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2005-131

- Final Decision
- Supplemental Findings and Recommendations
- Interim Order I
- In Camera Findings and Recommendations of the Executive Director
- Interim Order
- Findings and Recommendations of the Executive Director
- Administrative Case Disposition

Final Decision

Daniel Meaders

    Complainant

         v.

William Paterson University

    Custodian of Record

Complaint No. 2005-131

 

 

At the June 27, 2007 public meeting, the Government Records Council ("Council") considered the June 20, 2007 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 as amended. The Council, therefore, finds that:

 

The Executive Director respectfully recommends that the Council find that:

 

  1. The list of Mr. Bolyai's specific accomplishments set forth at Part II of the Performance Evaluation should not be disclosed because it is a personnel record pursuant to N.J.S.A. 47:1A-10.
     
  2. Because the last sentence beginning "Comments:" contained in Part VI of the Performance Evaluation is pre-decisional and deliberative in nature, containing opinions, recommendations, or advice about agency decisions, it is advisory, consultative or deliberative material and should not be disclosed. N.J.S.A. 47:1A-1.1. See In Re Liquidation of Integrity Insurance Co., 165 N.J. 75, 84-85 (2000).
     
  3. These conclusions are based entirely on the statutory right of access under OPRA.  An analysis of the common law right of access may determine a different conclusion.
     

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 27th Day of June 2007

 

Vincent Maltese, Chairman

Government Records Council

 

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


David Fleisher, Secretary

Government Records Council 

 

Decision Distribution Date: July 5, 2007

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Supplemental Findings and Recommendations

STATE OF NEW JERSEY

GOVERNMENT RECORDS COUNCIL

Reconsideration

Supplemental Findings and Recommendations of the Executive Director

June 27, 2007 Council Meeting

 

Daniel Meaders[1][1]                                                                  GRC Complaint No. 2005-131

Complainant

 

             v.

 

William Paterson University[2][2]

Custodian of Records

 

 

Records Relevant to Complaint[3][3]:

  1. Documents showing evidence that Joseph H. Castro, Dwayne Hilbert, Ryan S. Kiely and Michael J. Arp have had State background checks and have been certified by the State.
  2. Audit report for the Office of Continuing Education and Distance Learning.
  3. A list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001.
  4. Recent managerial evaluations of the President, Provost, and Vice President of Administration and Finance.

 

Request Made: May 4, 2005

Response Made: May 4, 2005

Custodian:  Marc Shaeffer

GRC Complaint Filed: June 27, 2005

 

Background

 

April 25, 2007

Interim Order of the Government Records Council. At the April 25, 2007 public meeting, the Government Records Council (“Council”) conducted an in camera review of the Audit Report for the Office of Continuing Education and Distance Learning and the Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance considered the 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 found that:

 

  1. udit Report for the Office of Continuing Education and Distance Learning and the Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance within five (5) business days of receiving the Council’s decision.
  2. The Custodian shall not disclose the November 13, 2001 memorandum on personnel issues entitled “Audit Report” from William Patterson University Internal Auditor Richard Felton because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004) and personnel records which are not considered government records pursuant to N.J.S.A. 47:1A-10 and the Council’s decision in Hewitt v. Longport Police Department, GRC Complaint No. 2004-148 (March 2005).

 

  1. as follows:

 

             Page 1:            Heading           Disclosable.

                                     Part I               Disclosable.

Part II              Disclosable.

Page 2:              Part III                        Redact, exempt from disclosure as “personnel record”     

pursuant to N.J.S.A. 47:1A-10.

                                     Part IV                        Disclosable.

Page 4:              Part V(a)         Redact, exempt from disclosure as “personnel record”

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

                         Part V(b)         Redact, exempt from disclosure as “personnel record”

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

Page 5: Part VI            Redact, exempt from disclosure as “personnel record”

pursuant to N.J.S.A. 47:1A-10. Contains advisory, consultative and deliberative material and analysis which authors would not disclose if they knew such information were to be made public. The last sentence beginning “Comments:” should be disclosed.  Additionally, the signature line, title line and date should also be disclosed.

Part VII            Disclosable.  Additionally, the signature line, title line and date should also be disclosed.

                                     Part VIII         Disclosable.

                                     Part IX                        Disclosable.

 

  1. compliance pursuant to N.J. Court Rules, R. 1:4-4  to the Executive Director.

 

 

 

 

 

May 7, 2007

       Letter from Custodian to GRC. Custodian requests reconsideration and a stay of the Council’s April 25, 2007 Interim Order which requires the disclosure of Part II and the disclosure of the last sentence beginning “Comments:” of Part VI of the Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance.

 

       The Custodian argues that these parts of the evaluation are advisory, consultative and deliberative (“ACD”) material which is used to evaluate managers for renewal of contracts and salary decisions. The Custodian states that non-renewals and salary decisions are within the purview of the University’s Board of Trustees and such decisions are made on the basis of the ACD evaluations which are made transparent in the Performance Evaluation Form and are solely for the benefit of the decision makers and employees of the University.

 

The Custodian contends that the performance appraisal process requires an honest assessment by the decision makers. The Custodian argues that if the performance appraisal is disclosable, a manager is less likely to be honest and forthright because he or she may not wish to harm the employee’s reputation by disclosing critical information. The Custodian states that the public interest is best served by keeping the information in such records confidential to ensure that the goals of the performance appraisal and the reappointment and merit increase process are met.

 

       The Custodian states that with regard to Part II of the Performance Evaluation, managers are required to provide a list of their accomplishments and show how they have met the goals and objectives of the University as well as the unit. The Custodian argues that this information should be redacted because it contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public. The Custodian also contends that the information contained in Part II of the Performance Evaluation is exempt from disclosure as a personnel record pursuant to N.J.S.A. 47:1A-10.

 

       With regard to the last sentence beginning “Comments:” of Part VI of the Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance, the Custodian notes that the recommendation made by the evaluator is ACD, because only the President’s recommendations on non-reappointments and the Board’s recommendation on reappointments are final. The Custodian contends that the recommendation is advisory to each supervisor in the chain of command before the President or the Board makes their decisions. The Custodian also contends that the recommendation is considered in formulating merit increases for salary purposes which is the ultimate decision of the University President.

 

The Custodian asserts that irreparable harm will accrue to Mr. Bolyai if the University is required to disclose the information contained in Part II and the last sentence beginning “Comments:” of Part VI of his Performance Evaluation. The Custodian states that information which was expected to remain private and confidential will be disclosed if the University is required to provide these sections of the requested record, and that the release of this information will impede future evaluations not only of Mr. Bolyai but of other University employees by making them less likely to make honest assessments of performance. The Custodian asserts that the public interest is served by keeping the information included in the Performance Evaluation confidential to ensure that the goals of the performance appraisal and the reappointment and merit increase process are met.

