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2005-160
Final decisionJune 25, 2008 Government Records Council Meeting
At the June 25, 2008 public meeting, the Government Records Council (“Council”) considered the June 18, 2008 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, accepts the Complainant’s request to withdraw this complaint from the Office of Administrative Law. No further adjudication is required.
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 25th Day of June, 2008
Robin Berg Tabakin, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council. David Fleisher, Secretary
Decision Distribution Date: July 2, 2008
Supplemental Findings and Recommendations of the Executive DirectorJune 25, 2008 Council Meeting
Records Relevant to Complaint: Copies of any government record (applications, resumes, documents, e-mails, etc.) showing the experience and education claimed by Charlene Coughlin, Louis Cafiero and Monique Murray (employees of the Division of Taxation) to be qualified to receive the provisional promotions to their current titles. Request Made: August 16, 2005Response Made: August 25, 2005Custodian: Michael TygerGRC Complaint Filed: August 27, 2005
Background
February 28, 2007 Government Records Council’s (“Council”) Interim Order. At its February 28, 2007 public meeting, the Council considered the February 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, found that the Council shall re-transmit this complaint to the Office of Administrative Law since the Complainant asserts not having received notice of a scheduled proceeding and the matter was dismissed for failure by the Complainant to appear. The Complainant’s explanation for his failure to appear is acceptable and warrants re-transmission of the complaint to the Office of Administrative Law.
March 6, 2007 Council’s Interim Order distributed to the parties.
June 10, 2008 E-mail from the Complainant to the Custodian’s Counsel. The Complainant withdrew this complaint from the Office of Administrative Law (“OAL”).
June 18, 2008 The complaint is referred back from OAL.
Analysis
Because the Complainant withdrew this complaint from OAL, no legal analysis is required.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council accept the Complainant’s request to withdraw this complaint from the Office of Administrative Law. No further adjudication is required.
Approved By: Catherine Starghill, Esq. Executive Director
June 18, 2008 [1] No representation listed on record. [2] Represented by DAG Kimberly Sked on behalf of the NJ Attorney General. Interim Order IIFebruary 28, 2007 Government Records Council Meeting
At the February 28, 2007 public meeting, the Government Records Council ("Council") considered the February 27, 2007 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 matter shall be re-transmitted to the Office of Administrative Law since the Complainant asserts not having received notice of a scheduled proceeding and the matter was dismissed for failure by the Complainant to appear. The Complainant"s explanation for his failure to appear is acceptable and warrants re-transmission of the complaint to the Office of Administrative Law.
Interim Order Rendered by the Government Records Council On The 28th Day of February 2007
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Government Records Council
Decision Distribution Date: March 2, 2007 Supplemental FindingsSupplemental Findings and Recommendations of the Executive DirectorFebruary 28, 2007 Council Meeting
Records Relevant to Complaint: Copies of any government record (applications, resumes, documents, e-mails, etc.) showing the experience and education claimed by Charlene Coughlin, Louis Cafiero and Monique Murray (employees of the Division of Taxation) to be qualified to receive the provisional promotions to their current titles. Request Made: August 16, 2005 Response Made: August 25, 2005 Custodian: Michael Tyger GRC Complaint Filed: August 27, 2005
Background
August 10, 2006 Government Records Council's ("Council") Interim Order. At its August 10, 2006 public meeting, the Council considered the August 9, 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, found that:
The Executive Director respectfully recommends the Council find that:
November 20, 2006 GRC transmitted complaint to the Office of Administrative Law.
February 8, 2007 Order of the Office of Administrative Law. The Office of Administrative Law dismissed this matter due to the Complainant"s failure to appear to a scheduled proceeding.
February 9, 2007 E-mail from the GRC to the Complainant. The GRC informed the Complainant that the matter had been dismissed due to the Complainant"s failure to appear to a scheduled proceeding.
February 9, 2007 E-mail from the Complainant to the Office of Administrative Law. The Complainant asserts that his failure to appear to the scheduled proceeding was only due to his failure to receive notice of same. The Complainant requests that the proceeding be rescheduled.
February 9, 2007 E-mail from the Office of Administrative Law to the Complainant. The Office of Administrative Law directs the Complainant's explanation for his failure to appear and request that the proceeding be rescheduled to the GRC.
