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2005-61

- Final Decision
- Findings and Recommendations of the Executive Director
- Administrative Case Disposition

Final Decision

Michael Deluca
   Complainant
      v.
NJ Department of Community Affairs,
Division of Codes & Standards
   Custodian of Record

Complaint No. 2005-61

 

At its 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  The Council, therefore, finds that pursuant to N.J.S.A. 47:1A-9.a, N.J.A.C. 5:3-3.2.a. and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005), the proposed rule exempting the plans from being disclosed pursuant to OPRA does apply and the requested plans are exempt from disclosure and the Custodian did not unlawfully deny access to the requested records.

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. 

Final Decision Rendered by the
Government Records Council
On The 11th 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 21, 2006

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Findings and Recommendations of the Executive Director

Michael Deluca                                                 GRC Complaint No. 2005-61
Complainant
           v.
Department of Community Affairs
Div. of Codes & Standards
Custodian of Records

Records Relevant to Complaint: A complete copy of file CI-021-04, including but not limited to, reports, violations, permits, emails, faxes, internal reports, plans, and all correspondence with the Town of Guttenberg, officials and attorney, and anything else related to this investigation and complaint.[1]
Request Made: January 30, 2005 
Response Made:  February 24, 2005
Custodian:  Megan Sullivan
GRC Complaint filed: March 16, 2005

Background

January 30, 2005

Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant is seeking a complete copy of file CI-021-04, including but not limited to, reports, violations, permits, emails, faxes, internal reports, plans, and all correspondence with the town of Guttenberg, officials and attorney, and anything else related to this investigation and complaint.

February 24, 2005

Custodian’s response to the OPRA request The Custodian provided the Complainant with a copy of the file but the plans were not included.

March 16, 2005

The Complainant submitted the following attachments with his complaint:

  • A copy of the original OPRA request dated January 30, 2005.
  • Letter addressed to a Mr. Hilzer of the Office of Regulatory Affairs, regarding questions about permits, inspections, and certificates.

Denial of Access Complaint filed with the Government Records Council (“GRC”). The Complainant alleges that he was provided a copy of the requested file, but the file did not contain plans. The Complainant alleges that he verbally contacted the Custodian to request that the plans be forwarded to him, however the Custodian told him that they would not be disclosed.

The Complainant alleges that he lives on the property regarding this file. The Complainant asserts that violations that were assessed to the property as a result of his complaint have been rescinded by the Town of Guttenberg Build Department and the Div. Of Codes and Standards. Therefore, due to the violations being rescinded, the Complainant believes that he has a right to obtain a copy of the plans that were in the file.

March 29, 2005

Mediation offer sent to both parties.

April 1, 2005

Custodian and Complainant submitted signed mediation agreement forms.

June 30, 2005

Case referred back from mediation for Council adjudication.

July 8, 2005

GRC staff sent a request for a Statement of Information to the Custodian’s Counsel.[2]

August 17, 2005

The Custodian and counsel included the following attachments to the Statement of Information:

  • Letter from the Complainant to the Office of Regulatory Affairs dated January 4, 2005.
  • Letter from Office of Regulatory Affairs to the Complainant dated April 7, 2005.
  • Town of Guttenberg Notice of Violation and Order to Terminate.

The Custodian and counsel submitted the Statement of Information. The Custodian identified the Galaxy Towers as the property that is at issue in the complaint. The Custodian certified that Galaxy Towers is a two building complex in which the Complainant resides and that the Complainant has been in a dispute with the Condominium Board since 2004. The Custodian claims that the Complainant has filed the denial of access complaint as a result of the Condominium Board not receiving disciplinary action for violations assessed by the Div. Of  Codes & Standards.

Counsel asserts that the plans are exempt from disclosure pursuant to a proposed rule. Counsel states that proposed rules are effective through Executive Order 21, specifically paragraph 4 states: 

"[i]n light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order..." (Emphasis added.) (Executive Order 21, Governor James E. McGreevey, July 8, 2002).

Counsel alleges that proposed rule N.J.A.C. 5:3-1 and 3.2 are two proposed rules by the Department of Community Affairs as referenced by Executive Order 21, paragraph 4. Counsel specifically cites proposed rule N.J.A.C. 5:3-3.2.a. as the rule which exempts plans from disclosure. The proposed rule N.J.A.C. 5:3-3.2.a. states:

“…the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended  and supplemented: 1.  Building plans submitted in conjunction with any permit application.” N.J.A.C. 5:3-3.2.a.

Counsel further alleges that the Complainant modified his request on April 17, 2005. In this alleged clarification Counsel asserts that the Complainant is seeking information regarding a permit for excavating earth and waterproofing. Counsel asserts that while the Complainant alleges that the clarified request does not involve plans regarding the building’s foundation or other “sensitive” areas, the proposed rule states that any permit application submitted in conjunction with building plans is exempt from disclosure. The Custodian asserts that regardless of what the Complainant perceives the requested records to include, the requested records are not disclosable because the permit application and plans are related to building plans.

Counsel concludes the certification by stating that the requested records are exempt from disclosure pursuant to Executive Order 21 and proposed rule N.J.A.C. 5:3-3.2.a. 