 

 

Analysis

 

OPRA excludes from the definition of a government record “inter-agency or intra-agency advisory, consultative or deliberative material.”  N.J.S.A. 47:1A-1.1.  It is evident that this phrase is intended to exclude from the definition of a government record the types of documents that are the subject of the “deliberative process privilege.”

 

The deliberative process privilege is a doctrine that permits government agencies to withhold documents that reflect advisory opinions, recommendations and deliberations submitted as part of a process by which governmental decisions and policies are formulated. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29, 47 (1975). This long-recognized privilege is rooted in the concept that the sovereign has an interest in protecting the integrity of its deliberations. The earliest federal case adopting the privilege is Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958).  Federal district courts and circuit courts of appeal subsequently adopted the privilege and its rationale. United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.1993).

 

The deliberative process privilege was discussed at length in In Re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000). There, the court addressed the question of whether the Commissioner of Insurance, acting in the capacity of Liquidator of a regulated entity, could protect certain records from disclosure which she claimed contained opinions, recommendations or advice regarding agency policy. Id. at 81. The court adopted a qualified deliberative process privilege based upon the holding of McClain v. College Hospital, 99 N.J. 346 (1985), Liquidation of Integrity, supra, 165 N.J. at 88. In doing so, the court noted that:

 

“[a] document must meet two requirements for the deliberative process privilege to apply. First, it must have been generated before the adoption of an agency's policy or decision. In other words, it must be pre-decisional. … Second, the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies. … Purely factual material that does not reflect deliberative processes is not protected. … Once the government demonstrates that the subject materials meet those threshold requirements, the privilege comes into play. In such circumstances, the government's interest in candor is the "preponderating policy" and, prior to considering specific questions of application, the balance is said to have been struck in favor of non-disclosure.” (Citations omitted.) Id. at 84-85.

 

The court further set out procedural guidelines based upon those discussed in McClain:

 

“[t]he initial burden falls on the state agency to show that the documents it seeks to shield are pre-decisional and deliberative in nature (containing opinions, recommendations, or advice about agency policies). Once the deliberative nature of the documents is established, there is a presumption against disclosure. The burden then falls on the party seeking discovery to show that his or her compelling or substantial need for the materials overrides the government's interest in non-disclosure. Among the considerations are the importance of the evidence to the movant, its availability from other sources, and the effect of disclosure on frank and independent discussion of contemplated government policies.” In Re Liquidation of Integrity, supra, 165 N.J. at 88, citing  McClain, supra, 99 N.J. at 361-62, 492 A.2d 991.

In In Re Liquidation of Integrity, supra, 165 N.J. at 84-5, the judiciary set forth the legal standard for applying the deliberative process privilege as follows:

                                             

(1)                          The initial burden falls on the government agency to establish that matters are both pre-decisional and deliberative.

 

a.       Pre-decisional means that the records were generated before an agency adopted or reached its decision or policy.

 

b.      Deliberative means that the record contains opinions, recommendations, or advice about agency policies or decisions.

 

                                                                           i.      Deliberative materials do not include purely factual materials.

 

                                                                         ii.      Where factual information is contained in a record that is deliberative, such information must be produced so long as the factual material can be separated from its deliberative context.

 

c.       The exemption covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.

 

d.      Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is only a personal position.

 

e.       To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communications within the agency.

 

(2)                          Please note that if an in camera inspection were conducted by the courts, the process would include the following:

 

Once it has been determined that a record is deliberative, there is a presumption against disclosure and the party seeking the document has the burden of establishing his or her compelling or substantial need for the record.

 

a.       That burden can be met by a showing of:

                                                                           i.      the importance of the information to the requesting party,

                                                                         ii.      its availability from other sources and

                                                                        iii.      the effect of disclosure on frank and independent discussion of contemplated government policies.

 

OPRA also exempts from the definition of a government record personnel or pension records of any individual in the possession of a public agency pursuant to N.J.S.A. 47:1A-10. However, N.J.S.A. 47:1A-10 specifically permits the disclosure of an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received, as well as data contained in information which disclose conformity with specific experiential, educational, or medical qualifications required for government employment.

On April 11, 2007, in response to the GRC’s March 28, 2007, Interim Order, the Custodian submitted a document index for the September 11, 2003, Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance which set forth the following claimed exemptions:

Location of Redaction

Claimed Statutory Exemption(s) and/or Privilege(s)

Explanation Why the Claimed Exemption(s) and/or Privilege(s) Applies

Part II

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part III

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part V(a)

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part V(b)

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part VI

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

 

An in camera inspection was conducted on the September 11, 2003, Performance Evaluation for Vice President of Administration and Finance. As a result of the in camera inspection, the Executive Director recommended that Part II should be disclosed and Part VI should be disclosed from the last sentence beginning “Comments:”.

 

Part II of the Performance Evaluation is captioned “Accomplishments.” The instructions to this section require that the individual list and comment on major accomplishments attained during the past year in light of the individual’s actual job responsibilities. A numerical list of Mr. Bolyai’s accomplishments from July 1, 2002 to June 30, 2003 follows. The instructions solicit factual assertions of projects, goals and objectives which the individual achieved in the course of the preceding year. Because the list of accomplishments contains facts rather than opinions, recommendations or advice, it cannot be considered ACD material. Moreover, while the Performance Evaluation itself may be ACD, “[p]urely factual material that does not reflect deliberative processes is not protected[.]” In Re Liquidation of Integrity Insurance Co., 165 N.J. 75, 84-85 (2000). This factual material could easily be separated from the deliberative portion of the Performance Evaluation. Id. The list of accomplishments, moreover, cannot be considered self-critical analysis, which encompasses “deliberative and evaluative components of an organization's confidential materials.” Payton v. NJ Turnpike Authority, 148 N.J. 524, 544 (1997).

 

Although personnel records of an individual in the possession of a public agency are exempt from the definition of a public record pursuant to N.J.S.A. 47:1A-10, OPRA specifically permits the disclosure of certain information, including an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received, as well as data contained in information which disclose conformity with specific experiential, educational, or medical qualifications required for government employment. N.J.S.A. 47:1A-10. The Performance Evaluation is unquestionably a personnel record and is therefore exempt from the definition of a government record. The information at Part II of the Performance Evaluation does not comport with the list of information specifically permitted to be disclosed by N.J.S.A. 47:1A-10  and does not disclose conformity with specific experiential qualifications required for government employment. Therefore, the list of Mr. Bolyai’s specific accomplishments set forth at Part II of the Performance Evaluation should not be disclosed because it is a personnel record pursuant to N.J.S.A. 47:1A-10.

