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2006-49
Final DecisionFINAL DECISION
November 15, 2006 Government Records Council Meeting
At the November 15, 2006 public meeting, the Government Records Council (“Council”) considered the November 8, 2006 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 has complied with the Council’s September 21, 2006 Interim Order.
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 15th Day of November, 2006
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: November 21, 2006 Supplemental Findings and Recommendations of the Executive DirectorSupplemental Findings and Recommendations of the Executive DirectorNovember 15, 2006 Council Meeting
Records Relevant to Complaint: A copy of the Complainant’s (Narinder Gautam) psychiatric evaluation report. Request Made: December 6, 2005 Response Made: December 13, 2005 Custodian: Gary Vogler GRC Complaint Filed: February 21, 2006
Background
September 21, 2006 Government Records Council’s (“Council”) Interim Order. At its September 21, 2006 public meeting, the Council considered the September 7, 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, found that:
The second (2nd) paragraph on page one (1) of the Complainant’s psychiatric report, except for the first and last sentences, is exempt from disclosure pursuant to N.J.S.A. 47:1A-1, (a public agency’s responsibility and obligation to safeguard a citizen’s right to privacy), as well as Wilcox v. Township of West Caldwell, GRC Complaint No. 2004-28, (October 2004) and Perino v. Borough of Haddon Heights, GRC Complaint No. 2004-128, (November 2004).
The Custodian shall disclose the first and last sentences of the Complainant’s psychiatric report within five (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director of the Government Records Council. Therefore, the Custodian shall disclose the first and last sentences of the Complainant’s psychiatric report on Monday, October 16 and simultaneously provide certified confirmation of compliance to the Executive Director of the Government Records Council.
October 3, 2006 Council’s Interim Order distributed to the parties.
October 6, 2006 Council’s Revised Interim Order distributed to the parties naming the exact date that compliance was required.
October 16, 2006 Custodian’s response to the Council’s Interim Order. The Custodian legally certifies that he provided the Complainant the requested record, in a form redacted pursuant to the provisions of the Council’s Revised Interim Order, within the time frame dictated in such Order.
Analysis
Whether the Custodian complied with the Council’s September 21, 2006 Interim Order?
The Custodian legally certifies that he provided the Complainant the requested record, in a form redacted pursuant to the provisions of the Council’s Revised Interim Order by Monday, October 16, 2006 as ordered. Therefore, the Custodian has complied with the Council’s September 21, 2006 Interim Order.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the Custodian has complied with the Council’s September 21, 2006 Interim Order.
Prepared and Approved By: Catherine Starghill, Esq. Executive Director
November 8, 2006 Interim Order 2
At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 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 the second (2nd) paragraph on page one (1) of the in the Complainant’s psychiatric report, except for the first and last sentences, is exempt from disclosure pursuant to N.J.S.A. 47:1A-1, (a public agency’s responsibility and obligation to safeguard a citizen’s right to privacy), as well as Wilcox v. Township of West Caldwell, GRC Complaint No. 2004-28, (October 2004) and Perino v. Borough of Haddon Heights, GRC Complaint No. 2004-128, (November 2004).
The Custodian shall disclose the first and last sentences of the Complainant’s psychiatric report within ten (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director of the Government Records Council.
Interim Order Rendered by the Government Records Council On The 21st Day of September, 2006
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
In Camera Findings and Recommendations of the Executive DirectorIn Camera Findings and Recommendations of the Executive DirectorSeptember 21, 2006 Council Meeting
Narinder Kumar Gautam[1] GRC Complaint No. 2006-49 Complainant
v.
Department of Banking and Insurance (“DOBI”) [2] Custodian of Records
Records Relevant to Complaint: A copy of the Complainant’s (Narinder Gautam) psychiatric evaluation report. Request Made: December 6, 2005 Response Made: December 13, 2005 Custodian: Gary Vogler GRC Complaint filed: February 21, 2006 Background
August 15, 2006 Interim Order and Findings and Recommendations of the Government Records Council. At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 2006 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the Executive Director’s analysis, but adopted a different conclusion. The Council, therefore, found that:
August 15, 2006 In camera letter requesting documents sent to both parties.
