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State of NJ - Government Records Council Email Grc

2006-22

- Final Decision
- In Camera Findings and Recommendations of the Executive Director
- Interim Order
- Findings and Recommendations of the Executive Director

Final Decision

Tina Renna

    Complainant

         v.

County of Union

    Custodian of Record

Complaint No. 2006-22

 

 

 

At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 2006 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:

 

  1. The Custodian has complied with the Council’s July 13, 2006 Interim Order in supplying the Council with the requested unredacted executive session minutes within ten (10) business days of receiving the Council’s order.
  2. The in camera inspection of the Minutes of the Executive Session – Regular Meeting – February 10, 2005 Board of Chosen Freeholders confirms that all of the redactions made by the Custodian were appropriate.

 

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.  Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. 

 

 

Interim Order Rendered by the

Government Records Council

On The 10th Day of August, 2006

 

 



Vincent P. Maltese, Chairman
Government Records Council

 

I attest the foregoing is a true and accurate record of the Government Records Council.

 

 

Robin Berg Tabakin, Vice Chairman & Secretary
Government Records Council 

 

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In Camera Findings and Recommendations of the Executive Director

 Tina Renna    [1]                                                GRC Complaint No. 2006-22

            Complainant

 

v.

 

County of Union [2]

            Custodian of Records

 

Records Relevant to Complaint: Copies of the February 10, 2005 executive session minutes of the Union County Freeholders meeting.

Custodian:  Nicole Tedeschi

Request Made:  January 17, 2006

Response Made: January 24, 2006

GRC Complaint filed: February 6, 2006

 

Background

July 13, 2006

Interim Order of the Government Records Council. At the July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 13, 2006 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council found that an in camera inspection is required to resolve this matter.

 

July 19, 2006

            Interim Order sent to both parties.

 

July 24, 2006

            In camera documents received electronically for review by the GRC staff.

 

August 1, 2006

            Letter from the GRC to the Custodian.  The GRC sent a letter requesting certification of the unredacted documents.

 

August 2, 2006

            Certification of the Custodian with the a copy of the unredacted Executive Session Minutes of the Union County Board of Chosen Freeholders -Regular Meeting – February 10, 2005.  The following enumerated list identifies the redactions made to the minutes and the corresponding legal basis asserted by the Custodian for such redactions:

 

  1. Disclosed to Complainant in its entirety.
  2. Minutes redacted under Attorney-Client privilege.
  3. Minutes redacted under Attorney-Client privilege.
  4. Minutes redacted relative to personnel matter under N.J.S.A.47:1A-10.
  5. Minutes redacted relative to personnel matter under N.J.S.A.47:1A-10.
  6. Minutes redacted relative to personnel matter under N.J.S.A.47:1A-10.
  7. Minutes redacted under Attorney-Client privilege.
  8. Minutes redacted under Attorney-Client privilege.
  9. Minutes redacted under Attorney-Client privilege.

 

 Analysis

 

The in camera inspection of the requested executive session minutes confirms that all of the redactions made by the Custodian were appropriate.  The redacted information is exempt from disclosure pursuant to the lawful basis provided by the Custodian to the Complainant at the time of the request and to the GRC pursuant to its Interim Order of July 13, 2006.

 

Conclusions and Recommendations

 

            The Executive Director respectfully recommends that the Council find that:

 

  1. The in camera inspection of the Minutes of the Executive Session – Regular Meeting – February 10, 2005 Board of Chosen Freeholders confirms that all of the redactions made by the Custodian were appropriate.

 

 

Prepared By: 

                        Marion Davies

Case Manager

                       

 

Approved By:

Catherine Starghill,Esq.

Executive Director



[1] Complainant – No Attorney listed.

[2] Custodian – No Attorney listed.

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Interim Order

Tina Renna
    Complainant
         v.
County of Union
    Custodian of Record

Complaint No. 2006-22

At the July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 13, 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 an in camera inspection is required to resolve this matter.