February 13, 2007 E-mail from the Complainant to the GRC. The Complainant requests that this complaint be re-transmitted to the Office of Administrative Law and that the GRC accept his explanation for his failure to appear as stated in previous e-mails. The Complainant asserts that he never received notice of the scheduled proceeding.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council re-transmit this complaint to the Office of Administrative Law since the Complainant asserts not having received notice of a scheduled proceeding and the matter was dismissed for failure by the Complainant to appear. The Complainant's explanation for his failure to appear is acceptable and warrants re-transmission of the complaint to the Office of Administrative Law.
Approved By: Catherine Starghill, Esq. Executive Director
February 27, 2007
[1] No legal representation on record. [2] The Custodian is represented by Deputy Attorney General Sharon Dickerson, Esq. on behalf of the NJ Attorney General. Interim Order
At the August 10, 2006 public meeting, the Government Records Council ("Council") considered the August 9, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:
Interim Order Rendered by the Government Records Council On The 10th Day of August, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Michelle Richardson Government Records Council
Supplemental Findings and Recommendations of the Executive DirectorJohn McCormack[1] GRC Complaint No. 2005-160Complainant
v.
NJ Department of Treasury[2] Custodian of Records
Records Relevant to Complaint: Copies of any government record (applications, resumes, documents, e-mails, etc.) showing the experience and education claimed by Charlene Coughlin, Louis Cafiero and Monique Murray (employees of the Division of Taxation) to be qualified to receive the provisional promotions to their current titles. Request Made: August 16, 2005 Response Made: August 25, 2005 Custodian: Michael Tyger GRC Complaint filed: August 27, 2005
Background
July 13, 2006 At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that:
July 19, 2006 Council's Interim Order distributed to the parties.
August 2, 2006 Custodian's response to the Council's Interim Order. The Custodian requests an extension of time to make redactions to the records ordered for disclosure and provide those documents to the Complainant in response to the Council's July 13, 2006 Interim Order.
The Custodian also states that the resumes contain information which may not relate to experiential and educational requirements. The Custodian is seeking guidance from the Council, which would allow the Custodian to redact personal information contained in the resumes which does not show experiential or educational requirements.
The Custodian also requests that the Council reconsider its referral of this case to the Office of Administrative Law ("OAL") for a determination of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstance. The Custodian states that in such cases, the burden rests with the Complainant to demonstrate that the Custodian's actions were knowing and willful. The Custodian contends that the Complainant has not provided any evidence that the Custodian's alleged misstatements were knowing and willful. The Custodian states that there are no facts in dispute in this case. The Custodian asserts that the Custodian made his best effort to interpret the controlling law and regulation, amidst numerous requests by this Complainant for records relating to various employees.
August 7, 2006 Complainant's response to the Custodian's August 2, 2006 submission. The Complainant argues that the Custodian did not copy him on the August 2, 2006 response to the Council's Interim Order. The Complainant states that this ex parte communication on the part of the Custodian is further evidence of a knowing and willful violation of OPRA.
The Complainant states that he does not have a problem with the Custodian making redactions to the resumes and TEAMS/PMIS databases as long as the omissions are limited to social security numbers, home addresses and home telephone numbers.
The Complainant disagrees with the Custodian's request to reconsider it's referral of this case to OAL for a determination of a knowing and willful violation.
Analysis
Whether the Custodian complied with the Council's July 13, 2006 Interim Order? Pursuant to the Council's Proposed Rules[3]
"[r]equests for a stay of the effective date of a Council's interim decision must be made prior to the last day by which action was to have been taken in accordance with the Council's interim decision." (Emphasis added.) N.J.A.C. 5:105-2.14(c)
OPRA states that:
"[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.
Executive Order 26, Paragraph 3 provides that:
"[t]he resumes of successful candidates shall be disclosed once the successful candidate is hired."
On the tenth business day after receiving the Council's July 13, 2006 Interim Order, the Custodian requested an extension of time to make redactions to the records and to provide those documents to the Complainant in response to the Council's July 13, 2006 Interim Order. The Custodian did not comply within the specific number of days he was given to disclose the records, nor did he request a stay "prior to the last day by which action was to have been taken" (N.J.A.C. 5:105-2.14(c)) and appeal the Interim Order to Superior Court.
