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2006-138
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Final Decision |
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In Camera Findings and Recommendations of the Executive Director |
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Interim Order II |
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Supplemental Findings |
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Interim Order |
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Findings and Recommendations |
Final DecisionJune 25, 2008 Government Records Council Meeting
At the June 25, 2008 public meeting, the Government Records Council (“Council”) considered the June 18, 2008 In Camera 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:
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 25th Day of June, 2008
Robin Berg Tabakin, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council. David Fleisher, Secretary
Decision Distribution Date: July 2, 2008
[1] This record bears the handwritten notation “Redacted Copies.” However, the Custodian’s Counsel asserts that he had marked “redacted” on minutes which were in fact never redacted. In Camera Findings and Recommendations of the Executive DirectorJune 25, 2008 Council Meeting
Martin O’Shea[1] GRC Complaint No. 2006-138 Complainant
v.
West Milford Municipal Utilities Authority[2] Custodian of Records
Records Relevant to Complaint: Minutes from closed (executive) session meetings for June, 2003, through August, 2003, September, 2004 through November, 2004, and December, 2005 through February, 2006.[3] Request Made: July 10, 2006Response Made: July 11, 2006Custodian: Diane Paretti[4]GRC Complaint Filed: July 14, 2006
Background
February 28, 2007 Government Records Council’s (“Council”) Interim Order. At its February 28, 2007 public meeting, the Council considered the February 21, 2007 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:
March 14, 2007 Council’s Interim Order distributed to the parties.
July 20, 2007 Council files an Order to Show Cause with Verified Complaint in Superior Court of New Jersey to enforce the Council’s February 28, 2007 Interim Order.
August 13, 2007 Custodian files an Answer to the Council’s Order to Show Cause.
October 2, 2007 Fax from Deputy Attorney General Debra Allen to the GRC. DAG Allen forwards a copy of the Custodian’s Answer in the enforcement action in the Superior Court of New Jersey. Attached to Custodian’s Answer are the following:
1. June 24, 2003 executive session minutes 2. September 21, 2004 executive session minutes 3. September 28, 2004 executive session minutes 4. October 19, 2004 executive session minutes 5. October 26, 2004 executive session minutes 6. November 23, 2004 executive session minutes 7. December 20, 2005 executive session minutes 8. January 24, 2006 executive session minutes
With regard to the June 24, 2003 executive session minutes, the Custodian asserts that this record was disclosed to the Complainant on July 11, 2006 and no exemption from disclosure was claimed on the chart accompanying the record.
With regard to the September 21, 2004 executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant and no exemption from disclosure was claimed on the chart accompanying the record.
With regard to the September 28, 2004 executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant and no exemption from disclosure was claimed on the chart accompanying the record.
With regard to the October 19, 2004, executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant and no exemption from disclosure was claimed on the chart accompanying the record.
With regard to the October 26, 2004 executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant. The Custodian asserts that this record is exempt from disclosure pursuant to N.J.S.A. 10:4-12b(7), which provides that a public body may exclude the public from that portion of a meeting at which the public body discusses pending or anticipated litigation or contract negotiation other than collective bargaining. The Custodian further asserts that the record contains notations of discussions regarding negotiations, disclosure of which would negatively impact the MUA’s ability to continue those negotiations. The Custodian contends that this record should not be disclosed to the Complainant for this reason.
With regard to the November 23, 2004 executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant. The Custodian asserts that this record is exempt from disclosure pursuant to N.J.S.A. 10:4-12b(7), which provides that a public body may exclude the public from that portion of a meeting at which the public body discusses pending or anticipated litigation or contract negotiation other than collective bargaining. The Custodian further asserts that the record contains notations of discussions regarding negotiations, disclosure of which would negatively impact the MUA’s ability to continue those negotiations. The Custodian contends that this record should not be disclosed to the Complainant for this reason.
With regard to the December 20, 2005 executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant, and no exemption from disclosure was claimed on the chart accompanying the record.
