2005-58

Final Decision

At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 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, changing only one word of the conclusion. The Council, therefore, finds that:

1. Based on the Custodian’s redactions made to the resume of Mr. Suto, which are contrary to the language of Executive Order 26, and the Custodian’s failure to provide certified confirmation of compliance pursuant to the Council’s May 11, 2006 Interim Order, the Custodian has failed to comply with the Council’s May 11, 2006 Interim Order.
   
2. In light of the legal standards set forth and the specific facts of this case, the Custodian’s actions do not meet the legal standard for a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. However, the Custodian’s actions do appear to be at least heedless regarding his knowledge of OPRA.

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 10^th Day of August, 2006

Robin Berg Tabakin, Vice Chairman & Secretary

Government Records Council

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

Michelle Richardson
Government Records Council 

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Supplemental Findings and Recommendations of the Executive Director

Complainant

            v.

NJ Department of Treasury

Custodian of Records

Records Relevant to the Complaint:

Copies of all forms, memoranda, e-mails or other documents relating to the temporary appointment of Matthew Suto to the title of Administrative Analyst 2.

Request Made: February 23, 2005

Response Made: March 1, 2005

Custodian: Michael Tyger[1] 

GRC Complaint filed: March 16, 2005

Background

May 11, 2006

      Government Records Council’s (“Council”) Interim Order. At the May 11, 2005 public meeting, the Government Records Council (“Council”) considered the May 4, 2006 In Camera 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 in camera findings and recommendations. The Council, therefore, found that:

1. The Treasury Human Resources Transmittal dated 12/10/2004 with attached justification memo, Page 1, “Treasury Human Resources Transmittal”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10. 
    
2. The Treasury Human Resources Transmittal dated 12/10/2004 with attached justification memo, Page 2, Justification memo from Karen Wood to Mark Wintermute entitled “Temporary Upgrade for Matthew Suto”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10.
    
3. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 1, e-mail: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.

4. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 2, attachment: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.

5. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 3, attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.

6. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 4 attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.

7. The letter from D. Ianni to M. Suto dated 12/27/2004, Page 1: This document is disclosable with the redaction of the letterhead, address of the employee, paragraphs 2 and 3 and the signature line which are exempt from disclosure as “personnel information” pursuant to N.J.S.A. 47:1A-10.

8. The letter from the DOP to D. Ianni dated 1/14/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.

9. The fax from D. Ianni to DOP dated 1/28/2005, Page 1, Fax transmittal: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.

10. The fax from D. Ianni to DOP dated 1/28/2005, Page 2, “Application for Promotional Examination”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.

11. The fax from D. Ianni to DOP dated 1/28/2005, Page 3, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.

12. The fax from D. Ianni to DOP dated 1/28/2005, Page 4, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.

13. The fax from D. Ianni to DOP dated 1/28/2005, Page 5, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.

14. The fax from D. Ianni to DOP dated 1/28/2005, Page 6, Resume: This document is disclosable per Executive Order 26.

15. The fax from D. Ianni to DOP dated 1/28/2005, Page 7, Resume (continued) is disclosable per Executive Order 26.

16. The fax from D. Ianni to DOP dated 1/28/2005, Page 8, Resume (continued) is disclosable per Executive Order 26.

17. The memorandum from DOP to J. Bando entitled “Request for Evaluation” dated 1/31/2005, Page 1, memorandum from DOP to J. Bando: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.

18. The DOP letter entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.

19. The e-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10, as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. and as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1.

20. The Custodian shall comply with the Council’s Interim Order within ten (10) business days from receipt of said Order and simultaneously provide certified confirmation of compliance to the Executive Director.

May 23, 2006

Council’s Interim Order distributed to the parties.

May 26, 2006

Custodian’s uncertified response to the Council’s Interim Order with attachment of the documents as they were released to the Complainant. The Custodian states that the Complainant has been provided with the documents ordered for disclosure.

Analysis

Whether the Custodian complied with the Council’s May 11, 2006 Interim Order?