The Custodian also states that the resumes contain information which may not relate to experiential and educational requirements. The Custodian is seeking guidance from the Council which would allow the Custodian to redact personal information contained in the documents that does not show experiential or educational requirements. As stated in the July 6, 2006 GRC Findings and Recommendations of the Executive Director, Executive Order #26 provides that "[t]he resumes of successful candidates shall be disclosed once the successful candidate is hired." No indication is made in Executive Order 26 allowing for redactions to resumes of successful candidates. Therefore, without further legal explanation for redactions, the Custodian should release the requested resumes, in whole, pursuant to Executive Order 26.
The Custodian's failure to comply with the Council's July 13, 2006 Interim Order is further evidence to be considered by the OAL in its hearing on the issue of whether the Custodian has knowingly and willfully violated OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By: Colleen C. McGann Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation listed. [2] Represented by Deputy Attorney General Sharon Dickerson, Esq. from the Office of the Attorney General. [3] Copy provided on the GRC website and previously published in the New Jersey Register. Interim OrderJohn McCormack[1] GRC Complaint No. 2005-160Complainant
v.
NJ Department of Treasury[2] Custodian of Records
Records Relevant to Complaint: Copies of any government record (applications, resumes, documents, e-mails, etc.) showing the experience and education claimed by Charlene Coughlin, Louis Cafiero and Monique Murray (employees of the Division of Taxation) to be qualified to receive the provisional promotions to their current titles. Request Made: August 16, 2005 Response Made: August 25, 2005 Custodian: Michael Tyger GRC Complaint filed: August 27, 2005
Background
July 13, 2006 At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that:
July 19, 2006 Council's Interim Order distributed to the parties.
August 2, 2006 Custodian's response to the Council's Interim Order. The Custodian requests an extension of time to make redactions to the records ordered for disclosure and provide those documents to the Complainant in response to the Council's July 13, 2006 Interim Order.
The Custodian also states that the resumes contain information which may not relate to experiential and educational requirements. The Custodian is seeking guidance from the Council, which would allow the Custodian to redact personal information contained in the resumes which does not show experiential or educational requirements.
The Custodian also requests that the Council reconsider its referral of this case to the Office of Administrative Law ("OAL") for a determination of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstance. The Custodian states that in such cases, the burden rests with the Complainant to demonstrate that the Custodian's actions were knowing and willful. The Custodian contends that the Complainant has not provided any evidence that the Custodian's alleged misstatements were knowing and willful. The Custodian states that there are no facts in dispute in this case. The Custodian asserts that the Custodian made his best effort to interpret the controlling law and regulation, amidst numerous requests by this Complainant for records relating to various employees.
August 7, 2006 Complainant's response to the Custodian's August 2, 2006 submission. The Complainant argues that the Custodian did not copy him on the August 2, 2006 response to the Council's Interim Order. The Complainant states that this ex parte communication on the part of the Custodian is further evidence of a knowing and willful violation of OPRA.
The Complainant states that he does not have a problem with the Custodian making redactions to the resumes and TEAMS/PMIS databases as long as the omissions are limited to social security numbers, home addresses and home telephone numbers.
The Complainant disagrees with the Custodian's request to reconsider it's referral of this case to OAL for a determination of a knowing and willful violation.
Analysis
Whether the Custodian complied with the Council's July 13, 2006 Interim Order? Pursuant to the Council's Proposed Rules[3]
"[r]equests for a stay of the effective date of a Council's interim decision must be made prior to the last day by which action was to have been taken in accordance with the Council's interim decision." (Emphasis added.) N.J.A.C. 5:105-2.14(c)
OPRA states that:
"[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.
Executive Order 26, Paragraph 3 provides that:
"[t]he resumes of successful candidates shall be disclosed once the successful candidate is hired."
On the tenth business day after receiving the Council's July 13, 2006 Interim Order, the Custodian requested an extension of time to make redactions to the records and to provide those documents to the Complainant in response to the Council's July 13, 2006 Interim Order. The Custodian did not comply within the specific number of days he was given to disclose the records, nor did he request a stay "prior to the last day by which action was to have been taken" (N.J.A.C. 5:105-2.14(c)) and appeal the Interim Order to Superior Court.
The Custodian also states that the resumes contain information which may not relate to experiential and educational requirements. The Custodian is seeking guidance from the Council which would allow the Custodian to redact personal information contained in the documents that does not show experiential or educational requirements. As stated in the July 6, 2006 GRC Findings and Recommendations of the Executive Director, Executive Order #26 provides that "[t]he resumes of successful candidates shall be disclosed once the successful candidate is hired." No indication is made in Executive Order 26 allowing for redactions to resumes of successful candidates. Therefore, without further legal explanation for redactions, the Custodian should release the requested resumes, in whole, pursuant to Executive Order 26.