With regard to the January 24, 2006 executive session minutes, the Custodian asserts that this record was not disclosed to the Complainant. The Custodian asserts that this record is exempt from disclosure pursuant to N.J.S.A. 10:4-12b(7), which provides that a public body may exclude the public from that portion of a meeting at which the public body discusses pending or anticipated litigation or contract negotiation other than collective bargaining. The Custodian further asserts that the record contains notations of discussions regarding negotiations, disclosure of which would negatively impact the MUA’s ability to continue those negotiations. The Custodian contends that this record should not be disclosed to the Complainant for this reason.
(The GRC based its determination that the Custodian had not complied with the October 19, 2006 Interim Order based on the incomplete information provided with this letter, most notably that four (4) sets of executive session minutes were not disclosed and no exemption was stated for the non-disclosure).
Custodian’s Counsel requests clarification regarding the Council’s February 28, 2007 Interim Order. Custodian’s Counsel states that the executive session minutes for July, 2003 and August, 2003, which were requested by the Complainant, are part of the published minute book of the authority and no exemption from disclosure was claimed for them. Moreover, Custodian’s Counsel asserts that these executive session minutes were disclosed to the Complainant.
Custodian’s Counsel asserts that the authority claimed that the executive session minutes for October 26, 2004, November 23, 2004 and January 24, 2006 were privileged pursuant to N.J.S.A. 10:12b(7) because of ongoing negotiations with developers.
Custodian’s Counsel further asserts that the executive session minutes for February 2006 were inadvertently omitted from the Custodian’s SOI and are enclosed.
(This letter provides no additional information regarding the four (4) executive session minutes not disclosed with no exemption stated, i.e., September 21, 2004, September 28, 2004, October 19, 2004 and December 20, 2005. Additionally, this letter raised issues in that the February 2006 executive session minutes were not previously identified as a record responsive to the Complainant’s request).
November 8, 2007 Letter from GRC Counsel to the Honorable Linda R. Feinberg, Presiding Judge of the Superior Court of New Jersey, Law Division, Mercer County. The GRC withdraws the enforcement action against the Custodian in the Superior Court of New Jersey.
May 30, 2008 Letter from Custodian’s Counsel to GRC. Custodian’s Counsel notes that a copy of Counsel’s March 27, 2007 letter to the GRC is enclosed, and states that the executive session minutes from June, 2003 to August 2003, were part of the public record and were disclosed by the Custodian to the Complainant. Custodian’s Counsel also notes that the Custodian’s basis for the denial of access to the executive session minutes on July 11, 2006 was based on the pendency of litigation regarding the Valley Ridge development; the Custodian’s Counsel notes that additional exemptions applied to the remainder of the executive session minutes and further notes that the Custodian should have made these exemptions clear to the Complainant at the time of denial and should have disclosed all but the necessarily redacted Valley Ridge portions of the executive session minutes. Custodian’s Counsel states that although the Custodian waives no claim of privilege that may be applicable to any of the executive session minutes, the Custodian has no objection to any GRC ruling that the executive session minutes be disclosed in their entirety to the Complainant.
Further, Custodian’s Counsel notes that he erroneously marked “Redacted” on copies of the executive session minutes which were submitted to the GRC in March, 2007; the minutes were not and never have been redacted, and the Custodian left it to the discretion of the GRC whether and to what extent such executive session minutes should be redacted.
Finally, Custodian’s Counsel asserts that there was nothing willful in the Custodian’s efforts to protect contract negotiations from unwarranted disclosure. Custodian’s Counsel asserts that both he and the Custodian misunderstood which records had already been disclosed, which records were already public, and what needed to be and what was sent to the GRC.
(The GRC did not have sufficient information from the Custodian to conduct an in camera review of records at issue in this complaint until receipt of this correspondence from Custodian’s counsel).
Analysis
Whether the Custodian complied with the Council’s February 28, 2007 Interim Order?
The evidence of record indicates that the Custodian responded to the Council’s February 28, 2007 Interim Order on March 27, 2007, stating that the executive session minutes for July, 2003 and August, 2003, which were requested by the Complainant, are part of the published minute book of the authority and no exemption from disclosure was claimed for them. Moreover, Custodian’s Counsel asserted that these executive session minutes were disclosed to the Complainant; Complainant did not refute this assertion.
