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2005-29
Second Interim Order
At the March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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, grants the Complainant’s Motion to Settle the Record. Please note that no opposition was filed with the Appellate Division of the Superior Court of New Jersey. Decision Distribution Date: March 15, 2006 Supplemental Findings and Recommendations of the Executive DirectorJohn Paff GRC Complaint No. 2005-29Complainant v. Township of Plainsboro Custodian of Records Records Relevant to Complaint: October 27, 2004 executive session minutes. Background October 28, 2005 Government Records Council’s (“Council”) Final Decision. At its October 28, 2005 public meeting, after completing the in camera review of the unredacted October 27, 2004 executive session minutes in Closed Session, the Council determined that the Custodian had not borne the burden of proving that the redacted portions of the October 27, 2004 executive session minutes were exempt from disclosure, as asserted, pursuant to N.J.S.A. 47:1A-3 and 10. However, the Council concluded that while the Custodian has not presented the correct lawful basis for non-disclosure, the Council has an obligation and duty to apply the provisions of the OPRA. The Council determined that the provisions of N.J.S.A. 10:4-12.b.(8) of the Open Public Meetings Act and N.J.S.A. 47:1A-9 were applicable in this case. Pursuant to N.J.S.A. 10:4-12.b.(8) a public body may exclude the public from a meeting at which the public discusses: “Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion of disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or maters discussed at a public meeting.” N.J.S.A. 47:1A-9 states: a. The provisions of this act, [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) b. The provisions of this act,[OPRA], shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record. Therefore by a unanimous vote, the Council found that pursuant to N.J.S.A. 10:4-12.b.(8) of the Open Public Meetings Act and N.J.S.A. 47:1A-9 of OPRA, there was a lawful basis for the denial of access to the redacted information contained in the requested document. December 22, 2005 Notice of Complainant’s appeal to the Appellate Division of the Superior Court of New Jersey. February 21, 2006 Civil Case Information Sheet and Statement of Items Comprising the Record on Appeal filed by Deputy Attorney General Debra Allen on behalf of the Council. February 23, 2006[1] Complainant’s Motion to Settle the Record. The Complainant filed a motion to include three (3) documents omitted from the February 21, 2006 Statement of Items Comprising the Record on Appeal. February 28, 2006 Brief of Complainant – Appellant John Paff. Analysis The Complainant filed a motion to include three (3) documents omitted from the February 21, 2006 Statement of Items Comprising the Record on Appeal. The records referenced in this motion were inadvertently omitted from the record. Therefore, the Council should accept the Complainant’s Motion to Settle the Record. Conclusions and Recommendations The Executive Director respectfully recommends that the Council agree with the Complainant’s Motion to Settle the Record. Prepared By: Colleen McGann, Case Manager Approved By: March 8, 2006 [1] Undated document. February 23, 2006 is the date of facsimile transmittal of this document. Final Decision
The Government Records Council (“Council”) first considered this case at the July 14, 2005 public meeting in conjunction with the Executive Director’s Findings and Recommendations and all related documents submitted by the parties. By a unanimous vote the Council concluded, in relevant part, that the Custodian was to redact the exempt information contained in the requested executive session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that had not already been released within ten (10) business days from receipt of the Council’s decision. Following receipt of the Custodian’s response that the Complainant was provided access to all minutes of the executive session with the exception of the October 27, 2004 executive session minutes and said minutes were provided with redactions based on exemptions under N.J.S.A. 47:1A- 3 and 10, the Council concluded at the September 8, 2005 public meeting that the Custodian had not borne the burden of proving that the redactions to the October 27, 2004 executive session minutes were lawful pursuant to OPRA and voted unanimously to conduct an in camera inspection of said document pursuant to the provisions of N.J.S.A. 47:1A-7.c. At its October 28, 2005 public meeting, the Council conducted an in camera inspection of the unredacted October 27, 2004 executive session minutes for a determination on access to the redacted portions of the minutes. Present during the in camera review were: Council Members: Diane Schonyers – Vice-Chair Government Records Staff: Paul Dice, Executive Director Deputy Attorney General: Debra Allen After completing the in camera review of the unredacted October 27, 2004 executive session minutes in Closed Session, the Council determined that the Custodian had not borne the burden of proving that the redacted portions of the October 27, 2004 executive session minutes were exempt from disclosure, as asserted, pursuant to N.J.S.A. 47:1A-3 and 10. However, the Council concluded that while the Custodian has not presented the correct lawful basis for non-disclosure, the Council has an obligation and duty to apply the provisions of the OPRA. The Council determined that the provisions of N.J.S.A. 10:4-12.b.