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2006-105
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 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, changing only one word of the conclusion. The Council, therefore, finds that:
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 10th Day of August, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Kathryn Forsyth Government Records Council
Findings and Recommendations of the Executive DirectorRichard E. Barber, Sr.[1] GRC Complaint No. 2006-105Complainant
v.
University of Medicine & Dentistry of New Jersey (“UMDNJ”)[2] Custodian of Records
Records Relevant to Complaint:
Request Made: March 13, 2006 Response Made: March 24, 2006 Custodian: Susan G. Glick GRC Complaint Filed: May 29, 2006
Background
March 13, 2006 Complainant’s Open Public Records Act (“OPRA”) request. The Complainant requested to review the records listed above.
March 24, 2006 Custodian’s response to the OPRA request. The Custodian asserts that the records requested (complaint filed by the Complainant against James Archibald) is not a government record subject to disclosure pursuant to N.J.S.A. 47:1A-1.1 because the records contain information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position pursuant to OPRA. Regarding items numbered 2. and 3. of the request, the Custodian stated that the requests were overbroad and the record responsive to item four of the request could not be located. The Custodian requested an extension of time to continue her search for the record responsive to item numbered 4.
The OPRA request form completed by the Complainant indicates that the Custodian received the request on March 15, 2006 instead of March 13, 2006 as asserted by the Complainant in the Denial of Access Complaint. Therefore, it would appear from the record that the response was provided within seven (7) business days from the date the OPRA request was received.
April 18, 2006 Custodian’s Letter to Complainant. The Custodian documented her e-mail response to the Complainant’s OPRA request of March 24, 2006 in a formal letter stating the same (pursuant to a telephone conversation between the parties in which the Complainant requested clarification of the Custodian’s e-mail response dated March 24, 2006..
May 29, 2006 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant references the above attachments and asserts that he was denied access to review the records identified in his OPRA request.
June 6, 2006 Offer of mediation sent to the parties.
June 8, 2006 Complainant’s signed agreement to mediate. There was no response from the Custodian to the offer of mediation.
June 14, 2006 Request for Statement of Information sent to the Custodian.
June 20, 2006 Custodian’s Statement of Information (“SOI”) with the following attachments:
The Custodian certifies that she received the Complainant’s OPRA request on March 15, 2006 and completed the OPRA records request form noting the date on the form. Further, the Custodian stated that she sent an e-mail dated March 15, 2006 to various individuals in the agency to advise that an OPRA request was received from the Complainant on March 15, 2006.
The Custodian’s Counsel asserts that the OPRA request for the disposition of the complaint filed December 13, 1999 by the Complainant against James A. Archibald concerns a grievance filed by the Complainant against one of his former supervisors. The Custodian asserts that the requested record is exempt from disclosure under N.J.S.A. 47-1A-1.1 as it is information generated by or on behalf of public employers or public employees in connection with any grievance filed by or against an individual.
Regarding the portion of the request for e-mails, letters or memos and records of specific named individuals for various time periods and the Central Administration and Purchasing Service files and records, as well as records for specific named individuals for various time periods, the Custodian asserts that the requests are “overbroad and improper.” Counsel cites Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (March 2005) that held “[u]nder OPRA, agencies are required to disclose only “identifiable” governmental records not otherwise exempt. Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein. In short, OPRA does not countenance open-ended searches of an agencies file.” Id. at 546.
The Custodian’s Counsel also cites Gannett New Jersey Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2004) that held “OPRA requires a party requesting access to a public record to specifically describe the document sought”. The Custodian’s Counsel further cites Bent v. Stafford Police Department, 381 N.J. Super 30 (October 2005) for the same proposition. Counsel asserts that the requests in items 2. and 3. of the Complainant’s OPRA request does not seek “specific, identifiable records” and that the request is overbroad justifying the denial of access. Regarding the request for the resolution and disposition of Sheldon Boyarsky’s complaint filed against UMDNJ in 1993, the Custodian certifies that the records responsive to the request have not been located. Analysis
Whether the Custodian unlawfully denied access to the requested records?
OPRA 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.
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 …” (Emphasis added.) N.J.S.A. 47:1A-1.1.
OPRA provides that a government record shall not include information deemed to be confidential and states: “…information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position …” (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.
The Custodian’s Counsel states that the OPRA request for the disposition of the complaint filed December 13, 1999 by the Complainant against James A. Archibald concerns a grievance filed by the Complainant against one of his former supervisors. The Custodian asserts that the requested record is exempt from disclosure under N.J.S.A. 47-1A-1.1 as it is information generated by or on behalf of public employers or public employees in connection with any grievance filed by or against an individual.
Regarding the portion of the request for e-mails, letters or memos and records of specific named individuals for various time periods and the Central Administration and Purchasing Service files and records, as well as records for specific named individuals for various time periods, the Custodian asserts that the requests are “overbroad and improper.” Counsel cites Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (March 2005) that held “[u]nder OPRA, agencies are required to disclose only “identifiable” governmental records not otherwise exempt. Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein. In short, OPRA does not countenance open-ended searches of an agencies file.” Id. at 546.
The Custodian’s Counsel also cites Gannett New Jersey Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2004) that held “OPRA requires a party requesting access to a public record to specifically describe the document sought”. The Custodian’s Counsel further cites Bent v. Stafford Police Department, 381 N.J. Super 30 (October 2005) for the same proposition. Counsel asserts that the requests in items 2. and 3. of the Complainant’s OPRA request does not seek “specific, identifiable records” and that the request is overbroad justifying the denial of access.
Regarding the request for the resolution and disposition of Sheldon Boyarsky’s complaint filed against UMDNJ in 1993, the Custodian certifies that the records responsive to the request have not been located.
The Complainant asserts in the Denial of Access Complaint that he was denied access to review the records identified in his OPRA records request.
OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt. Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.
OPRA also provides that a government record shall not include information deemed to be confidential, among other thing, generated by or on behalf of public employers or public employees in connection with any grievance filed by or against an individual. N.J.S.A. 47:1A-1.1. The Complainant’s request for the record of the complaint disposition filed by the Complainant against James A. Archibald is “information generated by or on behalf of public employers or public employees in connection with any grievance filed by or against an individual. Therefore, the requested record is exempt from disclosure pursuant N.J.S.A. 47:1A-1.1 and the Custodian did not unlawfully deny access to the requested record.
The Custodian further asserts that the Complainant’s requests for e-mails, letters, memos, and Central Administration and Purchasing Services files for various named individuals for specific periods of time are “overbroad and improper.” Therefore, the Custodian cited Mag, Gannett, and Bent as justification for not providing any records to the Complainant regarding this portion of the request.
In Runfolo v. City of Summit, GRC Complaint No. 2005-87 (February 2006), the GRC found that the Custodian did not unlawfully deny access because under OPRA agencies are required to disclose only "identifiable" government records not otherwise exempt pursuant to Mag, supra, and Bent, supra. In that complaint, the complainant requested copies of all letters addressed to and from a municipality and various departments and boards for a particular time period regarding a particular program.
Based on the wording of the Complainant’s request, Mag, Gannett, Bent, and Runfolo, the Custodian did not unlawfully deny access since the request for e-mails, letters, memos, and Central Administration and Purchasing Services files for various named individuals for specific periods of time did not list “identifiable” government records.
Finally, the Custodian legally certified that she cannot find the resolution and disposition record of the Sheldon Boyarsky’s legal complaint filed in 1993 against UMDNJ. As such, the Custodian did not unlawfully denied access to the requested record. However, the Custodian is required to disclose such record when it is located.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By: Catherine Starghill, Esq. Executive Director |
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