Custodian’s Counsel also asserted that the executive session minutes for four (4) meetings on September 21, 2004, September 28, 2004, October 19, 2004 and December 20, 2005, were not disclosed and no exemption was stated.
Custodian’s Counsel further asserted that the authority claimed that the executive session minutes for October 26, 2004, November 23, 2004 and January 24, 2006 were privileged pursuant to N.J.S.A. 10:12b(7), which provides that a public body may exclude the public from that portion of a meeting at which the public body discusses pending or anticipated litigation or contract negotiation other than collective bargaining. The Custodian further asserts that these records contain notations of discussions regarding negotiations, disclosure of which would negatively impact the MUA’s ability to continue those negotiations. The Custodian contends that these records should not be disclosed to the Complainant for this reason.
Finally, Custodian’s Counsel asserted that the executive session minutes for February 2006 were inadvertently omitted from the Custodian’s SOI and were enclosed.
OPRA places the burden on the Custodian to prove that a denial of access to government records is lawful pursuant to N.J.S.A. 47:1A-6.
N.J.S.A. 47:1A-9.a. states that:
“[t]he provisions of this act, …, 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.” N.J.S.A. 47:1A-9.a.
N.J.S.A. 10:4-12b(7) states that:
“[a] public body may exclude the public only from that portion of a meeting at which the public body discusses: … Any pending or anticipated litigation or contract negotiation other than [collective bargaining] in which the public body is, or may become a party.” N.J.S.A. 10:4-12b(7).
After receipt of the Custodian Counsel’s May 30, 2008 letter, an in camera inspection was performed on the submitted records. The results of the in camera inspection are set forth in the following table:
Therefore, based on the foregoing evidence and consistent with Custodian’s Counsel’s letter to the GRC dated May 30, 2008, the Council shall release copies of the requested records to the Complainant consistent with the table above and contemporaneously with this Order.
Whether the Custodian’s delay in access to the requested records rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?
OPRA states that:
“[a] public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty …” N.J.S.A. 47:1A-11.a.
OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states:
“… If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e.
Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).
The totality of the evidence in this matter indicates that the Custodian’s actions do not rise to the level of a “knowing and willful” violation of OPRA and unlawful denial of access to the requested records. There is no evidence in the record to support a conclusion that the Custodian intentionally and deliberately denied access to the requested records without a lawful reason for so doing. The totality of the evidence in the record indicates that there was considerable confusion between the GRC, the Custodian and the Custodian’s Counsel regarding which records had been disclosed to the Complainant, which records had not been disclosed and the legal reasons for non-disclosure, as the Custodian’s Counsel stated in his letter to the GRC dated May 30, 2008. Moreover, the Custodian provided access to all but nine (9) of the requested records; there are lawful reasons for redactions to six (6) of those records.
Based on the foregoing, it is concluded that the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. The Council’s determination in its October 19, 2006 and February 28, 2007 Interim Orders that this matter should be referred to the Office of Administrative Law for a hearing is withdrawn.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By: Karyn Gordon, Esq. In House Counsel
Approved By: Catherine Starghill, Esq. Executive Director
June 18, 2008 [1] No legal representation listed on record. [2] Represented by Robert Baum, Esq., Garrubbo, Capece & Millman, P.C. (Westfield, NJ). [3] The Complainant requested additional records which are not relevant to this complaint. [4] Ms. Paretti is now retired. [5] There is no evidence that this letter was ever received by the GRC. However, it is properly addressed. [6] This record bears the handwritten notation “Redacted Copies.” However, the Custodian’s Counsel asserts that he had marked “redacted” on minutes which were in fact never redacted. Interim Order IIFebruary 28, 2007 Government Records Council Meeting
At the February 28, 2007 public meeting, the Government Records Council ("Council") considered the February 21, 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 as amended. The Council, therefore, finds:
Interim Order Rendered by the Government Records Council On The 28th Day of February 2007
Vincent Maltese, Chairman Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Decision Distribution Date: March 14, 2007
Supplemental FindingsSupplemental Findings and Recommendations of the Executive DirectorFebruary 28, 2007 Council Meeting
Records Relevant to Complaint: The minutes from any and all of the executive (closed) sessions authorized by the resolutions during June 2003 through August 2003, September 2004 through November 2004 and December 2005 through February 2006.[3]
Request Made: July 10, 2006 Response Made: July 11, 2006 Custodian: Diane Paretti 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 1, 2006 Certification of the Custodian with the following attachments:
January 23, 2007 Letter to the Custodian's Counsel from the GRC. The GRC acknowledges the Custodian's in camera submissions and states that the information provided is incomplete. The GRC requests to be provided with a complete in camera documentation, which shall include six (6) copies of the requested unredacted documents, the redaction index and the Custodian's legal certification. More so, the GRC requests that the Custodian indicate the legal justification for the meeting minutes of July 2003, August 2003 and February 2006 that was not provided with the in camera documentation.