 

With regard to the last sentence beginning “Comments:” contained in Part VI of the Performance Evaluation, it is concluded that this information is pre-decisional and deliberative in nature, containing opinions, recommendations, or advice about agency decisions. Liquidation of Integrity, supra, 165 N.J. at 84-5. Therefore, the last sentence beginning “Comments:” contained in Part VI of the Performance Evaluation should not be disclosed because it is ACD material. N.J.S.A. 47:1A-1.1.

 

These conclusions are based entirely on the statutory right of access under OPRA.  An analysis of the common law right of access may determine a different conclusion.

 

 

Conclusions and Recommendations

 

The Executive Director respectfully recommends that the Council find that:

 

1.   The list of Mr. Bolyai’s specific accomplishments set forth at Part II of the Performance Evaluation should not be disclosed because it is a personnel record pursuant to N.J.S.A. 47:1A-10.

 

2.      Because the last sentence beginning “Comments:” contained in Part VI of the Performance Evaluation is pre-decisional and deliberative in nature, containing opinions, recommendations, or advice about agency decisions, it is advisory, consultative or deliberative material and should not be disclosed. N.J.S.A. 47:1A-1.1. See In Re Liquidation of Integrity Insurance Co., 165 N.J. 75, 84-85 (2000).

 

3.      These conclusions are based entirely on the statutory right of access under OPRA.  An analysis of the common law right of access may determine a different conclusion.

 

 

 

Prepared By:

                         In House Counsel

                       

 

Approved By:

Catherine Starghill

Executive Director

 

June 20, 2007

 

 



 

 

 

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Interim Order I

INTERIM ORDER

 

April 25, 2007 Government Records Council Meeting

 

Daniel Meaders

    Complainant

         v.

William Paterson University

    Custodian of Record

Complaint No. 2005-131

 

 

 

At the April 25, 2007 public meeting, the Government Records Council (“Council”) considered the April 18, 2007 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:

 

  1. udit Report for the Office of Continuing Education and Distance Learning and the Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance within five (5) business days of receiving the Council’s decision.
  2. The Custodian shall not disclose the November 13, 2001 memorandum on personnel issues entitled “Audit Report” from William Patterson University Internal Auditor Richard Felton because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council’s decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004) and personnel records which are not considered government records pursuant to N.J.S.A. 47:1A-10 and the Council’s decision in Hewitt v. Longport Police Department, GRC Complaint No. 2004-148 (March 2005).
  3. The Custodian shall disclose the September 11, 2003 Performance Evaluation of Stephen Bolyai, Vice President of Administration and Finance with  redactions as follows:

 

  1.            Page 1:            Heading            Disclosable.

                                    Part I                Disclosable.

Part II              Disclosable.

Page 2:                                    Part III             Redact, exempt from disclosure as “personnel record”      

pursuant to N.J.S.A. 47:1A-10.

                                    Part IV             Disclosable.

Page 4:                                    Part V(a)          Redact, exempt from disclosure as “personnel record”

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

Part V(b)          Redact, exempt from disclosure as “personnel record”

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

Page 5:                                    Part VI             Redact, exempt from disclosure as “personnel record”

pursuant to N.J.S.A. 47:1A-10. Contains advisory, consultative and deliberative material and analysis which authors would not disclose if they knew such information were to be made public. The last sentence beginning “Comments:” should be disclosed.  Additionally, the signature line, title line and date should also be disclosed.

Part VII            Disclosable.  Additionally, the signature line, title line and date should also be disclosed.

                                    Part VIII          Disclosable.

                                    Part IX             Disclosable.

 

  1. The Custodian shall comply with #3 above within five (5) business days from receipt of this decision on the basis of the Council’s above determination and provide certified confirmation of compliance pursuant to N.J. Court Rules, R. 1:4-4  to the Executive Director.

 

Interim Order Rendered by the

Government Records Council

On The 25th Day of April, 2007

 

 



Vincent P. Maltese, Chairman
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 

 

Decision Distribution Date:  April 30, 2007

 

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In Camera Findings and Recommendations of the Executive Director

Daniel Meaders[1]                                   GRC Complaint No. 2005-131
Complainant

 

            v.

 

William Paterson University[2]

Custodian of Records

 

Records Relevant to Complaint[3]:

  1. Documents showing evidence that Joseph H. Castro, Dwayne Hilbert, Ryan S. Kiely and Michael J. Arp have had State background checks and have been certified by the State.
  2. Audit report for the Office of Continuing Education and Distance Learning.
  3. A list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001.
  4. Recent managerial evaluations of the President, Provost, and Vice President of Administration and Finance.

 

Request Made: May 4, 2005

Response Made: May 4, 2005

Custodian:  Marc Shaeffer

GRC Complaint Filed: June 27, 2005

 

Background

 

March 28, 2007

Interim Order of the Government Records Council. At the March 28, 2007 public meeting, the Government Records Council ("Council") considered the March 21, 2007 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 found that:

 

  1. The Custodian did not unlawfully deny access to the Complainant's request for documents showing evidence that certain named individuals have had State background checks and have been certified by the State because he certifies that he provided the Complainant with the only records responsive to the request.

 

  1. The Custodian did not unlawfully deny the Complainant access to background investigations and psychological exams pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:10, and Executive Order #26 (Gov. McGreevey, 2002).

 

  1. While the Custodian certifies that the Complainant's request for the audit report for the Office of Continuing Education and Distance Learning are exempt from disclosure as ACD material pursuant to N.J.S.A. 47:1A-1.1 and as personnel records pursuant to N.J.S.A. 47:1A-10, the Council should conduct an in camera review of the requested minutes to determine if said document, or portions therein are exempt from disclosure as the Custodian asserts.

 

  1. The Custodian must deliver to the Council in a sealed envelope six copies of the requested unredacted document (see #3 above), a document or redaction index detailing the document and/or each redaction asserted and the lawful basis for the denial, as well as a legal certification from the Custodian, in accordance with N.J. Court Rule 1:4-4,that the document provided is the document requested by the Council for the in camera inspection within five (5) business days from receipt of the Council's Interim Order.

 

  1. The Custodian did not unlawfully deny access to the Complainant's request for a list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001 because he certifies that no such document exists.

 

  1. Since the Custodian indicated in his response letter to the Complainant dated May 23, 2005 that there were no performance evaluations responsive for the President, but the performance evaluations responsive for the Provost and Vice President could be provided upon the Complainant advising such, the Custodian has borne his burden of making the responsive records available to the Complainant.

 

  1. The Custodian shall disclose the requested records in #6 above with appropriate redactions, including a detailed document index explaining the lawful basis for each redaction, within five (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director.

 

April 2, 2007

            Interim Order and in camera letter requesting documents sent to both parties.

