2005-30

Final Decision on Access

At its September 8, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the following unredacted document for a determination on access in the Complainant’s OPRA request:

• August 9, 2004 Executive Session Meeting Minute’s

The Council conducted said review as concluded in their August 11, 2005 Interim Decision and pursuant to the provisions of N.J.S.A. 47:1A-7(c).  Present during the in camera review were: 

Council Members:                    Vincent Maltese
                                           Mitchell Fishman
                                           DeAnna Minus-Vincent
                                           Robin Berg Tabakin

Government Records Staff:       Paul Dice, Executive Director
                                           Gloria Luzzatto, Assistant Executive Director
                                           Catherine Starghill, In-House Counsel
                                           Kimberly D. Gardner, Case Manager

Deputy Attorney General:         Debra Allen

After completing the in camera review of the unredacted August 9, 2004 Executive Session Meeting Minutes in Closed Session, the Council concluded by a unanimous vote that the Open Public Meetings Act provisions N.J.S.A. 10:4-12(b)7 and N.J.S.A. 10:4-7 12(b)8 are applicable exemptions to the information contained in the three paragraphs of the requested August 9, 2004 Executive Session Meeting Minutes and therefore, not disclosable pursuant to N.J.S.A. 47:1A-9. 

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 8^th Day of September, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  September 19, 2005

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Interim Decision on Access

At the August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 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. Therefore, the Council hereby finds that the un-redacted copy of the August 9, 2004 Executive Session minutes shall be presented at the September 8, 2005 Council’s Meeting for an in camera inspection to determine if the requested information contained in the Executive Session minutes is disclosable in whole, in part, or exempt from disclosure pursuant to OPRA.

Interim Decision Rendered by the
Government Records Council
On The 11^th Day of August, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  August 19, 2005

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Findings and Recommendations of the Executive Director

Records Requested: (As stated by the Complainant)
“Copy of page from Borough council executive session minutes, from approximately August 2004, which contain comments of the chief of police to the effect that a police officer was disciplined because of his serious lack of judgment.”[1]
Request Made:  December 8, 2004 & January 11, 2005
Response Made: December 15, 2004, January 21, 2005 and January 28, 2005
Custodian:  Borough of Far Hills – Linda Leidner
GRC Complaint filed: February 8, 2005

Background

December 8, 2004
Written Open Public Records Act (OPRA) Request - Complainant seeks, “page from Borough council executive session minutes, from approximately August 2004, which contain comments of the chief of police to the effect that a police officer was disciplined because of his serious lack of judgment.”

December 15, 2004
Custodian responded to the request stating that, “the minutes requested cannot be provided as they concern an individual employee and are subject to the personnel exemption.”

January 11, 2005
Revised written OPRA request – Complainant seeks same information as the December 8, 2004 request, however he cites specific law to support the disclosure in whole or in part of the requested record.

January 21, 2005
The Custodian’s Counsel’s response to the January 11, 2005 request stating that, “although he (Mr. Paff) had viewed these Executive Session Minutes during a December 7, 2004 visit to the Borough, these Executive Session Minutes had not been authorized for release by the Borough Council.” The Counsel further advised that the former Borough Clerk failed to maintain their confidentiality, but that the Council would review his request at its January 24, 2005, meeting and forward redacted copies of the minutes.

January 28, 2005
The newly appointed Borough Clerk forwarded redacted copies of the minutes to the Complainant.

February 8, 2005
Denial of Access Complaint filed with the GRC – The Complainant stated that he was given access to review minutes when he visited the office on December 7, 2004. The Borough Clerk was not available, but an assistant gave him access to the minutes.  During this review is where he saw unredacted minutes for the records at issue in this complaint. He stated that the records received were inappropriately redacted and that the redactions were not explained to him pursuant to the OPRA.

March 2, 2005
The Custodian revised and released redacted copies of the minutes. This portion of released minutes contained information regarding Property Acquisition that were previously redacted. 

March 3, 2005
Custodian’s Statement of Information – The Custodian stated the following information:

1. Redactions dealt with Personnel/Attorney-Client Privilege and Property Acquisition.
2. The matters discussed were appropriate pursuant to N.J.S.A. 10:4-12(b) (5), (7), and (8).
3. The minutes requested are exempt from disclosure under N.J.S.A. 47:1A-1.1 – attorney client privilege, matter which, if disclosed would give an advantage to competitors or bidders, and public employee-related information in connection with a grievance filed by or against an individual.
4. The minutes requested are exempt from disclosure pursuant to N.J.S.A. 47:1A-10 – exemption for personnel records of any individual in the possession of a public agency.
5. Revised minutes were released regarding the Property Acquisition matter that was previously redacted.
6. The portion of the minutes which discuss the Personnel/Attorney-Client Privilege matter is an exempt record under N.J.S.A. 47:1A-10 and cannot be released because it concerns discipline of an individual police officer resulting from an internal investigation…The employee who is the subject of this Executive Session discussion has refused to consent of release of the minutes.

March 24, 2005
Response to the Statement of Information from the Complainant that stated:

1. He withdrew his complaint as it pertained to the portion of the minutes dealing with Property Acquisition.
2. The exemptions utilized by the Custodian and their Counsel are inappropriately utilized.
3. The Open Public Meetings Act, not the Open Public Records Act states when Executive Session Meeting minutes may be disclosed.
4. He is entitled to know that a police officer was disciplined.
5. The Boroughs claim of attorney-client privilege should not be “automatically honored”.

March 31, 2005
Custodian and Counsel’s supplemental response, to the Complainant’s March 24, 2005 response. The Custodian’s Counsel maintains their position that the defense as presented in the Statement of Information as well as a clarification that N.J.S.A. 10:4-12 (b) (8) authorizes the Executive Session and what may be discussed and not disclosed unless the officer requests a public discussion of the matter.

Analysis

WHETHER the Custodian unlawfully denied access to the requested records?

OPRA provides that:

“all 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.

OPRA further 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 identified and released redacted records to the Complainant regarding the request. However, after review of the Statement of Information and all supplemental submittals by the parties, a determination is needed of whether the requested information contained in the Executive Session minutes are disclosable in whole, in part, or non-disclosable pursuant to the OPRA.

The Custodian has not met their burden of proof for the denial pursuant to N.J.S.A. 47:1A-6. Therefore, to make this determination the Government Records Council should conduct an in camera inspection of the unredacted Executive Session minutes of August 9, 2004. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council request the unredacted copy of the August 9, 2004 Executive Session minutes be presented at the September 8, 2005 Government Council Meeting for an in camera inspection to determine if the requested information contained in the Executive Session minutes are disclosable in whole, in part, or non-disclosable pursuant to OPRA.

Prepared By: Kimberly Gardner, Case Manager

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

August 5, 2005

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