2006-13

Final Decision

At its May 11, 2006 public meeting, the Government Records Council (“Council”) considered the May 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 considering the meaning of a public agency as explained by the court in the The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 2004) and all the document submissions of the Custodian, the Children’s Hospital of New Jersey (“Hospital”), owned and operated by Newark Beth Israel Medical Center, is not a public agency pursuant to N.J.S.A. 47:1A-1.1.  Therefore, the Hospital is not subject to the provisions of OPRA and is not required to respond to OPRA requests for 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 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 18, 2006

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Findings and Recommendations of the Executive Director

Records Relevant to Complaint:

1. Rape kit for xxxx xxxx[1] dated 10/10/2002, DNA testing results and medical examination results administered by Nurse Practioner Cecilia Jacome;
2. Qualifications and/or employment status of Nurse Practitioner Cecilia Jacome.[2]

Request Made: N/A
Response Made: None 
Custodian: Paul Mertz 
GRC Complaint filed: January 17, 2006 

Background

January 17, 2006

Denial of Access Complaint filed with the Government Records Council (“GRC”). The Complainant states he received no response to his request to the Children’s Hospital of New Jersey (“Hospital”) for access to certain medical documents and qualifications for employment of a certain named individual.

February 1, 2006

Offer of Mediation sent to both parties. Neither party agreed to mediate this matter.

February 2, 2006

Letter from the Hospital’s Director of Compliance and Risk Management, Cari Reed. Ms. Reed states that no request was received from the Complainant.  

February 7, 2006

Letter from the Hospital’s Director of Compliance and Risk Management, Cari Reed. Ms. Reed states that after further investigation it is found that a request was received by Newark Beth Israel Medical Center (“NBI”)[3] from the Complainant and was forwarded to the Essex County Prosecutors’ Office as the request was for information involving a pending criminal matter.

February 16, 2006

Request for the Statement of Information (“SOI”) sent to the Custodian.

February 22, 2006

Custodian’s counsel response to the SOI. The Custodian’s counsel states that Children’s Hospital of New Jersey is part of NBI and is a private entity not subject to the provisions of the Open Public Records Act (“OPRA”).

March 13, 2006

E-mail from the GRC to the Custodian’s counsel. The GRC requested the following in support of the assertion that the Children’s Hospital of New Jersey (“the Hospital”) is not a public agency:

• The documents that brought the organization into existence and which outline its operations such as the (1) certificate of incorporation and (2) bylaws and; 
• A certification stating if any ordinance, resolution or agreements exist discussing the relationship between the organization and any state or local government agency.

March 24, 2006

Letter from the Custodian’s counsel to the GRC with the following attachment:

• Certificate of Incorporation for NBI.

The Custodian’s counsel asserts that the enclosed Certificate of Incorporation provides that:

1. NBI is a private, not-for-profit corporation,
2. NBI was created exclusively for charitable purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986,
3. NBI has a Board of Trustees appointed by the sole member of the corporation, which is St. Barnabas Corporation, a New Jersey non-profit corporation, and   
4. In the event that the corporation’s charter is surrendered to, taken away by or revoked by St. Barnabas Corporation, the corporation shall dissolve. The remaining assets of this corporation shall be distributed to a non-profit fund, foundation or organization which is organized and operated exclusively for charitable purposes and which has established its tax exempt status under Section 501(c)(3) of the Internal Revenue Code of 1986. 

Analysis

Whether the Children’s Hospital of New Jersey is a public agency?

OPRA defines a public agency as:

“…[a]ny of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.”  N.J.S.A. 47:1A-1.1.

Custodian’s counsel states that Children’s Hospital of New Jersey, NBI was established in 1898 as a New Jersey registered not-for-profit organization without any control by a New Jersey state agency. The Custodian’s counsel submitted copies of the Hospital’s Certificate of Incorporation and amendments, which counsel contends is proof that the Hospital’s parent company, NBI is not a public agency governed by OPRA.

Most definitions of "public agency" under NJ statutes and the Administrative Code resemble that contained in OPRA. However, the Open Public Meetings Act ("OPMA") defines "public body" as a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds.  N.J.S.A. 10:4-8a.

OPMA's definition of public body requires that an entity, "... (1) consist of 'two or more persons' and (2) be 'collectively empowered as a voting body' (3) 'to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds.' N.J.S.A. 10:4-8a..." The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 2004). 

In that case, the court held that:

1. a private, non-profit corporation created for the express purpose of redeveloping property donated to it by the city of Trenton,
2. having a Board of Trustees appointed by the Mayor and City Council,
3. with the mandated reversion of the donated property after the completion of the project and repayment of the debt,
4. having corporate bylaws requiring the distribution of all assets to the city upon the dissolution or liquidation of the corporation,
5. having a Disposition Agreement with the city that designates the city as the "agency" and the corporation as the "redeveloper" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, and
6. having the authority to issue tax-exempt bonds for the financing of the project

qualified the corporation as a "public body" under OPMA.  The court further held that the corporation was "an 'instrumentality' created by the City and a 'public agency' under the OPRA for essentially the same reasons that it is a 'public body' under the OPMA." Id. at 442,670.

The decision of the Superior Court that Lafayette Yard Community Development Corp. qualifies as a "public body" was affirmed by the New Jersey Supreme Court (Times of Trenton, 183 N.J. 519,  874 A.2d 1064 (June 2005)).   See also Snyder v. American Association of Blood Banks, 144 N.J. 269, 676 a.2d 1036 (1996) (finding that the legislature did not create or authorize the AABB to perform a specific governmental purpose); Williams v. National Car Rental System, Inc., 225 N.J.Super. 164, 541 A.2d 1125 (1988) (finding that the broad powers conferred upon the Port Authority leave no doubt that it is a public authority or public agency); Blazer Corporation v. NJ Sports and Exposition Authority, 195 N.J.Super. 542, 480 A.2d 953 (1984) (citing Wade v. N.J. Turnpike Authority, 132 N.J.Super. 92, 332 A.2d 232 (Law Div. 1975), "The Court noted the official comment to N.J.S.A. 59:1-3: 'The definition of 'Public Entity' provided in this section is intended to be all inclusive and to apply uniformly throughout the State of New Jersey to all entities exercising governmental functions.'").

Additionally, two rules in the Administrative Code define "public agency" more precisely than other rules and statutes by adding the following language to the usual definition, "... agencies exercising sovereign powers of government."  This language is very illustrative of the meaning of public agencies, as explained by the court in the Times of Trenton cases cited above. While other state statutes and rules do not include this language, it appears that the New Jersey Supreme Court confirms that "exercising sovereign powers of government" is required for an entity to be deemed a public body or agency.

In the case at hand, the Custodian’s Certificate of Incorporation provides that:

1. NBI is a private, not-for-profit corporation,
2. NBI was created exclusively for charitable purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986,
3. NBI has a Board of Trustees appointed by the sole member of the corporation, which is St. Barnabas Corporation, a New Jersey non-profit corporation, and
4. In the event that the corporation’s charter is surrendered to, taken away by or revoked by St. Barnabas Corporation, the corporation shall dissolve. The remaining assets of this corporation shall be distributed to a non-profit fund, foundation or organization which is organized and operated exclusively for charitable purposes and which has established its tax exempt status under Section 501(c)(3) of the Internal Revenue Code of 1986.

Thus, in considering the meaning of a public agency as explained by the court in the Lafayette Yard case and all the document submissions of the Custodian, the Hospital, owned and operated by NBI, is not a public agency pursuant to N.J.S.A. 47:1A-1.1.  Therefore, the Hospital is not subject to the provisions of OPRA and is not required to respond to OPRA requests for records. 

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that considering the meaning of a public agency as explained by the court in the The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 2004) and all the document submissions of the Custodian, the Hospital, owned and operated by NBI, is not a public agency pursuant to N.J.S.A. 47:1A-1.1.  Therefore, the Hospital is not subject to the provisions of OPRA and is not required to respond to OPRA requests for records. 

Prepared By: Colleen C. McGann,  Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

May 4, 2006

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