Executive Order 26, paragraph 3 states that:

“No public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing. The resumes of successful candidates shall be disclosed once the successful candidate is hired…” (Gov. James McGreevey)

            The Custodian responded to the Council’s May 11, 2006 Interim Order on May, 26, 2006 indicating that the Complainant has been provided with the documents ordered to be released by the Council. The Custodian indicates that the following documents were released:

• the e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 1, e-mail,
• the letter from D. Ianni to M. Suto dated 12/27/2004, Page 1 with the redaction of the letterhead, address of the employee, paragraphs 2 and 3 and the signature line;
• the fax from D. Ianni to DOP dated 1/28/2005, Page 1, Fax transmittal, and
• the resume of Mr. Suto with address and telephone number redacted.

The Council’s Interim Order in this case indicates that the documents listed above should be released with certain redactions to personnel information that is exempt from access pursuant to N.J.S.A. 47:1A-10 (personnel records) and N.J.S.A. 47:1A-1.1 (advisory, consultative or deliberative material). The Custodian did comply with the Council’s Interim order as it relates to the first three (3) items above.

However, with regard to the resume of Mr. Suto, the Custodian has redacted the address and telephone number but has failed to identify a lawful basis for redaction of this information. The Council’s May 11, 2006 Interim Order states that the resume is disclosable per Executive Order 26 because Mr. Suto was a successful temporary appointment. While other documents in the May 11, 2006 Interim Order required the Custodian to redact the Complainant’s address from the record pursuant to N.J.S.A. 47:1A-10, the redaction of this information from the resume is contrary to the language of Executive Order 26. Executive Order 26 makes no indication of any exception to the release of the address and telephone information contained in resumes of successful candidates and the Custodian has provided no lawful basis for redaction of this information from the requested resume. Additionally, the Custodian has not provided the Council a certified confirmation of compliance as ordered in the Council’s May 11, 2006 Interim Order.     

On the basis of the Custodian’s redactions made to the resume of Mr. Suto, which are contrary to the language of Executive Order 26, and the Custodian’s failure to provide certified confirmation of compliance pursuant to the Council’s May 11, 2006 Interim Order, the Custodian has failed to comply with the Council’s May 11, 2006 Interim Order.

Whether the Custodian’s failure to comply with the Council’s May 11, 2006 Interim Order and denial of access rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?

OPRA states that:

“[a] public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty …” N.J.S.A. 47:1A-11.a.

OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states:

“… [i]f the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e.

The Council’s Interim Order in this case indicates that the documents listed above should be released with certain redactions to personnel information that is exempt from access pursuant to N.J.S.A. 47:1A-10 (personnel records) and N.J.S.A. 47:1A-1.1 (advisory, consultative or deliberative material). The Council’s May 11, 2006 Interim Order states that the resume is disclosable in it’s entirety per Executive Order 26, because Mr. Suto was a successful temporary appointment. As it relates to the release of the resume of M. Suto, the Custodian has redacted the address and telephone number but has failed to identify a lawful basis for redaction of this information.

Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).

While other documents in the May 11, 2006 Interim Order required the Custodian to redact the Complainant’s address from the record pursuant to N.J.S.A. 47:1A-10, the redaction of this information from the resume is contrary to the language of Executive Order 26. Executive Order 26 makes no indication of any exception to the release of the address and telephone information contained in resumes of successful candidates. The Custodian has provided no lawful basis for redaction of this information from the requested resume. Additionally, the Custodian has not provided the Council a certified confirmation of compliance, as ordered in the Council’s May 11, 2006 Interim Order. As stated above, for the Council to find a knowing and willful violation the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional. Although there is no evidence that the Custodian’s actions “had a positive element of conscious wrongdoing,” the Custodian’s failure to comply with the Interim Order is considered a heedless action.

