State of NJ - Government Records Council

2005-55

	Final Decision
	Supplemental Findings and Recommendations of Executive Director
	Interim Decision on Access
	Interim Decision on Access
	Interim Decision
	Findings and Recommendations of Executive Dir

Final Decision

John Paff
   Complainant
      v.
Borough of Somerville
   Custodian of Record

Complaint No. 2005-55

At its November 10, 2005 public meeting, the Government Records Council (“Council”) considered the November 4, 2005 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 the Custodian has complied with the Council’s October 13, 2005 decision.

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 10^th Day of November, 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: November 22, 2005

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Supplemental Findings and Recommendations of Executive Director

John Paff, GRC Complaint No. 2005-55
Complainant
v.
Borough of Somerville,
Custodian of Records

Records Requested:

The resolution, as required by N.J.S.A. 10:4-13, that was passed to authorize the Borough Council’s closed session of December 20, 2004.
The minutes of the Borough Council’s December 20, 2004 closed session, redacted as narrowly as possible, if at all.
Agendas and minutes from Council Workshops of March 1, 2004 and June 7, 2004.

Custodian: Ralph Sternadori
Request Made: January 7, 2005 and February 15, 2005
Response Made: February 25, 2005
GRC Complaint filed: March 18, 2005

Background

October 13, 2005

At the October 13, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the redacted portions of the March 1, June 7, and December 20, 2004 Executive Session Workshop minutes sought in the Complainant’s OPRA request.

The Council conducted said review as concluded at the September 8, 2005 public meeting and pursuant to N.J.S.A. 47:1A-7.c. Present during the in camera review were:

Council Members:                    Vincent Maltese
                                           Diane Schonyers
                                           DeAnna Minus-Vincent

Government Records Staff:       Paul Dice, Executive Director
                                           Gloria Luzzatto, Assistant Executive Director
                                           Catherine Starghill, In-House Counsel
                                           Chris Malloy, Case Manager
                                           Dan Reynolds, Deputy Attorney General

After completing the in camera review of the unredacted March 1, June 7, and December 20, 2004 Executive Session Workshop minutes certified by the Custodian in the document index that they are the complete unredacted documents responsive to the OPRA request, the Council voted unanimously that the Custodian is to provide access to the requested information contained in the March 1, June 7 and December 20, 2004 Executive Session Workshop minutes as specifically set forth below:

March 1, 2004 Executive Session Workshop Minutes:

The minutes consisted of eight (8) total pages: 2 pages of written minutes with the redacted portion of the minutes appearing on page 2 and consisting of five (5) sentences, and six pages of e-mail attachments containing nine (9) e-mails which were numbered 1 through 9 during the in camera inspection.

Sentence 1: Disclose the entire sentence; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
Sentence 2: Entire sentence exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy
Sentence 3: Entire sentence exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy
Sentence 4: Disclose the entire sentence; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
Sentence 5: Disclose the entire sentence; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
E-mail 1. (2-20-04 1:32 p.m.): Disclose all except personal phone numbers and cell phone number; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
E-mail 2. (2-20-04 1:25 p.m.): Entire text of the e-mail exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the e-mail represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 3. (2-19-04 4:03 p.m.): Entire text of the e-mail exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 4. (2-19-04 3:48 p.m.): Entire text of the e-mail exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 5. (2-19-04 3:53 p.m.): Disclose the entire e-mail; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
E-mail 6. (2-19-04 1:03 p.m.): Disclose the first sentence as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10; the balance of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 7. (2-19-04 3:31 p.m.): The second sentence of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; the home phone and cell phone numbers are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 since it cannot be determined from the document that the phone numbers are unlisted or not; disclose all other information contained in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 8. (2-19-04 1:03 p.m.): A duplicate of “E-mail 6.” Above. Disclose the first sentence as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10; the balance of text of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 9. (2-19-04 1:03 p.m.): A duplicate of “E-mail 6.” Above. Disclose the first sentence as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10; the balance of text of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)

June 7, 2004 Executive Session Workshop Minutes:

The minutes consisted of four (4) total pages: 4 pages of minutes identified as Page 1, Page 2, Page 3 and Page 4

Page 1: There were no redactions

Page 2: (redacted portions consist of 5 paragraphs bracketed as #1; 2 paragraphs bracketed as #2)

#1: Disclose all 5 paragraphs as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
#2: Both paragraphs found to be exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the paragraphs represents legal advice received in anticipation of litigation

Page 3: (redacted portions consist of 6 paragraphs bracketed as #3; 2 paragraphs bracketed as #4)

#3: Disclose all paragraphs except paragraph 3 which was found to be exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the paragraph represents legal advise received in anticipation of litigation
#4: Disclose both paragraphs as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10

Page 4: (entire page not disclosed and no reason for exemption from disclosure included on the document index)

