2006-128

Final Decision

October 19, 2006 Government Records Council Meeting

At the October 19, 2006 public meeting, the Government Records Council (“Council”) considered the October 5, 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:

1. Based on the GRC decision in DeLuca v. Town of Guttenburg, GRC Complaint No. 2006-25 (May 2006), the Custodian has violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. in failing to respond to the Complainant’s request in writing within the statutorily mandated seven (7) business days resulting in a deemed denial of access.
2. While the Custodian asserts that the records are also exempt from disclosure as personnel records and exempt under N.J.S.A. 47:1A-10 and Executive Order 26, there is no evidence that these documents constitute a personnel record. This is especially true since the Complainant is not requesting resumes, which are specifically addressed in Executive Order 26. Therefore, N.J.S.A. 47:1A-10 and Executive Order 26 do not apply to the requested records.
3. The requested interviewers’ notes and score sheets are both pre-decisional and deliberative. Thus, based on the decision in In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000) the requested notes and score sheets are advisory, consultative, and deliberative and do not fall under the definition of a government record pursuant to N.J.S.A. 47:1A-1.1. Therefore, the Custodian has lawfully denied access to the requested notes and score sheets.    

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 19^th Day of October, 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.

Government Records Council 

Decision Distribution Date:  October 23, 2006

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Findings and Recommendations

October 19, 2006 Council Meeting

Joseph Sooy[1]                                                                      GRC Complaint No. 2006-128

Complainant

            v.

New Jersey Department of Corrections

Custodian of Records

Records Relevant to Complaint:

Copies of all notes, transcripts, and score forms of interviews held for captain at Southern State Correctional Facility on May 31, 2006. This request includes notes made by Edna May Turner, Jeffrey Beebe, Greg Bartkowski and Alan Ayars.

Request Made: June 1, 2006[2]

Response Made: June 7, 2006

Custodian: Michelle Hammel 

GRC Complaint Filed: June 28, 2006

Background

June 1, 2006

            Complainant’s Open Public Records Act (“OPRA”) request. The Complainant requests notes, transcripts, and score forms of interviews held for the position of captain at Southern State Correctional Facility on May 31, 2006

June 7, 2006

            Custodian’s response to the OPRA request. The Custodian responded to the Complainant’s request within 4 business days of receipt. The Custodian’s response informs the Complainant that the requested records cannot be disclosed pursuant to Executive Order 26 (McGreevey 2002), N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-10.

            The Custodian states that Executive Order 26 exempts the requested records from access because no public agency may disclose information concerning job applicants while a recruitment search is ongoing. Additionally, the Custodian asserts that the requested records are advisory, consultative and deliberative material (“ACD”) and cannot be disclosed pursuant to N.J.S.A. 47:1A-1.1, which excludes this type of record from the definition of a government record. The Custodian also indicates that N.J.S.A. 47:1A-10 exempts these records from access as personnel records.  

June 28, 2006

            Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachment:

• June 7, 2006 Custodian’s response to the OPRA request.

The Complainant states that he was unlawfully denied access to the requested records.

In response to the Custodian’s assertion that the requested records are exempt from disclosure pursuant to Executive Order 26, the Complainant contends that no resume, application or information concerning the job applicants was requested. The Complainant asserts that the Department’s own score sheets, transcripts and notes are being requested. The Complainant states that no written submissions of the applicants are requested. The Complainant goes on to state that there is no ongoing recruitment search because the person who previously held the captain position at that facility has returned to the position.

The Complainant also argues that the Custodian’s assertion that the requested records are ACD in content is incorrect. The Complainant states that the notes from Jeffrey Beebe, Greg Bartkowski and Alan Ayars were the answers provided by the persons being interviewed. The Complainant contends that the Court found in In Re Liquidation of Integrity Insurance Company, 165 N.J. 75, 88 (2000), that answers to individual questions cannot be considered ACD. The Complainant does state that if these records do contain ACD material as written by the interviewer, that information could be redacted. Additionally, the Complainant asserts that Edna May Turner was responsible for taking notes during the interview process, much like a court stenographer, and did not take part in any part of the decision making process. For this reason, the Complainant states that the notes taken by Edna May Turner would not be ACD.

Finally, the Complainant argues that the requested records are not part of any personnel file and are therefore not exempt from access pursuant to N.J.S.A. 47:1A-10, as claimed by the Custodian.