In light of the legal standards set forth above and the specific facts of this case, the Custodian’s actions do not meet the legal standard for a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. However, the Custodian’s actions do appear to be at least heedless regarding his knowledge of OPRA.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that

1. Based on the Custodian’s redactions made to the resume of Mr. Suto, which are contrary to the language of Executive Order 26, and the Custodian’s failure to provide certified confirmation of compliance pursuant to the Council’s May 11, 2006 Interim Order, the Custodian has failed to comply with the Council’s May 11, 2006 Interim Order.
    
2. In light of the legal standards set forth and the specific facts of this case, the Custodian’s actions do not meet the legal standard for a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. However, the Custodian’s actions do appear to be at least heedless regarding his knowledge of OPRA.

Prepared By:   

                        Colleen C. McGann

Case Manager

Approved By:

Catherine Starghill, Esq.

Executive Director

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Second Interim Order

At the May 11, 2005 public meeting, the Government Records Council (“Council”) considered the May 4, 2006 In Camera 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 in camera findings and recommendations. The Council, therefore, finds that:

1. The Treasury Human Resources Transmittal dated 12/10/2004 with attached justification memo, Page 1, “Treasury Human Resources Transmittal”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10.
2. The Treasury Human Resources Transmittal dated 12/10/2004 with attached justification memo, Page 2, Justification memo from Karen Wood to Mark Wintermute entitled “Temporary Upgrade for Matthew Suto”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10.
3. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 1, e-mail: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.
4. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 2, attachment: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
5. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 3, attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
6. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 4 attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
7. The letter from D. Ianni to M. Suto dated 12/27/2004, Page 1: This document is disclosable with the redaction of the letterhead, address of the employee, paragraphs 2 and 3 and the signature line which are exempt from disclosure as “personnel information” pursuant to N.J.S.A. 47:1A-10.
8. The letter from the DOP to D. Ianni dated 1/14/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
9. The fax from D. Ianni to DOP dated 1/28/2005, Page 1, Fax transmittal: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.
10. The fax from D. Ianni to DOP dated 1/28/2005, Page 2, “Application for Promotional Examination”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
11. The fax from D. Ianni to DOP dated 1/28/2005, Page 3, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
12. The fax from D. Ianni to DOP dated 1/28/2005, Page 4, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
13. The fax from D. Ianni to DOP dated 1/28/2005, Page 5, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
14. The fax from D. Ianni to DOP dated 1/28/2005, Page 6, Resume: This document is disclosable per Executive Order 26.
15. The fax from D. Ianni to DOP dated 1/28/2005, Page 7, Resume (continued) is disclosable per Executive Order 26.
16. The fax from D. Ianni to DOP dated 1/28/2005, Page 8, Resume (continued) is disclosable per Executive Order 26.
17. The memorandum from DOP to J. Bando entitled “Request for Evaluation” dated 1/31/2005, Page 1, memorandum from DOP to J. Bando: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
18. The DOP letter entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
19. The e-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10, as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. and as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1.
20. The Custodian shall comply with the Council’s Interim Order within ten (10) business days from receipt of said Order and simultaneously provide certified confirmation of compliance to the Executive Director. 

Second Interim Order Rendered by the
Government Records Council
On The 11^th Day of May, 2006

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  May 23, 2006

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In Camera Findings and Recommendations of the Executive Director

Records Relevant to the Complaint:
Copies of all forms, memoranda, e-mails or other documents relating to the temporary appointment of Matthew Suto to the title of Administrative Analyst 2.
Request Made: February 23, 2005
Response Made: March 1, 2005
Custodian: Michael Tyger[1] 
GRC Complaint filed: March 16, 2005

Background

April 11, 2006

Interim Order of the Government Records Council. At the April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 2006 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 found that an in camera inspection of the documents responsive to the Complainant’s February 23, 2005 OPRA request shall be conducted by the Council to determine what information, if any, is disclosable.

April 13, 2006

Interim Decision sent to both parties.

April 18, 2006

In camera letter advising both parties that the Council is in receipt of the documents for inspection and the legal certification of the Custodian.

