2005-16

At its October 28, 2005 public meeting, the Government Records Council ("Council") considered the October 7, 2005 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:

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 28^th Day of October, 2005

Diane Schonyers, Vice-Chair
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council

Supplemental Findings and Recommendations of the Executive Director

Records Requested: Certificate of Honorable Discharge (Form DD214)[1]
Request Made: December 21, 2004
Response Made: December 22, 2004
Custodian: Loretta Castano
GRC Complaint filed: January 12, 2005

At its July 14, 2005 public meeting, the Government Records Council ("Council") considered the July 8, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that:

The Council request that the Custodian, within 10 business days of receipt of their decision, provide the Executive Director, the specific provisions of law under which they are claiming exemptions from disclosure of the Form DD214.

The Borough's counsel submitted the response to the interim decision of the Council. The Borough's counsel stated that because Form DD214 is exempt from disclosure under the Freedom of Information Act, specifically 5 USC § 552(b)(6)[2], it is also exempt from disclosure pursuant to N.J.S.A. 47:1A-9a.

Specifically, 5 USC § 552(b)(6) states, "Public information; agency rules, opinions, orders, records, and proceedings. This section does not apply to matters that are ... personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy ..."

Counsel also reattached her April 7, 2005 certification that was reviewed for the July 14, 2005 meeting and stated the following[3]:

The Complainant responded to the interim decision for access. He stated that the records sought should be disclosable because they are not exempt from disclosure. He further states that there is not an invasion of privacy regarding the Form DD214 and its disclosure as asserted by the Custodian's Counsel.

Moreover the Complainant states that because he is the publisher of an investigative journal, he has a right to the records under common law.

WHETHER the Custodian has complied with the Council's July 14, 2005 interim decision which ordered the Custodian to provide the Executive Director the specific provisions of law under which she is claiming exemptions from disclosure for the Form DD214?

On August 17, 2005 the Custodian's Counsel did respond via letter and attachments to the request for lawful citations under which she is claiming exemptions from disclosure for the Form DD214.

Counsel did not assert a new position, however she simply reiterated what was previously stated in the Statement of Information. She did request that a balancing test be employed to determine the balancing of the public's right to public information against the right to individual privacy.

Counsel reattached her April 7, 2005 certification and other documents that were already reviewed prior to the July 14, 2005 interim decision being rendered by the Council.

Thus the Custodian did comply with the Council's interim decision. However, the Custodian did not provide any new information in support of the claimed exemption from disclosure of the document in question. In fact, the Custodian has not born her burden under N.J.S.A. 47:1A-6 since she has not provided a provision of OPRA or any other law which specifically exempts the Form DD214 from disclosure.

Whether the Custodian unlawfully denied access to the Form DD214 pursuant to OPRA?

"...all government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions..." N.J.S.A. 47:1A-1.

OPRA further states a government record shall not include the following information that is deemed to be confidential for the purposes of OPRA:

"...any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State that has been filed by an individual with a public agency, except that a veteran or the veteran's spouse or surviving spouse shall have access to the veteran's own records." [5] (Emphasis added.) N.J.S.A. 47:1A-1.1

"...The public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6

The certification of the Custodian's legal counsel asserts that the requested record is a government record. Counsel has also stated that the Form DD214 was not released because it is not disclosable pursuant to the Freedom of Information Act. The specific provision of the Freedom of Information Act that was cited by Counsel was 5 USC §552a(b)(6). After review of this citation, GRC staff found that this is a general citation of law and does not specifically state that the Form DD214 is not disclosable.

Since the Custodian's Counsel did not give a specific citation for the denial, they have failed to bare their burden of proving that the Form DD214 was lawfully protected from disclosure at the time of the request. Therefore, the Custodian unlawfully denied access to the Form DD214.

Although the denial was unlawful at the time of the request, on August 5, 2005, Acting Governor Richard Codey approved an amendment to the OPRA that states in part that Form DD214 is exempt from disclosure (N.J.S.A. 47:1A-1.1). Since the Form DD214 is now exempt from disclosure pursuant to OPRA, the request for access cannot lawfully be granted.

Again, while the denial of access was unlawful at the time of the request, the Council may not grant access to the Form DD214 due to the amendment of OPRA that occurred on August 5, 2005, which precludes disclosure.

WHETHER the Custodian knowingly and willfully violated the OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11?

"A public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty..." N.J.S.A. 47:1A-11.a.

OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states:

"...If the Council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]..." N.J.S.A. 47:1A-7e.

