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2005-193

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Amy Vasquez
   Complainant
      v.
Burlington County
   Custodian of Record

Complaint No. 2005-193

 

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 pursuant to Executive Order 21, paragraph 1.a., the requested record is exempt from disclosure because the release of the Emergency Management Plan would create a risk to the security of the State against acts of sabotage or terrorism, and therefore the Custodian did not unlawfully deny access to the requested record.

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 17th 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 

Decision Distribution Date:  February 28, 2006

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Findings and Recommendations of the Executive Director

Amy Vasquez                                                 GRC Complaint No. 2005-193
Complainant
         v.
Burlington County
Custodian of Records

Records Relevant to Complaint: Burlington County’s Emergency Management Plan
Request Made:  September 26, 2005
Response Made: October 6, 2005
Custodian:  Ralph Shrom   
GRC Complaint filed: October 19, 2005

Background

October 19, 2005

Denial of Access Complaint filed with the Government Records Council (“GRC”) staff.  Complaint included the Custodian’s October 6, 2005 letter to the Complainant.  The Complainant claims that she submitted her Open Public Records Act (“OPRA”) request on September 26, 2005 and that her request was denied on October 6, 2005 because the Custodian stated that the Emergency Management Plan is exempt from disclosure. 

October 24, 2005

Offer of Mediation sent to both parties.[1]

November 1, 2005

GRC staff sends request for Statement of Information to Custodian.

November 9, 2005

Custodian’s Statement of Information with the following attachments:

  • Complainant’s September 26, 2005 OPRA request
  • Custodian’s Certification dated November 9, 2005
  • New Jersey Register Volume 36, Number 20 dated October 18, 2004 – Rule Proposal
  • June 18, 2004 Memorandum from Bruce Solomon, Deputy Attorney General to Office of Emergency Management
  • October 6, 2005 letter from Custodian to Complainant

The Custodian certifies that on September 26, 2005, he received the Complainant’s OPRA request for Burlington County’s Emergency Preparedness Plan.  He indicated on the Complainant’s request form that on September 30, 2005 he left her a voicemail message advising that the requested document is exempt under OPRA, however it is under legal review.  Again, on the Complainant’s request form, the Custodian indicated that he left a message on October 6, 2005 requesting the Complainant’s fax number or e-mail address so that he may provide her with a response to her request. 

Regarding the content of the Complainant’s request, the Custodian asserts that according to Executive Order No. 21, paragraph 1(a), “any government record where the inspection, examination or copying of that record would substantially interfere with the State’s ability to protect and defend the State and its citizens against the acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism”[2] is exempt from disclosure under OPRA. 

He additionally states that Executive Order No. 11[3] directed the Attorney General and the Domestic Security Preparedness Task Force to disseminate regulations regarding which government records shall be deemed confidential.  The Custodian certifies that although these regulations are not final, there are proposed ones already in place.  He states that N.J.A.C. 13:1F-1.4 (a) 11 prohibits the disclosure of State and local emergency resources.  He also certifies that the Attorney General issued a memorandum indicating that if disclosed, emergency management plans would jeopardize security.  The Custodian states that copies of the proposed regulations as well as the Attorney General’s memorandum are enclosed. 

The Custodian certifies that on October 6, 2005 he sent correspondence to the Complainant notifying her that the requested document could not be released due to the proposed regulations, the Attorney General’s memorandum and Executive Order No. 21. 

Analysis

Whether the Custodian unlawfully denied access to the requested record when such denial was pursuant to Executive Order 21 and a proposed rule?

OPRA provides that

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) 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 …”  (Emphasis added.) 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 also states in part

"[t]he provisions of [OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA]; any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order…" (Emphasis added.) N.J.S.A. 47:1A-9.a.

Executive Order 21 paragraph 1.a. provides that the following records are not considered government records and are therefore not available for public inspection, copying or examination:

“[a]ny government record where the inspection, examination or copying of that record would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism.” (Emphasis added.) (Executive Order 21, Governor James E. McGreevey, July 8, 2002).