December 22, 2005

Certification of the Custodian with the following attachments:

• Treasury Human Resources Transmittal dated 12/10/2004[2] with attached justification memo
• E-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments
• Letter from D. Ianni to M. Suto dated 12/27/2004
• Letter from the Department of Personnel (“DOP”) to D. Ianni dated 1/14/2005
• Fax from D. Ianni to DOP dated 1/28/2005
• Memorandum from DOP to J. Bando entitles “Request for Evaluation” dated 1/31/2005
• Letter from DOP to D. Ianni entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005
• E-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005
• Certified index of exemptions to the documents provided for the in camera inspection.

The Custodian’s certification states that the records provided are those requested by the Council for in camera inspection. The Custodian’s certified index indicates the following exemptions:

Analysis

An in camera inspection was conducted on the following documents: (1) Treasury Human Resources transmittal dated 12/10/2004 with attached justification memo, (2) e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, (3) letter from D. Ianni to M. Suto dated 12/27/2004, (4) letter from the DOP to D. Ianni dated 1/14/2005, (5) fax from D. Ianni to DOP dated 1/28/2005, (6) memorandum from DOP to J. Bando entitled “Request for Evaluation” dated 1/31/2005, (7) letter from DOP to D. Ianni entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005, and (8) e-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005. Based on this in camera inspection the Council finds: 

(1) Treasury Human Resources transmittal dated 12/10/2004 with attached justification memo

The Treasury Human Resources transmittal dated 12/10/2004 with attached justification memo consists of two (2) total pages.

Page 1, “Treasury Human Resources Transmittal”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10. This document is a form that is predecisional requesting the temporary appointment of M. Suto.

Page 2, Justification memo from Karen Wood to Mark Wintermute entitled “Temporary Upgrade for Matthew Suto”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10. This document is predecisional and reflects the recommendations and the personal opinions of the writer with regard to the temporary appointment of M. Suto.

(2) E-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments

The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments consists of four (4) pages.

Page 1, e-mail: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.

Page 2, attachment: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of … public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. This document is relating to a complaint filed by a public employee regarding the temporary appointment of M. Suto.

Page 3, attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. This document is relating to a complaint filed by a public employee regarding the temporary appointment of a M. Suto.

Page 4 attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. This document is relating to a complaint filed by a public employee regarding the temporary appointment of M. Suto.

(3)  Letter from D. Ianni to M. Suto dated 12/27/2004

The letter from D. Ianni to M. Suto dated 12/27/2004 consists of one (1) page. 

Page 1: This document is dosclosable with the redaction of the letterhead, address of the employee, paragraphs 2 and 3 and the signature line which are exempt from disclosure as “personnel information” pursuant to N.J.S.A. 47:1A-10. Those portions of the record being redacted do not fall within the specific exceptions to the exemption for personnel records under OPRA.

(4)  Letter from the DOP to D. Ianni dated 1/14/2005

The letter from the DOP to D. Ianni dated 1/14/2005 consists of one (1) page.

Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of public employers or public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. This document is relating to a complaint filed by a public employee regarding the temporary appointment of M. Suto.

(5)  Fax from D. Ianni to DOP dated 1/28/2005

The fax from D. Ianni to DOP dated 1/28/2005 consists of eight (8) pages.

Page 1, Fax transmittal: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.

Page 2, “Application for Promotional Examination”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10. This document does not fall within the specific exceptions to the exemption for personnel records under OPRA.

Page 3, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10. This document does not fall within the specific exceptions to the exemption for personnel records under OPRA.

Page 4, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10. This document does not fall within the specific exceptions to the exemption for personnel records under OPRA.

Page 5, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10. This document does not fall within the specific exceptions to the exemption for personnel records under OPRA.

Page 6, Resume: This document is disclosable per Executive Order 26.

Page 7, Resume (continued): This document is disclosable per Executive Order 26.

Page 8, Resume (continued): This document is disclosable per Executive Order 26.

(6)  Memorandum from DOP to J. Bando entitled “Request for Evaluation” dated 1/31/2005

The memorandum from DOP to J. Bando entitled “Request for Evaluation” dated

1/31/2005 is one (1) page.