Certain legal standards must be considered when making the determination of whether the Custodian's actions rise to the level of a "knowing and willful" violation of OPRA. The following statements must be true for a determination that the Custodian "knowingly and willfully" violated OPRA: the Custodian's actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian's Actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian's actions must have been forbidden with actual, not imputed, knowledge that the actions must have been forbidden (Berg); the Custodian's actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J. Super. 86 (App. Div. 1996) at 107).

While the Custodian did not disclose the Form DD214, she did respond in a timely manner. She cited general provisions of the law to explain why Form DD214 was not disclosable. The Custodian did attempt to explain the basis for the denial, however it did not meet the criteria necessary to amount to a lawful denial of access to the Form DD214. The Custodian did attempt to respond to the request and provided an explanation in a timely manner.

In denying access to the requested record, the Custodian did not commit a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances.

[1] The request was for Mr. John Gardner's Certificate of Honorable Discharge (Form DD214).
[2] The Custodian's Counsel incorrectly cited this as 5 USC 552(a)(b)(6), however the statutory language provided by the Custodian's Counsel agrees with the citation included above by GRC staff.
[3] This is a summarization. The complete certification can be located in GRC file #2005-16.
[4] The Custodian's Counsel cites the Freedom of Information Act, but does not give a specific citation.
[5] Amendment to OPRA approved by Acting Governor Codey on August 5, 2005.

Interim Decision on Access

At the July 14, 2005 public meeting, the Government Records Council ("Council") considered the July 8, 2005 Executive Director's Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that the Custodian, within ten (10) business days of receipt of this decision, provide Executive Director Paul Dice with the specific provisions of law under which they are claiming exemptions from disclosure of the DD214.

Interim Decision Rendered by the
Government Records Council
On The 14^th Day of July, 2005

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

Findings and Recommendations of the Executive Director

Records Requested: Certificate of Honorable Discharge[1]
Request Made: December 21, 2004
Response Made: December 22, 2004
Custodian: Loretta Castano
GRC Complaint filed: January 12, 2005

December 21, 2004
Written Open Public Records Act (OPRA) Request - Complainant seeks a copy of a Certificate of Military Discharge.

December 22, 2004
Custodian responded to the request stating that " pursuant to Executive Order 21 exempted records update issued August 13, 2002 (see attached) section 4) item 1B which states that the following item will be deemed not to be a government record subject to public access: Information relating to medical, psychiatric or psychological history, treatment of evaluation."

January 12, 2005
Denial of Access Complaint filed by the Complainant stating that the Custodian did not release the Certificate of Honorable Discharge. However, he was given an Application for Tax Exemption and a VA letter. The Complainant further stated that his position is: "...the Executive Order, as underlined, is related to employment records and not the beneficial gain from a statutory tax exemption, which is not a common occurrence. There is a need for transparency so that the public can see that there are no political influences present."

February 7, 2005
Statement of Information submitted by the Custodian that certified that the Certificate of Honorable Discharge was not released because the assessor advised that the document (Certificate of Honorable Discharge) contains confidential health care information which is not part of the public record.

March 24, 2005
Letter from GRC staff, to the Records Custodian, that requested a certified explanation of why the Certificate of Honorable Discharge could not be disclosed in whole or in part.

April 7, 2005
Custodian counsel's certification of why the Certificate of Honorable Discharge can not be disclosed in whole or in part. This certification stated the following:[2]

"...all government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions..." N.J.S.A. 47:1A-1.

"...any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof..." N.J.S.A. 47:1A-1.1

"...The public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6

Based upon the certification of the Records Custodian and the Custodian's legal counsel, the requested record is a government record. However, after review of the Statement of Information and supplemental certifications, it cannot be determined whether the document is disclosable in whole, in part, or non-disclosable pursuant to N.J.S.A. 47:1A-1 et seq.

The Custodian has failed to provide a specific provision of the law under which they are claiming exemption from disclosure. They have cited general laws (Freedom of Information Act, Executive Order 26, Executive Order 21, and OPRA) that may preempt disclosure of the requested document, however they have failed to present their specific legal basis for the denial of access. The Council should order the Custodian, within 10 business days of receipt of the Council's decision, to provide the Executive Director, the specific provisions of law under which they are claiming exemptions from disclosure of the DD214.

The Executive Director respectfully recommends that the Council request that the Custodian, within 10 business days of receipt of their decision, provide the Executive Director, the specific provisions of law under which they are claiming exemptions from disclosure of the DD214.

[1] The request was for Mr. John Gardner's certificate.
[2] This is a summarization. The complete certification can be located in GRC file #2005-16.
[3] The Custodian's Counsel cites the Freedom of Information Act, but does not give a specific citation.