 

April 11, 2007

            Certification of the Custodian with the following attachments:

  • Six (6) copies of the unredacted November 13, 2001 Audit Report of the William Patterson University Internal Auditor Richard Felton regarding the Office of Continuing Education and Distance Learning, with six (6) copies of the redacted report and document index
  • Six (6) copies of the unredacted September 11, 2003, evaluation of Stephen Bolyai, Vice President of Administration & Finance, with six (6) copies of the redacted evaluation and document index

 

The Custodian's certification states that the records provided are those requested by the Council for in camera inspection. The Custodian's certified document index indicates the following exemptions:

November 13, 2001, Audit Report from William Patterson University Internal Auditor Richard Felton regarding Continuing Education and Distance Learning Office:

Location of Redaction

Claimed Statutory Exemption(s) and/or Privilege(s)

Explanation Why the Claimed Exemption(s) and/or Privilege(s) applies

Page 1, Caption/Subject, Partial Redaction

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 1, First Paragraph, First Sentence (Partial Redactions) Second Sentence

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 1, "Employee Issues" Section 1, First through Fourth Sentences

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 1, "Employee Issues" Section 2

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 2, "Employee Issues" Section 3

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 2, "Other Significant Issues," First Paragraph, Fourth through Sixth Sentences

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 2, "Other Significant Issues," Second Paragraph, First Sentence

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

Page 2, "Other Significant Issues," Third Paragraph

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 2, "Other Significant Issues," Fourth Paragraph, First through Third Sentences

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 2, "Other Significant Issues," Fifth Paragraph

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 2, "Other Significant Issues," Sixth Paragraph, First through Fourth Sentences

Personnel Record N.J.S.A. 47:1A-10/ Advisory, Consultative, Deliberative

Workplace Behavior Personnel Matter/ Pre-Decisional Advise provided by Internal Auditor regarding Agency Policies

Page 3, "Observations," Employee Issues Section 1, First Sentence (Partial Redaction), Second through Fourth Sentences, Fifth Sentence (Partial Redaction)

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 3, "Observations," Employee Issues, Section 2

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 4, "Observations," Employee Issues, Section 3

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 4, "Observations," Employee Issues, Section 4

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 4, "Observations," Employee Issues, Section 5

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 4, "Observations," Employee Issues, Section 6, Second and Third Sentences

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 4, "Observations," Employee Issues, Section 7

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 5, "Observations," Other Issues, Section 1, First and Second Sentences, Third Sentence (Partial Redaction)

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 5, "Observations," Other Issues, Section 2

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 5, "Observations," Other Issues, Section 3

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 5, "Observations," Other Issues, Section 4

Personnel Record N.J.S.A. 47:1A-10

Workplace Behavior Personnel Matter

Page 5, "Audit Recommendations," First Paragraph

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

Page 6, "Audit Recommendations," Second Paragraph

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

Page 6, "Audit Recommendations," Third Paragraph

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

Page 6, "Audit Recommendations," Fourth Paragraph

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

Page 6, "Audit Recommendations," Fifth Paragraph, First and Second Sentences

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

Page 6, "Audit Recommendations," Sixth Paragraph

Advisory, Consultative, Deliberative

Pre-decisional advice provided by internal auditor regarding agency policies

 


 

September 11, 2003, Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance:

Location of Redaction

Claimed Statutory Exemption(s) and/or Privilege(s)

Explanation Why the Claimed Exemption(s) and/or Privilege(s) Applies

Part II

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part III

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part V(a)

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part V(b)

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

Part VI

Personnel Record N.J.S.A. 47:1A-10

Performance Evaluation

  

 Analysis

An in camera inspection was conducted on the November 13, 2001 Audit Report Dated from William Patterson University Internal Auditor Richard Felton regarding the Continuing Education and Distance Learning Office and on the September 11, 2003, Performance Evaluation for Vice President of Administration and Finance.

November 13, 2001 Audit Report from William Patterson University Internal Auditor Richard Felton Regarding the Continuing Education and Distance Learning Office

            The November 13, 2001, Audit Report of the William Patterson University Internal Auditor Richard Felton, regarding the Continuing Education and Distance Learning Office, consists of six (6) total pages.

Based on the in camera inspection of the Audit Report, the Council finds that this document should not be disclosed because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and personnel records which are not considered government records pursuant to N.J.S.A. 47:1A-10. The Audit Report is a pre-decisional document created for William Patterson University to assist in its decision-making process and contains opinions of the Internal Auditor on the impact of managerial decisions on University operations. The Audit Report contains recommendations for future University action which were not finalized as of the date of the request. Finally, it is apparent that the factual information contained in the Audit Report was based upon certain assumptions and analysis which were inextricably intertwined with and could not be separated from the opinions and conclusions contained in the report.

In Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004), the Council found that the Custodian met the burden of proving that financial information regarding a proposed early retirement program that the township had discussed at a public meeting was advisory, consultative or deliberative material exempt from disclosure under N.J.S.A.  47:1A-1.1. In Toth, the Custodian explained that the requested documents were pre-decisional to the Township Council's adoption of an early retirement program.  It was further explained that the requested documents were deliberative materials created for the Township Council to assist in their decision-making process and contained opinions of the Chief Financial Officer and the Administration on the fiscal impact of early retirements, replacements and estimated salaries for replacements.  Also, the Chief Financial Officer certified that any factual information contained in the requested documents was based on estimations, assumptions and analysis of the Administration and was inextricably intertwined and could not be separated from the opinions and conclusions contained therein.

 

            The Audit Report also contains personnel records which are not considered government records pursuant to N.J.S.A. 47:1A-10.

 

In Hewitt v. Longport Police Department, GRC Complaint No. 2004-148 (March 2005), 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.

 

Therefore, the Custodian should not disclose the November 13, 2001 memorandum on personnel issues entitled "Audit Report" from William Patterson University Internal Auditor Richard Felton regarding the Continuing Education and Distance Learning Office because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council's decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004) and personnel records which are not considered government records pursuant to N.J.S.A. 47:1A-10 and the Council's decision in Hewitt v. Longport Police Department, GRC Complaint No. 2004-148 (March 2005).

 

September 11, 2003, Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance  

 

            The September 11, 2003 Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance, consists of six (6) total pages.

 

Page 1:            Heading            Disclosable.

Part I                Disclosable.

Part II              Disclosable.

Page 2:            Part III             Redact, exempt from disclosure as "personnel record"      

pursuant to N.J.S.A. 47:1A-10.

                                    Part IV             Disclosable.

