2005-37

Final Decision

At its July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 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, dismissed the case on the basis that:

1. The Custodian’s original denial of access to the requested record was lawful since the record was exempt under attorney-client privilege.
2. The Custodian lawfully denied access to the request for records in a timely manner and did not violate N.J.S.A. 47:1A-5(i).
3. Pursuant to N.J.S.A. 47:1A-7(b) the GRC does not have jurisdiction to regulate how a Township notifies its residents of its meetings or the accuracy of information being released.

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 14^th Day of July, 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: July 20, 2005

Return to Top

Findings and Recommendations of the Executive Director

Records Requested:“Letter written by Township Attorney Donald Beekman (upon order of Township Committee at meeting on 1/24/05) responding to charges made by me publicly relating to the procedure by which Bond Ordinance #04-55 was adopted on 12/27/05.”[1]
Request Made: February 17, 2005
Response Made: February 18, 2005
Custodian: Richard Cuttrell
GRC Complaint filed: February 28, 2005

Background

February 17, 2005
Complainant’s written Open Public Records Act (OPRA) Request. The Complainant sought a copy of a letter written by the township attorney responding to allegations made by the Complainant.

February 18, 2005
“Government Records Request Response” from Custodian to Complainant. The Custodian stated access to the requested document was being denied as a “Legal Memorandum/Confidential Attorney-Client Communication.”

February 28, 2005
Complainant’s Denial of Access Complaint with the following attachments:

• February 17, 2005 Complainant’s written OPRA Request
• February 18, 2005 “Government Records Request Response” from Custodian to Complainant
• January 24, 2005 list of charges regarding the adoption of a Bond Ordinance to which the township attorney was instructed by the Township Committee to respond.

The Complainant stated she verbally requested the document at issue on January 24, 2005 and February 14, 2005 and submitted, to the Custodian, a written OPRA request for a document generated as a result of accusations made by the Complainant at the January 24, 2005 Township Committee meeting. The Complainant received a written denial of access to her request, dated February 18, 2005 and “signed by a ‘Township Official’ whose name is illegible,” on February 24, 2005 when she went to ask about her request.     

March 2, 2005
Offer of Mediation sent to Complainant and Custodian.

March 2, 2005
E-mail from the Custodian to the Government Records Council (GRC) staff. The Custodian stated that the Complainant was denied access to the requested document because it was considered attorney-client privilege and therefore, not a public document. The Custodian goes on to state that the Township Committee voted to release the document to the Complainant and the Complainant was notified that she could pick up the document. To date the Complainant had not picked up the requested document.

March 7, 2005
E-mail from the GRC staff to the Custodian. The GRC staff states that the Complainant has not yet received the requested document, nor has she been notified that the document is available.

March 8, 2005
E-mail from the Custodian to the GRC staff. The Custodian stated that the Complainant received the requested document that morning and signed a confirmation of receipt.

March 28, 2005
Custodian’s Statement of Information with the following attachments:

• February 17, 2005 Complainant’s written OPRA Request
• February 18, 2005 “Government Records Request Response” from Custodian to Complainant
• March 8, 2005 Complainant’s signed confirmation for receipt of requested documents with attachment of the requested documents.

The Custodian asserted that the OPRA request was received February 17, 2005, and a written denial was given to the Complainant on February 24, 2005. The Custodian stated the request was denied as attorney-client privilege. However, a copy of the requested legal opinion was provided to the Complainant on March 8, 2005, after the Township Committee approved the release of the document. All responsive documents have been released to the Complainant. The Custodian asserted that the GRC should dismiss this complaint because the Custodian notified the Complainant in a timely manner that the document was not available and the Complainant received the requested legal opinion after approval of its release. 

March 29, 2005
Letter from the Complainant to the GRC staff. The Complainant presented the following chronology of events regarding the Denial of Access Complaint:

• January 24, 2005 verbal request for the Township Attorney’s written evaluation of the procedure used to pass Bond Ordinance 04-55
• February 14, 2005 verbal request for a copy of the written evaluation
• February 17, 2005 written OPRA request
• February 18, 2005 written denial of the request
• February 24, 2005 Complainant received the February 18, 2005 written denial of the request
• February 28, 2005 “at their meeting, Township Committee members mentioned giving (the Complainant) the requested copy of the Township Attorney’s letter.”