August 28, 2006 The Complainant responds to the Interim Order. The Complainant again objects to the redaction of the one paragraph in the report. The Complainant states that in the Custodian’s initial response to his (the Complainant) request on December 13, 2005 they stated that no redactions were necessary. Therefore, he states that he considers all aspects of redaction totally inappropriate. (The Custodian’s initial response to the request was to deny the entire report, therefore, at that time no redactions were deemed necessary by the Custodian because they claimed that the entire report was non-disclosable.)
August 30, 2006 The Complainant submits additional correspondence to the GRC staff wherein he states that there should be no fear of unsolicited contact by him because over the last thirty years there has not been one instance of such contact.
September 11, 2006 The Complainant submits additional correspondence to the GRC staff wherein he objects to the fact that the psychiatric report was received before the day of the Council meeting.
September 6, 2006 Certification of the Custodian with the following attachments:
The Custodian’s certification states that the records provided are a true and exact copy of the complete November 10, 2004 report prepared by Dr. Carl Chiapetta. The one paragraph withheld by the Department, in entirely unredacted form, has been highlighted. The Custodian’s certified index indicates the following exemptions:
Analysis
An in camera inspection was conducted on the following document: the one paragraph that was withheld in the Complainant’s psychiatric report. Based on this in camera inspection the Council finds: The second (2nd) paragraph on page one (1) of the report that was withheld in the Complainant’s psychiatric report dated 11/10/2004 consists of six (6) sentences within one (1) paragraph.
“The second (2nd) paragraph on page one (1) in the Complainant’s psychiatric report”: The entire paragraph, except for the first and last sentences, is exempt from disclosure pursuant to N.J.S.A. 47:1A-1, (a public agency’s responsibility and obligation to safeguard a citizen’s right to privacy), as well as Wilcox v. Township of West Caldwell, GRC Complaint No. 2004-28, (October 2004) and Perino v. Borough of Haddon Heights, GRC Complaint No. 2004-128, (November 2004).
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that the second (2nd) paragraph on page one (1) of the in the Complainant’s psychiatric report, except for the first and last sentences, is exempt from disclosure pursuant to N.J.S.A. 47:1A-1, (a public agency’s responsibility and obligation to safeguard a citizen’s right to privacy), as well as Wilcox v. Township of West Caldwell, GRC Complaint No. 2004-28, (October 2004) and Perino v. Borough of Haddon Heights, GRC Complaint No. 2004-128, (November 2004).
The Custodian shall disclose the first and last sentences of the Complainant’s psychiatric report within ten (5) business days from receipt of this Interim Order and simultaneously provide certified confirmation of compliance to the Executive Director of the Government Records Council.
Prepared By: Christopher Malloy Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
Interim Order
At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the Executive Director’s analysis, but adopted a different conclusion. The Council, therefore, finds that:
Interim Order Rendered by the Government Records Council On The 10th Day of August, 2006
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
Findings and Recommendations of the Executive DirectorNarinder Kumar Gautam[1] GRC Complaint No. 2006-49Complainant
v.
Department of Banking and Insurance (“DOBI”) [2] Custodian of Records
Records Relevant to Complaint: A copy of the Complainant’s (Narinder Gautam) psychiatric evaluation report. Request Made: December 6, 2005 Response Made: December 13, 2005 Custodian: Gary Vogler GRC Complaint filed: February 21, 2006
Background
December 6, 2005 Complainant’s Open Public Records Act (“OPRA”) request asking for the records enumerated above.
December 13, 2005 Custodian’s response to the Complainant (on the records request form). The Complainant’s records request was denied on the basis that the report is confidential pursuant to N.J.S.A. 47:1A-3 (part of a non-law enforcement agency) and N.J.S.A. 47:1A-10 (personnel records).
February 21, 2006 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachment:
The Complainant states that the psychiatric report has totally damaged his personal credibility and he states that his privacy has been grossly invaded. The Complainant states that the information in the evaluation report belongs to him and DOBI has no business in keeping it.
The Complainant cites N.J.A.C. 4A:1-2.2(b) which provides that individual personnel records are not public records and shall not be released other than to the subject employee. The Complainant states that he is the subject employee, and is therefore entitled to a copy of the report. The Complainant goes on to state that N.J.S.A. 47:1A-3.a.[3] is not applicable because there was no investigation, nor is there any investigation currently going on. The Complainant also states that there is nothing in the report that is inimical to the public interest. The Complainant goes on to cite N.J.S.A. 47:1A-10 which states that personnel records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by the state, or when authorized by the individual in interest.