Page 1, memorandum from DOP to J. Bando: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. This document renders a determination in the complaint regarding the temporary appointment of M. Suto.

(7)  DOP letter entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005

The DOP letter entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005 consists of one (1) page.

Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. This document further explains the determination in the complaint regarding the temporary appointment of M. Suto.

(8)  E-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005

The e-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005 consists of one (1) page.

Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10, as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. and as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1. This document reflects the personal opinions of the writer with regard to the determination of eligibility for the temporary appointment of M. Suto.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

1. The Treasury Human Resources Transmittal dated 12/10/2004 with attached justification memo, Page 1, “Treasury Human Resources Transmittal”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10.
2. The Treasury Human Resources Transmittal dated 12/10/2004 with attached justification memo, Page 2, Justification memo from Karen Wood to Mark Wintermute entitled “Temporary Upgrade for Matthew Suto”: The entire document is exempt from disclosure as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10.
3. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 1, e-mail: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.
4. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 2, attachment: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
5. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 3, attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
6. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley entitled “FYI” dated 12/27/2004 with attachments, Page 4 attachment (continued): The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
7. The letter from D. Ianni to M. Suto dated 12/27/2004, Page 1: This document is disclosable with the redaction of the letterhead, address of the employee, paragraphs 2 and 3 and the signature line which are exempt from disclosure as “personnel information” pursuant to N.J.S.A. 47:1A-10.
8. The letter from the DOP to D. Ianni dated 1/14/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
9. The fax from D. Ianni to DOP dated 1/28/2005, Page 1, Fax transmittal: This document is disclosable because the record does not fall within the exemption for “personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.
10. The fax from D. Ianni to DOP dated 1/28/2005, Page 2, “Application for Promotional Examination”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
11. The fax from D. Ianni to DOP dated 1/28/2005, Page 3, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
12. The fax from D. Ianni to DOP dated 1/28/2005, Page 4, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
13. The fax from D. Ianni to DOP dated 1/28/2005, Page 5, “Application for Promotional Examination (continued)”: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
14. The fax from D. Ianni to DOP dated 1/28/2005, Page 6, Resume: This document is disclosable per Executive Order 26.
15. The fax from D. Ianni to DOP dated 1/28/2005, Page 7, Resume (continued) is disclosable per Executive Order 26.
16. The fax from D. Ianni to DOP dated 1/28/2005, Page 8, Resume (continued) is disclosable per Executive Order 26.
17. The memorandum from DOP to J. Bando entitled “Request for Evaluation” dated 1/31/2005, Page 1, memorandum from DOP to J. Bando: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
18. The DOP letter entitled “Matthew Suto’s eligibility for temporary appointment” dated 2/14/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
19. The e-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005…” dated 2/23/2005, Page 1: The entire document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10, as “information generated by or on behalf of… public employees in connection… with any grievance filed by or against an individual” pursuant to N.J.S.A. 47:1A-1.1. and as “advisory, consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1.
20. The Custodian shall comply with these Conclusions and Recommendations within ten (10) business days from receipt of the Council’s Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director. 

Prepared By: Colleen C. McGann, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

May 4, 2006

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Interim Order

At the April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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 an in camera inspection of the documents responsive to the Complainant’s February 23, 2005 OPRA request shall be conducted by the Council to determine what information, if any, is disclosable.

Interim Order Rendered by the
Government Records Council
On The 11^th Day of April, 2006

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  April 13, 2006

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Findings and Recommendations of the Executive Director

Records Relevant to the Complaint:
Copies of all forms, memoranda, e-mails or other documents relating to the temporary appointment of Matthew Suto to the title of Administrative Analyst 2.
Request Made: February 23, 2005
Response Made: March 1, 2005
Custodian: Michael Tyger[1] 
GRC Complaint filed: March 16, 2005

Background

January 14, 2005

Letter from Department of Personnel (“DOP”) Division of Human Resources Manager Amy Laird to the Complainant and others. Ms. Laird indicates that an investigation is being instituted at the Complainant’s request regarding the appointment of Matthew Suto to the title of Administrative Analyst 2.        