(8) of the Open Public Meetings Act and N.J.S.A. 47:1A-9 were applicable in this case. Pursuant to N.J.S.A. 10:4-12.b.(8) a public body may exclude the public from a meeting at which the public discusses: “Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of , promotion of disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or maters discussed at a public meeting.” N.J.S.A. 47:1A-9, states: a. The provisions of this act, [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) b. The provisions of this act,[OPRA], shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record. Therefore by a unanimous vote, the Council finds that pursuant to N.J.S.A. 10:4-12.b.(8) of the Open Public Meetings Act and N.J.S.A. 47:1A-9 there was a lawful basis for the denial of access to the redacted information contained in the requested document. 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 Decision Distribution Date: November 7, 2005 Interim Decision on Access
At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt said findings and recommendations with amendment to specify the date for the in camera review. Therefore, the Council hereby finds that the Council will conduct an in camera review of the unredacted “October 27, 2004 minutes of the Township Committee’s executive sessions” at its October 13, 2005 public meeting. Decision Distribution Date: September 19, 2005 Supplemental Findings and Recommendations of the Executive DirectorJohn Paff GRC Complaint No. 2005-29Complainant v. Township of Plainsboro Custodian of Records Records Requested:
Request Made: January 20, 2005 Background July 14, 2005 Government Records Council Interim Decision on Access. At the July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations amended to include the Custodian on the “Matrix.” Therefore, the Council found:
July 28, 2005 Letter from the Custodian to the Complainant. The Custodian stated she released the executive session minutes from the Plainsboro Township Committee for September 11, 2002, September 25, 2002 and October 27, 2004. The Custodian adds that there are redactions in the October 27, 2004 meeting minutes “because the matter under discussion is in litigation. August 23, 2005 Letter from the Complainant to the GRC staff with the following attachments:
The Complainant asserted that the requested meeting minutes were released to him without redaction except for the October 27, 2004 minutes. The Complainant stated that the Custodian stated in her letter to him that the reason for the redactions to information in the document was because the “matter under discussion is in litigation” however the October 27, 2004 minutes themselves indicate “executive session for discussion of personnel was called to order…” The Complainant contends that no detailed and lawful basis for a denial was provided as reason for the redactions to the document as ordered in the GRC’s July 14, 2005 Interim Decision. Additionally, the Complainant stated that the Custodian has also violated the Open Public Meetings Act stating that the Township cannot redact an entire paragraph when only a single sentence in that paragraph would undermine the governmental interest. The Complainant asked “that the Council rule that the level of redaction Plainsboro performed on its minutes does not meet either the terms of the Council’s Interim Order or the requirements of the Open Public Meetings Act.” Analysis Whether the Custodian has complied with the Council’s Interim Decision on Access? The Custodian has not met the burden of proving why the redactions are appropriate pursuant to OPRA. The Custodian’s letter to the Complainant indicating the reason for redaction asserts a legal conclusion without any rational or more detailed explanation. Simply stating that the matter is pending in litigation is insufficient to meet the requirements of the Council’s July 14, 2005 Interim Decision which clearly orders “The Custodian should redact the exempt information contained in the requested executive session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that have not already been released.” (emphasis added). Additionally, the Custodian stated in the July 28, 2005 letter to the Complainant that the reason for redaction was that the “matter under discussion is in litigation” however, the document itself, the October 27, 2004 executive session minutes indicate, “executive session for discussion of personnel was called to order…” The disparity between the Custodian’s letter and the requested records indicate that the Custodian’s statements are factually inconsistent. Based on the fact that the Custodian has not born the burden of proving that the redactions to the October 27, 2004 executive session minutes were lawful as ordered in the Council’s July 14, 2005 Interim Decision and the factual inconsistencies in the Custodian’s statements, the Council should perform an in camera inspection of the requested minutes. Conclusions and Recommendations The Executive Director respectfully recommends that the Council conduct an in camera review of the unredacted October 27, 2004 minutes of the Township Committee’s executive sessions.Prepared By: Colleen McGann Approved By: September 2, 2005 Interim Decision on Access