Disclose this page in its entirety as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the denial of access

December 20, 2004 Executive Session Workshop Minutes

The minutes consisted of 10 total pages: 10 pages of minutes identified as Page 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. Page 8 and 9 consisted of 5 redacted paragraphs bracketed as #1, 7 paragraphs bracketed as #2 and 4 paragraphs bracketed as #3

Page 1 through 7 and Page 10: There were no redactions

Page 8 - #1:

The first sentence in paragraph 2 is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in that sentence represents legal advice received in anticipation of litigation; disclose all remaining paragraphs in #1 as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10

Page 8 and 9 - #2:

Disclose all paragraphs in this section as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10

Page 9 - #3:

The first sentence in paragraph 1 and all of paragraphs 2 and 3 are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (advantage to bidders)
Disclose the balance of the text contained in #3 as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or otherwise exempt under OPRA

The Custodian shall provide the Complainant access to the requested documents within ten (10) business days from receipt of this decision on the basis of the Council’s above determination and provide confirmation to the Executive Director that the Custodian has complied with the Council’s decision.

October 28, 2005

The Custodian’s letter to the Complainant in which they copied the Government Records Council on. The letter states, “I herewith enclose documents in accordance with the New Jersey Government Records Council’s decision in your case.”

Analysis

Based on the letter received on October 28, 2005 the Custodian has complied with the Council’s October 13, 2005 decision.

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis that the Custodian has complied with the Council’s October 13, 2005 decision.

Prepared By: Chris Malloy, Case Manager

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

November 4, 2005

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Interim Decision on Access

John Paff
    Complainant
         v.
Borough of Somerville
    Custodian of Record

Complaint No. 2005-55

The Council conducted said review as concluded at the September 8, 2005 public meeting and pursuant to N.J.S.A. 47:1A-7.c. Present during the in camera review were:

      Council Members:                         Vincent Maltese
                                                      Diane Schonyers
                                                      DeAnna Minus-Vincent

      Government Records Staff:          Paul Dice, Executive Director
                                                      Gloria Luzzatto, Assistant Executive Director
                                                      Catherine Starghill, In-House Counsel
                                                      Chris Malloy, Case Manager
                                                      Dan Reynolds, Deputy Attorney General

After completing the in camera review of the unredacted March 1, June 7, and December 20, 2004 Executive Session Workshop minutes certified by the Custodian in the document index are the complete unredacted documents responsive to the OPRA request, the Council voted unanimously that the Custodian is to provide access to the requested information contained in the March 1, June 7 and December 20, 2004 Executive Session Workshop minutes as specifically set forth below:

March 1, 2004 Executive Session Workshop Minutes:

Sentence 1: Disclose the entire sentence; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
Sentence 2: Entire sentence exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy
Sentence 3: Entire sentence exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy
Sentence 4: Disclose the entire sentence; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
Sentence 5: Disclose the entire sentence; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
E-mail 1. (2-20-04 1:32 p.m.): Disclose all except personal phone numbers and cell phone number; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
E-mail 2. (2-20-04 1:25 p.m.): Entire text of the e-mail exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the e-mail represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 3. (2-19-04 4:03 p.m.): Entire text of the e-mail exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 4. (2-19-04 3:48 p.m.): Entire text of the e-mail exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 5. (2-19-04 3:53 p.m.): Disclose the entire e-mail; the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
E-mail 6. (2-19-04 1:03 p.m.): Disclose the first sentence as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10; the balance of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 7. (2-19-04 3:31 p.m.): The second sentence of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; the home phone and cell phone numbers are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 since it cannot be determined from the document that the phone numbers are unlisted or not; disclose all other information contained in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 8. (2-19-04 1:03 p.m.): A duplicate of “E-mail 6.” Above. Disclose the first sentence as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10; the balance of text of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)
E-mail 9. (2-19-04 1:03 p.m.): A duplicate of “E-mail 6.” Above. Disclose the first sentence as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10; the balance of text of the e-mail is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the sentence represents legal strategy; disclose all remaining information in the e-mail as it may not be legally exempt from disclosure otherwise (i.e. date, time, to, from, subject, signature information, etc.)

