2005-90

Final Decision

At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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  The Council, therefore, finds that pursuant to N.J.S.A. 47:1A-9.a, N.J.A.C. 13:1E-3.2(a)1 and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety,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 Equal Employment Opportunity (“EEO”) records from being disclosed pursuant to OPRA does apply.  Therefore the requested EEO records 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.

Final Decision Rendered by the
Government Records Council
On The 9^th Day of March, 2006

Vincent 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:  March 15, 2006

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Findings and Recommendations of the Executive Director

Records Relevant to Complaint:
Equal Employment Opportunity Commission correspondence to/from Division of Criminal Justice Chief of Staff Deborah Edwards.

Request Made: February 28, 2005   
Response Made: March 9, 2005
Custodian:  Dale K. Perry
GRC Complaint filed: May 9, 2005

Background

February 28, 2005

Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant requested Equal Employment Opportunity Commission (EEOC) correspondence to/from the Division of Criminal Justice (DCJ) Chief of Staff Deborah Edwards.

March 9, 2005

The Custodian asserted that the requested documents are not disclosable because Equal Employment Opportunity (EEO) documents are designated confidential pursuant to N.J.A.C. 13:1E-3.2(a)1 (Executive Order 21) Records.

May 9, 2005

Denial of Access Complaint filed with the Government Records Council (“GRC”). The Complainant asserted that he was denied access to EEOC correspondence to/from the DCJ Chief of Staff Deborah Edwards.

The Complainant asserts that the reason for denial is invalid. The Complainant states that he was denied on the basis of a proposed rule (N.J.A.C. 13:1E-3.2(a)1 (Executive Order 21), which is no longer valid pursuant to Executive Order 26. He further states that Executive Order 26 supercedes Executive Order 21 and because of this, previously exempted documents could be released as of November 18, 2004.

The Complainant further states that he filed a complaint regarding DCJ upper management and violating the Attorney General’s Code of Ethics and the New Jersey Conflict of Interest Laws. The Complainant asserted that this complaint was not an EEOC issue, however the complaint was sent to EEOC by Ms. Edwards. The Complainant contends that since his matter was not an EEOC matter nor was it ever intended to be, he should be able to gain access via OPRA.

The Complainant included the following attachments in his complaint:

• February 28, 2005 – Written OPRA Request
• March 9, 2005 – Written response from the Custodian to the Complainant
• March 21, 2005 – Letter from the Complainant to the Custodian regarding the alleged denial of access to the requested records. The Complainant asserts that the reason for denial is invalid. The Complainant states that he was denied on the basis of a proposed rule (N.J.A.C. 13:1E-3.2(a)1 (Executive Order 21), which is no longer valid pursuant to Executive Order 26. He further states that Executive Order 26 supercedes Executive Order 21 and because of this, previously exempted documents could be released as of November 18, 2004.

The Complainant further states that he filed a complaint regarding DCJ upper management and violating the Attorney General’s Code of Ethics and the New Jersey Conflict of Interest Laws. The Complainant asserted that this complaint was not an EEOC issue, however the complaint was sent to EEOC by Ms. Edwards. The Complainant contends that since his matter was not an EEOC matter nor was it ever intended to be, he should be able to gain access via OPRA.

May 13, 2005

Offer of Mediation sent to both parties.

May 23, 2005

GRC staff received signed mediation agreement from the Custodian.[1]

June 2, 2005

Statement of Information request was sent to the Custodian.

June 9, 2005

Custodian’s Statement of Information was received by GRC Staff. The Custodian asserts that the requested records was denied pursuant to N.J.A.C. 13:1E-3.2(a)1. The Custodian states that the records are deemed confidential.

The Custodian attached the following documents to the Statement of Information:

• February 28, 2005 – Electronic copy of the OPRA request.

August 16, 2005

The Custodian’s counsel submitted written correspondence to GRC staff, stating that the Complainant’s assertion that, the records are not disclosable because of a modified or proposed regulation, is not accurate. Custodian’s counsel asserts that the information that the Complainant relied upon when making this determination is information contained on the GRC web site.

Counsel further asserted that while these regulations have not been adopted, they have been given full effect through Executive Order 21 paragraph 4. Counsel also asserts that Executive Order 21 paragraph 4 was not rescinded in Executive Order 26 paragraph 6. Counsel alleges that pursuant to Executive Order 21 paragraph 4 proposed rules that exempt records from disclosure are effective and therefore any exemptions listed in those rules do not have to be disclosed. The Custodian’s counsel further clarifies this by asserting that while proposed regulations are still effective, proposed amendments are not.

Custodian’s counsel goes on to assert that DCJ denied the request on the basis of N.J.A.C. 13:1E-3.2(a)1 which is a proposed regulation. The Counsel also asserts that the requested records are also exempt from disclosure pursuant to Executive Order 26.

January 23, 2006

GRC staff sent a letter to the Custodian’s counsel requesting a copy of N.J.A.C. 13:1E – 3.2(a)1.

January 25, 2006

Custodian’s counsel provided a copy of N.J.A.C. 13:1E-3.2(a)1 (proposed). The Custodian’s counsel included a brief letter asserting that while the proposed regulation provides that the requested records are exempt from disclosure, the confidentiality of the requested records is maintained under Executive Order 26.

Analysis

Whether the Custodian unlawfully denied access to the EEOC correspondence?

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 was denied access to the requested EEOC records. The Custodian asserts that these records are confidential and not subject to disclosure pursuant to N.J.A.C. 13:1E-3.2(a)1 (proposed regulation). This proposed regulation that the Division of Criminal Justice relied upon in denying access to the requested record provides that:

“In addition to records designated as confidential pursuant to the provisions of [OPRA], any other law, regulation promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal Law, Federal regulation or Federal order, the following records shall not be considered government records subject to public access pursuant to [OPRA]: [r]ecords of complaints and investigation undertaken pursuant to the Model Procedures for Internal Complaints Alleging Discrimination, Harassment or Hostile Environments in accordance with  the State Policy Prohibiting Discrimination, Harassment and Hostile Environments in the Workplace adopted by Executive Order No. 106 (Whitman 1999), whether open, closed or inactive…”

The Complainant asserts that this proposed rule is not valid because Executive Order 26 rescinds this mandate in Executive Order 21. The Custodian’s counsel has asserted that while there are some portions of Exective Order 21 that have been rescinded the portion utilized as the basis for their denial has not. The Custodian further alleges that Executive Order 26 paragraph 6 further upholds the basis for the denial. The Custodian’s counsel asserts that the requested records are not only nondisclosable pursuant to the proposed regulation, but also pursuant to Executive Order 26.

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 regulation N.J.A.C. 13:1E-3.2(a)1. "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 EEO information is confidential and exempt from disclosure may supersede OPRA.

The unpublished opinion of the New Jersey Superior Court discussed above, has since been 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...'" 

Pursuant to N.J.S.A. 47:1A-9.a, N.J.A.C. 13:1E-3.2(a)1 and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger the proposed rule exempting the EEO records from being disclosed pursuant to OPRA does apply and the requested EEO records are exempt from disclosure and the Custodian did not unlawfully deny access to the requested records.

Conclusions and Recommendation

The Executive Director respectfully recommends the Council find that pursuant to N.J.S.A. 47:1A-9.a, N.J.A.C. 13:1E-3.2(a)1 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 EEO records from being disclosed pursuant to OPRA does apply and the requested EEO records 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

March 3, 2006

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