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2005-170
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its May 11, 2006 public meeting, the Government Records Council ("Council") considered the May 4, 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 the Custodian has not unlawfully denied access to the requested records because the requested record is a grievance decision and exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. 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. Decision Distribution Date: May 18, 2006 Findings and Recommendations of the Executive DirectorHenry A. Fischer GRC Complaint No. 2005-170Complainant v. Department of Corrections Custodian of Records Records Relevant to Complaint: (As stated by the Complainant) Background August 9, 2005 Written Open Public Records Act (OPRA) Request - Complainant seeks all paperwork from grievance #: L 04-152C. Copy of grievance enclosed. September 5, 2005 The Complainant attached the following document to his Denial of Access Complaint:
Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant asserts he was denied access to all paperwork from grievance #: L 04-152C. He stated that he was denied access even though he is a class member of this grievance. He also stated, that since he is in a different union he needs to review the records. He further asserts that the grievance was a group grievance from labor against management. He stated that Executive Order #26 should not apply to this request. The Complainant attached the written response to his records request that stated the requested records are not disclosable under OPRA pursuant to Executive Order #26. The Custodian asserted that OPRA exempts from disclosure documents that were generated by, or on behalf of public employees in connection with any grievance filed by or against an individual. September 14, 2005 Offer of mediation sent to both parties. September 16, 2005 GRC staff received the Complainant's signed agreement to mediate. September 27, 2005 GRC staff received a letter from the Custodian's Counsel stating that all further correspondence should be directed to her and that the department does not wish to participate in mediation. September 28, 2005 The Custodian's Counsel attached the following documents to the Statement of Information:
Counsel asserts that OPRA specifically exempts from disclosure information generated on behalf of public employers or public employees in connection with any grievance file by or against an individual. (N.J.S.A. 47:1A-1.1) Counsel further asserts that the original person that responded to this request has retired from the department and in trying to comply with the Council's request for a Statement of Information, Counsel included a certification of the Supervisor of Legal and Legislative Affairs for the Department of Corrections. The Supervisor certified that the original OPRA liaison who responded to this request has since retired and therefore, as the supervisor he is submitting the certification to the information contained in the Statement of Information. He further certified that the requested information involves a grievance that was brought by the officers' union and several individuals. In the grievance, it is alleged that post orders, policies and procedures are being withheld from the officers. The Supervisor also certified that Executive Order #26, paragraph 4, exempted from disclosure records of complaints and investigations. The Supervisor goes on to assert that the information requested by the Complainant was generated by or on behalf of public employers or public employees in connection with a grievance and the requested record and is exempt pursuant to N.J.S.A. 47:1A-1.1. Finally, the supervisor states that the complaint should be dismissed because the requested records are not subject to disclosure pursuant to OPRA. Counsel certifies that the original response given by the former Custodian was partially incorrect. The Custodian's assertion that the requested records were not subject to disclosure was correct, but her citation of Executive Order #26 was incorrect. Counsel asserts that even though the wrong citation was used, the Council should still dismiss the complaint since the record is exempt from disclosure. Specifically, Counsel states that "[c]ourts have found that if the result was right, there must be an affirmance even though an incorrect reason was given. See Janiec v. McCorkle, 52 N.J. Super. 1, 21 (App. Div. 1958) (citing Ballurio v. Castellini, 29 N.J. Super. 383 (App. Div. 1954))." Counsel requests that the Council dismiss the complaint on the basis that the requested records concern a grievance filed by the officers' union and several individuals against the Department of Corrections and this information is not a public record under OPRA (N.J.S.A. 47:1A-1.1). February 2, 2006 Letter from GRC staff requesting a certification of the Custodian inclusive of an index of all records responsive to the request, a general nature description of each document, a general description of each redaction, the lawful basis for denial of access to those records and an explanation of why the exemption applies. February 9, 2006 Custodian's counsel submitted a certification of the Custodian identifying the group grievance decision with identifying numbers. The Custodian certified that the records are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 because they are records containing grievance information. The index provided read as follows:
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...". N.J.S.A. 47:1A-1. OPRA defines a government record as: "...any paper, written or printed book, document, drawing, map, plan...document...that has been made, maintained or kept on file in the course of his or its official business...or that has been received in the course of his or its official business...". (Emphasis added.) N.J.S.A. 47:1A-1.1. OPRA provides that: "...[a] government record shall not include the following information which is deemed confidential for the purposes of [OPRA]:...information generated by or on behalf of public employers or public employees in connection...with any grievance filed by or against an individual...including documents and statement of strategy or negotiating position..." 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. The Custodian has asserted that the requested records are not disclosable pursuant to N.J.S.A. 47:1A-1.1. The Custodian stated that the requested records contain information regarding a grievance filed by the officers' union and several individuals against the Department of Corrections. Counsel further asserts that the Custodian did give the proper response in stating that the record could not be disclosed, however she gave an incorrect legal citation for the reason of non-disclosure. Counsel asserted that the Custodian should have cited N.J.S.A. 47:1A-1.1, not Executive Order #26. Counsel further asserts that the courts have found that if the result was right, there must be an affirmance even though an incorrect reason was given. See Janiec v. McCorkle, 52 N.J. Super. 1, 21 (App. Div. 1958) (citing Ballurio v. Castellini, 29 N.J. Super. 383 (App. Div. 1954)). Notwithstanding the error by the Custodian, Custodian's Counsel asserts that the requested records contain grievance information and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. The Custodian has certified that the records responsive to the request are grievance records and therefore they are not considered "government records" for the purposes of OPRA. The Custodian has further certified that the information is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1, which states that grievance information is exempt from disclosure. Also, the Custodian has provided to GRC staff an index of the records relevant to this complaint in which they provided the title and date of the document, the number of pages, a general description, a general description of each redaction, the claimed statutory exemption and/or privilege, and an explanation of why the exemption applies. Pursuant to N.J.S.A. 47:1A-6 the Custodian has to prove that a denial of access is authorized by law. The Custodian has certified that the requested record is a grievance decision for group grievance #L-04-152C and therefore, pursuant to N.J.S.A. 47:1A-1.1, the record is exempt from disclosure. Therefore, the Custodian has not unlawfully denied access to the requested records. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that the Custodian has not unlawfully denied access to the requested records because the requested record is a grievance decision for group grievance #L-04-152C and pursuant to N.J.S.A. 47:1A-1.1, the record is exempt from disclosure. Prepared By: Kimberly Gardner, Case Manager Approved By: May 4, 2006 [1] The Complainant states that this is the approximate date of his request, however the Custodian submitted a date stamped receipt of August 9, 2005 on the request. |
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