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2005-243
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 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:
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.
Interim Order Rendered by the Government Records Council On The 10th Day of August, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Findings and Recommendations of the Executive DirectorIrvin B. Beaver[1] GRC Complaint No. 2005-243Complainant
v.
Township of Middletown Sewerage Authority[2] Custodian of Records
Records Relevant to Complaint:
September 23, 2005: 1. Any and all documents indicating what health coverage is supplied by the Sewerage Authority to the following employees: o Patrick W. Parkinson, Director o James L. Hinckley, Chairman o Clifford G. Raish, Vice Chairman o Chantal N. Bouw, Secretary/Treasurer o Peter J. Carton, Commissioner o Thomas F. Stokes, Commissioner o Stanley F. Werse, Commissioner o Joan A. Smith, Commissioner 2. Any and all documents that indicate if any Sewerage Authority employees receive money for not taking their benefits, who they are, and how much money they receive. 3. Documents that made regulation not to supply taxpayers copies of OPRA requests. 4. Minutes from any meeting where health coverage was authorized for any and all Commission members. October 7, 2006: 1. Any and all documents that indicate what health coverage is supplied to the following employees: o Patrick W. Parkinson, Director o James L. Hinkley, Chairman o Clifford G. Raish, Vice Chairman o Chantal N. Bouw, Secretary/Treasurer o Peter J. Carton, Commissioner o Stanley F. Werse, Commissioner o Joan A. Smith, Commissioner 2. Any and all documents indicating if any of the above listed individuals receive any compensation for not accepting health benefits. 3. Minutes from any meeting where health benefits for any or all were discussed. Request Made: September 13, 2005, September 23, 2005, and October 7, 2005 Response Made: September 22, 2005, October 4, 2005, and October 19, 2005 Custodian: Patrick Parkinson GRC Complaint filed: December 9, 2005
Background
September 13, 2005 Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is requesting the following information: which of the below listed Sewerage Authority Commissioners/staff have health coverage with the Sewerage Authority and what coverage do they have – single, member and spouse, parent and child, or family? 1. Patrick W. Parkinson, Director 2. James L. Hinckley, Chairman 3. Clifford G. Raish, Vice Chairman 4. Chantal N. Bouw, Secretary/Treasurer 5. Peter J. Carton, Commissioner 6. Thomas F. Stokes, Commissioner 7. Stanley F. Werse, Commissioner 8. Joan A. Smith, Commissioner Do any employees who don’t accept coverage accept any money for not taking the coverage? If so, how much? In addition to those listed above, are there any other persons, with the exception of full time employees, who receive heath benefits or money for not taking the benefits?
September 22, 2005 Custodian’s response to the Complainant’s OPRA request, on the seventh (7th) business day following the date of the request. The Custodian asserts that OPRA requires requests to be for specific documents and states that the Complainant’s request does not mention any specific documents. September 23, 2005 Complainant’s second OPRA request. The Complainant is seeking the following: 1. Any and all documents indicating what health coverage is supplied by the Sewerage Authority to the following employees: o Patrick W. Parkinson, Director o James L. Hinckley, Chairman o Clifford G. Raish, Vice Chairman o Chantal N. Bouw, Secretary/Treasurer o Peter J. Carton, Commissioner o Thomas F. Stokes, Commissioner o Stanley F. Werse, Commissioner o Joan A. Smith, Commissioner 2. Any and all documents that indicate if any Sewerage Authority employees receive money for not taking their benefits, who they are, and how much money they receive. 3. Documents that made a regulation not to supply taxpayers copies of OPRA requests. 4. Minutes from any meeting where health coverage was authorized for any and all Commission members.
October 4, 2005 Custodian’s response to the Complainant’s second OPRA request, on the seventh (7th) business day following the date of the request. The Custodian states that any information regarding enrollment in the health benefit plan is exempt from disclosure under OPRA as it involves communication with the health benefit provider.