The Custodian's failure to comply with the Council's July 13, 2006 Interim Order is further evidence to be considered by the OAL in its hearing on the issue of whether the Custodian has knowingly and willfully violated OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By: Colleen C. McGann Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation listed. [2] Represented by Deputy Attorney General Sharon Dickerson, Esq. from the Office of the Attorney General. [3] Copy provided on the GRC website and previously published in the New Jersey Register. Findings and Recommendations of the Executive Director
Records Relevant to Complaint: Copies of any government record (applications, resumes, documents, e-mails, etc.) showing the experience and education claimed by Charlene Coughlin, Louis Cafiero and Monique Murray (employees of the Division of Taxation) to be qualified to receive the provisional promotions to their current titles. Request Made: August 16, 2005 Response Made: August 25, 2005 Custodian: Michael Tyger GRC Complaint filed: August 27, 2005 Background August 25, 2005 Letter from the Custodian to the Complainant. The Custodian informed the Complainant that the records are not disclosable pursuant to the Open Public Records Act ("OPRA") N.J.S.A. 47:1A-10 because they are personnel records. The Custodian goes on to state that in this instance there is one disclosable document responsive to the request - a letter to the Complainant from the Department of Personnel ("DOP") permitting the appointments of the individuals named in the request. The Custodian offers to provide a copy of this document at a charge of $0.75. The Custodian states that the provision of OPRA that allows the disclosure of personnel records relating to experiential, educational or medical requirements does not apply in this case because the titles simply require a general Bachelor's Degree and work experience.
August 27, 2005 Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachment:
The Complainant states that he does not believe that the denial of access to the requested records was lawful under OPRA because he is requesting experiential and educational backgrounds of specific individuals and this type of information is a government record pursuant to N.J.S.A. 47:1A-10. The Complainant asserts that the job titles of the individuals he is requesting do, in fact, have very specific requirements for experience and he has reason to believe that the individuals in those titles do not meet the requirements for appointment. The Complainant states that he is requesting only those portions of the records which relate to the individuals' claim of qualifications for their positions. The Complainant included language from the official DOP Job Specification for the titles of Assistant Chief, Technical Services, Taxation and Supervisor, Technical Services, Taxation in which the individuals whose records he is requesting are employed. Both job descriptions provided by the Complainant list a number of experiential and educational requirements for those employed in the titles for the positions related to the request. August 29, 2005 Mediation sent to both parties. Neither party agreed to mediate this case.
September 28, 2005 Statement of Information submitted by the Custodian with the following attachments:
The Custodian asserts that there are no records responsive to this request if the request is construed to seek review of qualifications of the three named individuals at the time of making a provisional appointment. The Custodian asserts that there is no record created by the Department of Treasury ("Treasury") to reflect their determination on the qualification of these individuals and Treasury is not required to create a record to respond to an OPRA request. The Custodian goes on to state that if the request is for any records reflecting the qualifications or claimed qualifications of those appointed then any documentation submitted by those employees is not a government record pursuant to N.J.S.A. 47:1A-1. The Custodian contends that the release of such documentation would violate the privacy interests of Treasury employees.
The Custodian states that the only document offered to the Complainant in response to his request is a letter sent to the Complainant on August 11, 2005 by the DOP regarding the appointments in question. Additionally, the Custodian asserts that the matter of qualification of the three individuals for their provisional appointments is currently pending before the DOP Merit System Board. The Custodian further asserts that Treasury's release of the requested records or involvement in the process could contravene and complicate the Merit System Board's existing investigation process when the Merit System Board is the sole entity vested with the responsibility to resolve the underlying merits of the substantive issue hidden behind this OPRA request.
Custodian's Certification The Custodian certifies that documents submitted by an employee pertaining to their employment are considered strictly confidential in order to protect the privacy interests of the employee. The Custodian asserts that an employee writing to their employer about his employment has a reasonable expectation of privacy and expects such information to be held in confidence. The Custodian contends that the request seeks documents containing assertions of certain employees' qualifications for provisional employment and those employment applications and resumes are not disclosable under OPRA.