The Complainant asserted that she has “been prejudiced by the more than one month delay in receiving this important evaluation.” The Complainant goes on to state that the Township has failed to provide written notice of meetings and have given out inaccurate information to deter residents from being able to defend their property from “aggressive ‘developers.’”

Analysis

Whether access was unlawfully denied to the letter written by Township Attorney Donald Beekman (upon order of Township Committee at meeting on 1/24/05) responding to charges made by the Complainant publicly relating to the procedure by which Bond Ordinance #04-55 was adopted on 12/27/05?

OPRA exempts from access certain records. Specifically OPRA states:

“A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:…any record within the attorney-client privilege.” N.J.S.A. 47:1A-1.1.

The Complainant requested access to a legal opinion written by the Township Attorney to the Township Committee. The Custodian asserted that the request was initially denied under advice from the Township Attorney that the document was Attorney-Client privilege and could not be released. The Township Attorney revised this opinion at the Committee’s public meeting on February 28, 2005, stating that the document was exempt from access as a legal opinion but if they agreed to release the document to the Complainant it could be allowed. The Township Committee agreed to release the document and the Complainant was advised that it was available for her. The Complainant acknowledges the receipt of the document on March 8, 2005.

The Custodian certifies in the Statement of Information that the original denial was lawful since the requested document is a legal opinion and as such is not a public document for release. The document is a legal opinion written by the Township Attorney at the request of and to the Township Committee evaluating the procedure by which a particular ordinance was adopted. As a legal opinion this document is exempt from disclosure as attorney-client privilege and does not fit the definition of a government record pursuant to OPRA.

The Custodian goes on to state that while the document is exempt from disclosure under OPRA, the requested document was released to the Complainant as a result of the Township Committee agreeing to disclose the document. The Complainant has received all documents responsive to the request.

Based on the exemption for attorney-client privilege stated in N.J.S.A. 47:1A-1.1 the Custodian’s original denial of access to the requested record was lawful therefore; this portion of the Complaint should be dismissed.   

WHETHER the Custodian provided the Complainant with the letter written by the Township Attorney within the statutory time period pursuant to OPRA?

N.J.S.A. 47:1A-5(i) explicitly states:

“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...” (emphasis added)

The Custodian informed the Complainant in writing, in a letter written February 18, 2005 and received by the Complainant February 24, 2005, that the requested letter from the Township Attorney to the Township Committee could not be released, as it was exempt from access under attorney-client privilege.  

The Custodian did not provide the Complainant with the requested document in the statutory time period but did offer a timely and lawful written denial of access to the request to the Complainant within the statutory seven days. The fact that the requested document was released at a later date is a moot point since the document was a legal opinion, therefore exempt from access, and only disclosed as a result of approval for its release by the Township Committee.

The Custodian appropriately responded to the request for records in a timely manner, giving a specific reason for the denial of access within the seven business day period set forth in OPRA. Therefore, the Custodian did not violate N.J.S.A. 47:1A-5(i) when not providing access to the requested document within seven business days. 

WHETHER the Township has given out inaccurate information and failed to provide written notice of meetings?

Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the Council shall: 

“receive, hear, review and adjudicate a compliant filed by any person concerning a denial of access to a government record  by a records custodian …; issue advisory opinions …; prepare guidelines and an informational pamphlet …; prepare lists for use by records custodians …; make training opportunities available for records custodians …, and operate an informational website and a toll-free helpline …”(emphasis added) N.J.S.A. 47:1A-7(b)

The Complainant raised a concern about written notice to the public of the Township’s meetings and the dissemination of inaccurate information by the Township, which she believes is meant to “deter residents from being able to defend their property from “aggressive ‘developers.’” The GRC only has authority determine those matters concerning a Denial of Access Complaint. Notice of meetings and the content of the information provided are not matters addressed in OPRA and are not under the jurisdiction of the GRC as delineated in the Act. 

Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC does not have jurisdiction to regulate how a Township notifies its residents of its meetings or the accuracy of the information being released. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that:

1. The Custodian’s original denial of access to the requested record was lawful since the record was exempt under attorney-client privilege.
2. The Custodian lawfully denied access to the request for records in a timely manner and did not violate N.J.S.A. 47:1A-5(i).
3. Pursuant to N.J.S.A. 47:1A-7(b) the GRC does not have jurisdiction to regulate how a Township notifies its residents of its meetings or the accuracy of information being released.

Prepared By: Colleen McGann, Case Manager

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

July 8, 2005

Return to Top