October 7, 2005 Complainant’s third OPRA request. The Complainant is seeking the following: 1. Any and all documents that indicate what health coverage is supplied to the following employees: 1. Patrick W. Parkinson, Director 2. James L. Hinkley, Chairman 3. Clifford G. Raish, Vice Chairman 4. Chantal N. Bouw, Secretary/Treasurer 5. Peter J. Carton, Commissioner 6. Stanley F. Werse, Commissioner 7. Joan A. Smith, Commissioner 2. Any and all documents indicating if any of the above listed individuals receive any compensation for not accepting health benefits. 3. Minutes from any meeting where health benefits for any or all were discussed.
December 9, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant asserts that his OPRA requests seeks documents and information from the Middletown Sewerage Authority, including municipal ordinances that indicate that Sewerage Authority Commissioners cannot accept benefits. The Complainant claims this is the reason the Custodian is denying him access to the documents he is requesting. The Complainant states that it took the Custodian seven (7) business days to respond to his first request indicating that he (the Complainant) did not request specific documents. The Complainant asserts that he then submitted another request for specific documents and states that the Custodian took seven (7) business days to respond by claiming that the requested documents are exempt from disclosure. The Complainant states that he then submitted a third request advising the Custodian of a recent court decision Michelson v. Wyatt, 379 N.J. Super 611 (App. Div., August, 2005)[4], which states that the public has a common law right to access records that indicate the type of coverage chosen by an employee. The Complainant claims that the Custodian again responded on the seventh (7th) business day indicating that the records were exempt. The Complainant contends that the Custodian is abusing the seven (7) business days to respond. The Complainant asserts that the Custodian is an elected official in Middletown and claims that he receives full health benefits. The Complainant also states that the Custodian is the Director of the Sewerage Authority and was appointed by the Commissioners who were appointed by the Township Committee on which the Custodian sits. He claims that according to Township ordinance, Commissioners are not to receive benefits beyond their $1,750.00 salary per year for one meeting a month. The Complainant contends that an article from the Asbury Park Press indicated that Commissioner Joan Smith was receiving health benefits. The Complainant further claims that that Ms. Smith is not the only Commissioner receiving health benefits and states that the Custodian is refusing to disclose the information regarding the others.
December 13, 2005 Offer of Mediation sent to both parties.
December 16, 2005 The Complainant declines mediation and requests that the GRC begin a full investigation of his complaint. The Custodian also did not agree to mediate this case.
December 20, 2005 Request for Statement of Information sent to the Custodian.
December 28, 2005 Custodian’s unsigned Statement of Information (“SOI”). The Custodian certifies that all three of the Complainant’s OPRA requests were received on the dates provided by the Complainant in his Denial of Access Complaint. He additionally asserts that he provided timely responses to each of the Complainant’s requests, which were also identified by the Complainant on his Denial of Access Complaint form. The Custodian provides his defense for each of the Complainant’s requests as follows:
Complainant’s September 13, 2005 OPRA Request The Custodian asserts that this request was a request for information through a series of questions. He certifies that he did not provide the Complainant with any documents in response to this request as the request did not identify any specific documents. The Custodian certifies that pursuant to N.J.S.A. 47:1A-1.1, OPRA requires Custodians to produce “government records”, and as the Complainant’s request was for information, the Custodian contends that he properly responded to said request.