August 31, 2005

Supplemental certification of the Custodian clarifying the configuration and size of the Galaxy Towers. In the original submission of the Statement of Information, the Custodian asserted that Galaxy Towers was two buildings. After further research, the Custodian has clarified her submission and certification to state that the Galaxy Towers is three buildings.

Analysis

Whether there was an unlawful denial of access to the plans in file CI-021-04?

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 …” (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.

N.J.S.A. 47:1A-9.a. states in part,

"[t]he provisions of [OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA]; any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order…" (Emphasis added.)

Executive Order 21 paragraph 4 provides that: 

"[i]n light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order..." (Emphasis added.) (Executive Order 21, Governor James E. McGreevey, July 8, 2002).

Executive Order 26, adopted on August 13, 2002, rescinded paragraphs 2 and 3 of Executive Order 21.  However, the paragraphs rescinded are not relevant for the analysis of state agencies' proposed OPRA rules. The one relevant paragraph in Executive Order 26 is paragraph 6 that states: 

"[t]he remaining provisions of Executive Order No. 21 are hereby continued to the extent that they are not inconsistent with this Executive Order…" (Executive Order 26, Governor James E. McGreevey, August 13, 2002).

The Complainant alleges that he did gain access to the requested file, however he was denied access to the plans contained in the file. The Custodian asserts that the plans are confidential and not subject to disclosure pursuant to N.J.A.C. 5:3-3.2.a. (proposed regulation). This proposed rule that the Division of Codes and Standards relied upon in denying access to the requested record provides that:

“…the following records shall not be considered government records subject to public access pursuant to N.J.S.A. 47:1A-1 et seq., as amended  and supplemented: 1.  Building plans submitted in conjunction with any permit application.” N.J.A.C. 5:3-3.2.a.

In an unpublished opinion of the New Jersey Superior Court (the only legal authority on point in this matter), it has been determined that paragraph 6 of Executive Order 26 "continues to permit a department or agency within State [g]overnment to adopt rules and regulations and to permit the operation of a proposed rule or regulation prior to its final adoption. Therefore, pursuant to Paragraph 4 of Executive Order 21, State departments and 'agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed...'" Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005) at page 11.

In that case, the court went on to state that "[i]t appears, from the language of both Executive Orders, that these provisions were added to provide sufficient time for departments and agencies within State government to evaluate their records, propose regulations and withhold certain documents from public inspection pending the adoption of the proposed rules. While this process may be at variance with the normal regulatory process, one can only conclude that the Executive Branch, understanding the broad scope of OPRA, felt it was appropriate to have agencies and departments, within State government, undertake a careful review and analysis of its records to determine, for purposes of security and safety, those records to be considered confidential." Id. at 12.

The court further held that "[r]ecognizing the time delay inherent in the normal rule adoption process, Executive Order 21 and Executive Order 26 included language to permit custodians of records to deny access, based on the proposed rule, pending final adoption. Now, three years after the passage of OPRA, for the court, the continued efficacy of that practice raises some concerns." Id.

The court concluded, however, that "[w]hile [it] does not know the status of this proposed regulation, under Executive Order 21, paragraph 4 and Executive Order 26, paragraph 6, resolution of that issue is not required. ... the court assumes that the proposed rule change is still pending." Id. at 13.

The Custodian asserts that the request is denied under the proposed rule N.J.A.C. 5:3-3.2.a. "The provisions of OPRA may be superseded by "regulations promulgated under the authority of any ... Executive Order of the Governor" pursuant to N.J.S.A. 47:1A-9.a.  As such, the proposed regulation asserted by the Custodian which states that the requested plans are confidential and exempt from disclosure may supersede OPRA.

The unpublished opinion of the New Jersey Superior Court discussed above, determined that paragraph 6 of Executive Order 26 "continues to permit a department or agency within State Government to adopt rules and regulations and to permit the operation of a proposed rules or regulations prior to its final adoption.  Therefore, pursuant to paragraph 4 of Executive Order 21, “public agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed…", the Custodian has not unlawfully denied access to the plans. 

Pursuant to N.J.S.A. 47:1A-9.a, N.J.A.C. 5:3-3.2.a. and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger the proposed rule exempting the plans from being disclosed pursuant to OPRA does apply and the requested plans are exempt from disclosure and the Custodian did not unlawfully deny access to the requested records.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that pursuant to N.J.S.A. 47:1A-9.a, N.J.A.C. 5:3-3.2.a. and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005) the proposed rule exempting the plans from being disclosed pursuant to OPRA does apply and the requested plans are exempt from disclosure and the Custodian did not unlawfully deny access to the requested records.

Prepared By:  Kimberly Gardner, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

April 4, 2006


[1] The Complainant circled the request on the form, but made a specific reference to plans as being the issue of the complaint.
[2] Counsel alleged that the request was not received. Therefore, a second request for the Statement of Information was sent on August 2, 2005.

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Administrative Case Disposition

GRC Complaint No: 2005-61
Complainant: Michael Deluca
Custodian: Dept. Of Community Affairs – Megan K. Sullivan

Case Disposition:

Parties mutually agreed to mediation
            Complainant signed 4/1/2005
            Custodian signed 4/1/2005

  case forwarded to mediation on 4/6/2005

Date of Disposition: May 4, 2005

Case Manager: Kimberly D. Gardner                                                           

Date: 5/12/2005

 

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