At the July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations amended to include the Custodian on the “Matrix.” Therefore, the Council hereby finds that:
Interim Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. DeAnna Minus-Vincent, Secretary Decision Distribution Date: July 20, 2005 John Paff GRC Complaint No. 2005-29Complainant v. Township of Plainsboro Custodian of Records Records Requested:
Request Made: January 20, 2005 Background January 20,
2005 February 3, 2005
February 10, 2005
The Complainant stated the Custodian released all documents with the exception of, “Minutes of the Township Committee’s executive sessions of September 11, 2002, September 25, 2002 and October 27, 2004 redacted as little as necessary, if at all” and, “Minutes of the public Township Committee meeting held on January 12, 2005 redacted as little as necessary, if at all.” The Complainant alleged the Custodian denied access to the above-mentioned records and did not provide a specific basis for the denial pursuant to N.J.S.A. 47:1A-5(g). The Complainant cited Government Records Council (GRC) Case 2003-139, Gober v. City of Burlington stating that referring to a document as “not currently available for release” is too vague to satisfy the requirement of a specific basis for denial set forth in OPRA. Additionally, it was stated that, “executive session minutes are ‘government records’ under OPRA” citing GRC Case 2003-56, Davis v. Rumson-Fair Haven Board of Education. The resolutions for the executive sessions stated the sessions were being held to discuss personnel matters. He states that with the exception of redacting some information that may cause the public great harm, “the New Jersey Supreme Court has held that a public body must promptly disclose its executive session minutes even if the purpose for holding the executive session was legitimate. See Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556-57 (1997).” Additionally, the Complainant asserts that if the Custodian released the January 12, 2005 minutes there would be an issue of timeliness. The Plainsboro policy of waiting for the approval of minutes prior to their release essentially institutes a month waiting period for the release of meeting minutes contrary to OPRA’s policy of making government records “readily accessible for inspection, copying, or examination.” An individual requesting meeting minutes would have to wait until the approval of said minutes at the next “regular” meeting. The Complainant asserted, “the Council has the discretion… to decide this issue, even if it is mooted by Custodian’s tardy disclosure of the January 12, 2005 meeting minutes” because the issue “is one of public interest, capable of repetition, yet susceptible to continuously evading judicial review. See, e.g. New Jersey Division of Family Services v. J.B., 120 N.J. 112, 118-19 (1990).” It is the Complainant’s assertion that these records should be disclosed with appropriate redactions and that the Custodian has failed to meet their burden of proving the request for these minutes was lawfully denied. February 15,
2005 February 16,
2005 February 17,
2005 February 28,
2005
The Custodian asserted that the OPRA request was received and date stamped on January 26, 2005. The Custodian stated, while the written response to the request did not specifically state that the Executive Session minutes had not been released, the Complainant was verbally made aware by the Deputy Township Clerk that the minutes had not been released by the Township Committee when he requested to view the minute books on January 13, 2005. The minutes of the January 12, 2005 meeting were approved February 9, 2005 and sent to the Complainant February 15, 2005. The Executive Session minutes requested were not given to the Complainant “because they had not been approved for release by the Plainsboro Township Committee.” The Custodian alleges this complaint is frivolous because the Complainant was aware when he made his request that some of the items were not available to the public. March 21,
2005 Analysis Whether access was unlawfully denied minutes of the Township Committee’s executive session of September 11, 2002, September 25, 2002, October 27, 2004 and minutes of the public Township Committee meeting held on January 12, 2005 prior to their formal approval? The 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: “‘Government record’ or ‘record’ means 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 in the course of his or its official business…” N.J.S.A. 47:1A-1.1. The Complainant requested access to executive and public session meeting minutes of the Township Committee. The Custodian asserted to the Government Records Council that they could not release the minutes to these meetings, as the Township Committee had not yet approved the requested documents. The Complainant was informed that the public session meeting minutes from the January 12, 2005 Township Committee could not be released until their approval at the February Township Committee meeting. The Complainant was provided with a copy of the January 12, 2005 meeting minutes on February 15, 2005. The Complainant states that this practice institutes a one-month waiting period for meeting minutes and does not allow for documents to be “readily accessible” pursuant to OPRA. The executive minutes were not released nor was than explanation of the denial of access provided to the Complainant. The Complainant cites GRC Case 