Complainant’s September 23, 2005 OPRA Request The Custodian certifies that the records responsive to the Complainant’s request for “any and all documents that indicate what health coverage is supplied” are the individual applications for health benefits for each eligible participant in the New Jersey State Health Benefits Plan, as well as the monthly invoices received by the Township from the New Jersey State Health Benefits Plan Commission. The Custodian also certifies that the applications are forwarded to the New Jersey State Health Benefits Plan Commission. Further, the Custodian certifies that the requested documents were not provided to the Complainant as they are communications between the Township and its insurance provider and are therefore exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. He asserts that these records are personnel records [presumably pursuant to N.J.S.A. 47:1A-10]. Additionally, the Custodian contends that the requested documents are exempt pursuant to N.J.A.C. 17:9-1.2, Executive Order No. 26 (2002), and the Health Insurance Portability and Accountability Act, 42 USC § 1320(d) et seq. The Custodian certifies that the record responsive to the Complainant’s request for “any and all documents that indicate if any Sewerage Authority employees receive money for not taking their benefits” is the State Health Benefits Program Coverage Waiver/Reinstatement form which the Custodian asserts was submitted to the New Jersey State Health Benefits Plan Commission. Additionally, the Custodian certifies that this document was not provided to the Complainant as it represents communications between the Township and its insurance carrier and is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. The Custodian also contends that the record is exempt as it is a personnel record, and is not releasable under N.J.A.C. 17:9-1.2, Executive Order No. 26 (2002), and the Health Insurance Portability and Accountability Act, 42 USC § 1320(d) et seq. The Custodian certifies that there are no records responsive to the Complainant’s request for “documents that made regulation not to supply taxpayers copies of OPRA requests.” The Custodian also certifies that there are no records responsive to the Complainant’s request for “minutes from any meeting when health coverage was authorized for any and all commission members.”
Complainant’s October 7, 2005 OPRA Request The Custodian certifies that the records responsive to the Complainant’s request for “any and all documents that indicate what health coverage is supplied” to specific individuals are the individual applications for health benefits for each eligible participant in the New Jersey State Health Benefit Plans, as well as the monthly invoices received by the Township from the New Jersey State Health Benefits Plan Commission. Further, the Custodian certifies that these documents were not provided to the Complainant as they are communications between the Township and its insurance provider and are therefore exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. He asserts that these records are personnel records [presumably pursuant to N.J.S.A. 47:1A-10]. Additionally, the Custodian contends that the requested documents are exempt pursuant to N.J.A.C. 17:9-1.2, Executive Order No. 26 (2002), and the Health Insurance Portability and Accountability Act, 42 USC § 1320(d) et seq. The Custodian also certifies that there are no records responsive to the Complainant’s request for “any and all documents that indicate if any of the [specific individuals listed] receive any compensation for not accepting benefits.” The Custodian further certifies that there are no records responsive to the Complainant’s request for “minutes from any meeting where health benefits for any or all of the [specific individuals listed] were authorized or discussed.”
January 3, 2006 Custodian submits a signed copy of the Statement of Information.
January 5, 2006 Letter from Complainant to GRC staff. The Complainant states that he is in receipt of the Township’s response regarding his records requests. He indicates that the Custodian’s Counsel begins his defense by claiming that the Complainant’s first request was not a request for documents. The Complainant contends that pursuant to Section 3 in the Handbook for Records Custodians, “if the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy of some other meaningful medium.”[5] Additionally, the Complainant asserts that the Custodian is to provide a response to a record request as soon as possible but not later than seven (7) business days. He claims that it should not have taken the Custodian seven (7) business days to respond by indicating that the request did not ask for documents. The Complainant also states that he did not request to view any communications between the Township and its insurance carrier, or individual applications for health benefits. He asserts that he is seeking documents that indicate who has health benefits, such as a list, or payroll deduction records. The Complainant also states that Executive Order No. 26, cited by the Custodian in his defense, states that information relating to medical, psychiatric, or psychological history, diagnosis, treatment, or evaluation is not releasable information. He asserts that he is not seeking this information. Also, the Complainant claims that his request for documents indicating whether the Custodian or any other Commissioner received compensation for not accepting health benefits was not addressed by the Township. Further, the Complainant states that he sent the Custodian a copy of a recent court case, Michelson v. Wyatt, 379 N.J. Super 611 (App. Div., August, 2005)[6], in which the court ruled that there is a common law right of access showing documents that indicate the type of health coverage an employee elected.
April 10, 2006 Letter from GRC staff to Custodian. Staff requests that the Custodian provide a legal certification providing the specific language of N.J.A.C. 17:9-1.2 and 42 USC § 1320(d) on which he bases his defense in his SOI.
