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2006-137
Final DecisionSeptember 26, 2007 Government Records Council Meeting
At the September 26, 2007 public meeting, the Government Records Council ("Council") considered the September 19, 2007 Reconsideration Supplemental 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 the January 31, 2007 Final Decision should be revised to delete the finding that the Custodian unlawfully denied access to the chart in response to the GRC’s October 19, 2007 Interim Order because the chart is not a record subject to the records request relevant to this complaint. Therefore, this finding of the GRC was inappropriate in the adjudication of the complaint as submitted by the Complainant.
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 26th Day of September, 2007
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Kathryn Forsyth
Decision Distribution Date: October 3, 2007
Supplemental Findings and Recommendations of the Executive DirectorReconsideration Supplemental Findings and Recommendations of the Executive Director September 26, 2007 Council Meeting
Records Relevant to Complaint:
Request Made: June 12, 2006 Response Made: June 30, 2006 Custodian: William Kurtz GRC Complaint Filed: July 14, 2006
Background
January 21, 2007 Government Records Council’s ("Council") Final Decision. At its January 21, 2007 public meeting, the Council considered the January 17, 2007 Supplemental 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, found that the Custodian did not comply with the Council’s Interim Order in a timely manner. Specifically, the Custodian released the resolutions and minutes with redactions and legal justifications for each redaction in a timely manner. However, the Custodian unlawfully denied access to a chart in response to the GRC’s October 19, 2006 Interim Order. The Custodian later released the chart in its entirety without explanation to the Complainant.
February 5, 2007 Council’s Final Decision distributed to the parties.
February 12, 2007 Letter from the Custodian to the GRC. The Custodian asserts that the GRC’s finding that the redaction was supplied without notice to the Complainant is inaccurate. The Custodian requests that the GRC reconsider its Final Decision before an appeal must be taken in the matter.
February 28, 2007 Letter from the Custodian to the GRC. The Custodian again requests that the GRC reconsider its Final Decision. The Custodian states that Mr. O’Shea had one objection to redactions made to one record produced and that while the Custodian maintains that the document is privileged, the Custodian released the record with no redactions in an effort to resolve the matter expeditiously.
March 6, 2007 E-mail from the Complainant to the GRC. The Complainant asserts that the Custodian’s request for reconsideration is untimely. Specifically, the Complainant states that the GRC proposed rules require such requests to be made within ten (10) business days following receipt of an GRC decision and the Custodian’s request on February 28th is therefore untimely.
March 15, 2007 E-mail from the GRC to the Complainant. The GRC informed the Complainant that the Custodian’s request for reconsideration was timely since the first request was received on February 12th or nine (9) business days following the parties’ receipt of the Final Decision.
March 15, 2007 Letter from the GRC to the Custodian. The GRC formally informed the Custodian that the matter would be reconsidered.
March 19, 2007 Letter from the Custodian to the GRC. The Custodian confirms that the GRC will reconsider this matter and that the Custodian will not file a Notice of Appeal with Superior Court at this time since a new Final Decision will be rendered pursuant to the reconsideration.
Analysis
The GRC should revise its’ January 31, 2007 Final Decision pursuant to this reconsideration due to its’ finding in said decision that the Custodian unlawfully denied access to a chart entitled “NJIF Multi-Line Litigated Claims – 2005” in response to the GRC’s October 19, 2007 Interim Order. While the Custodian maintains that the chart was privileged and the redactions were lawful, the Custodian subsequently released the chart without redactions in an effort to resolve the matter expeditiously after the issuance of the January 31, 2007 Final Decision.
The January 31, 2007 Final Decision should be revised to delete the finding that the Custodian unlawfully denied access to the chart in response to the GRC’s October 19, 2007 Interim Order more importantly because the chart is not a record subject to the records request relevant to this complaint. Therefore, this finding of the GRC was inappropriate in the adjudication of the complaint as submitted by the Complainant.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the January 31, 2007 Final Decision should be revised to delete the finding that the Custodian unlawfully denied access to the chart in response to the GRC’s October 19, 2007 Interim Order because the chart is not a record subject to the records request relevant to this complaint. Therefore, this finding of the GRC was inappropriate in the adjudication of the complaint as submitted by the Complainant.
Approved By: Catherine Starghill, Esq. Executive Director
September 19, 2007 [1] No legal representation listed on record. [2] Represented by Eric Nemeth, Esq. (Morristown, NJ) & Juan Fernandez, Esq. (Nutley, NJ). [3] There were other records requested that are not relevant to this complaint. Final DecisionJanuary 31, 2007 Government Records Council Meeting
At the January 31, 2007 public meeting, the Government Records Council ("Council") considered the January 24, 2007 Supplemental 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 the Custodian did not comply with the Council's Interim Order in a timely manner. Specifically, the Custodian released the resolutions and minutes with redactions and legal justifications for each redaction in a timely manner. However, the Custodian unlawfully denied access to a chart in response to the GRC's October 19, 2006 Interim Order. The Custodian later released the chart in its entirety without explanation to the Complainant.
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 31st Day of January, 2007
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Decision Distribution Date: February 5, 2007
Supplemental Findings and Recommendations of the Executive DirectorJanuary 31, 2007 Council Meeting
Records Relevant to Complaint:
Request Made: June 12, 2006 Response Made: June 30, 2006 Custodian: William Kurtz GRC Complaint Filed: July 14, 2006
Background
October 19, 2006 Government Records Council's ("Council") Interim Order. At its October 19, 2006 public meeting, the 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, found that:
October 25, 2006 Council's Interim Order distributed to the parties.
November 3, 2006 Letter from Custodian to Complainant. The Custodian states that the records responsive to the Complainant's OPRA request are enclosed. The Custodian also states that the redacted portions of the executive session minutes and any other redacted portions of records provided are not related to the Stelmach v. West Milford Township Police Department, et al matter.
November 3, 2006 Custodian's certification pursuant to NJ Court Rules. The Custodian certifies that the Complainant was provided with true and exact copies of the requested records along with a true and exact copy of the redaction log.
November 20, 2006 Letter from the Complainant to the GRC. The Complainant states that he has received the redacted minutes and a corresponding redaction log. However, he objects to the legal explanation for the redactions made to one of the charts being identified as attorney work product (litigation claims analysis).
The Complainant asserts that the chart provides nothing more than the number of claims filed during various months, and that this information is more of an internal organizational document than one that should be considered privileged. Therefore, the Complainant asserts that the Custodian has not satisfied its burden of proving that any information within this chart is exempt from access.
Finally, the Complainant states that if the Custodian is unwilling to provide him with an unredacted chart, the Complainant would either file a new complaint or amend the present complaint.
December 14, 2006 Letter from the Custodian to the Complainant. The Custodian asserts receiving the Complainant's letter objecting to the redactions of the chart provided to the Complainant. The Custodian therefore is providing the Complainant with an unredacted copy of the chart.
Analysis
Whether the Custodian complied with the Council's October 19, 2006 Interim Order? The Custodian certifies that on November 3, 2006, the Complainant was provided with true and exact copies of the requested records along with a true and exact copy of the redaction log.
The Complainant states that he has received the redacted minutes and a corresponding redaction log. However, he objects to the legal explanation for the redactions made to one of the charts being identified as attorney work product (litigation claims analysis).
The Complainant asserts that the chart provides nothing more than the number of claims filed during various months, and that this information is more of an internal organizational document than one that should be considered privileged. Therefore, the Complainant asserts that the Custodian has not satisfied its burden of proving that any information within this chart is exempt from access.
Finally, the Complainant states that if the Custodian is unwilling to provide him with an unredacted chart, the Complainant would either file a new complaint or amend the present complaint.
The Custodian asserts receiving the Complainant's letter objecting to the redactions of the chart provided to the Complainant. The Custodian thereafter provided the Complainant with an unredacted copy of the chart.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the Custodian did not comply with the Council's Interim Order in a timely manner. Specifically, the Custodian released the resolutions and minutes with redactions and legal justifications for each redaction in a timely manner. However, the Custodian unlawfully denied access to a chart in response to the GRC's October 19, 2006 Interim Order. The Custodian later released the chart in its entirety without explanation to the Complainant.
Prepared By:
Tiffany L. Mayers Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
January 24, 2007 [1] No legal representation listed on record. [2] Represented by Eric Nemeth, Esq. (Morristown, NJ) & Juan Fernandez, Esq. (Nutley, NJ). [3] There were other records requested that are not relevant to this complaint. Interim OrderOctober 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:
Interim Order Rendered by the Government Records Council On The 19th Day of October, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Decision Distribution Date: October 25, 2006 Findings and RecommendationsFindings and Recommendations of the Executive DirectorOctober 19, 2006 Council Meeting
Martin O'Shea[1] GRC Complaint No. 2006-137 Complainant
v.
NJ Intergovernmental Insurance Fund[2] Custodian of Records
Records Relevant to Complaint:
Request Made: June 12, 2006 Response Made: June 30, 2006 Custodian: William Kurtz GRC Complaint Filed: July 14, 2006
Background
June 12, 2006 Complainant's Open Public Records Act ("OPRA") request. The Complainant requests to obtain any resolutions, as required by N.J.S.A. 10:4-13, passed during March 2004, April 2005 and October 2005 authorizing the New Jersey Intergovernmental Insurance Fund ("NJIIF") to go into closed (executive) session. The Complainant also requests any minutes from the closed (executive) sessions that were authorized by any of the resolutions provided in response to the immediately preceding request.
June 30, 2006 Custodian's response to the Complainant. The Custodian's response to the OPRA request is fourteen (14) business days following the date the request was received. The Custodian states the NJIIF goes into closed session each month to discuss claims against its members. The Custodian also states that the NJIIF will not release any information on claims until they are settled.
July 14, 2006 Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachments:
The Complainant asserts completing the OPRA request form on June 12, 2006, and receiving a response from the Custodian on June 30, 2006. The Complainant asserts that the Custodian's response was tardy. The Complainant also asserts that OPRA requires a custodian to either grant or deny access to a requested record within seven (7) business days after receipt of the request pursuant to N.J.S.A. 47:1A-5.i. The Complainant also asserts that the agency did not have its official request form available for download on its website, and that the Custodian did not provide the Complainant with a blank request form until June 30, 2006[4].
The Complainant further asserts that the Custodian's response was insufficient. The Complainant states that the Custodian concedes that the agency goes into closed session each month, yet the Custodian does not confirm or deny whether resolutions and minutes for those nonpublic meetings exist. The Complainant attests that pursuant to N.J.S.A. 47:1A-5.i., a custodian's failure to respond shall be deemed a denial of the request.
The Complainant states that OPRA burdens the Custodian with providing that every denial is lawful pursuant to N.J.S.A. 47:1A-6. The Complainant also states that pursuant to N.J.S.A. 1A-5.g., a custodian is required to indicate the specific basis for any denial of access. The Complainant further asserts that beyond stating the specific basis for its redactions, a custodian is also required to produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality. Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 323, 382-83 (App. Div. 2003).
The Complainant acknowledges that the Custodian, upon receipt of this complaint, may wish to provide the Complainant with redacted minutes and more detailed justification for the denial. The Complainant states that the Custodian may raise the argument of being entitled to supplement the record by virtue of N.J.S.A. 47:1A-7.e.
The Complainant also acknowledges that the GRC sometimes conducts in camera reviews in matters such as this one. The Complainant objects to such a review because it is the Custodian's burden to prove that its redactions are lawful, not to just give the unredacted minutes to the Council to decide which portions shall be released.
The Complainant requests an Order declaring that the Custodian violated OPRA by failing to respond in a timely manner. The Complainant also requests an Order requiring the Custodian to definitively declare whether or not any closed session resolutions and minutes within the scope of the request exist, and if so, to provide the Complainant with the unredacted copies of such.
July 24, 2006 Offer of Mediation sent to both parties. Neither party agreed to mediation.
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:
The Custodian asserts that the NJIIF goes into closed session each month to discuss claims against its members and that the NJIIF will not release any information on claims until they are settled.
September 5, 1006 Letter from the GRC to the Custodian. The GRC requests that the Custodian provide the GRC with a properly executed Statement of Information including the following:
September 8, 2006 Certified facsimile from the Custodian to the GRC. The Custodian states that verbal resolutions are reflected in the NJIIF's meeting minutes moving that the subject meeting go into closed session. Therefore, the Custodian states that there are no separate resolutions made and retained on file and there are no documents responsive to satisfy the Complainant's request. The Custodian also states that the Complainant's request for any minutes from the closed (executive) sessions that were authorized by any of the resolutions provided in response to the immediately preceding request was somewhat unclear.
The Custodian further states that if the Complainant's intent was to obtain copies of the minutes of closed session from any month, they would have to be heavily redacted as they reflect ongoing litigation. The Custodian asserts that since the Stelmach case is still in litigation, any meeting minutes in this matter would have been redacted in any event. The Custodian further asserts that his response to the Complainant was that at the advice of Counsel, the Complainant's request is unclear and minutes would undoubtedly have to be redacted. The Custodian attests that a formal reply would have been provided to the Complainant following clarification of the request and if the assumption of the NJIIF regarding the Complainant's intent proved to be correct, no responsive documents would have been available or provided.
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:
"[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request... "[t]he requestor shall be advised by the custodian when the record can be made available… "[i]f the record is not made available by that time, access shall be deemed denied." N.J.S.A. 47:1A-5.i.
OPRA also states that:
"…[i]f the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to [OPRA]…, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record … "[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis thereof on the request from and promptly return it to the requestor." 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 asserts that the Custodian's response was tardy and that according to OPRA a custodian is to either grant or deny access to a requested record within seven (7) business days after receipt of the request pursuant to N.J.S.A. 47:1A-5.i.
The Complainant further asserts that the Custodian's response was insufficient. The Complainant states that the Custodian concedes that the agency goes into closed session each month, yet the Custodian does not confirm or deny whether resolutions and minutes for those nonpublic meetings exist. The Complainant also states that a Custodian's failure to respond shall be deemed a denial of the request pursuant to N.J.S.A. 47:1A-5.i.
The Complainant asserts that 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 Complainant also asserts that the Custodian has to indicate the specific basis for any denial of access pursuant to N.J.S.A. 1A-5.g. The Complainant further asserts that beyond stating the specific basis for its redactions, the Custodian is also required to produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality. See Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 323, 382-83 (App. Div. 2003).
The Custodian asserts that the NJIIF goes into closed session each month to discuss claims against its members and that the NJIIF will not release any information on claims until they are settled.
The Custodian also states that verbal resolutions are reflected in the NJIIF's meeting minutes moving that the subject meeting go into closed session. Therefore, the Custodian states that there are no separate resolutions made and retained on file and there are no documents responsive to the Complainant's request. The Custodian also states that the Complainant's request for any minutes from the closed (executive) sessions that were authorized by any of the resolutions provided in response to the immediately preceding request was somewhat unclear.
The Custodian asserts that if the Complainant's intent was to obtain copies of the minutes of closed session from any month, they would have to be heavily redacted as they reflect ongoing litigation. The Custodian also asserts that since the Stelmach case is still in litigation, any meeting minutes in this matter would have been redacted in any event. The Custodian further asserts that his response to the Complainant was that at the advice of Counsel, the request is unclear and minutes would undoubtedly have to be redacted. The Custodian attests that a formal reply would have been provided to the Complainant following clarification of the request and if the assumption of the NJIIF regarding the Complainant's intent proved to be correct, no responsive documents would have been available or provided.
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.
The Custodian unlawfully denied access to the requested records by not granting or denying within the statutorily mandated seven (7) business day's timeframe pursuant to N.J.S.A. 47:1A-5.i. See Pincus v. Newark Police Department, GRC Complaint No. 2005-219 (April 2006).
The Custodian's non response to the Complainant's request resulted in a "deemed" denial despite the fact that the Custodian certified that there were no resolutions responsive to the Complainant's request. Although the Custodian states that there were no records responsive to the Complainant's request, the Custodian failed to provide proof of this in his written response to the Complainant on June 30, 2006. Thus resulting in the "deemed" denial of access, violation of N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. See Kossup v. Essex County Correctional Facility, GRC Complaint No. 2005-202 (September 2006).
The Complainant's request for minutes was not unclear. The New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1." (Emphasis added.) Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super 534, 546 (March 2005). The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files." (Emphasis added.) Id. at 549. Mag does not apply to this case; therefore, the Custodian unlawfully denied access to minutes and failed to bear their burden of proof pursuant to N.J.S.A. 47:1A-6.
While the Custodian attests that a formal reply would have been provided to the Complainant following clarification of the request and if the assumption of the NJIIF regarding the Complainant's intent proved to be correct, no responsive documents would have been available or provided, the Custodian did not ask the Complainant for clarification. Therefore, the Complainant would not have known that the Custodian did not understand the request. See Moore v. Township of Old Bridge, GRC Complaint No. 2005-80 (August 2005). Had the Custodian asked for clarification, and upon receiving it, the Custodian would have been able to properly respond to the Complainant's requests stating that there were no records responsive.
In summary, based on the certified statements of the Custodian, the Custodian unlawfully denied access to requested resolutions and minutes in a timely manner pursuant to N.J.S.A. 47:1A-5.i. The Custodian also failed to provide a written response to the Complainant's specific request, therefore, the Custodian resulted in a "deemed" denial pursuant to N.J.S.A. 47:1A-5.g. Additionally, the Custodian unlawfully denied access to resolutions and minutes, therefore, the Custodian did not bear their burden of proof pursuant to N.J.S.A. 47:1A-6. Furthermore, had the Custodian asked for clarification, and upon receiving it, the Custodian would have been able to properly respond to the Complainant's requests stating that there were no records responsive.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By:
Tiffany L. Mayers Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation listed. [2] Represented by Eric Nemeth, Esq. (Morristown, NJ). [3] There were other records requested that are not relevant to this complaint. [4] The Custodian certifies sending the Complainant the NJIIF's official OPRA form on May 16, 2006, and includes a copy of this letter in his Statement of Information. |
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