2005-136

Final Decision

At its January 27, 2006 public meeting, the Government Records Council ("Council") considered the January 19, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that in considering the meaning of a public agency as explained by the court in the Lafayette Yard cases (368 N.J. Super. 425 (April 2004) and 183 N.J. 519 (June 2005)) and all the document submissions of the Custodian, the ARC-Union is not a public agency pursuant to N.J.S.A. 47:1A-1.1. Therefore, ARC-Union is not subject to the provisions of OPRA and is not required to respond to OPRA requests for records.

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.

Final Decision 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

Decision Distribution Date: February 8, 2006

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Findings and Recommendations of the Executive Director

Records Requested: [1]

1. Copy of the ARC-Union Employee Handbook
2. Akil A. Hayward personnel files
3. Records related to Akil A. Hayward's termination
4. Similar termination records
5. Akil A. Hayward's job performance reviews
6. Employee discipline policy/procedure
7. Code of Ethics Policy
8. Discrimination and harassment policy
9. Employee separation termination policy

Request Made: May 26, 2005 and June 6, 2005
Response Made: June 1, 2005
Custodian: Russell Bryant
GRC Complaint filed: July 12, 2005

Background

July 12, 2005

Denial of Access Complaint filed with the Government Records Council ("GRC").  Attachments to the complaint:

• May 26, 2005 letter from the Complainant to Susan Airey, Director of Health & Behavior Services, to ARC-Union requesting the records stated above.
• June 1, 2005 letter response from Russell Bryant, Director of Human Resources ARC-Union to the Complainant denying the Complainant's request for said records on the basis ARC-Union does not release documents to former employees that belong to ARC-Union.
• June 6, 2005 letter from the Complainant to Russell Bryant making a second request for the same records with the assertion that the June 1, 2005 response from ARC-Union was "non-responsive" to his request. 

September 6, 2005

Offer of mediation sent to the Complainant and Custodian.

September 7, 2005

The ARC-Union declines mediation and asserts that because ARC-Union is a private, non-profit corporation and not a sub-division of any New Jersey State government body or other government body their organization is not subject to the Open Public Records Act ("OPRA").[2]

September 9, 2005

The GRC Staff sends a request for the Custodian's Statement of Information ("SOI").

September 26, 2005

The Custodian counsel's submission of the SOI with the following attachments:

• Certification of Russell Bryant, Human Recourses Director of ARC-Union
• Certification of Patrick McCarthy, legal counsel to ARC-Union, regarding delivery of SOI to the GRC
• Certificate of Amendment to the Certificate of Incorporation of ARC-Union dated December 8, 1993
• Certificate of Incorporation for ARC-Union pursuant to the New Jersey Nonprofit Corporation Act filed and recorded October 20, 1954

The Custodian certifies that ARC-Union is a "non-profit, non-sectarian 501(c)(3) membership-based organization." The Custodian submitted copies of their Certification of Incorporation and amendment, which he contends is proof that ARC-Union is not a public agency governed by the Open Public Records Act ("OPRA").  He claims that while ARC-Union receives State of NJ and Federal funding, ARC-Union is a "private non-profit organization" and not a public agency as defined under the OPRA. 

Counsel for the ARC-Union asserts that ARC-Union's programs are licensed and funded by State and Federal funds but contends it is not a public agency as defined by N.J.S.A. 47:1A-1.1 and cites Communications Workers of America, AFL-CIO v. Atlantic County Association for Retarded Citizens and the State of New Jersey, 250 N.J. Super. 403, 407-408 (Ch. Div. 1991) in support of this position.   Counsel asserts further that ARC-Union is not within the jurisdiction of OPRA and therefore, not obligated to respond to the Complainant's document request.  

October 25, 2005

The GRC responds to Custodian's counsel written submission to advise ARC-Union of the GRC's role and authority in the complaint process pursuant to N.J.S.A. 47:1A-7. 

December 1, 2005

GRC requests additional information from the Custodian including ARC-Union's bylaws, ordinance, resolution or agreements which discuss the relation between their organization and any state or local government agency. 

December 8, 2005

The Counsel's submission and Custodian's certification in response to the GRC's request for additional information with the following attachments:

• The contract agreement between the State of New Jersey Department of Human Services, Division of Developmental Disabilities ("DHS-DDD") and ARC-Union for the period July 1, 2005 through June 30, 2006

Counsel reiterated the position as set forth in the Custodian's SOI that the ARC-Union is a non-profit, private organization and not a public agency subject to the provisions of OPRA.  Additionally, the Counsel distinguished the ARC-Union's organization from the factual circumstances present in the Times of Trenton v. Lafayette Yard Community Development Corporation, 183 N.J. 519 (2005) case.  He asserts that:

1. Lafayette Yard case.ARC-Union's relationship with the State of New Jersey is contractual only and was not created by a state or municipal body. According to ARC-Union's Bylaws, the organization was created to "promote the welfare of all mentally retarded citizens and their families, and to cooperate with public and private agencies and other groups and organizations having a similar purpose."
2. ARC-Union's members consist of a group of private individuals who advocate and provide services "to advance the rights of the handicapped."
3. Unlike the Lafayette Yard case, the "interests of the public are not implicated."  The Complainant's interests in requesting the records are personal and the public is not implicated, which is contrary to the "letter and spirit" of OPRA.