Analysis
Whether the Custodian complied with the Council's October 19, 2006 Interim Order?
In the Custodian's November 1, 2006 in camera documentation submission, she certifies providing the GRC with six (6) copies of the unredacted requested record, the redaction log for each redaction, and a legal certification.
However, the Custodian only provided legal justification for the redaction of three (3) meeting minutes (October 26, 2004, November 23, 2004, and January 24, 2006) of the nine (9) meeting minutes requested by the Complainant. The Custodian also failed to legally justify why three (3) meeting minutes (July 2003, August 2003, and February 2006) were not included with its in camera documentation submission.
In an effort to obtain the correct complete in camera documentation, the GRC sent the Custodian's Counsel a detailed follow-up letter on January 23, 2007 indicating what the Custodian provided to the GRC and what the Custodian still needed to provide to the GRC for the in camera inspection. To date, the GRC has not received a response from the Custodian or the Custodian's Counsel. Yet, the GRC has a facsimile confirmation receipt indicating that the facsimile was successfully sent to the Custodian's Counsel on January 23, 2007. Therefore, the Custodian has not complied with the Council's October 19, 2006 Interim Order.
Based on the Custodian's failure to lawfully comply to the Council's October 19, 2006 Interim Order and failure to respond to the GRC's January 23, 2007 follow-up correspondence, the GRC shall commence an enforcement proceeding in New Jersey Superior Court against the Custodian in accordance with N.J. Court Rules, 1969 R. 4:67-6 (2007) – Summary proceedings to enforce agency orders. Whether the Custodian's actions rise to the level of a knowing and willful violation of the OPRA and unreasonable denial of access under the totality of the circumstances? The OPRA states that: "[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA], as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…" N.J.S.A. 47:1A-11.a. OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically, OPRA states: "…[i]f the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…" N.J.S.A. 47:1A-7.e. In this case, the Custodian failed to lawfully provide the GRC with a complete in camera documentation submission as detailed in the Council's October 19, 2006 Interim Order. Also, the Custodian failed to respond to the GRC's detailed letter dated January 23, 2007 requesting a complete in camera documentation submission. Certain legal standards must be considered when making the determination of whether the Custodian's actions rise to the level of a "knowing and willful" violation of OPRA. The following statements must be true for a determination that the Custodian "knowingly and willfully" violated OPRA: the Custodian's actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian's actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian's actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian's actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J. Super. 86 (App. Div. 1996) at 107). Based on the Custodian's failure to lawfully comply to the Council's October 19, 2006 Interim Order and failure to respond to the GRC's January 23, 2007 follow-up correspondence, it is possible that the Custodian's actions were intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional. As such, the complaint should be referred to the Office of Administrative Law for determination of a knowing and willful violation of the OPRA under the totality of the circumstances. Such referral shall be made after the enforcement proceeding.
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
February 21, 2007 [1] No legal representation listed on record. [2] Represented by Robert Baum, Esq. (Westfield, NJ). [3] There were other records requested that are not relevant to this complaint. Interim OrderINTERIM ORDER
October 19, 2006 Government Records Council Meeting
At the October 19, 2006 public meeting, the Government Records Council ("Council") considered the October 12, 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. 2006-138 Complainant
v.