February 14, 2005

Letter from DOP Division of Human Resources Manager Amy Laird to the Complainant and others. Ms. Laird states that Matthew Suto was not qualified for the title of Administrative Analyst 2 and that the Department has been advised to remove the individual from this position.

February 23, 2005

Complainant’s written Open Public Records Act (“OPRA”) Request. The Complainant seeks a copy of all written communications regarding the appointment of Mr. Suto.

March 1, 2005

Letter from Department of Treasury (“Treasury”) Government Records Access Unit Manager Barbara O’Hare to the Complainant, “Reference: W13388.” Ms. O’Hare states the requested records are exempt from disclosure as a personnel record pursuant to N.J.S.A. 47:1A-10.

March 1, 2005

Complainant’s e-mail to the Custodian, “Request for Reconsideration.” The Complainant clarifies that he is not requesting personnel documents but rather the “administrative paperwork authorizing the temporary promotion.” The Complainant contends that these records should be released and cites N.J.S.A. 47:1A-10, “[d]ata contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.” The Complainant states he is requesting the records in order to determine how the erroneous appointment of Mr. Suto might have occurred.  

March 4, 2005

Letter from Treasury Government Records Access Unit Manager Barbara O’Hare to the Complainant, “Reference: W13388.” Ms. O’Hare claims that the “documents that would have authorized that promotion would be personnel records” and are exempt from disclosure.

March 16, 2005

Complainant’s Denial of Access Complaint with the following attachments:

• January 14, 2005 letter from DOP Division of Human Resources Manager Amy Laird to the Complainant and others
• February 14, 2005 letter from DOP Division of Human Resources Manager Amy Laird to the Complainant and others
• February 23, 2005 Complainant’s written OPRA Request
• March 1, 2005 letter from Treasury Government Records Access Unit Manager Barbara O’Hare to the Complainant, “Reference: W13388”
• March 1, 2005 Complainant’s e-mail to the Custodian, “Request for Reconsideration.”
• March 4, 2005 letter from Treasury Government Records Access Unit Manager Barbara O’Hare to the Complainant, “Reference: W13388.”

The Complainant states he was unlawfully denied access to government records.

March 29, 2005

Agreement to Mediate forwarded to both parties.[2]

April 13, 2005

Custodian’s Statement of Information with the following attachments:

• February 23, 2005 Complainant’s written OPRA Request
• March 1, 2005 letter from Treasury Government Records Access Unit Manager Barbara O’Hare to the Complainant, “Reference: W13388”
• March 1, 2005 Complainant’s e-mail to the Custodian, “Request for Reconsideration.”
• March 4, 2005 letter from Treasury Government Records Access Unit Manager Barbara O’Hare to the Complainant, “Reference: W13388.”

The Custodian asserts that no records were released to the Complainant responsive to this request because the records are exempt from access as personnel records pursuant to N.J.S.A. 47:1A-10.

Certification of Custodian

The Custodian certifies that because the requested records are maintained as personnel records for Mr. Suto they are not government records under OPRA. The Custodian indicates that he was later made aware that the Complainant was seeking reconsideration of this decision and was “now seeking ‘administrative paperwork, authorizing the temporary promotion [of Mr. Suto].’” The Custodian certifies that Treasury reconsidered the Complainant’s request and determined that the request was for promotional authorizations that would not be disclosable because they are personnel records and not data demonstrating conformity with qualifications, as cited by the Complainant in his March 1, 2005 letter. The Custodian asserts that because the Complainant has already been made aware that the individual temporarily appointed to the Administrative Analyst 2 position lacked sufficient experience “any question of qualification is now moot.”

