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2005-213
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
Final Decision
At its July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 6, 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 based on the Custodian Counsel’s April 24, 2006 submission to GRC staff, the Custodian has complied with the Council’s Interim Order by attempting to provide the Complainant with a copy of the requested medical application within ten (10) business days from receipt of the Council’s order. However, in a letter dated April 20, 2006, the Complainant agreed to dismiss the case as he was no longer seeking the medical application still at issue.
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 20th Day of July, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Kathryn Forsyth, Designee of Acting Commissioner Lucille Davy Government Records Council
Decision Distribution Date: July 20, 2006 Supplemental Findings and Recommendations of the Executive Director
Records Relevant to Complaint:
Request Made: October 13, 2005 Response Made: October 14, 2005 and November 18, 2005 Custodian: William Senande GRC Complaint filed: November 4, 2005 Background April 11, 2006 Government Records Council’s (“Council”) Interim Order. At its April 11, 2006 public meeting, the Council considered the April 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, found that:
April 24, 2006 Custodian counsel’s response to the Council’s Interim Order. Counsel states that her firm serves as Corporation Counsel to the City of Union City. She states that she has enclosed a letter dated April 19, 2006 from the Custodian to the Complainant indicating that the Custodian would provide a redacted copy of the requested medical application as per the Council’s Interim Order if the Complainant was still seeking said document. Counsel claims that she received a telephone call from the Complainant advising that he no longer wanted the requested medical application. Counsel states that she has also enclosed the letter dated April 20, 2006 that she sent to the Complainant in which the Complainant subsequently signed and agreed to dismiss the case as he was no longer interested in obtaining the requested medical application. Analysis
Whether the Custodian complied with the Council’s April 11, 2006 Interim Order?
Based on the Custodian counsel’s April 24, 2006 submission to GRC staff, the Custodian has complied with the Council’s Interim Order by attempting to provide the Complainant with a copy of the requested medical application within ten (10) business days from receipt of the Council’s order. However, in a letter dated April 20, 2006, the Complainant agreed to dismiss the case as he was no longer seeking the medical application still at issue. Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that based on the Custodian counsel’s April 24, 2006 submission to GRC staff, the Custodian has complied with the Council’s Interim Order by attempting to provide the Complainant with a copy of the requested medical application within ten (10) business days from receipt of the Council’s order. However, in a letter dated April 20, 2006, the Complainant agreed to dismiss the case as he was no longer seeking the medical application still at issue.
Prepared By: Dara Lownie Case Manager
Catherine Starghill Executive Director Government Records Council
July 6, 2006 Interim Order
At the April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 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:
Interim Order Rendered by the Decision Distribution Date: April 13, 2006 Findings and Recommendations of the Executive DirectorLeonard Lucente GRC Complaint No. 2005-213Complainant v. City of Union City Custodian of Records Records Relevant to Complaint:
Request Made: October 13, 2005 Background October 13, 2005 Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant is seeking copies of the 2004 W-2 forms and medical applications for Denise Colditz. November 4, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the Complainant’s October 13, 2005 OPRA request attached. The Complainant asserts that he submitted his OPRA request on October 13, 2005 and that it was denied on October 27, 2005. He claims that his request was faxed to the City’s attorney on October 14, 2005 and that the attorney was to provide a written response to him. He states that he has not received any written correspondence from the City’s attorney. The Complainant also claims that the City is aware that he needs the requested documents for an upcoming court appearance and alleges that the City is withholding the documents from him. November 16, 2005 Offer of Mediation sent to both parties.[1] November 18, 2005 Custodian’s response to the Complainant’s OPRA request. The Custodian states that this letter is to further clarify the City’s prior response that the Complainant’s OPRA request is denied. The Custodian states that he is denying the request for an employee’s W-2 Form as it is personal tax information and pursuant to N.J.S.A. 47:1A-1 he is obligated to “protect an employee’s ‘reasonable expectation of privacy.’”[2] He additionally claims that these tax forms are part of an employee’s personnel file and are not releasable pursuant to N.J.S.A. 47:1A-10. Further, the Custodian states that the Complainant’s request for an employee’s medical application is denied as being too vague. He also states that the Complainant is not entitled to the addresses, names of dependents, personal health information, and related medical information which is considered confidential. However, the Custodian states that the Complainant has the right to know whether an employee was enrolled in the City’s medical insurance plan. December 5, 2005 Request for Statement of Information sent to the Custodian. December 13, 2005 Custodian’s Statement of Information (“SOI”) with the following attachments:
The Custodian states that on October 13, 2005 the Complainant delivered his OPRA request to Wanda Nunez, Clerk for the City of Union City. He certifies that the Clerk forwarded the request to the City attorney and was advised by the attorney that tax and medical information records are confidential and the request should be denied. The Custodian certifies that on October 14, 2005, one day after the request was made, the Clerk verbally informed the Complainant that the City attorney advised that the request be denied as the records the Complainant is seeking are confidential. The Custodian also certifies that the Clerk advised the Complainant that the City attorney would send a letter indicating same. The Custodian certifies that the Complainant did not receive a letter from the City attorney, but upon counsel’s advice, the Custodian sent the Complainant correspondence on November 18, 2005 denying his request. Additionally, the Custodian certifies that the Complainant’s request for a medical application was too vague and “not specific enough to respond.”[3] He certifies that some medical information on City employees is exempt from public access. He cites Michelson v. Wyatt 379 N.J. Super 611 (App. Div. August, 2005), in that the Appellate Division held that a requestor is not entitled to information such as addresses, names of dependents, personal health and related medical information, but that requesters are entitled to know whether an employee is enrolled in the City’s medical insurance plan. The Custodian certifies that since the Complainant’s request was made, the Complainant has not clarified the specific medical records is he seeking. Further, the Custodian states that the Complainant has previously made five (5) separate OPRA requests for salary information on the City employee subject of this complaint. December 14, 2005 Letter from Custodian’s counsel to GRC staff. Counsel states that her office represents the City of Union City. She states that her office is writing to amend portions of the Custodian’s Statement of Information. Counsel states that the correct citation for the ruling on confidentiality of tax returns and tax return information is the Internal Revenue Code 26 U.S.C. § 6103 (2004)[4]. She further cites N.J.S.A. 47:1A-9.a.[5] in that “OPRA does not abrogate any exemption of a public record from public access 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.” Analysis Whether the Custodian unlawfully denied access to the requested W-2 forms? 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 …” (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 provides that “[t]he provisions of this act… 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. United States Internal Revenue Code, Title 26 of the U.S. Code (26 U.S.C.) states in part “[r]eturns and return information shall be confidential…no other person (or officer or employee thereof) who has or had access to returns or return information under subsection (e)(1)(D)(iii), paragraph (6), (12), (16), (19), or (20) of subsection (l), paragraph (2) or (4)(B) of subsection (m), or subsection (n), shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section. For purposes of this subsection, the term "officer or employee" includes a former officer or employee…” (Emphasis added.) 26 U.S.C. § 6103 (2004). The Complainant asserts submitting his OPRA request on October 13, 2005 for Denise Colditz’s W-2 forms. The Custodian states that he denied the Complainant’s request as the requested records are confidential. The Custodian’s counsel asserts that the Custodian’s denial of the requested W-2 forms is based on the Internal Revenue Code 26 U.S.C. § 6103 (2004)[6]. She also states that pursuant to N.J.S.A. 47:1A-9.a.[7], “OPRA shall not abrogate any exemption of a public record from public access made pursuant to…any federal law…” OPRA provides that any federal law exempting access to government records shall supersede the public’s right to access those records under OPRA pursuant to N.J.S.A. 47:1A-9.a. The federal law being asserted by the Custodian’s counsel is the Internal Revenue Code, which prohibits public employees from disclosing an individual’s tax return or return information. As the Complainant’s request for W-2 forms pertains to tax return information, and such information is exempt from public access pursuant to N.J.S.A. 47:1A-9.a. and 26 U.S.C. § 6103 (2004), the Custodian has met his burden of proving that he did not unlawfully deny access to the requested records pursuant to N.J.S.A. 47:1A-6. Whether the Custodian unlawfully denied access to the requested medical applications when the request was overbroad or unclear? 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 …” (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. The New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1." (Emphasis added.) Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March 2005). The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files." (Emphasis added.) Id. at 549. Additionally, the Custodian states that the Complainant never clarified his request for medical applications, however the Custodian never specifically sought out clarification of the request. In prior GRC cases, the Council has held that a custodian did not unlawfully deny access to records by attempting to seek clarification of an unclear request. Specifically, in Leibel v. Manalapan Englishtown Regional Board of Education, GRC Case No. 2004-51 (September, 2004), the Council found that the Custodian was proper to seek clarification as the request was broad in scope and a reasonable basis existed to seek clarification. Ultimately, the Council determined that the Custodian was not responsible for fulfilling the OPRA request as it was broad and the Complainant never clarified the request. The key element to the Leibel case is that the Custodian certified attempting to seek clarification of the request from the Complainant by requesting that she resubmit her request to clarify exactly what documents were being sought. In the case at hand, the Custodian only states that the Complainant’s request for medical applications was too vague, but never specifically asks the Complainant to clarify the request. Further, the Custodian states that certain medical information on City employees is exempt from public access pursuant to Michelson v. Wyatt supra. In said case, the requestor was appealing a denial of access to requested health insurance information. The court held that “…the plaintiff has a common law right to access public records that reveal the type of coverage elected by eligible employees, officials, and retirees [and that the] plaintiff is not entitled to addresses, names of spouses, domestic partners, and children, any personal health information, and any other confidential information…” While citing this defense, the Custodian shows no indication of providing the Complainant with the information he is entitled to pursuant to Michelson, specifically whether the City employee subject of this request was enrolled in the City’s medical insurance plan and which type of coverage she chose. As such, the Custodian has unlawfully denied access to the requested medical application information pursuant to N.J.S.A. 47:1A-1 and Michelson. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that:
Prepared By: Dara Lownie, Case Manager Approved By: April 4, 2006 [1] Neither party agreed to mediate this case. |
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