Additionally, the Custodian states that while Treasury has determined that the individuals are qualified for provisional appointment, there are no documents that exist that reflect Treasury's determination of their qualifications. The Custodian states that the Complainant is currently disputing the qualifications of those placed in these particular provisional appointments. The Custodian asserts that this matter is currently under review by the Merit System Board as complaint no. 2006-636 in which the subject employees are given the opportunity to protect their privacy interests. The Custodian states that although it is not reflected in the August 25, 2005 letter from the Custodian to the Complainant, he has conducted a search for documents responsive to the request and no documents exist in the Division of Administration that reflect this determination of conformity with specific qualifications even though interviews were conducted and various information was evaluated in choosing these individuals. The Custodian goes on to state that a search of records of the Treasury reveal that there were two requests for consideration for the provisional positions with supporting information. The Custodian deemed these records confidential and therefore not a government record due to the employees' reasonable expectation of privacy.
Statement of Fact submitted as part of the Statement of Information on behalf of the Custodian by Deputy Attorney General, Eileen Schlindwein Den Bleyker The Custodian's counsel states that the records request was received by the Custodian for Treasury on August 16, 2005 and was responded to in writing on August 25, 2005. The Custodian's counsel asserts that the request is for records that were submitted by three named individuals which the Complainant believes reflect assertions of qualifications made by these individuals. The Custodian's counsel indicates that the Complainant is seeking to prove that those placed in these provisional positions are not qualified for same and his claims are now the subject of a matter before the Merit System Board. The Custodian's counsel contends that information submitted by applicants is confidential "until after the permanent civil appointment has been made and a successful candidate determined."
The Custodian's counsel asserts that the Custodian of Records is charged with the responsibility to "safeguard a citizen's personal information... when disclosure thereof would violate the citizens' reasonable expectation of privacy." "N.J.S.A. 47:1A-1 et seq."[2] The Custodian's counsel also cites Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 331 (2004) in support of this assertion. The Custodian's counsel asserts that the Complainant is seeking records in which employees claim to have certain qualifications and contends that any assertions made by these employees to their employer are not subject to access because an employee's views and claims are protected from public disclosure by the individual's reasonable expectation of privacy.
The Custodian's counsel contends that the statute only provides for a narrow exception to the confidentiality of personnel records, as the Custodian's counsel asserts the Council held in Loigman v. Monmouth County Prosecutor's Office, GRC Case No. 2003-44 (April 2004). The Custodian's counsel states that while the scope of the privacy protection may remain unclear, the Appellate Division has stated that "it is reasonable to anticipate that its declaration of the ‘public policy' respecting the ‘citizen's reasonable expectation of privacy' will be considered extensively by the GRC and the Courts. Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 368 (App. Div. 2003)."
The Custodian's counsel cites a number of cases in support of this assertion including a recent decision of the Appellate Division, Michelson v. Wyatt, 880 A.2d 458; 2005 N.J. Super (August 2005). The Custodian's counsel asserts that in Michelson it was determined that the Custodian has the responsibility to look to state and federal statute to determine if the requested information is confidential or if it's release is inimical to the public interest or the interest of the individual about whom the information is being sought. The Custodian's counsel states that in Michelson, the Appellate Division found "that a [C]ustodian of public records may not be able to articulate the reason for non disclosure..." when the subject of the records is not made aware of the request. The Custodian's counsel quotes the Michelson case stating that "... when the requested material appears on its face to encompass legislatively recognized confidentiality concerns, a court should presume that the release of the government record is not in the public interest." Id.
The Custodian's counsel further asserts that Executive Order 9 (Hughes, 1963) indicates that an agency is required to balance the public's right to know against the risk of intentional harm or injustice to individuals. The Custodian's counsel goes on to state that the courts have recognized a significant public interest in maintaining the confidentiality of employee-related records and cites a number of cases in support of this assertion.
The Custodian's counsel states that this request is for certain employees ‘claims' of holding various education and experience, without advising those individuals that the Complainant is requesting this information or recognizing their personal interests in this matter. The Custodian's counsel states that in Michelson it was found that information deemed confidential is not a government record and that an agency is not required to produce a document or compile information responsive to a request if the public employee or public agency is not required by law to maintain such information.
The Custodian's counsel asserts that employees' ‘claims' submitted to his employer is the type of information deemed confidential and does not constitute a government record under OPRA. The Custodian's counsel goes on to assert that the request does not seek records reflecting the Department's determination or analysis of the applicants' qualifications, but instead seeks documents in which the employees reveal their claims as to their qualifications. The Custodian's counsel states that had the requestor framed his request so that it were directed toward the agency's records rather than the individuals' submissions, the Custodian would have advised that no records exist recording or reflecting the Department'sanalysis of the qualifications of these individuals.