The Complainant states that he was deceptively made to sign a formal consent form. He states that the doctor has refused to give him a copy of the report, and the doctor seems to be acting as a collusion partner with Ms. Dana Foraker, DOBI’s Relation Coordinator.
March 2, 2006 Mediation offered to both parties. Neither party agreed to mediation of this complaint.
March 20, 2006 Request for Statement of Information sent to the Custodian.
April 7, 2006 Custodian’s SOI with attachments:
Custodian’s Counsel states that on November 9, 2004, Dr. Carl Chiapetta performed a psychiatric examination of the Complainant at the request of the Department. Counsel states that the Complainant was employed by the Department at the time of the evaluation, and remains so employed today. Custodian’s Counsel states that the Department required the exam in order to determine whether the Complainant was fit for duty, and whether he posed a safety or security danger to himself or to fellow employees with whom he works every day at the Department. Custodian’s Counsel cites Tingler v. City of Tampa, 400 So. 2d 146 (Fla. App. 1981); and Flynn v. Sandhal, 58 F. 3d 283 (7th Cir. 1995) and states that fitness-for-duty examinations have consistently been upheld as a justifiable means of ensuring the psychological fitness of employees.
Custodian’s Counsel states that on December 6, 2005, the Complainant submitted his OPRA request to the Department seeking a copy of the report prepared by Dr. Chiapetta. Counsel goes on to state that the Department denied the Complainant’s request based on N.J.S.A. 47:1A-3.a. (the requested information is part of an investigation and might jeopardize the safety of a Department employee) and N.J.S.A. 47:1A-10 (the requested record is not part of the employee’s personnel file subject to disclosure).
Custodian’s Counsel states that the Department remains gravely concerned about disclosing any part of the report to the extent it might jeopardize the security or privacy interests of any of its employees, including the Complainant. Counsel cites Executive Order # 49 (EO 49) and states that workplace violence or threats will not be tolerated, and that each agency shall implement strategies to prevent workplace violence.
Custodian’s Counsel states that under the unique circumstances of this case, especially the fact that the OPRA request was made by the Department employee who actually underwent the examination, the Department is willing to disclose the entirety of the psychiatric report to the Complainant, except for one paragraph that will not be disclosed for privacy and security reasons. Counsel states that this paragraph contains information about readily identifiable, current Department employees who raised concern about the Complainant’s fitness for duty, and in turn, their own safety at work.
Custodian’s Counsel cites Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3rd Cir. 1981), and states that case law is replete with matters involving workplace violence. Custodian’s Counsel states that disclosure of the redacted information would impact the privacy interests of employees who expressed concerns, in private and in confidence, to the Department, about working with the Complainant. Counsel goes on to state that producing the report in unredacted form would have a chilling effect on the future disclosure of such confidential information. Custodian’s Counsel alleges that such disclosure would ultimately directly affect the security afforded to all employees, who are entitled to work in a safe, nonviolent environment.
Custodian’s Counsel states that the Legislature has determined that a public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy. Counsel goes on to state that information that is deemed confidential is not considered a “government record” under OPRA. Michelson v. Wyatt, 379 N.J. Super. 611, 619 (App. Div. 2005) (citing N.J.S.A. 47:1A-1.1) Counsel states that employees who raise concern over workplace violence do so with the reasonable expectation that their name, as well as the reasons for such concern will never be disclosed. Custodian’s Counsel cites Wilcox v. Township of West Caldwell, GRC Complaint No. 2004-28, (October 2004) and Perino v. Borough of Haddon Heights, GRC Complaint No. 2004-128, (November 2004) and states that the GRC has recognized that disclosing the name of an informant or complainant could result in unsolicited contact and confrontation between the requestor and the complainant, and that redaction is appropriate.
April 17, 2006 Complainant’s response to the Custodian’s SOI. The Complainant “demands” a copy of the report which has been refused “under manufactured circumstances.” The Complainant states that the report should be considered confidential and exempt from disclosure to the public, however, it should be provided to him. The Complainant also references Custodian’s counsel’s citation of Michelson v. