2005-171

At its February 17, 2006 public meeting, the Government Records Council ("Council") considered the February 10, 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 requested records contain building security information and are 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.

Final Decision Rendered by the
Government Records Council
On The 17^th Day of February, 2006

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

Findings and Recommendations of the Executive Director

Records Relevant to Complaint: (As stated by the Complainant)
"All current and existing policies/post orders for East Jersey's State Prison's ACSU"[1]
Request Made: August 8, 2005[2]
Response Made: August 19, 2005
Custodian: Kathleen Wiechnik
GRC Complaint filed: September 5, 2005

Written Open Public Records Act (OPRA) Request - Complainant seeks all current and existing policies/post orders for East Jersey's State Prison's ACSU.

Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant asserts he was denied access to all current and existing policies/post orders for East Jersey's State Prison's ACSU. He stated that he was denied access even though he is an employee of the area ACSU and the Custodian has a legal responsibility to provide the requested records.

The Complainant attached the following document to his Denial of Access Complaint:

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.

The Custodian's counsel submitted the Statement of Information. The Custodian's counsel asserted that the requested documents were not provided to the Complainant because pursuant to OPRA (N.J.S.A. 47:1A-1.1), any emergency or security information that would jeopardize the security of the facility is not a public record subject to disclosure.

The Custodian's counsel submitted with the Statement of Information 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 accuracy and the fullness of the information contained in the Statement of Information.

Specifically the supervisor certified that the requested records were denied because they contain security information. He further certified that the information requested by the Complainant contains emergency and security information that includes when and how staff shift changes occur, when and how doors are opened, and when and how often prisoners cells are searched. Finally, the supervisor alleges that the requested records are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

The Custodian's counsel submitted correspondence to the Council requesting that the Council dismiss the complaint on the basis that the release of the requested records would jeopardize security at the East Jersey State Prison. Counsel alleges that the ACSU is utilized to house inmates who have been removed from general population for disciplinary or other security reasons. Counsel asserts that the requested records contain officer's duties, when and how staff shift changes occur, when and how doors are opened, and when and how often prisoner's cells are searched. Counsel further asserts that the Complainant should not receive records simply because he is an employee of the department. Counsel alleges that OPRA's definition of a "public record" does not give special privileges to a requestor based upon who he is or the purpose for which he is seeking a document. Lastly, the Custodian asserts that if the Complainant needs the information as part of his Correction Officer duties, he may obtain the information through the appropriate channels.

The Custodian's counsel attached the following documents to the Statement of Information:

"... 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...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

"...[a] government record shall not include the following information which is deemed confidential for the purposes of [OPRA]:... emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein..." 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 or 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 OPRA. The Custodian certified that the requested records contain information regarding building security and if disclosed would jeopardize the building security and safety of the inmates.

The Custodian's counsel states that the ACSU is used to house inmates who have been removed from the general population for disciplinary or other security reasons. Counsel asserts that the requested records contain security procedures for the ACSU and therefore cannot be disclosed because the release of the requested records would jeopardize the security of both inmates and employees. Counsel further asserts that the requested information contains procedures for emergencies, when doors are opening and closing, where officers of the ACSU are located and the frequency of prisoners cell checks. She asserts that because this information governs the security of the prison, it cannot be released pursuant to N.J.S.A. 47:1A-1.1.

The Custodian's counsel asserts that special consideration for disclosure of documents is not contained in the definition of a public record. Therefore, regardless of whether the Complainant is an employee of the department, the records are not disclosable pursuant to OPRA. She asserts that the Complainant needs to utilize the appropriate channels to obtain the documents.

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 asserted that the records contain building security information and are exempt from disclosure pursuant to N.J.S.A. 47:1A1.1. The Custodian has borne the burden of proving that the requested records are exempt from disclosure, therefore there is no unlawful denial of access.

[1] ACSU is an acronym for Administrative Close Supervision Unit.
[2] The Complainant states that this is the approximate date of his request, however the Custodian submitted a date stamped receipt of August 11, 2005 on the request.