 47:1A-5.f. The Custodian was required to comply with this order within ten (10) business days from receipt of this Interim Order and simultaneously provide confirmation of compliance to the Executive Director
On April 20, 2006, the Custodian provided redacted copies of the requested records and a copy of a memoranda prepared by the Township attorney regarding overall exemptions to the redacted portions of the minutes but not a specific basis for each individual redaction. Additionally, the Custodian failed to provide confirmation within ten (10) business days that the agency's request form had been amended pursuant to the Council's Interim Order. Although the Custodian subsequently provided the information ordered by the Council, the response was outside of the ten (10) business day time period pursuant to the Council's Interim Order.
Given that the Custodian did not provide a detailed and lawful basis for each individual redaction and did not provide confirmation that the agency's request form had been amended within the time period ordered by the Council, it may be determined that the Custodian did not comply with the Council's Interim Order.
Whether the Custodian lawfully denied access to the March 1, 2004 executive session minutes?
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, 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.
OPRA provides that certain records remain confidential. Specifically, OPRA states: "...[a] government record shall not include the following information which is deemed to be confidential for the purposes of [OPRA] as amended and supplemented... any record within the attorney-client privilege... information generated by or on behalf of public employers or public employees in connection with... collective negotiations, including documents and statements of strategy or negotiating position." N.J.S.A. 47:1A-1.1.
The December 1, 2003 executive session minutes relate to the status of labor negotiations which are exempt from access pursuant to N.J.S.A. 47:1A-1.1. Therefore the Custodian's claimed exemption to this record is lawful.
The Custodian states that the redacted portions of the March 1, 2004 executive session minutes regarding the Woodland Trails matter are exempt from disclosure as attorney-client privilege pursuant to N.J.S.A. 47:1A-1.1; as well as N.J.S.A.47:1A-9(a); N.J.S.A.47:1A-9(b); N.J.S.A.2A:84-20; R 4-10-2(e); N.J.S.A. 10:4-12(b)(1); N.J.S.A. 10:4-12(b)(7); and advisory, consultative and deliberative material pursuant to N.J.S.A. 47:1A-1.1.
The Custodian has failed to provide sufficient explanation of how the claimed exemptions apply to the March 1, 2004 executive session minutes regarding the Woodland Trails matter. The Custodian states that this information is a discussion on litigation strategy but fails to provide any further information on the matter. While the Custodian's reasons for denying access to the March 1, 2004 executive session minutes regarding the Woodland Trails matter are compelling, the burden of proving that a denial of access is lawful rests on the Custodian. The Custodian did provide a log indicating the exemption claimed for each of the documents responsive to the request, however the information submitted regarding the March 1, 2004 executive session minutes regarding the Woodland Trails matter is not detailed enough to determine if the claimed exemptions apply to the requested information in its entirety. Therefore, Council should conduct an in camera review of the documents to determine what information, if any, is exempt from disclosure.
The potential reasons for denying access to the March 1, 2004 executive session minutes regarding the Woodland Trails matter claimed by the Custodian are compelling but, it cannot be determined whether the facts of this complaint support the denial of access to the redacted portions of the requested record. Therefore, an in camera review of the unredacted record is necessary to determine what information, if any, is exempt from disclosure.
The Custodian has claimed exemption to the requested March 1, 2004 executive session minutes pursuant to the exemption for attorney-client privilege pursuant to N.J.S.A. 47:1A-1.1[2] and advisory, consultative and deliberative material pursuant to N.J.S.A. 47:1A-1.1. The Custodian has provided a sufficient explanation of the denial to the portion of the minutes relating to the litigation settlement terms for the Somers v. Old Bridge matter to justify the applicability of the attorney-client privilege pursuant to N.J.S.A. 47:1A-1.1. Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Colleen C. McGann Case Manager
Catherine Starghill Executive Director
July 6, 2006 [1] Other records were requested and disclosed in accordance with OPRA requirements. [2] Among other laws. Interim Order
At the April 11, 2006 public meeting, the Government Records Council ("Council") considered the April 7, 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 with an amendment to "1." of the "Conclusions and Recommendations." The Council, therefore, finds that:
Interim Order Rendered by the Decision Distribution Date: April 13, 2006 Findings and Recommendations of the Executive DirectorJohn Paff GRC Complaint No. 2005-123Complainant v. Township of Old Bridge Custodian of Records Records Relevant to Complaint: Background March 15, 2005 Complainant's records request.[2] The Complainant seeks a copy of minutes, OPRA requests, OPRA form, affidavits, complaints, Financial Disclosure Statements, and notices of meetings for the Redevelopment Agency. March 16, 2005 Custodian's letter to the Complainant. The Custodian states that a records request form is being forwarded to be completed by the Complainant pursuant to the Open Public Records Act (OPRA). March 23, 2005 Custodian's response to Complainant's March 15, 2005 request. The Custodian indicates that the cost for the request is $25.81 including the cost of mailing and payment must be received before the documents will be forwarded. Additionally, the Custodian states that the "Request for Information" form sent on March 16, 2005 has not yet been returned. March 28, 2005 Complainant's records request. The Complainant seeks a copy of minutes, OPRA requests, affidavits, complaints, Financial Disclosure Statements, and notices of meetings for the Redevelopment Agency.[3] March 29, 2005 Complainant's facsimile to the Custodian. The Complainant indicates that he is faxing the March 28, 2005 letter to the Custodian and states that the form has been completed and a check for $25.81 has been forwarded. March 29, 2005 Complainant's written OPRA Request. The Complainant seeks a copy of minutes, OPRA requests, affidavits, complaints, Financial Disclosure Statements, and notices of meetings for the Redevelopment Agency[4] and has attached a check for $25.81. April 4, 2005 Custodian's "Public Records Request Response" forwarded to the Complainant. The Custodian indicates that the Township Council's closed (executive) sessions held on December 1, 2003 and March 1, 2004 are not available. The Custodian asserts that "the minutes or other record of these discussions shall be available to be disclosed to the public in sixty (60) months unless a sooner date is determined by the vote of a governing body at a public session." The Custodian also indicates that there are no Financial Disclosure Statements on file for the Old Bridge Township Redevelopment Agency. June 13, 2005 Complainant's Denial of Access Complaint with the following attachments:
The Complainant states that the issues in this Complaint include; (1) that Custodian improperly denied his request for access to the "minutes from the Township Council's closed (executive) sessions held on December 1, 2003 and March 1, 2004," (2) the Custodian required the Complainant to complete OPRA request form, and (3) the Custodian's OPRA request form does not comply with N.J.S.A. 47:1A-5.f. The Complainant states that executive session minutes are government records pursuant to OPRA and cites both Davis v. Rumsen Fair-Haven Board of Education, GRC Case No. 2003-56 (December 2003) and Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556-57 (1997) to support this assertion. The Complainant states that there is no indication that the requested executive session minutes fall under any of the exemptions to disclosure that are indicated in the Open Public Meeting Act (OPMA) or any other law. The Complainant asserts that the Custodian is responsible for supplying a legal justification for the denial of access to the requested minutes as prescribed by N.J.S.A. 47:1A-6 but has not done so. The Complainant feels that the Custodian has failed to meet the burden of proving that the denial of access to the entirety of the requested meeting minutes was lawful. The Complainant states that according to the Government Records Council ("GRC") website the Custodian is required to adopt a form but the "[C]ustodian should accept any communication that is clearly a request for records if it contains the information necessary for that [C]ustodian to fulfill the request, even if it is not submitted on the [C]ustodian's ‘official' OPRA request form." The Complainant argues that the Custodian required him to fill out an OPRA request form in order to obtain records as evidenced in her March 16, 2005 and March 23, 2005 letters to the Complainant, even