2005-126

David Allen

Complainant

Department of Corrections

Custodian of Record

Complaint No. 2005-126

The Government Records Council (“Council”) first considered this case at the January 27, 2006 public meeting in conjunction with the Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. By a unanimous vote, the Council found that while the Custodian’s reasons for denying access to the requested documents were compelling there was insufficient evidence to determine if the documents were exempt from access for security and safety reasons pursuant to N.J.S.A. 47:1A-1.1 and ordered an in camera inspection of the records relevant to the complaint.

At its March 9, 2006 public meeting during closed session, the Council conducted the in camera inspection of the unredacted December 17, 2004 Special Investigations Division (“SID”) investigation and the November 8, 2004 letter and envelope relevant to the complaint. Present during the in camera inspection were:

After completing the in camera inspection of the unredacted documents in closed session, the Council voted unanimously that the requested records relevant to the complaint were exempt from disclosure in their entirety pursuant to N.J.S.A. 47:1A-1.1 and also N.J.S.A. 47:1A-3.a.

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.

I attest the foregoing is a true and accurate record of the Government Records Council.

Decision Distribution Date: April 6, 2006

Interim Order

At the January 27, 2006 public meeting, the Government Records Council ("Council") considered the January 19, 2006 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 while the Custodian's reasons for denying access to the requested protective custody documents are compelling there is insufficient evidence to determine if the documents are exempt from access and the Council will perform an in camera inspection of the requested documents.

Interim Order Rendered by the
Government Records Council
On The 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Robin Berg Tabakin, Secretary
Government Records Council

Findings and Recommendations of Executive Director

Custodian: Kathleen Wiechnik
Request Made: March 2005[2]
Response Made: March 21, 2005
GRC Complaint filed: June 22, 2005

March 21, 2005
Custodian's response to the Complainant's Open Public Records Act Request (OPRA). The Custodian indicates that the Complainant's request for "all documents that were utilized at [the Complainant's] protective custody placement hearing held on 01-01-05 relative to [the Complainant's] involuntary placement in protective custody" is being denied because disclosure thereof would jeopardize the safety of those individuals identified within the record and redaction of the documents would be insufficient to eliminate that risk.

April 14, 2005
Complainant's letter to the Government Records Council (GRC). The Complainant indicates that his request is for the disclosure of information contained in the documents relative to his placement in protective custody. The Complainant is requesting an appeal of the decision of the NJ Department of Corrections to withhold the documents. The Complainant also states that if it is determined that the denial is appropriate he would like a detailed explanation of the reasons for denying access.

June 22, 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.

July 7, 2005
Custodian's declination of mediation and notice of representation by Deputy Attorney General, Lisa Puglisi.

July 12, 2005
Custodian's counsel's letter to the GRC. The Custodian's counsel indicates that the Custodian is out of the office for an undetermined period of time and so the Custodian is unavailable to complete the Statement of Information.

September 23, 2005
Custodian's counsel's[4] Statement of Information with the following attachments:

The Custodian's counsel states[6] that pursuant to In Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 74 (App. Div. 2004) an agency may employ a common-law balancing test and withhold records "by claiming that the public interest for confidentiality outweighs the private right of access." The Custodian's counsel indicates that if the requested documents were disclosed it would jeopardize the safety and security of the correctional facility as well as individuals named in the documents. The Custodian's counsel also asserts that the Custodian responded in writing in a timely manner indicating the reason for denial.

The Custodian's counsel states that if the Council determines that an in camera is in order "the Department respectfully requests that it be permitted to submit a confidential certification to the Council explaining the safety and security issues implicated by the records at issue."