The Custodian's counsel contends that N.J.S.A. 11A:4-13B and N.J.A.C. 4A:4-2.1 state that Title 11A governs both permanent and provisional appointments. The Custodian's counsel asserts that a provisional appointment is made when there is no list of qualified candidates for the position and those appointed in such a way are temporary subject to the open competitive examination process as indicated in Kyer v. City of East Orange, 315 N.J. Super. 524 (App. Div. 1988). The Custodian's counsel states that as a temporary appointment there is no requirement for an application. The Custodian's counsel asserts that this finding was held by the court in State v. State Supervisory Employee Ass'n. 78 N.J. 54 (1978), which the Custodian's counsel states determined that the need to fill a position on a provisional basis is within the sole discretion of the public employer. The Custodian's counsel asserts that since provisional appointments are temporary there is no mandated application process and the appointing authority has the right to evaluate the minimum qualifications for the position as it sees fit. The Custodian's counsel states that the Treasury requires only that an individual submit an expression of interest in a provisional appointment, which is given with an expectation of confidentiality.
Additionally, the Custodian's counsel contends that the Merit System Board is currently reviewing these temporary appointments and may still find that these individuals are not eligible for appointment; therefore the protection of the privacy of these individuals is even more important. The Custodian's counsel states that the release of the requested documents would undermine the Merit System Board's process and violate the privacy interests of the individuals, which are protected during proceedings such as this, undertaken pursuant to the civil service law. The Custodian's counsel asserts that qualifications of individuals seeking a civil service appointment are confidential until a successful candidate has been appointed. The Custodian's counsel reaffirms that there are no documents that exist and reflect the Treasury's evaluation currently under review by the DOP Merit System Board, which treats personal information submitted in the context of their hearing as confidential due to privacy interests.
October 3, 2005 Complainant's letter to the Government Records Council ("GRC"). The Complainant contends that his request is not for any personal information but only that which is permitted under N.J.S.A. 47:1A-10; specific education and experience of those persons placed in the provisional positions. The Complainant states that he could find nothing in OPRA or DOP regulations stating that such information is confidential after the individual is successfully appointed and that OPRA does not make any distinction between temporary or provisional appointments and permanent appointments. The Complainant also requests that the GRC consider the Custodian to have knowingly and unreasonably denied access to the requested records.
October 17, 2005 Complainant's letter to the GRC. The Complainant challenges the assertions made in the Statement of Fact submitted by the Custodian's counsel. The Complainant states that the Custodian's counsel in this case contradicts Deputy Attorney General Todd Widger, who the Complainant alleges stated in the Statement of Fact for McCormack v. NJ Department of Personnel, GRC Case No. 2005-165 that the Complainant "is free to ask Treasury for the qualifications of the provisionals Treasury determined to appoint." Additionally, the Complainant states that the Deputy Attorney General Todd Widger, in the same case, asserted that "at the time of provisional appointment, the public employer is expected to certify that the provisional meets the minimum qualifications for the position. (N.J.S.A. 11A:4-13b; N.J.A.C. 4A:4-1.5)." The Complainant disagrees with the Custodian's statement that there are no documents that certify that these individuals meet any requirements. The Complainant requests that the GRC order Treasury to release at least the "cover letters and resumes" submitted by these individuals for their provisional appointments.
January 18, 2006 Letter from the GRC staff to the Custodian's counsel. The GRC staff requests that the Custodian submit a legally certified index of all documents responsive to the request with indication of what exemption is being claimed for each and an explanation of how the claimed exemption applies to each document.
January 30, 2006 Custodian's certified index. The Custodian asserts the following:
April 26, 2006 E-mail from the GRC to the Custodian's counsel. The GRC requested that the agency certify as to whether or not the Merit System Board process is classified as an investigation.
May 3, 2006 Letter from the Custodian's counsel. The Custodian's counsel states that the Custodian cannot certify as to whether or not the matter of Merit System Board complaint no. 2006-636 is classified as an investigation because the Merit System Board exists under the DOP. The Custodian's counsel does state that the Merit System Board is a quasi-adjudicatory body which reviews challenges and appeals of appointments made under theCivil Service Act, N.J.A.C 4A:2-1. Analysis
WHETHER the Custodian unlawfully denied access to the requested documents showing educational and experiential qualifications of certain named provisional appointees?