though his letters qualify as OPRA requests and contain all information necessary to fulfill the request. The Complainant also takes issue with the Custodian's OPRA request form. The Complainant alleges that the OPRA request form used by the Township does not give any specific procedures for requesting a record, does not reference the seven business-day period required for a response, does not outline the requestors right to challenge a denial, does not have a space for the reasons for denial and does not contain space for the Custodian to sign and date the form if the request is fulfilled or denied pursuant to N.J.S.A. 47:1A-5.f. The Complainant states that the deficiencies undermine the purpose of OPRA, in particular the absence of a notice of the requestor's right to appeal because the requestor may not know of their rights without that disclosure indicated specifically on the form. The Complainant asks that; (1) the GRC order disclosure of the meeting minutes, (2) timeliness of the response be addressed, (3) the GRC find the Custodian in violation of OPRA for requiring that the form be completed and; (4) the GRC find that the Custodian's form violates OPRA. June 28, 2005 Offer of mediation forwarded to both parties.[5] June 29, 2005 Custodian's letter to the Complainant. The Custodian indicates to the Complainant that the request form was a formality and research had begun as soon as the Complainant's first request was made. The Custodian states that the GRC webpage indicates that a request form is required to be filled out for OPRA requests and the Township uses a request form for all requests. The Custodian also indicates that the Custodian was in "full compliance on the time frame allowed on the other material [the Complainant] requested other than the [e]xecutive [m]inutes." The Custodian also states that her statement to the Complainant should have been clarified and she was actually looking for the Complainant to tell her which parts of the minutes he was looking for so that she may have them approved for release. The Custodian states she now realizes that the matters have been settled and she is "putting [the Complainant's] request before the Township Council at their next meeting which is Monday July 11th, 2005 for approval by them for the complete release of these documents to [the Complainant]." July 6, 2005 Complainant's letter to the GRC. The Complainant states that while the Custodian indicates that research began for his request prior to receiving the completed form the fact still remains that without the completed form he would not have received the records he requested. The Complainant also questions why he is being made to wait until the approval of the requested minutes by Township Council to receive the records when the Custodian has admitted that the matters have concluded. The Complainant questions, "[w]hat provision of law places the Township Council's asserted need to formally approve the release of its closed session minutes over OPRA's requirement that ‘government records shall be readily accessible' pursuant to N.J.S.A. 47:1A-1. Additionally, the Complainant points out that the Custodian does not address the compliance of the request form and so he "gather[s] from this omission that the Custodian realizes that her form is legally insufficient but won't make it compliant until ordered to do so by the GRC." July 12, 2005 Custodian counsel's memo to the Custodian. The Custodian's counsel states that he cannot give legal advice as to whether or not any of the information contained in the requested documents are an exception to OPRA requirements. The Custodian's counsel further advises that the matter of the release of said minutes should be discussed as an executive session issue at the August 1, 2005 meeting. July 14, 2005 Deputy Clerk, Stella Ward's memo to the Custodian's counsel. The Deputy Clerk copies the Custodian's counsel on the June 29, 2005 Custodian's letter to the Complainant. July 14, 2005 Custodian's letter to the Complainant. The Custodian states that the Township Council discussed his request at the July 11, 2005 Council meeting and the Township Council voted to "table" the vote on whether or not to release the documents however she and counsel are working to obtain the requested records for the Complainant. Furthermore, the Custodian asserts that the Township has an ordinance in place[6] that "states [e]xecutive [s]ession [m]inutes can only be released to a Council member." July 14, 2005 Deputy Clerk, Stella Ward's letter to the Council President, William Baker. The Deputy Clerk is forwarding the subject requested minutes for review and advice on how to proceed with the request. July 14, 2005 Deputy Clerk, Stella Ward's letter to the GRC staff with the following attachments:
The Deputy Clerk states that the Township Attorney is drawing up an amendment to the ordinance which will allow the executive session minutes to be released to the Township Attorney, Mayor and Business Administrator. The Township attorney feels that this may have allowed them to make a more informed decision as to what could be released for an OPRA request. The Deputy Clerk states that the Township has not taken this request lightly and is currently making every effort to comply with the request. July 14, 2005 Custodian's Statement of Information with the following attachments:
The Custodian states that the Township has an ordinance that indicates that the Council must approve the release of the Executive session minutes to anyone other than a Council member. The Custodian indicates that this item was listed on the agenda for the July 11, 2005 meeting but was tabled by the Council. The Custodian states, "we are working with the Township Attorney and the Council President trying to amend the Township Ordinance so we can try to comply with OPRA requestors. We will need additional time to work on this request." July 16, 2005 Complainant's letter to the GRC. The Complainant contends that the ordinance to which the Custodian refers actually only restricts the release of the transcripts and tapes but not the minutes required to be maintained pursuant to N.J.S.A.10:4-14 which are the subject of this request. The Complainant goes on to make allegations based on an "unofficial transcript of the July 11, 2005 council meeting" regarding the "concerns" of a Council member regarding this request however they are not subject of this Complaint. Analysis WHETHER the Custodian unlawfully denied access to the requested executive session minutes pursuant to OPRA? 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, 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." N.J.S.A. 47:1A-1.1. OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states "...[t]he public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6. OPRA states in part "...[t]he provisions of [OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA]; 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 Open Public Meetings Act requires that "[e]ach public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act." (Emphasis added.) N.J.S.A.10:4-14. And, OPRA also states "...[a] Custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. 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 states that executive session minutes are government records pursuant to OPRA. The Complainant states that there is no indication that the requested executive session minutes fall under any of the exemptions to disclosure that are indicated in the OPMA or any other law. The Custodian states that the Township has an ordinance that indicates that the Township Council must approve the release of the executive session minutes to anyone other than a Council member. N.J.S.A. 47:1A-9.a states that the provisions of OPRA may be superseded by an exemption pursuant to any other statute, resolution, Executive Order, rules of Court or federal law. Therefore, the ordinance cited by the Custodian, which requires the approval of the Township Council for the release of minutes, does not abrogate the provisions of OPRA as indicated in N.J.S.A. 47:1A-9.a. OPRA places the burden of proving that a denial of access is permitted by law on the Custodian however, the Custodian has not provided any statutory exemption to the requested executive session minutes. Thus the Custodian has not lawfully denied access to the executive session minutes. Based on the fact that the Custodian has not provided a lawful basis for denying access to the executive session minutes pursuant to N.J.S.A. 47:1A-6, the Custodian should disclose the requested December 1, 2003 and March 1, 2004 executive session minutes with appropriate redactions as necessary. The legal basis for any redactions must be explained pursuant to N.J.S.A. 47:1A-5.g. Whether the Custodian properly responded to the Complainant's records request within the statutorily required time period pursuant to OPRA? OPRA provides that "[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a Custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived..." N.J.S.A. 47:1A-5.i. And, OPRA also states "...[a] Custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. 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 is responsible for supplying a legal justification for the denial of access to the requested minutes as prescribed by N.J.S.A. 47:1A-6 but has not done so. In the Custodian's response to the Complainant's request the Custodian indicates that the Township Council's closed (executive) sessions held on December 1, 2003 and March 1, 2004 are not available. The Custodian asserts that "the minutes or other record of these discussions shall be available to be disclosed to the public in sixty (60) months unless a sooner date is determined by the vote of a governing body at a public session." OPRA requires Custodian's to either grant or deny access as soon as possible but no later than seven business days. OPRA allows the Custodian to deny access to records under those circumstances in which the records requested are exempt from access, under OPRA or any other law. If a Custodian asserts a exemption under the law the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. In Gober v. City of Burlington, GRC Case No. 2003-139 (April 2004) the GRC found that the Custodian's assertion that certain of the information requested by the Complainant is "privileged" is so vague that the existence of an applicable exemption cannot be ascertained. Because the Open Public Records Act presumes that a government record is subject to public access unless an exemption exists, it is appropriate to order that access be granted unless an appropriate exemption is clearly identified by the