July 17, 2006

            Offer of Mediation sent to both parties.

July 21, 2006

Custodian’s declination of mediation. No response was received from the Complainant.

August 15, 2006

            Request for Statement of Information sent to the Custodian.

August 22, 2006

            Custodian’s Statement of Information (“SOI”) with the following attachments:

• June 1, 2006 Complainant’s OPRA request, and

• June 7, 2006 Custodian’s response to the OPRA request.

The Custodian states that while no interviews were held on May 31, 2006, as alleged by the Complainant, she interpreted his request to include interviews conducted on or about that date. The Custodian asserts that the Complainant was denied access to the requested records for the reasons set forth in the June 7, 2006 Custodian’s response to the OPRA request.

The Custodian certifies that no transcripts of any interviews exist, therefore no transcripts could be provided in response to this request. Other documents for which the Custodian claims an exemption are as follows:

The Custodian states that the interviewers’ notes and score forms are personnel records which are not subject to disclosure pursuant to OPRA, which limits disclosure of such records to those specifically identified in N.J.S.A. 47:1A-10. The Custodian states that the interview questions and the interviewers’ notes and scoring sheets for each candidate are not records which OPRA specifies as disclosable personnel records, therefore the denial was lawful. Additionally, the Custodian asserts that pursuant to Executive Order 26 (McGreevey 2002), only the resumes of successful candidates may be disclosed to the public, not the scoring sheets and notes taken during interviews.

The Custodian also contends that the requested records are exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1 and Executive Order 26 because they contain the interviewers’ opinions and recommendations regarding whom the agency should appoint to the captain position. The Custodian states that the documents sought contain not only the actual interviewers’ questions but also the interviewers’ notes regarding the applicant’s responses. The Custodian asserts that the requested Candidate Rating Forms contain a numerical evaluation of each candidate which is utilized in the decision making process regarding the promotion. For these reasons, the Custodian believes that these documents are ACD and cannot be disclosed. 

Analysis

Whether the Custodian unlawfully denied access to the requested notes, transcripts, and score forms of interviews held for captain at Southern State Correctional Facility?

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 … 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 states that:

“[n]otwithstanding the provisions of [OPRA]… the personnel or pension records of any individual in the possession of a public agency… shall not be considered a government record and shall not be made available for public access, except that: an individual's name, title, position, salary, payroll record, length of service… shall be a government record;… and… 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.

Executive Order 26, paragraph 3 states that:

“[n]o 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. The resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure.” Executive Order 26, paragraph 3 (McGreevey 2002).

OPRA also provides that:

“[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

Additionally, OPRA states that:

“...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy thereof …” N.J.S.A. 47:1A-5.g.

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 Complainant states he was unlawfully denied access to the requested notes, transcripts, and score forms of interviews held for the position of captain at Southern State Correctional Facility on May 31, 2006.

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.  The Custodian certifies that no transcripts of any interviews exist, therefore no transcripts could be provided in response to this request. Based on the Custodian’s certification the requested transcripts are not made, maintained or kept on file by the New Jersey Department of Corrections there are no documents responsive to this portion of the request.

While there would not have been an unlawful denial of access to the requested transcripts, the Custodian did not inform the Complainant in writing that these records were not being provided because they do not exist, as required pursuant to N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g.  However, the Custodian’s failure to do so is a violation of N.J.S.A. 47:1A-5.i., N.J.S.A. 47:1A-5.g. In Deluca v. Town of Guttenburg, GRC Case No. 2006-25 (May 2006), the GRC found that the Custodian violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. by failing to provide the Complainant with a written response to the OPRA request within the statutorily mandated seven (7) business days therefore creating a “deemed” denial, despite the fact that the were no records responsive to the request.  Therefore, based on the GRC decision in DeLuca, the Custodian has violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. in failing to respond to the Complainant’s request in writing within the statutorily mandated seven (7) business days resulting in a deemed denial of access.