OPRA provides that:
"...government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions..." N.J.S.A. 47:1A-1.
Additionally, OPRA defines a government record as:
"...any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file... or that has been received in the course of his or its official business..." N.J.S.A. 47:1A-1.1.
OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:
"...[t]he public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6.
OPRA states that:
"[n]otwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency , including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that 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 shall be a government record; personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment... shall be a government record." (Emphasis added.) N.J.S.A. 47:1A-10.
The Complainant states that he does not believe that the denial of access to the requested records was lawful under OPRA because he is requesting experiential and educational backgrounds of specific individuals and this type of information is categorized as a government record pursuant to N.J.S.A. 47:1A-10.
The Custodian contends that the request seeks documents containing assertions of certain employees' qualifications for provisional employment and those employment applications and resumes are not disclosable under OPRA. The Custodian's counsel contends that N.J.S.A. 11A:4-13B and N.J.A.C. 4A:4-2.1 state that Title 11A governs both permanent and provisional appointments. The Custodian's counsel asserts that the Complainant is seeking records in which employees claim to have certain qualifications and contends that any assertions made by these employees to their employer are not subject to access because an employee's views and claims are protected from public disclosure by the individual's reasonable expectation of privacy.
NJAC 4A:4-2.1(h) states that in the case of promotional examination "all examination applications shall remain confidential." However, the records that are being requested are those of provisional appointees which, according to NJAC 4A:4-1.5 do not require an application. Therefore, NJAC 4A:4-2.1 does not apply in this case.
While N.J.S.A. 47:1A-10 does exempt personnel records from disclosure, that same portion of the statute allows for the disclosure of data which shows conformity with experiential and educational requirements for public employment. The Complainant is specifically requesting government records which show "experience and education" for certain named individuals. In McCormack v. NJ Department of Treasury, GRC Case No. 2005-58 (May 2006) the Council found that resumes of successful candidates for public positions are disclosable pursuant to Executive Order #26. Executive Order #26 states that "[t]he resumes of successful candidates shall be disclosed once the successful candidate is hired." In the case at hand, the records responsive to the request include resumes of individuals who were provisionally placed in their titles, thus making them successful candidates for the positions held. Hence, the resumes responsive to the request are disclosable pursuant to N.J.S.A. 47:1A-10 and Executive Order #26.
N.J.S.A. 47:1A-10 does list personnel records which can be disclosed as a government record pursuant to OPRA. The letters expressing interest in provisional appointment, authored by the individuals' about whom the records are being requested, do not fall within the very narrow exceptions to the exemptions for personnel records listed in OPRA. Therefore, the letters expressing interest in provisional appointment should not be disclosed as personnel records pursuant to N.J.S.A. 47:1A-10.
The resumes responsive to the request are disclosable pursuant to N.J.S.A. 47:1A-10 and Executive Order #26. However, the letters expressing interest in provisional appointment are personnel records that are exempt from access pursuant to N.J.S.A. 47:1A-10 and should not be disclosed.
WHETHER the Custodian's actions rise to the level of a knowing and willful violation of the OPRA and unreasonable denial of access under the totality of the circumstances?
OPRA states that:
"[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-7.e.
The Complainant requests that the GRC consider the Custodian to have knowingly and unreasonably denied access to the requested records based on the denial of access to the requested records. The Custodian stated that the provision of OPRA that allows the disclosure of personnel records relating to experiential, educational or medical requirements does not apply in this case because the titles simply require a general Bachelor's Degree and work experience. However, the Complainant asserts that the job descriptions for the requested titles list a number of experiential and educational requirements for those employed in the titles for the positions related to the request. GRC staff also confirmed, via the DOP website, that in addition to the requirement of a Bachelor's degree, there are a number of experiential requirements for the positions held (See Exhibit A and Exhibit B attached) by the subject employees.
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 were 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).
Based on the Custodian's denial of access to government records, misstatements regarding the existence of requirements for the positions relating to this request and other contested facts in this case it is possible that the Custodian's actions were intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional. As such, the case should be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act under the totality of the circumstances. Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:]
Prepared By: Colleen C. McGann Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
July 6, 2006
EXHIBIT A:
EXHIBIT B:
[1] No copy of the OPRA request was provided as part of the complaint. [2] Citation as stated by the Custodian's counsel. |
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