Custodian." The Custodian did inform the Complainant that the documents are not available and that they "shall be available to be disclosed to the public in sixty (60) months." However, this response is insufficient as it does not indicate a specific lawful basis for denying access as required pursuant to N.J.S.A. 47:1A-5.g. Therefore the Custodian has violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47: 1A-5.g. in not providing a specific basis for the denial of access to the requested executive session minutes. WHETHER the Custodian acted properly in requiring that the Complainant complete an OPRA Request form for this records request? The Complainant states that the Custodian is required to adopt a from but the "[C]ustodian should accept any communication that is clearly a request for records if it contains the information necessary for that [C]ustodian to fulfill the request, even if it is not submitted on the [C]ustodian's ‘official' OPRA request form." The Complainant argues that the Custodian required him to fill out an OPRA request form in order to obtain records even though the Complainant asserts that his letters qualify as OPRA requests and contain all information necessary to fulfill the request. The Custodian indicates that the request form was a formality and research had begun as soon as the Complainant's first request was made. The Custodian states that the GRC webpage indicates that a request form is required to be filled out for OPRA requests and the Township uses a request form for all requests. Review of the OPRA statute and its legislative intent lead the Council to conclude that use of the request form is required for all requestors. The statute provides that the Custodian "shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency." N.J.S.A. 47:1A-5.f. The statute specifically prescribes what must be on the form:
Although the statute does not expressly state that OPRA requests must be on the form adopted by the agency pursuant to N.J.S.A. 47:1A-5.f., principles of statutory construction show that the Legislature intended use of this form by all requestors to be mandatory. In interpreting a statute, it is axiomatic that "each part or section [of the statute] should be construed in connection with every other part or section so as to produce a harmonious whole." Matturi v. Bd. of Trustees of JRS, 173 N.J. 368, 383 (2002), quoting In re Passaic Cty. Utilities Auth., 164 N.J. 270, 300 (2000). In addition, a construction which renders statutory language meaningless must be avoided. Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204 (1999). See also G.S. v. Dept. of Human Serv., 157 N.J. 161, 172 (1999). (a statute should be interpreted so as to give effect to all of its provisions, without rendering any language inoperative, superfluous, void, or insignificant). As noted, N.J.S.A. 47:1A-5.f. requires that Custodians adopt a request form, and sets forth a detailed list of what the form must contain. The next subsection of the statute provides: 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. The Custodian shall sign and date the form and provide the requestor with a copy thereof. (Emphasis added.) N.J.S.A. 47:1A-5.g. The form to which N.J.S.A. 47:1A-5.g. refers is the form required by N.J.S.A. 47:1A-5.f. In providing, in 5.g., that the Custodian "shall" sign and date the form, indicate the basis for denial on the form, and return the form to the requestor, the Legislature evidenced its clear intent that it is mandatory for the form to be used by requestors. See Harvey v. Essex Cty. Bd. Of Freeholders, 30 N.J. 381, 391-92 (1959) (the word "shall" in a statute is generally mandatory). The express requirement that the Custodian use the request form in denying an OPRA request, construed together with the preceding statutory requirement that the Custodian adopt a request form, demonstrates that the Legislature intended that this form would be used for all OPRA requests. If all requestors are not required to submit requests on the form prescribed by the statute, then the statutory provisions requiring the Custodian to sign and date the form, and return it to the requestor, would be meaningless. Indeed, a Custodian would be unable to fulfill these express requirements of N.J.S.A. 47:1A-5.g. if the requestor does not use the form in submitting his request. Accordingly, nothing in OPRA suggests that some requestors may forgo using the official request form. In enacting the form requirement, the Legislature has expressed its policy that use of the form promotes clarity and efficiency in responding to OPRA requests, consistent with OPRA's central purpose of making government records "readily accessible" to requestors. N.J.S.A. 47:1A-1. The Appellate Division has indicated that the statute's form requirement serves the additional purpose of prompting the legislative policy that a requestor must specifically describe identifiable records sought. See Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534, 546 (App. Div. 2005) (an open-ended request that fails to identify records with particularity is invalid). In Bent v. Twp. of Stafford Police Dept., 381 N.J. Super. 30, 33 (App. Div. 2005), the Court held that the requestor's general request for information violated this policy and was therefore invalid. In reaching this conclusion, the Court noted that OPRA mandates that the request form provide space for a "brief description" of the record request. Id. Similarly, in Gannett New Jersey Partners L.P. v. County of Middlesex, 379 N.J. Super. 