April 12, 2006 Letter from Custodian’s Counsel. Counsel states that he is representing the Custodian in this matter and requests that all future correspondence be addressed to him. He also states that he has enclosed the Custodian’s certification in response to GRC staff’s April 10, 2006 request for information. The Custodian certifies that the Township relies upon all the provisions of N.J.A.C. 17:9-1.2 in support of its defense. He also certifies that the Township relies upon all the provisions of 42 USC § 1320(d) as well as 45 C.F.R. Sections 160.102 and 164.502(d).
May 4, 2006 Letter from GRC staff to Custodian’s Counsel. Staff requests a legal certification identifying the number of individuals covered by the Township of Middletown for prescription drug and dental coverage.
May 11, 2006 Letter from Custodian’s Counsel to GRC staff. Counsel states that he does not represent the Township of Middletown and his client is not in a position to certify as to the number of individuals covered by the Township of Middletown for prescription drug and dental coverage. Counsel asserts that the requested information is irrelevant to the determination of the complaint at issue with the GRC. He contends that his client’s medical insurance plan is administered by the New Jersey State Health Benefits Plan and as such, the plan is considered a “Group Health Plan” within the meaning of HIPAA regardless of the number of participants in the plan.
Analysis
Whether the Custodian unlawfully denied access to the records requested on September 13, 2005?
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.
The Complainant asserts submitting his OPRA request on September 13, 2005. He states that it took the Complainant seven (7) business days for the Custodian to respond to his request indicating that the request was not for identifiable government records. The Custodian certifies providing the Complainant with a response to his request on September 22, 2005 in which he denied the request on the basis that the request was not for identifiable government records but rather for information. The table below summarizes the Complainant’s September 13, 2005 OPRA request, as well as the Custodian’s response to said request.
OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt. Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to 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, in Russomano v. Township of Edison, GRC Case No. 2002-86 (July, 2003), the Council held that “[w]hile it is true that the OPRA request sought only information and not specific records, the custodian was still obligated to respond to the request in seven business days, either rejecting the request as defective under OPRA or advising the requestor of the specific date by which a response would be provided.” The same applies here, as the Custodian is not obligated to fulfill the Complainant’s request for information, however, he is still obligated under the provisions of OPRA to provide a written response to the request pursuant to N.J.S.A. 47:1A-5.g. Since the Custodian did properly provide the Complainant with a written response to his request and denied said request on the basis that it is not a request for identifiable government records, the Custodian has not unlawfully denied access to the Complainant’s request pursuant to Mag and Russomano.
Whether the Custodian has correctly asserted the Healthcare Insurance Portability and Accountability Act of 1996 (“HIPAA”) as an exemption from disclosure for the records requested on September 23, 2005 and October 7, 2005?
OPRA states that the following is not considered a government record and is exempt from disclosure:
“…information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office…” (Emphasis added.) N.J.S.A. 47:1A-1.1.
The New Jersey Administrative Code regarding the State Health Benefits Program states in part that:
“…records considered confidential include all matters related to the coverage of individual participants and their families, mailing addresses of active and retired participants and individual files related to claims.” (Emphasis added.) N.J.A.C. 17:9-1.2.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) provides that:
“[e]xcept as otherwise provided, the standards, requirements, and implementation specifications adopted under this subchapter apply to the following entities:
1. a health plan 2. a health care clearinghouse 3. a health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter…” (Emphasis added.) 45 C.F.R. Section 160.102.
Additionally, HIPAA states in part that:
“… A covered entity may use protected health information to create information that is not individually identifiable health information or disclose protected health information only to a business associate for such purpose, whether or not the de-identified information is to be used by the covered entity…Disclosure of a code or other means of records identification designed to enable coded or otherwise de-identified information to be re-identified constitutes disclosure of protected health information; and if de-identified information id re-identified, a covered entity may use or disclose such re-identified information only as permitted or required by this subpart.” 45 C.F.R. Section 164.502(d).