West Milford Municipal Utilities Authority[2] Custodian of Records
Records Relevant to Complaint: The minutes from any and all of the executive (closed) sessions authorized by the resolutions during June 2003 through August 2003, September 2004 through November 2004 and December 2005 through February 2006.[3]
Request Made: July 10, 2006 Response Made: July 11, 2006 Custodian: Diane Paretti GRC Complaint Filed: July 14, 2006
Background
July 10, 2006 Complainant's Open Public Records Act ("OPRA") request. The Complainant requests to inspect and/or purchase the minutes from any and all of the executive (closed) sessions authorized by the resolutions during June 2003 through August 2003, September 2004 through November 2004 and December 2005 through February 2006.
July 11, 2006 Custodian's response to the Complainant. In the Custodian's response to the OPRA request one (1) business day following the date the request was received, the Custodian states that the Municipal Utilities Authority attorney, Mr. Baum, has advised the Custodian not to release any close session minutes pertaining to Valley Ridge until all appeals have been exhausted.
July 14, 2006 Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachment:
The Complainant asserts that the law is clear. Public agencies are required to release their closed session minutes to the extent that disclosure will not undermine the basis for excluding the public from the closed meetings.
The Complainant identifies Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556-57 (1997), stating that N.J.S.A. 47:1A-6 burdens the Custodian with providing that every denial is lawful, and N.J.S.A. 47:1A-5.g. requires the Custodian to indicate the specific basis for any denial of access. The Complainant also asserts that beyond stating the specific basis for redactions, the 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 further asserts that the Custodian's denial is based on the Authority's lawyer's advice and raises two problems with the denial: (1) the denial does not address any closed session minutes pertaining to matters other than Valley Ridge, and (2) even if the Valley Ridge matter is under appeal, it doesn't necessarily follow that each set of closed minutes pertaining to that topic cannot be released at least in redacted form.
The Complainant acknowledges that the Custodian, upon receipt of the 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 states 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 GRC to decide which portions shall be released.
The Complainant requests an Order declaring that the Custodian violated OPRA. The Complainant also requests an Order compelling the Custodian to disclose its unredacted minutes from the executive session meetings within the scope of the request.
July 24, 2006 Offer of Mediation sent to both parties. The Complainant did not respond to Mediation.
July 26, 2006 The Custodian agreed to mediate this complaint.
August 15, 2006 Request for Statement of Information sent to the Custodian.
August 24, 2006 No Defense Letter sent to the Custodian because the GRC had not received the Custodian's Statement of Information.
August 30, 2006 Request for Statement of Information sent to the Custodian via fax because the Custodian stated that she had not received the first SOI request due to an inaccurate e-mail address.
September 5, 2006 Custodian's Statement of Information ("SOI"). The Custodian asserts that the foregoing single page minutes of closed session meetings have not been disclosed as they all involve ongoing agreement negotiation with developers (Valley Ridge and Eagle Ridge), easement negotiations relative to condemnation (Awosting) and potential litigation for unpaid fees (Senior Housing).
The Custodian also makes reference to N.J.S.A. 10:4-12 b. (7) which states that a public body may exclude the public from that portion of the meting at which the public body discusses any pending or anticipated litigation or contract negotiation (other than collectively bargaining).
The Custodian further asserts that the Complainant's request for information was requested the day after the planning Board rejected a developer's site plan, contending that the issue was now moot. The Custodian states that the time for appeal has not been exhausted and the Custodian was advised that the matter will be presented to the court at the end of September. The Custodian also states that it is the Authority's position to publish the minutes after the contract has been signed or after the project has been abandoned. The Custodian attests that there appears to be no case directly on point as no court has directed disclosure of contract negotiations before a decision or award has been made. The Custodian also attests that as to the exemption from disclosure of closed session, see Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J. Super. 175 (App. Div. 2004), certification denied 182 NJ 147.
September 5, 2006 The Complainant's response to the Custodian's SOI. The Complainant asserts reiterating that the fact that a topic may lawfully be discussed in closed session does not relieve a public body from its duty to publicly disclose the minutes of that closed session, redacted only to the extent necessary to prevent disclosure of the specific information that would undermine the OPRA exception that authorized the closed session. The Custodian also asserts that the case cited by the MUA supports the Complainant's position. "Even where closure [of a public meeting] is permissible, minutes of the closed meeting, as fully as permitted by the nature of the exemption, must be promptly made available." Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J. Super. 175, 186 (App. Div. 2004), certif. denied. 182 N.J. 147 (2004).
The Complainant states that the Custodian's original basis for denial, as stated in her July 11, 2006 letter, was that the requested minutes were "pertaining to Valley Ridge." Now, in the SOI, the Custodian reveals for the first time that the minutes also pertain to easement/condemnation negotiations relating to Awosting and potential litigation for unpaid fees regarding Senior Housing. The Complainant attests that as in the complaint, the Complainant objects to the Custodian now raising additional justifications for denying the request.
The Complainant states that he anticipates that the GRC's next move will be to conduct an in camera inspection of the minutes that were denied. The Complainant attests that as stated in the complaint, the Complainant objects to an in camera inspection because it (a) deprives the Complainant of the "expedited" proceeding promised by N.J.S.A. 47:1A-6, and (b) because it improperly relieves the Custodian from the Custodian's burden of proving that the records were legitimately denied.
The Complainant states that in addition to reiterating the points from the complaint, the Complainant thinks it is appropriate to add that the manner in which the MUA is handling this complaint shows its inclination to willfully deprive citizens of information that legitimately should be in the public domain. The Complainant further asks how else can the MUA explain a denial of access letter in which a custodian says that the agency's attorney advised her not to release records "...until all appeals have been exhausted" when in fact there were no appeals pending as of the date of her letter and there still haven't been any appeals filed as of this date?
The Complainant also states that 51 days after its denial of access the MUA now contends that what it originally claimed was a denial based on possible legal appeals "pertaining to Valley Ridge" has turned into a claim that a denial is based on "ongoing agreement negotiations" with two separate companies; only one of which is the developer of the proposed Valley Ridge project.
Analysis
Whether the Custodian unlawfully denied access to the requested executive (closed) sessions minutes?
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 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 also states 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.
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 Open Public Meetings Act provides that:
"[e]ach public body shall keep reasonable comprehensible minutes of all its meeting showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matter public shall not be inconsistent with section 7 of this act." N.J.S.A. 10:4-14.
The Complainant asserts that the law is clear. Public agencies are required to release their closed session minutes to the extent that disclosure will not undermine the basis for excluding the public from the closed meetings.
The Complainant cites Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556-57 (1997), stating that N.J.S.A. 47:1A-6 burdens the Custodian with providing that every denial is lawful, and N.J.S.A. 47:1A-5.g. requires the Custodian to indicate the specific basis for any denial of access. The Complainant also asserts that beyond stating the specific basis for redactions, the 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 further asserts that the Custodian's denial is based on advice from the Authority's lawyer and raises two problems with the denial: (1) the denial does not address any closed session minutes pertaining to matters other than Valley Ridge, and (2) even if the Valley Ridge matter is under appeal, it doesn't necessarily follow that each set of closed minutes pertaining to that topic cannot be released at least in redacted form.
The Complainant acknowledges that the Custodian, upon receipt of the 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 states that the GRC sometimes conducts in camera reviews in matters such as this one. The Complainant objects to such a review because he asserts that it is the Custodian's burden to prove that its redactions are lawful. The Complainant further asserts that the Custodian should not just give the unredacted minutes to the GRC to decide which portions shall be released.
The Complainant requests an Order declaring that the Custodian violated OPRA. The Complainant also requests an Order compelling the Custodian to disclose its unredacted minutes from the executive session meetings within the scope of the request.
The Custodian asserts that the foregoing single page minutes of closed session meetings have not been disclosed as they all involve ongoing agreement negotiation with developers (Valley Ridge and Eagle Ridge), easement negotiations relative to condemnation (Awosting) and potential litigation for unpaid fees (Senior Housing).
The Custodian also makes reference to N.J.S.A. 10:4-12 b. (7) which states that a public body may exclude the public from that portion of the meting at which the public body discusses any pending or anticipated litigation or contract negotiation (other than collectively bargaining).
The Custodian further asserts that the Complainant's request for information was requested the day after the Planning Board rejected a developer's site plan, contending that the issue was now moot. The Custodian states that the time for appeal has not been exhausted and the Custodian was advised that the matter will be presented to the court at the end of September. The Custodian also states that it is the Authority's position to publish the minutes after the contract has been signed or after the project has been abandoned. The Custodian attests that there appears to be no case directly on point as no court has directed disclosure of contract negotiations before a decision or award has been made. The Custodian also attests that as to the exemption from disclosure of closed session, see Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J. Super. 175 (App. Div. 2004), certification denied 182 NJ 147.
The Complainant asserts reiterating that the fact that a topic may lawfully be discussed in closed session does not relieve a public body from its duty to publicly disclose the minutes of that closed session, redacted only to the extent necessary to prevent disclosure of the specific information that would undermine the OPRA exception that authorized the closed session. The Custodian also asserts that the case cited by the MUA supports the Complainant's position. "Even where closure [of a public meeting] is permissible, minutes of the closed meeting, as fully as permitted by the nature of the exemption, must be promptly made available." Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J. Super. 175, 186 (App. Div. 2004), certif.. denied. 182 N.J. 147 (2004).
The Complainant states that the Custodian's original basis for denial, as stated in her July 11, 2006 letter, was that the requested minutes were "pertaining to Valley Ridge." Now, in the SOI, the Custodian reveals for the first time that the minutes also pertain to easement/condemnation negotiations relating to Awosting and potential litigation for unpaid fees regarding Senior Housing. The Complainant attests that as in the complaint, the Complainant objects to the Custodian now raising additional justifications for denying the request.
The Complainant states that he anticipates that the GRC's next move will be to conduct an in camera inspection of the minutes that were denied. The Complainant attests that as stated in the complaint, the Complainant objects to an in camera inspection because it (a) deprives the Complainant of the "expedited" proceeding promised by N.J.S.A. 47:1A-6, and (b) because it improperly relieves the Custodian from the Custodian's burden of proving that the records were legitimately denied.
The Complainant states that in addition to reiterating the points from the complaint, the Complainant thinks it is appropriate to add that the manner in which the MUA is handling this complaint shows its inclination to willfully deprive citizens of information that legitimately should be in the public domain. The Complainant further asks how else can the MUA explain a denial of access letter in which a custodian says that the agency's attorney advised her not to release records "...until all appeals have been exhausted" when in fact there were no appeals pending as of the date of her letter and there still haven't been any appeals filed as of this date?
The Complainant also states that 51 days after its denial of access the MUA now contends that what it originally claimed was a denial based on possible legal appeals "pertaining to Valley Ridge" has turned into a claim that a denial is based on "ongoing agreement negotiations" with two separate companies; only one of which is the developer of the proposed Valley Ridge project.
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 provided the Complainant with an incomplete basis for denial by stating that the MUA attorney advised the Custodian not to release any closed session minutes pertaining to Valley Ridge until all appeals have been exhausted, and then later indicating in the SOI that the minutes have not been disclosed because they involve ongoing agreement negotiation with developers (Valley Ridge and Eagle Ridge), easement negotiations relative to condemnation (Awosting) and potential litigation for unpaid fees ( Senior Housing). Since the Custodian did not completely and properly bear her burden of proving that the denial of access is authorized by law at the time of the denial as is required under N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-5.i., the Custodian has unlawfully denied access to the requested records by not properly denying access within the statutorily mandated seven (7) business day's timeframe.
Additionally, OPRA provides that when the custodian of a government record asserts that part of the record is exempt from public access, the custodian must delete from a copy of the record that portion which the custodian asserts is exempt from access. N.J.S.A. 47:1A-5.g. Therefore, the Custodian's failure to release at least redacted copies of the requested minutes to the Complainant resulted in a violation of N.J.S.A. 47:1A-5.g.
While the Custodian asserts that the requested minutes are exempt from disclosure stating that the MUA attorney advised the Custodian not to release any closed session minutes pertaining to Valley Ridge until all appeals have been exhausted, and then later indicating in the SOI that the minutes have not been disclosed because they involve ongoing agreement negotiation with developers (Valley Ridge and Eagle Ridge), easement negotiations relative to condemnation (Awosting) and potential litigation for unpaid fees ( Senior Housing), the Council should conduct an in camera review of the requested minutes to determine if said document, or portions therein are exempt from disclosure as the Custodian asserts.
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 |
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