December 15, 2005

Supplemental information submitted by the Custodian and counsel with the attachment of the DHS' "Standard Language Document for Social Service and Training Contracts."  Counsel asserts that the DHS document is evidence that ARC-Union's relationship is contractual and the DHS views them as an independent contractor. 

Analysis

Whether the ARC, Union County, Inc. is a public agency pursuant to the OPRA? 

OPRA defines a public agency as:

"…[a]ny of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions."  N.J.S.A. 47:1A-1.1.

The Custodian certifies that ARC-Union is a "non-profit, non-sectarian 501(c)(3) membership-based organization" and submitted copies of their Certification of Incorporation and amendment, which he contends is proof that ARC-Union is not a public agency governed by the OPRA.  Additionally, the Custodian's counsel references the contract agreement between the DHS-DDD and ARC-Union and ARC-Union Bylaws as further support for their position by specifically noting that:

1. ARC-Union's relationship with the State of New Jersey is contractual only and was not created by a state or municipal body.
2. According to ARC-Union's Bylaws, the organization was created to "promote the welfare of all mentally retarded citizens and their families, and to cooperate with public and private agencies and other groups and organizations having a similar purpose."
3. ARC-Union's members consist of a group of private individuals who advocate and provide services "to advance the rights of the handicapped."

Most definitions of "public agency" under NJ statutes and the Administrative Code resemble that contained in OPRA. However, the Open Public Meetings Act ("OPMA") defines "public body" as a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds.  N.J.S.A. 10:4-8a.

The OPMA definition of a public body requires that an entity, "... (1) consist of 'two or more persons' and (2) be 'collectively empowered as a voting body' (3) to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds.' N.J.S.A. 10:4-8a..." The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 2004).  In that case, the court held that: 

(1) a private, non-profit corporation created for the express purpose of redeveloping property donated to it by the city of Trenton,

(2) having a Board of Trustees appointed by the Mayor and City Council,

(3) with the mandated reversion of the donated property after the completion of the project and repayment of the debt,

(4) having corporate bylaws requiring the distribution of all assets to the city upon the dissolution or liquidation of the corporation,

(5) having a Disposition Agreement with the city that designates the city as the "agency" and the corporation as the "redeveloper" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, and

(6) having the authority to issue tax-exempt bonds for the financing of the project

qualified the corporation as a "public body" under OPMA.  The court further held that the corporation was "an 'instrumentality' created by the City and a 'public agency' under the OPRA for essentially the same reasons that it is a 'public body' under the OPMA." Id. at 442,670.

The decision of the Superior Court that Lafayette Yard Community Development Corp. qualifies as a "public body" was affirmed by the New Jersey Supreme Court (Times of Trenton, 183 N.J. 519,  874 A.2d 1064 (June 2005)).   See also Snyder v. American Association of Blood Banks, 144 N.J. 269, 676 a.2d 1036 (1996) (finding that the legislature did not create or authorize the AABB to perform a specific governmental purpose); Williams v. National Car Rental System, Inc., 225 N.J.Super. 164, 541 A.2d 1125 (1988) (finding that the broad powers conferred upon the Port Authority leave no doubt that it is a public authority or public agency); Blazer Corporation v. NJ Sports and Exposition Authority, 195 N.J.Super. 542, 480 A.2d 953 (1984) (citing Wade v. N.J. Turnpike Authority, 132 N.J.Super. 92, 332 A.2d 232 (Law Div. 1975), "The Court noted the official comment to N.J.S.A. 59:1-3: 'The definition of 'Public Entity' provided in this section is intended to be all inclusive and to apply uniformly throughout the State of New Jersey to all entities exercising governmental functions.'").

Additionally, two rules in the Administrative Code define "public agency" more precisely than other rules and statutes by adding the following language to the usual definition, "... agencies exercising sovereign powers of government."  This language is very illustrative of the meaning of public agencies, as explained by the court in the Lafayette Yard cases cited above. While other state statutes and rules do not include this language, it appears that the New Jersey Supreme Court confirms that "exercising sovereign powers of government" is required for an entity to be deemed a public body or agency.

The Custodian's Certificate of Incorporation establishes that ARC-Union is a private, nonprofit corporation whose purpose is to care, train and educate retarded children in public schools, institutions, and their own non-profit school project in the State of New Jersey.  The Custodian also submitted documents that explains ARC-Union has a contractual service agreement with DHS-DDD and is an independent contractor, not under the employment of DHS-DDD.   In the ARC-Union Bylaws submitted by the Custodian, there is no evidence that ARC-Union is empowered to perform public functions or authorized to spend public funds. There is no evidence from the submissions that the ARC-Union is subject to control or involvement by any government body other than to provide services on a contract basis. The Complainant has offered no evidence to support a finding that the ARC-Union is a public agency. 

Thus, in considering the meaning of a public agency as explained by the court in the Lafayette Yard cases and all the document submissions of the Custodian, the ARC-Union is not a public agency pursuant to N.J.S.A. 47:1A-1.1.  Therefore, ARC-Union is not subject to the provisions of OPRA and is not required to respond to OPRA requests for records. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that in considering the meaning of a public agency as explained by the court in the Lafayette Yard cases and all the document submissions of the Custodian, the ARC-Union is not a public agency pursuant to N.J.S.A. 47:1A-1.1.  Therefore, ARC-Union is not subject to the provisions of OPRA and is not required to respond to OPRA requests for records. 

Prepared By:  Gloria Luzzatto, Assistant Executive Director

Approved By:
Paul F. Dice
Executive Director
Government Records Council

Date: January 19, 2006

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