Governor James McGreevey’s Executive Order No. 26 provides that:
“[t]he following records shall not be considered to be government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended and supplemented…Information concerning individuals as follows…Information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation…” (Emphasis added.) Governor James McGreevey’s Executive Order No. 26 (July 8, 2002)
The Complainant asserts submitting his OPRA requests on the following dates: September 23, 2005 and October 7, 2005. The Custodian certifies responding to the Complainant’s requests on the following dates: October 4, 2005 and October 19, 2005. A summary of the Complainant’s requests and the Custodian’s responses are listed in the table below.
The Complainant also states that he advised the Custodian of a recent court decision, Michelson v. Wyatt, 379 N.J. Super 611 (App. Div., August, 2005), which states that the public has a common law right to access records that indicate the type of coverage chosen by an employee. Further, the Complainant states that he did not request to view any communications between the Township and its insurance carrier, or individual applications for health benefits. He asserts that he is seeking documents that indicate who has health benefits, such as a list, or payroll deduction records. The Complainant also states that Executive Order No. 26, cited by the Custodian in his defense, states that information relating to medical, psychiatric, or psychological history, diagnosis, treatment, or evaluation is not releasable information. He asserts that he is not seeking this information. Also, the Complainant claims that his request for documents indicating whether the Custodian or any other Commissioner received compensation for not accepting health benefits was not addressed by the Township. Additionally, for the purposes of HIPAA, the Custodian’s Counsel asserts that the medical insurance plan administered by the New Jersey State Health Benefits Plan for the Sewerage Authority is a “Group Health Plan.” The definitions of HIPAA provide that health plan means "an individual or group plan that provides, or pays the costs of, medical care ..." 45 CFR Sec. 160.103. Group health plan is defined as "an employee welfare benefit plan ... including insured and self-insured plans, to the extent that the plan provides medical care ..., including items and services paid for as medical care, to employees or their dependents directly or through insurance, reimbursement, or otherwise, that: (1) [h]as 50 or more participants..., or (2) [i]s administered by an entity other than the employer that established and maintains the plan." Id. HIPAA does proscribe the disclosure of "individually identifiable health information" by a covered entities to anyone outside the covered entity. HIPAA defines individually identifiable health information as "information that is a subset of health information, including demographic information collected from an individual, and: (1) [i]s created by a ... health plan..., and (2) [r]elates to ... the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) [t]hat identifies the individual; or (ii) [w]ith respect to which there is a reasonable basis to believe the information can be used to identify the individual." 45 CFR Sec. 160.103. Further, HIPAA provides that "[a] covered entity must comply with the applicable standards, implementation specifications, and requirements ... with respect to electronic protected health information." 45 CFR Sec. 164.302. Lastly, HIPAA provides that a "[c]overed entity may not use or disclose protected health information, except as permitted or required by [HIPAA]." 45 CFR Sec. 164.502(a). Permitted uses and disclosures by covered entities under HIPAA are (1) to the individual to whom the information pertains, (2) for treatment, payment, or health care operations, (3) incident to a use or disclosure otherwise permitted or required, (4) pursuant to and in compliance with a valid authorization, (5) pursuant to an agreement, and (6) as permitted by and in compliance with this section. 45 CFR 164.502 (a)(1)(i)-(vi). Required disclosures by covered entities under HIPAA are (1) to the individual, and (2) when required by the Secretary of the Department of Health and Human Services. 45 CFR Sec. 160.502(a)(2)(i)-(ii). Since the Complainant's request does not fit within the permitted or required uses and disclosure of protected health information under HIPAA, the Custodian is proscribed from disclosing the "individual" records to the Complainant pursuant to HIPAA and N.J.S.A. 47:1A-9. However, in Michelson v. Wyatt 379 N.J. Super 611 (App. Div.), 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 the requested information may be partially disclosable under common law (pursuant to Michelson), the GRC is statutorily precluded from making a determination on access to government records under common law pursuant to N.J.S.A. 47:1A-8. Therefore, the Custodian has not unlawfully denied access under OPRA.