Statement of Fact submitted as part of the Statement of Information on behalf of the Custodian by Deputy Attorney General, Eileen Schindlein Den Bleyker

The Custodian’s counsel asserts that N.J.S.A. 47:1A-10 exempts the requested documents from disclosure because they pertain to an individual employee’s civil service status and are maintained in the individual’s personnel file. The Custodian’s counsel claims that N.J.A.C. 4A:1-2(b) provides that individual personnel records are not disclosable unless they meet a permitted exception and goes on to state that under this DOP rule promulgated under Title 11 and OPRA the requested documents are not government records.

Additionally the Custodian’s counsel claims that the Complainant is making a request for information based on the Complainant’s statement in his March 1, 2005 e-mail to the Custodian, “Request for Reconsideration,” that he is “seeking information that might disclose ‘how the error [in appointing Mr. Suto] occurred.’” The Custodian’s counsel asserts that the Complainant had already obtained from the DOP a statement regarding the qualifications of Mr. Suto. The Custodian’s counsel states, “[t]he fact that [the Complainant] has received this letter [from DOP] pertaining to the employee’s qualifications for employment before filing an OPRA request with Treasury underscores the fact that what [the Complainant] is really seeking is additional “information.” The Custodian’s counsel cites Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (App.Div. 2005) in support of their allegation that this request was one for information and is therefore not a valid OPRA request. Moreover, the Custodian asserts that the Complainant has received the data requested from the DOP.

Further the Custodian’s counsel states that the Complainant filed a complaint with the DOP challenging the qualifications of Mr. Suto for a civil service appointment and therefore the records are relating to a grievance and not subject to disclosure under N.J.S.A. 47:1A-10. The Custodian’s council asserts that the Complainant himself admits that he seeks records relating to a complaint he filed with the DOP regarding the appointment of Mr. Suto. The Custodian asserts that the fact that the Complainant is the grievant does not change the fact that the record is that which relates to a grievance against an individual employee. The Custodian’s counsel cites McDonald v. Department of the Treasury, GRC Complaint No. 2003-147 (February 2004) which counsel states held, “investigation of a complaint filed by the requestor against a named division employee is a confidential record within a Division employee’s personnel file pursuant to N.J.S.A. 47:1A-10.” The Custodian’s counsel indicates that a public employee has a reasonable expectation of privacy which the Custodian has a responsibility to protect under N.J.S.A. 47:1A-1, which is supported by both Executive Order (“EO”) 9 and EO 11 and a number of cases. The Custodian’s counsel asserts that the legislature established very narrow exceptions to the broad exemptions to the release of personnel records. The Custodian’s counsel asserts that while EO 26 does provide that the resume of a successful candidate for a position is public, in this case Mr. Suto was “not a successful candidate since he was removed from the position.”

The Custodian’s counsel claims that an agency’s evaluations of the qualifications of a candidate are not public record and cites Collins v. Camden County Dept. of Health, 200 N.J. Super. 288 (March 28, 1984)  to support this. The Custodian counsel contends that the records requested are evaluative, do not constitute “‘data’ confirming experiential qualification for public employment” and do not fall under the few exceptions to the exemptions set forth in N.J.S.A. 47:1A-10. The Custodian’s counsel states, “[i]n this case, the [DOP] has determined and informed [the Complainant] that the necessary qualification does not exist.”          

December 13, 2005

Government Records Council (“GRC”) e-mail to the Custodian’s counsel. The GRC requests that the Custodian provide a legally certified index of the documents responsive to the request to include the following for each document or redaction: title and date, number of pages, general nature description, claimed statutory exemption and an explanation of how each exemption applies.

January 4, 2006

Custodian’s legally certified index. The index submitted by the Custodian shows the following:

February 6, 2006

E-mail request from the GRC staff. The GRC staff is requesting a reconciliation of the legal arguments in the Statement of Information and the legally certified index.

February 9, 2006

Letter from the Custodian’s counsel. The Custodian’s counsel states that all arguments were made in both the Statement of Information and the index. Therefore, the agency would like all arguments presented in both considered when the Council is determining whether or not the requested documents are disclosable.