Page 4:            Part V(a)          Redact, exempt from disclosure as "personnel record"

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

                        Part V(b)          Redact, exempt from disclosure as "personnel record"

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

Page 5:            Part VI             Redact, exempt from disclosure as "personnel record"

pursuant to N.J.S.A. 47:1A-10. Contains advisory, consultative and deliberative material and analysis which authors would not disclose if they knew such information were to be made public. The last sentence beginning "Comments:" should be disclosed.  Additionally, the signature line, title line and date should also be disclosed.

Part VII            Disclosable.  Additionally, the signature line, title line and date should also be disclosed.

                                    Part VIII          Disclosable.

                                    Part IX             Disclosable.

 

   

Conclusions and Recommendations

 

            The Executive Director respectfully recommends that the Council find that:

 

  1. The Custodian has complied with the Council's March 28, 2007 Interim Decision in supplying the Council with the requested Audit Report for the Office of Continuing Education and Distance Learning and the Performance Evaluation for Stephen Bolyai, Vice President of Administration and Finance within five (5) business days of receiving the Council's decision.
  2. The Custodian shall not disclose the November 13, 2001 memorandum on personnel issues entitled "Audit Report" from William Patterson University Internal Auditor Richard Felton because it contains advisory, consultative and deliberative material exempt from disclosure under N.J.S.A. 47:1A-1.1 and the Council's decision in Toth v. Ewing Township, GRC Complaint No. 2004-21 (November 2004) and personnel records which are not considered government records pursuant to N.J.S.A. 47:1A-10 and the Council's decision in Hewitt v. Longport Police Department, GRC Complaint No. 2004-148 (March 2005).
  3. The Custodian shall disclose the September 11, 2003 Performance Evaluation of Stephen Bolyai, Vice President of Administration and Finance with redactions as follows:

 

            Page 1:            Heading            Disclosable.

                                    Part I                Disclosable.

Part II              Disclosable.

Page 2:            Part III             Redact, exempt from disclosure as "personnel record"      

pursuant to N.J.S.A. 47:1A-10.

                                    Part IV             Disclosable.

Page 4:            Part V(a)          Redact, exempt from disclosure as "personnel record"

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

                        Part V(b)          Redact, exempt from disclosure as "personnel record"

pursuant to N.J.S.A. 47:1A-10. Contains self-critical analysis which incumbents would not disclose if they knew such information were to be made public.

Page 5:            Part VI             Redact, exempt from disclosure as "personnel record"

pursuant to N.J.S.A. 47:1A-10. Contains advisory, consultative and deliberative material and analysis which authors would not disclose if they knew such information were to be made public. The last sentence beginning "Comments:" should be disclosed.  Additionally, the signature line, title line and date should also be disclosed.

Part VII            Disclosable.  Additionally, the signature line, title line and date should also be disclosed.

                                    Part VIII          Disclosable.

                                    Part IX             Disclosable.

 

 

  1. The Custodian shall comply with #3 above within five (5) business days from receipt of this decision on the basis of the Council's above determination and provide certified confirmation ofcompliance pursuant to N.J. Court Rules, R. 1:4-4  to the Executive Director.

 

Prepared By: 

                        In House Counsel

                       

 

Approved By:

Catherine Starghill

Executive Director

 

April 18, 2007



[1] No legal representation listed.

[2] DAG Cheryl Clarke, on behalf of the NJ Attorney General.

[3] There were other records requested that were not related to this complaint.

Return to Top

Interim Order

Daniel Meaders

    Complainant

         v.

William Paterson University

    Custodian of Record

Complaint No. 2005-131

 

 

At the March 28, 2007 public meeting, the Government Records Council ("Council") considered the March 21, 2007 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:

 

  1. The Custodian did not unlawfully deny access to the Complainant's request for documents showing evidence that certain named individuals have had State background checks and have been certified by the State because he certifies that he provided the Complainant with the only records responsive to the request.

 

  1. The Custodian did not unlawfully deny the Complainant access to background investigations and psychological exams pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:10, and Executive Order #26 (Gov. McGreevey, 2002).

 

  1. While the Custodian certifies that the Complainant's request for the audit report for the Office of Continuing Education and Distance Learning are exempt from disclosure as ACD material pursuant to N.J.S.A. 47:1A-1.1 and as personnel records pursuant to N.J.S.A. 47:1A-10, the Council should conduct an in camera review of the requested minutes to determine if said document, or portions therein are exempt from disclosure as the Custodian asserts.

 

  1. The Custodian must deliver[1] to the Council in a sealed envelope six copies of the requested unredacted document (see #3 above), a document or redaction index detailing the document and/or each redaction asserted and the lawful basis for the denial, as well as a legal certification from the Custodian, in accordance with N.J. Court Rule 1:4-4,that the document provided is the document requested by the Council for the in camera inspection within five (5) business days from receipt of the Council's Interim Order.

 

  1. The Custodian did not unlawfully deny access to the Complainant's request for a list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001 because he certifies that no such document exists.

 

  1. Since the Custodian indicated in his response letter to the Complainant dated May 23, 2005 that there were no performance evaluations responsive for the President, but the performance evaluations responsive for the Provost and Vice President could be provided upon the Complainant advising such, the Custodian has borne his burden of making the responsive records available to the Complainant.

 

  1. The Custodian shall disclose the requested records in #6 above with appropriate redactions, including a detailed document index explaining the lawful basis for each redaction, within five (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director.

 

 

Interim Order Rendered by the

Government Records Council

On The 28th Day of March, 2007

 

 



Vincent P. Maltese, Chairman
Government Records Council

 

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

 

Government Records Council 

 

Decision Distribution Date:  April 2, 2007

 



[1] The in camera documents may be sent overnight mail, regular mail, or be hand-delivered, at the discretion of the Custodian, as long as they arrive at the GRC office by the deadline.

Return to Top

Findings and Recommendations of the Executive Director

Daniel Meaders[1]                             GRC Complaint No. 2005-131
Complainant

 

            v.

 

William Paterson University[2]

Custodian of Records

 

 

Records Relevant to Complaint[3]:

  1. Documents showing evidence that Joseph H. Castro, Dwayne Hilbert, Ryan S. Kiely and Michael J. Arp have had State background checks and have been certified by the State.
  2. Audit report for the Office of Continuing Education and Distance Learning.
  3. A list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001.
  4. Recent managerial evaluations of the President, Provost, and Vice President of Administration and Finance.

 

Request Made: May 4, 2005

Response Made: May 4, 2005

Custodian:  Marc Shaeffer

GRC Complaint Filed: June 27, 2005

 

Background

 

May 4, 2005

            Complainant's Open Public Records Act ("OPRA") request.  The Complainant requests the records relevant to this complaint listed above.

 

May 4, 2005

            Custodian's first response to the OPRA request.  The Custodian responds to the Complainant's OPRA request via e-mail on the same day of receipt.  The Custodian states that due to the Complainant's lengthy list of requests, and the upcoming commencement ceremonies, he will need an extension until Monday, May 23, 2005 in order to respond to the request.