 

 

Interim Order Rendered by the

Government Records Council

On The 19th Day of July, 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 

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Findings and Recommendations of the Executive Director

Tina Renna
    Complainant
         v.
County of Union
    Custodian of Record

Complaint No. 2006-22

Records Relevant to Complaint:  Copies of the February 10, 2005 executive session minutes of the Union County Freeholders meeting.  (Other documents were requested but are not the subject of this complaint).

Request Made:  January 17, 2006

Response Made: January 24, 2006   

Custodian: Nicole Tedeschi

GRC Complaint filed: February 6, 2006

Background

 

January 17, 2006

Complainant’s Open Public Records Act (“OPRA”) request.  Complainant filed an OPRA request with County of Union via e-mail requesting the following information to be returned to her by e-mail:

  • A list of all 2005 Union County Resolutions
  • A Union County Employee list as of January 15, 2006. List to include employee name, department title and salary.
  • A Union County Vehicle list as of January 15, 2006, excluding truck and heavy equipment.  This list will include the make, model year and employee and/or department that it is assigned to.
  • All 2005 executive session meeting minutes.

 

January 17, 2006

Custodian’s confirmation of request.  Custodian responded to the Complainant via e-mail confirming receipt of her request.

 

January 20, 2006

Custodian’s response to OPRA request. Custodian responded within the statutorily mandated time frame to the Complainant via e-mail with the following records responsive to the request:

  • All Union County employees with names, departments, salaries and titles.
  • All Union County vehicles used by employees with make, model, year, employee and department assigned.

 

January 24, 2006

Custodian’s additional response to OPRA request. Custodian responded within the statutorily mandated time frame to the complainant via e-mail with all executive session meeting minutes for 2005 as per the Complainant’s request with redactions. The Custodian also provided explanations for the redactions pursuant to N.J.S.A. 47:1A-5g.

 

February 6, 2006

Denial of Access Complainant.  The Complainant filed a Denial of Access Complainant with the Government Records Council (“GRC”).  Complaint included the following attachments:

  • January 17, 2006 - Copy of the OPRA request made to the Township of Union.
  • February 10, 2005 - Redacted copy of the executive session meeting minutes

      of the Union County Board of Freeholders.

 

The Complainant requests more specific information as to the reasons of the redactions of the executive session minutes for the February 10, 2005 meeting.

 

February 6, 2006

Offer of Mediation sent to both parties.

 

February 6, 2006

            Mediation Agreement declined by Complainant.

 

February 7, 2006

            Mediation Agreement signed by the Custodian.

 

February 22, 2006

             Request for the Statement of Information sent to the Custodian.

 

March 6, 2006

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

  • Copy of Complainant’s original OPRA request.
  • Copy of January 17, 2006 e-mail to the Complainant from Custodian.
  • Copy of January 24, 2006 e-mails from the Custodian to the Complainant containing the redacted executive session meeting minutes for 2005
  • Copy of the February 10, 2005 redacted executive session meeting minutes of the Union County Board of Freeholders.
  • Certification from the Custodian with a description of redacted portions of the February 10, 2005 executive session minutes sent to the Complainant via e-mail as per her request. Explanations of redacted minutes listed as follows:

Item 1.  This case was settled. The confidentiality agreement is being finalized.

 

Item 2.  Minutes redacted under attorney-client privileged communications in a matter involving on-going litigation.

 

Item 3.  Two out of the three counts have been dismissed.  Remainder of the minutes redacted under attorney-client privilege communication on a matter involving on-going contractual negotiations.

 

Item 4.  Minutes redacted relative to a personnel matter exempt under N.J.S.A. 47:1A-10.

 

Item 5.  Minutes redacted relative to a personnel matter exempt under N.J.S.A. 47:1A-10.

 

Item 6.  Minutes redacted relative to a personnel matter exempt under

N.J.S.A 47:1A-10.

 

Item 7.  Sica v. The County of Union: Plaintiff asserts the County has some liability because Officer Catena was present and should have stopped the actions of the Winfield Park Police Office.  Winfield settled for $240,000.  The remainder of the minutes redacted under attorney-client privilege communication.

 

Item 8.   Minutes redacted under attorney-client privileged communications in a matter involving on going litigation.

 

Item 9.  Minutes redacted under attorney-client privileged communications in a matter involving on going litigation.

 

The Custodian asserts that the Complainant requested these documents in electronic format which does not allow documents to be redacted in the standard format.  The Custodian also stated that she did consult with the County’s Bureau of Information regarding possible “electronic redaction” of the text.  However, it was determined that there was no technologically proven manner to do so that would ensure the integrity of the “redacted” portions.  Therefore, the Complainant was given a brief description of the redacted portion of the documents requested.  Additionally, the Custodian stated that the County would be happy to provide copies of the unredacted executive session meeting minutes at issue to the GRC for an in camera review.

 

March 13, 2006

Complainant response to the Custodian’s SOI. The GRC staff received a letter from the Complainant stating that she was in receipt of the SOI from the Custodian.  The Complainant only asserts that the redactions made to the February 10, 2005 executive session minutes were not justified.

 The Complainant states that the Open Public Meetings Act permits public bodies to meet in private to discuss certain sensitive issues.  The Complainant also asserts that the Custodian has not fully met the required burden of proof under OPRA.

 

March 16, 2006

            Information request letter from the GRC staff to Custodian. Letter sent to the Custodian from the GRC staff requesting more detailed information explaining the redactions of the February 10, 2005 executive session meeting minutes. GRC staff requests that the Custodian submit her response no later than March 23, 2006.

 

March 23, 2006

Custodian’s supplemental response to the SOI. The Custodian responded to the GRC with a certified supplemental SOI which contained a copy of the redacted February 10, 2005 executive session meeting minutes with updated explanations as follows:

Item 1.  No redactions. (Presumably the redactions are not consistent with the original SOI, this statement does not indicate settlement of the matter.)

 

Item 2.  Portion redacted consists of advice from attorney to client (Board of Chosen Freeholders) regarding settlement options. (Reason for redaction is unclear and maybe inconsistent with Custodian’s original SOI.)

 

Item 3. Portion redacted consists of advice from attorney to client regarding settlement options. (Reason for redaction is unclear and maybe inconsistent with Custodian’s original SOI.)

 

Item 4. Portions redacted consist of a brief report to the Freeholder regarding personnel actions against two (2) County employees.

 

Item 5. Portion redacted consists of a report to the Freeholders about and incident involving a Juvenile detainee. (Reason for redaction is unclear and  maybe inconsistent with Custodian’s original SOI.)

 

Item 6.  Portion redacted consists of a brief report to the Freeholder regarding personnel action against County employee.

 

Item7.  Portion redacted consists of advice from attorney to client regarding settlement options.

 

Item.8. No redactions. (This information has recently been approved for public release).

 

Item 9. Portion redacted consists of a brief report from counsel regarding allegations made in a matter of pending litigation.

 

March 28, 2006

            Complainant’s response to the Custodian’s Supplemental SOI.  The Complainant stated that the Custodian’s supplemental explanation gave more information than the first explanation that was submitted to her. The Complainant also asserts that she is entitled to a finding that the Custodian is in violation of OPRA. The Complainant also asserts that the Custodian has produced no evidence why the County needs to suppress the names of the parties.

 

            Second, the Complainant asserted that the Custodian’s reasons for the redactions are insufficient to prove that the redacted material is exempt from disclosure.

 

            Finally, the Complainant asserts that the record in this matter should be closed and that the GRC should make a decision on the record before it. The complainant also asserts that the GRC should make a determination on whether the Custodian has satisfied its burden of proof regarding the redacted material.  The Complainant asserts that she would object to the GRC accepting any further supplemental submissions from the Custodian and also would object to an in camera review. 

Analysis

 

Whether the Custodian unlawfully denied access to the February 10, 2005 Union County Freeholder Board executive session 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 …” (Emphasis added.) N.J.S.A. 47:1A-1.1.

 

The Open Public Meeting Act provides: 

           

“[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 in subsection b. (4) herein in which the public body is, or may become a party. Any matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer.” N.J.S.A. 10:4-12.b (7).

 

The Open Public Meetings Act also provides:

           

“[e]ach public body shall keep reasonably comprehensible minutes of all its meetings 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 matters public shall not be inconsistent with section 7 of this act.” N.J.S.A. 10:4-14.

 

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…” (Emphasis added.) N.J.S.A. 47:1A-6.

 

            The Custodian certifies that she received the original request on January 17, 2006 and responded on January 24, 2006. The requestor was sent a response by e-mail containing redacted versions of all 2005 executive session meeting minutes. The Custodian certifies that the minutes for each meeting had been reviewed and redacted, where appropriate, by the County counsel.  The Custodian states that ordinarily, when providing hard copies of documents to requestors, the County’s practice is to copy the record, strike through the privileged material and then provide the requestor with a copy of the redacted page. The Custodian also states that the OPRA request was filled in the medium requested. The Custodian asserts that there are few ways to adequately describe the matters discussed in executive session without revealing the substance of the confidential matter. Also by accommodating the Complainant’s request in the medium requested, the redactions could only be provided in a specific manner. The Custodian did consult with the County’s Bureau of Information Technology regarding a possible “electronic redaction” of the text. However, it was determined that there was no technologically proven manner to do so that would ensure the integrity of the “redacted” portions.

 

            Additionally, the Custodian asserts that in accordance with Paff v. New Jersey Department of Labor Board of Review, 379  N.J.Super 346 (August, 2005), the County would be happy to provide copies of the unredacted executive session meeting minutes at issue to the Council for an in camera review.

 

            In response to the Custodian’s SOI, the Complainant cited the Open Public Meetings Act (N.J.S.A. 10:4-12b.(7)) in that  “[a] public body may exclude the public only from that portion of a meeting at which the public body discusses…[a]ny pending or anticipated litigation or contract negotiations other than in subsection b.(4) herein in which the public body may become a party.”  The Complainant also cited N.J.S.A.10:4-14 which states: “[e]ach public body shall keep reasonably comprehensible minutes of all its meetings 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 matters public shall not be inconsistent with section 7 of this act.”   The Complainant also contends that she is entitled to more specific  reasons for redactions to the February 10, 2005 executive session minutes in Item 4 – portions redacted consist of a brief report to the Freeholder regarding personnel actions against two (2) County employees, Item 5 – portions redacted consists of a report to the Freeholders about an incident involving a Juvenile detainee, Item 6 – portion redacted consists of a brief report to the Freeholder regarding personnel action against a County employee.

The Complainant asserts that these items should reveal more information on the decisions made or more specific reasons for the redactions.

 

            The Complainant has also stated that the GRC should not conduct an in camera review of the document and should order the Custodian prove that the redactions are lawful.

 

            On March 23, 2006 the Custodian sent the GRC staff a supplement response to the SOI, including the original redacted documentation with explanations clarifying the reasons for each redaction.  The Custodian also certified that the reasons for the redactions are valid under OPRA.

 

            The Complainant responded to the GRC staff on March 28, 2006 stating that although the supplemental response revealed more information than the original version attached to her complaint, the supplemental response is still lacking sufficient proof that the redacted material is exempt from disclosure.

 

            Finally, the Complainant asserts that this matter should be closed and that the GRC should make a decision on the record before it, accepting no other supplemental information from the Custodian and not granting the Custodian an in camera review to relieve them of their burden of proof.

 

            Therefore, the Council should conduct an in camera review of the February 10, 2005 executive session minutes of the Union County Board of Freeholders.

 

Conclusions and Recommendations

 

The Executive Director respectfully recommends that the Council find that an in camera inspection is required to resolve this matter.

 

 

Prepared By: 

                        Marion Davies

                        Case Manager

 

 

Catherine Starghill

Executive Director

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