2003-56, Davis v Rumson-Fair Haven Board of Education, which asserts that “the minutes of meetings made, maintained, kept or received by public agencies are ‘government records’ pursuant to OPRA, they are accessible unless confidential by statute.” According to the Complainant, the Custodian in this case does not assert that these records are confidential under statute therefore; the draft minutes withheld from the Complainant are considered government records as they are made, maintained, and kept on file by the agency and are therefore. In GRC Case 2003-38 Seerey v. Upper Pittsgrove Township the Council found that “characterization of the maps as interim, incomplete, or inaccurate is not relevant to the definition of a government record under OPRA. Many records maintained, kept or received by government officials are eventually superseded or amended. For example, draft-meeting minutes are considered government records even though they are subject to change. Such records can be specifically identified for requestors as being subject to amendment or repeal.” The Council’s decision in GRC Case 2003-119, Calogero v. Borough of Emerson, was consistent with that of Seerey. Therefore the draft public meeting and executive session minutes requested fall under the definition of a government record pursuant to N.J.S.A. 47:1A-1.1. As such, the Custodian should have released the requested draft minutes that had not already been released to the Complainant with appropriate redactions pursuant to OPRA and provided a detailed explanation for any redacted part thereof. Thus, access to these records was unlawfully denied. WHETHER the Custodian provided a specific basis for the denial of access pursuant to N.J.S.A. 47:1A-5(g)? If a Custodian is unable to comply with a request for records it is required that the Complainant be given a reason for the denial or delay in access. OPRA states: “If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.” N.J.S.A. 47:1A-5(g). OPRA places the responsibility for proving a claimed exemption on the Custodian. N.J.S.A. 47:1A-6 states in relevant part: “…The public agency shall have the burden of proving that the denial of access is authorized by law…” The Custodian wrote to the Complainant on February 3, 2005 attaching those documents that were “currently available for public release.” The Custodian did not address which documents were not being provided to the Complainant nor was an explanation offered for not releasing all of the documents responsive to the request; specifically the Township Committee’s executive session minutes of September 11, 2002, September 25, 2002, October 27, 2004. The Custodian did state that the minutes from the January 12, 2005 public meeting would not be released until their approval at the February 9, 2005 Township Committee meeting. However, the Custodian did not provide a legal basis for this delay in access. The Custodian asserts in the Statement of Information that, while the written response did not refer directly to the fact that the executive session minutes were not included the Complainant was verbally made aware when requesting minutes on January 13, 2005 that the executive session minutes had not been released. OPRA allows the Custodian to deny access to records under those circumstances in which the records requested are exempt from access, under OPRA or any other law. If a Custodian asserts a privilege under the law the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. The Complainant cites GRC Case 2003-139, Gober v. City of Burlington, in which the Council found that “the Custodian’s assertion that certain of the information requested by the Complainant is “privileged” is so vague that the existence of an applicable exemption cannot be ascertained. Because the OPRA presumes that a government record is subject to public access unless an exemption exists, it is appropriate to order that access be granted unless an appropriate exemption is clearly identified by the Custodian.” The onus rests on the Custodian to prove that “the denial of access is authorized by law.” In the case at hand, the Custodian violated N.J.S.A. 47:1A-5(g) by not providing a written response to the portion of the request that indicated the specific lawful basis for the denial of access to the requested executive session minutes. WHETHER the Custodian provided the Complainant with the minutes of the public Township Committee meeting held on January 12, 2005 within the statutory time period pursuant to OPRA? OPRA provides that: “Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.” N.J.S.A. 47:1A-5(i). The Custodian informed the Complainant in writing that the minutes of the public Township Committee meeting held on January 12, 2005 could not be released until their approval at the February 9, 2005 Township Committee meeting. This requested document was provided to the Complainant on February 15, 2005 and the Complainant confirms the receipt of same. While the Custodian neglected to include a reason for the denial of access to the requested executive session minutes the Custodian did provide the Complainant with a timely response to the OPRA request and therefore did not violate N.J.S.A. 47:1A-5(i). Conclusions and Recommendations The Executive Director respectfully recommends that the Council find:
Prepared By: Colleen McGann, Case Manager Approved By: July 8, 2005
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