Whether the Custodian properly responded to the Complainant’s OPRA requests within the statutorily mandated seven (7) business days pursuant to N.J.S.A. 47:1A-5.1.?
OPRA provides that:
“[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i.
The Complainant asserts submitting his OPRA requests on the following dates: September 13, 2005; September 23, 2005; and October 7, 2005. The Custodian certifies responding to the Complainant’s requests on the following dates: September 22, 2005; October 4, 2005; and October 19, 2005. The Complainant takes issue with the seven (7) business day time frame in which custodians are required to respond to OPRA requests. The Complainant claims that the Custodian is abusing the seven (7) business days to respond by waiting until the seventh day to deny the request when he allegedly knew what his response would be on the first day following the date of the request. Pursuant to N.J.S.A. 47:1A-5.i., a custodian must either grant or deny a Complainant access to records requested “as soon as possible, but not later than seven (7) business days after receiving the request.” In this case, the Custodian certifies responding to the Complainant’s September 13, 2005 request on September 22, 2005, which is the seventh (7th) business day following the date of the request. The Custodian certifies responding to the Complainant’s September 23, 2005 request on October 4, 2005, which is the seventh (7th) business day following the date of the request. He also certifies responding to the Complainant’s October 7, 2005 request on October 19, 2005, which is the seventh (7th) business day following the date of the request. In Renna v. County of Union, GRC Case No. 2005-178 and 2005-180 (November, 2005), the Complainant took issue with the fact that the Custodian did not respond to her request until the seventh (7th) business days following the date of the request. The Council found that “[t]he Custodian has properly responded to the September 6, 2005 and September 20, 2005 requests within the statutorily required seven (7) business days pursuant to N.J.S.A. 47:1A-5.i.” As the facts of this case are similar to those in Renna, the same ruling should apply. Therefore, the Custodian has properly responded to the Complainant’s requests pursuant to N.J.S.A 47:1A-5.i. by providing the Complainant with responses to his OPRA requests within the statutorily mandated seven (7) business days.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
1. As the Custodian did properly provide the Complainant with a written response to his September 13, 2005 request for information pursuant to N.J.S.A. 47:1A-5.g. and denied said request on the basis that it is not a request for identifiable government records, the Custodian has not unlawfully denied access to the Complainant’s request pursuant to Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super 534 (March, 2005) and Russomano v. Township of Edison, GRC Case No. 2002-86 (July, 2003). 2. Since the Complainant's September 23, 2005 and October 7, 2005 requests do not fit within the permitted or required uses and disclosure of protected health information under HIPAA, the Custodian is proscribed from disclosing the "individual" records to the Complainant pursuant to HIPAA and N.J.S.A. 47:1A-9. And while the requested information may be partially disclosable under common law (pursuant to Michelson v. Wyatt 379 N.J. Super 611 (App. Div.)), the GRC is statutorily precluded from making a determination on access to government records under common law pursuant to N.J.S.A. 47:1A-8. Therefore, the Custodian has not unlawfully denied access under OPRA. 3. The Custodian has properly responded to the Complainant’s requests pursuant to N.J.S.A 47:1A-5.i. by providing the Complainant with responses to his OPRA requests within the statutorily mandated seven (7) business days.
Prepared By: Dara Lownie Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
[1] No attorney listed. [2] Represented by Francis J. Vernoia, Esq. of Genova, Burns & Vernoia (Livingston, NJ). [3] Complainant asserts that the request included with his Denial of Access Complaint form is not the original request as he claims that the Sewerage Authority staff would not provide him with a copy of his request. [4] Actually cited by the Complainant as Michelson v. Wyatt, 2005. [5] As stated on Complainant’s January 5, 2006 letter. [6] Actually cited by the Complainant as Michelson v. Wyatt. |
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