205, 213 (App. Div. 2005), the Court specifically pointed to the same statutory request form requirement in determining that OPRA does not authorize requestors to make blanket requests for agency records. Accordingly, based on the language of the statute, as well as judicial recognition of the importance of the statutory request form, it is determined that the statute requires all requestors to submit OPRA requests on an agency's official OPRA records request form. OPRA's provisions come into play only where a request for records is submitted on an agency's official OPRA records request form. Therefore, the Complainant's records request was not a valid OPRA request and as such Custodian acted properly in requiring the Complainant to complete an OPRA request form. Based on N.J.S.A. 47:1A-5.f. and N.J.S.A. 47:1A-5.g. the Custodian acted properly in requiring the Complainant to complete the agency's adopted OPRA request form. WHETHER the Custodian's adopted request form complies with OPRA? OPRA explicitly stipulates what must be included in an agency's OPRA records request form. Specifically OPRA states "The Custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency. The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought. The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged. The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by [OPRA] as amended and supplemented, to make the record available; (4) a statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied..." (Emphasis added.) N.J.S.A. 47:1A-5.f. The Complainant takes issue with the Custodian's OPRA request form. The Complainant alleges that the OPRA request form used by the Township (1) does not give any specific procedures for requesting a record, (2) does not reference the seven (7) business-day period required for a response, (3) does not outline the requestors right to challenge a denial, (4) does not have a space for the reasons for denial and (5) does not contain space for the Custodian to sign and date the form if the request is fulfilled or denied pursuant to N.J.S.A. 47:1A-5.f. The Custodian's request form at the time of the request was submitted by the Complainant as part of the Denial of Access Complaint. All Custodians are required to adopt a request form which must include at least those components which are stated in OPRA. Custodian's who do not have a request form that is compliant with N.J.S.A. 47:1A-5.f may adopt the model request form located on the GRC website at http://www.nj.gov/grc/modelrequestform.html.[8] After review of the Township of Old Bridge Request for Access to Government Records form (submitted the Council with the Complainant's Denial of Access Complaint) it is found that the form does include a space for the name, address and phone number as well as a place for the requestor to describe the records sought. The form also contains space to indicate when the record will be available, the fees to be charged and a statement as to whether a prepayment of fees or deposit it required. Finally the form does include space for the requestor and the Custodian to sign and date the form. An agency's form should encompass all of the information statutorily required under N.J.S.A. 47:1A-5.f however the form in question does not include a number of elements stated in OPRA. The Township of Old Bridge Request for Access to Government Records form lacks specific directions and procedures for requesting a record and space for the Custodian to indicate which record will be made available. The Custodian's form does not include the time period within which the public agency is required to make the record available pursuant to OPRA, a statement of the right to challenge a decision and the procedure for filing an appeal or a space for the Custodian to list the reasons for a denial. Therefore the Custodian has violated N.J.S.A. 47:1A-5.f in not adopting a statutorily compliant OPRA request form. In Perino v. Township of Haddon Heights, GRC Case No. 2004-128 (November 2004) in which the Complainant questioned the compliance of the Custodian's OPRA request form the GRC found that pursuant to N.J.S.A. 47:1A-7.b. the GRC's role is limited to adjudicating issues surrounding denial of access to government records. Notwithstanding this fact, the Council has the authority to adjudicate the legal sufficiency of an agency's OPRA request form when the issue is linked to a denial of access complaint filed with the Council. See Paff v. Department of Labor, Board of Review, 379 N.J. Super. 346, 350 (App. Div. 2005), (recognizing the GRC's significant role in the administration of OPRA). In light of the insufficiencies in the form adopted by the Custodian in this case the Council should find that the Custodian has violated N.J.S.A. 47:1A-5.f and should order the Custodian to amend its OPRA request form to ensure full compliance with OPRA. Conclusions and Recommendations The Executive Director respectfully recommends that:
Prepared By: Colleen McGann, Case Manager Approved By: April 7, 2006 [1] Other records were requested and disclosed in accordance with OPRA requirements. |
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