 

 

May 23, 2005

            Custodian's second response to the OPRA request.  The Custodian asserts that OPRA provides public access to government records as defined by OPRA.  The Custodian also asserts that open-ended searches of government records are not required under OPRA.  The Custodian further asserts that OPRA does not require a public agency to create documents that do not exist to fulfill a request or to respond to requests for information.

 

Documents showing evidence that Joseph H. Castro, Dwayne Hilbert, Ryan S. Kiely and Michael J. Arp have had State background checks and have been certified by the State.

            The Custodian asserts that there are four (4) government records responsive to the request, but they are not available electronically.  The Custodian also asserts that the total cost for copies is $3.00 pursuant to N.J.S.A. 47:1A-5.b. and that the records will be released upon payment of cash or certified check.

 

Audit report for the Office of Continuing Education and Distance Learning.

            The Custodian asserts that only an individual's name, position, salary, payroll record, length of service, date of separation and the reason therefore and the amount and type of any pension received shall be a government record pursuant to N.J.S.A. 47:1A-10.  The Custodian also asserts that a significant portion of this requested record contains personnel information beyond the scope of the information that is specifically disclosable pursuant to N.J.S.A. 47:1A-10.  The Custodian further asserts that the purpose of the requested record was to make advisory recommendations to the President, Provost, and Vice President for Administration and Finance of possible courses of action with regard to personnel and fiscal issues in the area of Continuing Education and Distance Learning.  Additionally, the Custodian asserts that the requested record is therefore intra-agency advisory, consultative and/or deliberative ("ACD") material and thus exempt from disclosure under OPRA.

 

A list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001.

            The Custodian asserts that there are no government records responsive to the request.  The Custodian also asserts that OPRA does not require that a Custodian create a record to satisfy an OPRA request.

 

Recent managerial evaluations of the President, Provost, and Vice President of Administration and Finance.

            The Custodian asserts that there are no records responsive to the request for managerial evaluations of the President.  The Custodian also asserts that the managerial evaluations for the Provost and Vice President are exempt from disclosure as a personnel record pursuant to N.J.S.A. 47:1A-10, except for that information which is specifically disclosable under that provision of OPRA.  Additionally, the Custodian asserts that the managerial evaluations of the Provost and Vice President are exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1.

 

            The Custodian asserts that only an individual's name, position, salary, payroll record, length of service, date of separation and the reason therefore and the amount and type of any pension received shall be a government record pursuant to N.J.S.A. 47:1A-10.  Therefore, the Custodian further asserts that everything but such information would be redacted from the managerial evaluations; however, if the Complainant still wishes to received the record as described, please advise the Custodian so that a total cost may be provided to the Complainant.

 

June 23, 2005[4]

            E-mail from the Custodian to the Complainant.  The Custodian addresses the Complainant's questions and concerns regarding the requirement for and proof of state background investigations and psychological testing for the named university police officers (see item #1 of records relevant to complaint on page 1 above).  Additionally, the Custodian attests that under N.J.S.A. 47:1A-1, criminal investigatory records are excluded from those documents considered government records under OPRA.  The Custodian also asserts that under N.J.S.A. 47:1A-10, detailed medical or psychological information is not a government record under OPRA.

 

The Custodian asserts that should the Complainant disagree with the University's response to any of the requests, the sole avenue for appeal is to file an action in Superior Court or, in lieu of that, with the Government Records Council ("GRC").

 

June 26, 2005

            E-mail from the Complainant to the Custodian.  The Complainant asserts that OPRA provides that criminal investigatory records are exempted from public scrutiny.  The Complainant further discusses the university's gun carrying policy for police officers.

 

            The Complainant asserts that he is not seeking criminal investigatory records.  Rather, the Complainant asserts that the record he has requested is a record of investigation in progress or ongoing investigations which are disclosable under OPRA.  Thus, the Complainant asserts that the records released in response to item #1 of records relevant to complaint on page 1 above (Police Training Certificates) are not responsive to his request.

 

June 27, 2005

Denial of Access Complaint filed with the Government Records Council ("GRC") without any attachments.  The Complainant asserts submitting his OPRA request on May 4, 2006 and receiving a denial from the Custodian on May 23, 2006.

 

July 5, 2005

            E-mail from the Custodian to the Complainant.  The Custodian states that should the Complainant disagree with the University's response to any of the requests, the sole avenue for appeal is to file an action in Superior Court or, in lieu of that, with the GRC.

 

July 11, 2005

            Offer of Mediation sent to both parties. 

 

July 11, 2005

            The Complainant agreed to mediate this complaint.

 

July 25, 2005

            The Custodian agreed to mediate this complaint.

 

July 20, 2006

            This complaint was referred back from mediation to the GRC for adjudication.

 

September 14, 2006

            Request for Statement of Information sent to the Custodian.

 

September 28, 2006

            Custodian's Statement of Information ("SOI") with the following attachments:

 

  • Complainant's OPRA request dated May 4, 2005
  • E-mail from the Custodian to the Complainant dated May 4, 2005
  • Custodian's response to the Complainant's OPRA request dated May 23, 2005
  • E-mail from the Custodian to the Complainant dated July 5, 2005
  • E-mail from the Complainant to the Custodian dated June 26, 2005
  • E-mail from the Custodian to the Complainant dated July 5, 2006
  • Executive Order #48 (Gov. Hughes, 1968)
  • Records released by the Custodian
  1. Certificates responsive to item #1 of records relevant to complaint on page 1 above
  2. Redacted copy of the audit report responsive to item #2 of records relevant to complaint on page 1 above
  3. The redaction log for the audit report[5]

 

The Custodian asserts that the Complainant, a professor at William Paterson University, submitted the request on May 4, 2005.  The Custodian asserts that after the Complainant received copies of the documents in response to item #1 of records relevant to complaint on page 1 above, the Complainant amended the request in e-mails dated June 14, 2005 and June 26, 2005.  The Custodian asserts that the Complainant added an additional record to the request (State background investigation forms including the psychological exams for the four (4) named university police officers).

 

The Custodian asserts that the Complainant alleges being denied access to the records relevant to complaint on page 1 above.  The Custodian also asserts that the parties had agreed to engage in mediation, and while the parties are precluded from disclosing the substance of any discussion during mediation, the university can disclose that the Complainant had withdrawn claims with regard to items #3 and #4 of those records relevant to complaint, prior to mediation.

 

Documents showing evidence that Joseph H. Castro, Dwayne Hilbert, Ryan S. Kiely and Michael J. Arp have had State background checks and have been certified by the State.