June 7, 2004 Executive Session Workshop Minutes:

The minutes consisted of four (4) total pages: 4 pages of minutes identified as Page 1, Page 2, Page 3 and Page 4

Page 1: There were no redactions

Page 2: (redacted portions consist of 5 paragraphs bracketed as #1; 2 paragraphs bracketed as #2)

#1: Disclose all 5 paragraphs as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10
#2: Both paragraphs found to be exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the paragraphs represents legal advice received in anticipation of litigation

Page 3: (redacted portions consist of 6 paragraphs bracketed as #3; 2 paragraphs bracketed as #4)

#3: Disclose all paragraphs except paragraph 3 which was found to be exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in the paragraph represents legal advise received in anticipation of litigation
#4: Disclose both paragraphs as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10

Page 4: (entire page not disclosed and no reason for exemption from disclosure included on the document index)

Disclose this page in its entirety as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the denial of access

December 20, 2004 Executive Session Workshop Minutes

Page 1 through 7 and Page 10: There were no redactions

Page 8 - #1:

The first sentence in paragraph 2 is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (attorney-client privilege) as the information contained in that sentence represents legal advice received in anticipation of litigation; disclose all remaining paragraphs in #1 as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10

Page 8 and 9 - #2:

Disclose all paragraphs in this section as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or N.J.S.A. 47:1A-10

Page 9 - #3:

The first sentence in paragraph 1 and all of paragraphs 2 and 3 are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 (advantage to bidders)
Disclose the balance of the text contained in #3 as the Custodian has not met the burden of proof pursuant to N.J.S.A. 47:1A-6 for the asserted exemptions under N.J.S.A. 47:1A-1.1 (attorney-client privilege) or otherwise exempt under OPRA

Interim Decision Rendered by the
Government Records Council
On The 13^th Day of October, 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: October 18, 2005

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Interim Decision on Access

John Paff
Complainant
v.
Borough of Somerville
Custodian of Record

Complaint No. 2005-55

At the September 8, 2005 public meeting, the Government Records Council (“Council”) was to conduct an in camera inspection of Executive Session minutes sought in the OPRA request and the subject of the Denial of Access Complaint pursuant the Council’s August 11, 2005 Interim Decision. The Custodian provided only the unredacted December 20, 2004 Executive Session Workshop minutes and did not provide the March 1, 2004 and June 7, 2004 Executive Session Workshop minutes which were also subject of the OPRA and request and the Denial of Access Complaint. The Council, therefore, voted unanimously that the Custodian present the March 1, 2004 and June 7, 2004 Executive Session Workshop minutes to the Council for the in camera inspection at the October 13, 2005 meeting.

Interim 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

John Paff
   Complainant
      v.
Borough of Somerville
   Custodian of Record

Complaint No. 2005-55

At its August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 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 with an amendment to place the Custodian on the “Matrix.” The Council, therefore, finds that:

While the Custodian has certified as to the reasons for the documents being withheld, the information provided is insufficient to determine whether the requested documents fall under the exemptions claimed.
For the in camera review, the Custodian shall provide the Council with the un-redacted documents and an index of all documents and redactions to documents not released in response to the request.
Pursuant to N.J.S.A. 47:1A-5(i), the Custodian should have responded to the Complaint, as soon as possible, but not later than seven business days. While the Custodian did violate N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g), the violations do not rise to a level of knowing and willful violation of OPRA under the totality of the circumstances.

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 Executive Dir

John Paff                                                             GRC Complaint No. 2005-55
Complainant
v.
Borough of Somerville
Custodian of Records

Records Requested:

The resolution, as required by N.J.S.A. 10:4-13, that was passed to authorize the Borough Council’s closed session of December 20, 2004.
The minutes of the Borough Council’s December 20, 2004 closed session, redacted as narrowly as possible, if at all.
Agendas and minutes from Council Workshops of March 1, 2004 and June 7, 2004.

Custodian: Ralph Sternadori
Request Made: January 7, 2005 and February 15, 2005
Response Made: February 25, 2005
GRC Complaint filed:March 18, 2005

Background

January 7, 2005
Complainant’s Open Public Records Act (OPRA) Request. The Complainant seeks the records stated above.

March 18, 2005
The Complainant’s Denial of Access Complaint to the Government Records Council. The Complainant states that he faxed a request on January 7, 2005 and did not receive a response. He also states that after having not received a response to his January 7, 2005 request he faxed another request on February 15, 2005. The Complainant states that he received a response to his January 7, 2005 in an envelope postmarked February 28, 2005. He goes on to state that he should have received a response to his January 7, 2005 request within seven business days as well as received a response to his February 15, 2005 request.

(The Complainant’s February 15, 2005 request asks for the same items as his January 7, 2005 request as well as; any docket, roster or other document indicating the Borough’s receipt of the attached government record request dated January 7, 2005, and the Borough’s response to the attached government records request dated January 7, 2005 showing the date the response was made and the manner of transmittal.) The Complainant also states that the Custodian violated OPRA by failing to provide the specific basis for suppressing portions of the March 1, 2004, June 27, 2004 and December 20, 2004 Executive session minutes.

March 22, 2005
Mediation sent to both parties

March 22, 2005
The Complainant declines mediation.