The Division of Law and Public Safety’s Proposed Rule N.J.A.C 13-1F-1 et seq. provides that certain records or portions thereof are exempt from public access under OPRA.  Specifically, N.J.A.C 13-1F-1 et seq. states

“[p]aragraph (a) 11 excludes from public access under OPRA that portion of records disclosing any inventory of State and local emergency resources compiled and any policies or plans compiled by a public agency pertaining to the mobilization, deployment or tactical operations involved in responding to emergencies…”  N.J.A.C 13-1F-1.4(a) 11.

The Complainant states that she submitted her OPRA request on September 26, 2005 and received a response from the Custodian on October 6, 2005 in which he denied her request by asserting that the Emergency Management Plan is exempt from disclosure.  The Custodian asserts this exemption under Governor McGreevy’s Executive Order No. 21 and the Division of Law and Public Safety’s Proposed Rule N.J.A.C 13-1F-1 et seq.  He certifies that as per Executive Order 21 and N.J.A.C 13-1F-1 et seq., the release of the requested document would jeopardize the security of the State and its citizens. 

Under Executive Order 21, paragraph 1.a., records that would “substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism” are exempt from disclosure.  In this matter, the requested record is Burlington County’s Emergency Management Plan, which the Custodian certifies that if disclosed, would jeopardize the security of the citizens of the State.  As the Plan would release important information regarding the County’s evacuation procedures in the event of an emergency, it is reasonable that the disclosure of such would create a risk to the security of the State against acts of sabotage or terrorism. 

The Custodian additionally relies on the Division of Law and Public Safety’s Proposed Rules as a lawful explanation for denying the Complainant’s request.  Under N.J.S.A. 47:1A-9.a., Proposed Rules are only applicable to State agencies that proposed them.  Executive Order 21 gave these proposed rules viability without adoption, which is a deviation from the rule promulgation procedures outlined under the Uniform Administrative Procedures Act, N.J.S.A. 52:14B-1 et seq. 

In an unpublished opinion of the New Jersey Superior Court (the only legal authority on point in this matter), it has been determined that paragraph 6 of Executive Order 26 "continues to permit a department or agency within State [g]overnment to adopt rules and regulations and to permit the operation of a proposed rule or regulation prior to its final adoption. Therefore, pursuant to Paragraph 4 of Executive Order 21, State departments and 'agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed ...'" Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005) at page 11.

In that case, the court went on to state that "[i]t appears, from the language of both Executive Orders, that these provisions were added to provide sufficient time for departments and agencies within State government to evaluate their records, propose regulations and withhold certain documents from public inspection pending the adoption of the proposed rules. While this process may be at variance with the normal regulatory process, one can only conclude that the Executive Branch, understanding the broad scope of OPRA, felt it was appropriate to have agencies and departments, within State government, undertake a careful review and analysis of its records to determine, for purposes of security and safety, those records to be considered confidential." Id. at 12.

The court further held that "[r]ecognizing the time delay inherent in the normal rule adoption process, Executive Order 21 and Executive Order 26 included language to permit custodians of records to deny access, based on the proposed rule, pending final adoption. Now, three years after the passage of OPRA, for the court, the continued efficacy of that practice raises some concerns." Id.

The court concluded, however, that "[w]hile [it] does not know the status of this proposed regulation, under Executive Order 21, paragraph 4 and Executive Order 26, paragraph 6, resolution of that issue is not required. ... the court assumes that the proposed rule change is still pending." Id. at 13.

Despite the court’s ruling, Burlington County cannot rely on the Proposed Rules of the Division of Law and Public Safety in this complaint as it is not considered a State agency.  On the other hand, Executive Order 21, paragraph 1.a. does apply to this complaint as the release of the Emergency Management Plan would create a risk to the security of the State against acts of sabotage or terrorism.  Therefore, pursuant to Executive Order 21, paragraph 1.a., the requested record is exempt from disclosure because the release of the Emergency Management Plan would create a risk to the security of the State against acts of sabotage or terrorism, hence the Custodian did not unlawfully deny access to the requested record.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that pursuant to Executive Order 21, paragraph 1.a., the requested record is exempt from disclosure because the release of the Emergency Management Plan would create a risk to the security of the State against acts of sabotage or terrorism, hence the Custodian did not unlawfully deny access to the requested record.

Prepared By: Dara Lownie, Case Manager

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

February 10, 2006


[1] Neither party agreed to mediate this case. 
[2] As stated in Custodian’s certification dated November 9, 2005.
[3] As stated in Custodian’s Statement of Information.

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