            The Custodian attests to providing the Complainant the only documents responsive to the request which were the Police Academy Certificates.  The Custodian also attests that these documents were provided to the Complainant on May 23, 2005.

 

            The Custodian states that after the Complainant received copies of the documents in response to item #1 of records relevant to complaint on page 1 above, the Complainant amended the request in e-mails dated June 14, 2005 and June 26, 2005.  The Custodian also states that the Complainant added an additional record to the request (State background investigation forms including the psychological exams for the four (4) named university police officers).  The Custodian further states that in an e-mail dated June 23, 2005, he advised the Complainant that the newly requested record is exempt from disclosure as criminal investigatory records pursuant to N.J.S.A. 47:1A-1 and as detailed medical or psychological information pursuant to N.J.S.A. 47:1A-10.

 

            The Custodian attests that the confidentiality of the State Police background investigations is well-recognized in this State.  In Nero v. Hyland, 76 N.J. 213 (1978), the New Jersey Supreme Court denied a prospective state government appointee's request under the Right to Know Law for his own State Police background investigations.  The Custodian states that the Supreme Court held that the public interest in maintaining confidentiality relating to the executive function of making public appointment to public office outweighed the interest of a prospective state government appointee who was the subject of a character investigation.  The Custodian also states that the protection afforded State Police investigative files was further recognized in Executive Order #48 (Gov. Hughes, 1968), which prohibits access unless ordered by a court of competent jurisdiction or the Governor.  The Custodian further states that accordingly, there can be no dispute that the Complainant was properly denied access to the officers' State Police background investigations and psychological examinations.

 

            The Custodian asserts that in an effort to resolve this matter, the Custodian provided the Complainant with a legal certification that there are no other documents responsive to the request.  The Custodian also asserts that since the Complainant was provided with a certification that no other documents exist, other than those that had already been provided to the Complainant in a timely manner, there is no reasonable factual basis for the Complainant to assert a denial of access.

 

Audit report for the Office of Continuing Education and Distance Learning.

The Custodian asserts advising the Complainant that a significant portion of the record identified as responsive to the request is exempt from disclosure as personnel information pursuant to N.J.S.A. 47:1A-10. The Custodian also asserts further advising the Complainant that the record responsive to the request also is exempt from disclosure as ACD material pursuant to N.J.S.A. 47:1A-1.1.  because the record was created to assist the President, Provost and Vice President of Administration and Finance on possible courses of action with regard to personnel and fiscal issues in the area of Continuing Education and Distance Learning.

 

The Custodian asserts that the report was prepared by its internal auditor at the direction of the administration for the sole purpose of providing pre-decisional advice regarding the Office of Continuing Education and Distance Learning to the President, Provost and Vice President of Administration and Finance.  The Custodian also asserts that the report in its totality is exempted from disclosure as ACD material pursuant to N.J.S.A. 47:1A-1.1.

 

However, the Custodian further asserts that in an effort to resolve this matter, the Custodian provided the Complainant with a redacted version of the report, together with a privilege log citing the applicable exemption or privilege for each redaction.  The Custodian states that making a good faith effort with its redactions, the Custodian understands that the GRC may be obligated to conduct an in camera inspection of the report before making its findings and recommendations.

 

A list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001.

            The Custodian attests that the Complainant withdrew this portion of the request from the denial of access complaint prior to mediation.  However, in order to provide a complete SOI, the Custodian asserts that no such documents exist and that OPRA does not require the university to create a document to satisfy an OPRA request.  Therefore, the Custodian asserts that since no document exists, there is no reasonable factual basis for the Complainant to assert a denial of access.

 

Recent managerial evaluations of the President, Provost, and Vice President of Administration and Finance.

The Custodian asserts that the Complainant withdrew this portion of the request from the denial of access complaint as well, prior to mediation.  However, again, in order to provide a complete SOI, the Custodian asserts that there are no records responsive to the request.

 

The Custodian asserts that there are no records responsive to the request for managerial evaluations for the President.  The Custodian further asserts that the Complainant could be provided with redacted managerial evaluations for the Provost and Vice President in which all information would be redacted except for the information identified as disclosable pursuant to N.J.S.A. 47:1A-10.

 

Additionally, the Custodian asserts that the managerial evaluations for the Provost and Vice President are exempt from disclosure as ACD material.  The Custodian further asserts that the Complainant did not respond to his offer of providing the Complainant with the redacted managerial evaluations for the Provost and Vice President.  Therefore, the Custodian attests that there is no reasonable factual basis for a denial of access complaint.

           

Analysis

 

Whether the Custodian unlawfully denied access to the requested records?

 

OPRA provides that:

 

"...government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions..." (Emphasis added.)  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 ...[t]he 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 also provides that:

 

"...data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record."  (Emphasis added.) N.J.S.A. 47:1A-10.

 

Executive Order No. 26, Paragraph 4 provides that:

 

"[t]he following records shall not be considered to be government records subject to public access pursuant to [OPRA]...[i]nformation relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation..." (Executive Order 26, Governor James E. McGreevey, July 8, 2002).

 

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.

 

            The Complainant asserts submitting his OPRA request on May 4, 2006 and receiving a denial from the Custodian on May 23, 2006.

 

The Custodian states that the Complainant submitted the request on May 4, 2005 and after the Complainant received copies of the documents in response to item #1 of records relevant to complaint on page 1 above, the Complainant amended the request in e-mails dated June 14, 2005 and June 26, 2005. 

 

 

 

Documents showing evidence that Joseph H. Castro, Dwayne Hilbert, Ryan S. Kiely and Michael J. Arp have had State background checks and have been certified by the State.

The Custodian asserts that the Complainant added an additional record to the request (State background investigation forms including the psychological exams for the four (4) named university police officers). The Custodian also asserts that in an e-mail dated June 23, 2005, he advised the Complainant that the newly requested record is exempt from disclosure as criminal investigatory records pursuant to N.J.S.A. 47:1A-1 and as detailed medical or psychological information pursuant to N.J.S.A. 47:1A-10.  The Custodian further asserts providing the Complainant the only documents responsive to the request which were the Police Academy Certificates.  The Custodian attests that these documents were provided to the Complainant on May 23, 2005.

 

            The Custodian asserts that the protection afforded State Police investigative files were further recognized in Executive Order #48 (Gov. Hughes, 1968)[6], which prohibits access unless ordered by a court of competent jurisdiction or the Governor.  The Custodian asserts that accordingly, there can be no dispute that the Complainant was properly denied access to the officers' State Police background checks and psychological examinations

 

            The Custodian did not unlawfully deny access to the Complainant's request for item # 1 of records relevant to complaint on page 1 above because he certifies that he provided the Complainant with the only records responsive to the request.  The Complainant later amended his request, asking for background investigations and psychological exams, which the Custodian certifies are exempt from disclosure pursuant to N.J.S.A. 47:1A-10.