May 25, 2005
The Custodian’s Statement of Information to the Government Records Council. The Custodian states that the requests were received on January 10, 2005 and February 16, 2005 and responded to on February 25, 2005. The Custodian states that all records were provided on February 25, 2005 save for redacted portions of Executive Session minutes from March 1, 2004, June 7, 2004 and December 20, 2004. He states that three paragraphs from March 1, 2004 Executive Session minutes discuss a potential employment claim against the borough and litigation strategy, as well as other personnel issues. He also states that seven paragraphs of the June 7, 2004 Executive Session minutes discuss personnel issues, Borough Attorney’s legal advice regarding same and possible litigation by the borough. He goes on to state that several paragraphs from the December 20, 2004 Executive Session minutes discuss personnel/salary negotiations; potential litigation against the borough and strategy for contract negotiations. He also states that all of the above are clearly outside the scope of OPRA requests. The Custodian goes on to state that the Complainant did receive the “requested materials” and the delay in responding to his request is due to the fact he (the Custodian) was waiting to hear from the Borough Attorney as to how and with what to respond to the request. He explains that, “at that time, the borough was making a change in its choice of attorney as a result of the swearing in of the new Borough Council. As soon as the Borough Attorney advised me how to respond, I did so. The delay in this case was minimal.” Finally, the Custodian states that, “the redacted portions of the materials requested are clearly outside the scope of an OPRA request as they involve personnel, contract negotiations and litigation strategy. To the extent that my response was a violation of the OPRA, it was a technical or de minimis violation and need not be sanctioned.”

July 22, 2005
The Complainant’s response to the Custodian’s Statement of Information. The Complainant makes reference to the fact that the Custodian attributed the delay in responding because of the need to hear from the Borough Attorney. The Complainant states, “nowhere does OPRA grant a Custodian additional time simply because he or she feels the need to consult an attorney as to how to respond to a request.” The Complainant also states that it should be noted that his request was not only for closed session minutes, but also for agenda and public session minutes of two workshop meetings and a resolution, passed during public session authorizing a closed session. Therefore, he states, “the Custodian should have at least provided me with these obviously public documents within the seven business-day period.”

The Complainant also responds to the Custodian’s statement that the portions redacted from the closed session minutes are “clearly outside the scope of OPRA.” The Complainant states, “Once matters have been recorded in the closed session minutes of a public body, the Open Public Meetings Act, as construed by South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991) and Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997), and not the Open Public Records Act, governs whether, when and the extent to which the minutes will be publicly disclosed.” He goes on to state that, “ These cases stand for the broad proposition that closed session minutes must be made promptly available to the public unless full disclosure would subvert the purpose of an Open Public Meetings Act exception that allows a body to meet in closed session. See, e.g. Payton at 557.”

Analysis

WHETHER the Custodian unlawfully denied access to the executive session closed meeting minutes?

N.J.S.A. 47:1A-1: 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-1.1: provides that “ … 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-5(g): provides that “… [i]f the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to [OPRA] …, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record … “[i]f 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. The custodian shall sign and date the form and provide the requestor with a copy therefor …”

N.J.S.A. 47:1A-6: provides that “… [t]he public agency shall have the burden or proving that the denial of access is authorized by law…”

While the Custodian has certified as to the reasons for the documents being withheld, the information provided is insufficient to determine whether the requested documents fall under the exemptions claimed.

WHETHER the Custodian responded to the OPRA request within the statutorily required seven business days?

N.J.S.A. 47:1A-5(i) 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 … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.)

N.J.S.A. 47:1A-5(g) provides that “....[i]f 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. The custodian shall sign and date the form and provide the requestor with a copy thereof …

The Custodian states that the requests were received on January 10, 2005 and February 16, 2005 and responded to on February 25, 2005. He also states that the Complainant did receive the requested materials, and the delay in responding to his request is due to the fact he (the Custodian) was waiting to hear from the Borough Attorney as to how and with what to respond to the request.

Based on the above, the Custodian did not respond in a timely manner. Pursuant to N.J.S.A. 47:1A-5(i), the Custodian should have responded to the Complaint, as soon as possible, but not later than seven business days.Also, N.J.S.A. 47:1A-5(g) requires that the Custodian appropriately respond to requests even if he/she is unable to comply with the request.

While the Custodian did violate N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g), the violation does not rise to a level of knowing and willful violation of OPRA under the totality of the circumstances.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

While the Custodian has certified as to the reasons for the documents being withheld, the information provided is insufficient to determine whether the requested documents fall under the exemptions claimed.
An in camera inspection of the Executive Session minutes for which the Custodian claims an exemption should be conducted.
Pursuant to N.J.S.A. 47:1A-5(i), the Custodian should have responded to the Complaint, as soon as possible, but not later than seven business days. While the Custodian did violate N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g), the violation does not rise to a level of knowing and willful violation of OPRA under the totality of the circumstances.

Prepared By: Chris Malloy, Case Manager

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

August 5, 2005

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