Certification of Ronald L. Bollheimer, Supervisor of Legal and Legislative Affairs for the NJ Department of Corrections

Mr. Bollheimer certifies that he "is fully familiar with the facts of the instant complaint." Mr. Bollheimer states that pursuant to N.J.A.C. 10A:5-5.1(a)(1) an inmate may be placed in protective custody on the recommendation of the Special Investigations Division (SID) and is entitled to notice and a hearing if such an action is taken. Mr. Bollheimer indicates that "at that hearing, an inmate shall be informed of all information bearing on the inmate's case, except any information designated confidential." (N.J.A.C. 10A:5-5.2(j)). Mr. Bollheimer certifies that the information contained in the SID investigation regarding the placement of the Complainant in protective custody was not disclosed to the Complainant because it was confidential in nature. Mr. Bollheimer asserts that the Custodian determined the information contained in the SID investigation and any supporting documentation could not be disclosed because it would jeopardize the safety and security of the correctional facility as well as the individuals involved and advised the Complainant of this in a letter dated March 22, 2005.

Mr. Bollheimer states that the requested records were not released to the Complainant, who was informed of the reasons for denial in writing on March 22, 2005, because to do so would jeopardize the safety, security and orderly operation of the correctional facility where the Complainant is incarcerated as well as the security of those individuals identified in the documents. Additionally, Mr. Bollheimer indicates that the Custodian also determined that the documents could not be redacted because they "would still contain information with which individuals could be identified."

December 9, 2005
GRC staff e-mail to the Custodian's counsel. The GRC staff requests that the Custodian submit a legally certified index of the documents responsive to the request.

December 16, 2005
Custodian's legally certified index of documents. The Custodian certifies that there are two (2) documents responsive to the request for records and both are exempt from access because disclosure of any of the information contained therein would "jeopardize the safety, security and orderly running of the correctional facility and the safety and security of inmates involved" including the Complainant. The Custodian also certifies that for the above-mentioned reasons and because the index is being provided to the Complainant the Custodian cannot provide any more information, including the subject matter of the subject investigation, regarding the contents of the documents.

WHETHER the Custodian unlawfully denied access to the requested protective custody documents pursuant to the OPRA?

"…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.

"…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…A government record shall not include the following information which is deemed to be confidential for the purposes of [OPRA] as amended and supplemented…emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein…" (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

"…[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.

"[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…"

The Complainant states he was unlawfully denied access to the requested protective custody documents. The Custodian in this case asserts that the requested documents are exempt from disclosure because the release of any of the information contained therein would jeopardize the safety, security and orderly running of the correctional facility and the safety and security of inmates involved. The Custodian's counsel also indicates that the requested records are exempt from disclosure pursuant to N.J.A.C. 10A:5-5.2(j) because the documents requested have been deemed confidential.

The Custodian's reasons for denying access to the requested records are compelling however, the burden of proving that a denial of access is lawful rests on the Custodian. The Custodian did provide the GRC staff with a certified index indicating the privilege claimed for each of the documents responsive to the request, however the log is not detailed enough to determine if the claimed privileges apply to the requested documents in their entirety. Therefore, Council should conduct an in camera review of the documents to determine what information, if any, is disclosable.

While Custodian's reasons for denying access to the requested protective custody documents are compelling there is insufficient evidence to determine if the documents are exempt from access. Therefore, the Council should perform an in camera inspection of the requested reports.

The Executive Director respectfully recommends the Council find that while Custodian's reasons for denying access to the requested protective custody documents are compelling there is insufficient evidence to determine if the documents are exempt from access and so the Council should perform an in camera inspection of the requested documents.

[1] As stated on the copy of the OPRA request form submitted by the Custodian as part of the SOI.
[2] No specific date indicated.
[3] The Complainant signed an Agreement to Mediate dated June 7, 2005 however, the case had not been filed at that time so it is assumed that the actual date was July 7, 2005.
[4] Because the Custodian is out of the office for an undetermined period of time the Custodian's counsel is responding on behalf of the Custodian.
[5] As stated in "Records Requested."
[6] Please see Certification of Ronald L. Bollheimer, Supervisor of Legal and Legislative Affairs for the NJ Department of Corrections. Portions of the Custodian's counsel's statement mirror the certification of Mr. Bollheimer and so only the additional assertions are discussed here.

2005-126

Final Decision

Decision Distribution Date: April 6, 2006

Interim Order

Findings and Recommendations of Executive Director