 

            The Complainant's request for background investigations and psychological exams are also exempt from disclosure pursuant to Executive Order #26 (Gov. McGreevey, 2002).  Executive Order #26 states that information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluations shall not be considered a government record.  Therefore, the Custodian did not unlawfully deny the Complainant access to background investigations and psychological exams pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:10, and Executive Order #26 (Gov. McGreevey, 2002).

 

Audit reports for the Office of Continuing Education and Distance Learning.

The Custodian asserts advising the Complainant that a significant portion of the record identified as responsive to the request is exempt from disclosure as personnel information pursuant to N.J.S.A. 47:1A-10. The Custodian also asserts further advising the Complainant that the record responsive to the request also is exempt from disclosure as ACD because the record was created to assist the President, Provost and Vice President of Administration and Finance on possible courses of action with regard to personnel and fiscal issues in the area of Continuing Education and Distance Learning.

 

The Custodian also asserts that the report was prepared by its internal auditor at the direction of the administration for the sole purpose of providing pre-decisional advice regarding the Office of Continuing Education and Distance Learning to the President, Provost and Vice President of Administration and Finance.  The Custodian further asserts that the report in its totality is exempted from disclosure as intra-agency advisory, consultative and/or deliberative material.

 

However, the Custodian states that in an effort to resolve this matter, the Custodian provided the Complainant with a redacted version of the report, together with a privilege log citing the applicable exemption or privilege for each redaction.  The Custodian states that making a good faith effort with its redactions, the Custodian understands that the GRC may be obligated to conduct an in camera inspection of the report before making its findings and recommendations.

 

While the Custodian certifies that the Complainant's request for item #2 of records relevant to complaint on page 1 above are exempt from disclosure as ACD material pursuant to N.J.S.A. 47:1A-1.1 and as personnel records pursuant to N.J.S.A. 47:1A-10, the Council should conduct an in camera review of the requested minutes to determine if said document, or portions therein, are exempt from disclosure as the Custodian asserts.

 

A list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001.

            The Custodian attests that the Complainant withdrew this portion of the request from the denial of access complaint prior to mediation.  However, in order to provide a complete SOI, the Custodian asserts that no such documents exist and that OPRA does not require the university to create a document to satisfy an OPRA request.

 

            Therefore, the Custodian did not unlawfully deny access to the Complainant's request for item #3 of records relevant to complaint on page 1 above because he certifies that no such document exists.

 

Recent managerial evaluations of the President, Provost, and Vice President of Administration and Finance.

The Custodian asserts that the Complainant withdrew this portion of the request from the denial of access complaint as well, prior to mediation.  However, again, in order to provide a complete SOI, the Custodian asserts that there are no records responsive to the request for managerial evaluations for the President.  The Custodian further asserts that the Complainant could be provided with redacted managerial evaluations for the Provost and Vice President in which all information would be redacted except for the information identified as disclosable pursuant to N.J.S.A. 47:1A-10.

 

Additionally, the Custodian asserts that the managerial evaluations for the Provost and Vice President are exempt from disclosure as ACD material.  The Custodian further asserts that the Complainant did not respond to his offer of providing the Complainant with the redacted managerial evaluations for the Provost and Vice President.  Therefore, the Custodian attests that there is no reasonable factual basis for a denial of access complaint.

 

Since the Custodian indicated in his response letter to the Complainant dated May 23, 2006 that there were no records responsive for the President, but the records responsive for the Provost and Vice President could be provided upon the Complainant advising such, the Custodian has borne his burden of making the responsive records available to the Complainant.

 

Conclusions and Recommendations

 

The Executive Director respectfully recommends the Council find that:

 

  1. The Custodian did not unlawfully deny access to the Complainant's request for documents showing evidence that certain named individuals have had State background checks and have been certified by the State because he certifies that he provided the Complainant with the only records responsive to the request.
  2. The Custodian did not unlawfully deny the Complainant access to background investigations and psychological exams pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:10, and Executive Order #26 (Gov. McGreevey, 2002).
  3. While the Custodian certifies that the Complainant's request for the audit report for the Office of Continuing Education and Distance Learning are exempt from disclosure as ACD material pursuant to N.J.S.A. 47:1A-1.1 and as personnel records pursuant to N.J.S.A. 47:1A-10, the Council should conduct an in camera review of the requested minutes to determine if said document, or portions therein are exempt from disclosure as the Custodian asserts.
  4. The Custodian must deliver[7] to the Council in a sealed envelope six copies of the requested unredacted document (see #3 above), a document or redaction index detailing the document and/or each redaction asserted and the lawful basis for the denial, as well as a legal certification from the Custodian, in accordance with N.J. Court Rule 1:4-4,that the document provided is the document requested by the Council for the in camera inspection within five (5) business days from receipt of the Council's Interim Order.
  5. The Custodian did not unlawfully deny access to the Complainant's request for a list of all administrators and managers whose children received employment from the university during the Summer beginning in 2001 because he certifies that no such document exists.
  6. Since the Custodian indicated in his response letter to the Complainant dated May 23, 2005 that there were no performance evaluations responsive for the President, but the performance evaluations responsive for the Provost and Vice President could be provided upon the Complainant advising such, the Custodian has borne his burden of making the responsive records available to the Complainant.
  7. The Custodian shall disclose the requested records in #6 above with appropriate redactions, including a detailed document index explaining the lawful basis for each redaction, within five (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director.

 

Prepared By:   

 

Tiffany L. Mayers

Case Manager

 

Approved By:

Catherine Starghill, Esq.

Executive Director

 

March 21, 2007



[1] No legal representation listed.

[2] DAG Cheryl Clarke, on behalf of the NJ Attorney General.

[3] There were other records requested that were not related to this complaint.

[4] There were other e-mails that were submitted but not relevant to adjudication. 

[5] Within the redaction log, the Custodian indicates that the requested record contains workplace behavior as personnel records and pre-decisional advice regarding the agency's policies as ACD.

[6] The Custodian's Counsel indicated to the GRC that even though the university officers are not State officers, the university officers are given their background investigations through the State.

[7] The in camera documents may be sent overnight mail, regular mail, or be hand-delivered, at the discretion of the Custodian, as long as they arrive at the GRC office by the deadline.

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Administrative Case Disposition

GRC Complaint No: 2005-131
Complainant: Daniel Meaders
Custodian: William Paterson University - Marc Shaeffer

Case Disposition:

Parties mutually agreed to mediation
            Complainant signed July 25, 2005
            Custodian signed July 11, 2005

Date of Disposition: August 11, 2005

Case Manager: Christopher Malloy

Date: August 5, 2005

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