As to the interview notes and Candidate Rating Forms, the Custodian asserts that they are not government records because they are advisory, consultative and deliberative (ACD) in content. OPRA excludes from the definition of a government record “inter-agency or intra-agency advisory, consultative or deliberative [ACD] material.”  N.J.S.A. 47:1A-1.1. It is evident that this phrase is intended to exclude from the definition of a government record, the types of documents that are the subject of the “deliberative process privilege.”  That privilege has long been recognized by federal courts.  See Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958); NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 150 (1975).  The privilege has also been codified in the federal Freedom of Information Act (“FOIA”).  5 U.S.C. §552(b)(5).  Most recently, the New Jersey Supreme Court adopted the privilege.  In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000). 

The judiciary set forth the legal standard for applying the deliberative process privilege as follows:

The initial burden falls on the government agency to establish that matters are both pre-decisional and deliberative.

The initial burden falls on the government agency to establish that matters are both pre-decisional and deliberative.

1. Pre-decisional means that the records were generated before an agency adopted or reached its decision or policy.
    
2. Deliberative means that the record contains opinions, recommendations, or advice about agency policies or decisions.
    
3. Deliberative materials do not include purely factual materials.
    
4. Where factual information is contained in a record that is deliberative, such information must be produced so long as the factual material can be separated from its deliberative context.
    
5. which reflect the personal opinions of the writer rather than the policy of the agency. 
    
6. would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is only a personal position.
    
7. whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communications within the agency. 
   

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. The Custodian contends that the requested notes and score forms are exempt from disclosure as ACD pursuant to N.J.S.A. 47:1A-1.1 and Executive Order 26. The Custodian states that these documents contain the interviewers’ opinions and recommendations regarding whom the agency should appoint to the captain position. The Custodian states that the documents sought contain not only the actual interviewers’ questions but also the interviewers’ notes regarding the applicant’s responses. Hence, these documents are deliberative as they contain opinions, recommendations, or advice about agency policies or decisions

The Custodian asserts that the requested Candidate Rating Forms contain a numerical evaluation of each candidate which is utilized in the decision making process regarding promotions. Therefore, the Candidate Rating Forms are pre-decisional in that the records were generated before an agency adopted or reached its decision as to who would hold the captains position.

Thus, the requested notes and score sheets are both pre-decisional and deliberative. Based on the decision in In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000), the requested notes and score sheets are ACD and do not fall under the definition of a government record pursuant to N.J.S.A. 47:1A-1.1.   

While the Custodian asserts that the records are also exempt from disclosure as personnel records and exempt under N.J.S.A. 47:1A-10 and Executive Order 26, there is no evidence that these documents constitute a personnel record. This is especially true since the Complainant is not requesting resumes, which are specifically addressed in Executive Order 26. Therefore, N.J.S.A. 47:1A-10 and Executive Order 26 do not apply to the requested records.

Based on the GRC decision in DeLuca, the Custodian has violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. in failing to properly inform the Complainant that no transcripts responsive to the request exist in writing within the statutorily mandated seven (7) business days, resulting in a deemed denial of access pursuant to N.J.S.A. 47:1A-5.i.

Also, the requested interviewers’ notes and score sheets are both pre-decisional and deliberative. Thus, based on the decision in In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000), the requested notes and score sheets are ACD and do not fall under the definition of a government record pursuant to N.J.S.A. 47:1A-1.1. Therefore, the Custodian has lawfully denied access to the requested notes and score sheets.    

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that:

1. DeLuca v. Town of Guttenburg, GRC Complaint No. 2006-25 (May 2006), the Custodian has violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. in failing to respond to the Complainant’s request in writing within the statutorily mandated seven (7) business days resulting in a deemed denial of access.
2. While the Custodian asserts that the records are also exempt from disclosure as personnel records and exempt under N.J.S.A. 47:1A-10 and Executive Order 26, there is no evidence that these documents constitute a personnel record. This is especially true since the Complainant is not requesting resumes, which are specifically addressed in Executive Order 26. Therefore, N.J.S.A. 47:1A-10 and Executive Order 26 do not apply to the requested records.
3. The requested interviewers’ notes and score sheets are both pre-decisional and deliberative. Thus, based on the decision in In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000) the requested notes and score sheets are advisory, consultative, and deliberative and do not fall under the definition of a government record pursuant to N.J.S.A. 47:1A-1.1. Therefore, the Custodian has lawfully denied access to the requested notes and score sheets.

Prepared By:   

Colleen C. McGann

Case Manager

Approved By:

Catherine Starghill, Esq.

Executive Director

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