Analysis

WHETHER the Custodian unlawfully denied access to the requested memoranda and hand written notes pursuant to OPRA?

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

“…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 in the course of his or its official business… The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (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.

OPRA states in part:

"Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that… data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment…shall be a government record.” (Emphasis added.) N.J.S.A. 47:1A-10.

The Complainant alleges that he was unlawfully denied access to the documents relating to the temporary appointment of Matthew Suto to the position of Administrative Analyst 2. The Complainant states that the Complainant clarified that he is not requesting personnel documents but rather the “administrative paperwork authorizing the temporary promotion.” The Complainant asserts that these records should be released because the information contained therein would serve only to disclose conformity with specific experiential, educational or medical qualifications required for government employment as permitted under N.J.S.A. 47:1A-10.

The Custodian asserts that because the Complainant has already been made aware that the individual temporarily appointed to the Administrative Analyst 2 position lacked sufficient experience “any question of qualification is now moot.”

The Custodian’s counsel further asserts that N.J.S.A. 47:1A-10 exempts the requested documents from disclosure because they pertain to an individual employee’s civil service status and are maintained in the individual’s personnel file. The Custodian’s counsel claims that an agency’s evaluations of the qualifications of a candidate are not public record. The Custodian counsel contends that the records requested are evaluative, do not constitute “‘data’ confirming experiential qualification for public employment” and do not fall under the few exceptions to the exemptions set forth in N.J.S.A. 47:1A-10.

The Custodian’s counsel also claims that the Complainant is making a request for information based on the Complainant’s statement in his March 1, 2005 e-mail to the Custodian, “Request for Reconsideration,” that the Complainant is “seeking information that might disclose ‘how the error (in appointing Mr. Suto) occurred’” and alleges that, as the court found in Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (App.Div. 2005) a request for information is not a valid OPRA request. The Custodian asserts that the request is one for information rather than a government record based on the decision in MAG Entertainment, LLC, supra, where the Court held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ...” (Emphasis added.) However, this request is not one for information because there are clearly identifiable records responsive to the request. This is illustrated by the fact that the Custodian has identified records responsive to the request and given reasons for an exemption to each record in a certified index. Therefore, the Custodian’s assertion that this request is for information rather than a government record is incorrect given the facts of the case.

The Custodian’s counsel also states that the Complainant filed a complaint with the DOP challenging the qualifications of Mr. Suto for a civil service appointment and therefore the records are relating to a grievance and because they are personnel records not subject to disclosure under N.J.S.A. 47:1A-10.

The Custodian’s counsel also indicates that a public employee has a reasonable expectation of privacy that is supported by both EO 9 and EO 11 and cites Collins, supra at 288” to support this. In Collins the court determined that “[d]isclosure of evaluative personnel material would be a significant invasion of privacy and, therefore, not intended to be disclosed under [EO] 11” however the GRC is unable to determine from information provided whether or not the documents responsive to the request are evaluative in their entirety.   

Finally, the Custodian’s counsel asserts that while EO 26 does provide that the resume of a successful candidate for a position is public, in this case Mr. Suto was “not a successful candidate since he was removed from the position.”

The Custodian has identified documents responsive to the request for records and the reasons for denying access to the requested records are compelling. The Custodian did provide an index indicating the exemptions from disclosure claimed for each of the documents responsive to the request; however it is not possible to determine if the claimed exemptions apply to the requested documents in their entirety. Therefore, Council should conduct an in camera review of the documents to determine what information, if any, is disclosable.

While Custodian’s reasons for denying access to the requested documents are compelling, there is insufficient evidence to determine if the documents are exempt from disclosure. Therefore, the Council should perform an in camera review of the requested documents to determine what information, if any, is disclosable.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council perform an in camera review of the documents responsive to the Complainant’s February 23, 2005 OPRA request to determine what information, if any, is disclosable.

Prepared By:  Colleen McGann, Case Manager

Approved By:
Catherine Starghill, Esq.
Executive Director
Government Records Council

April 4, 2006

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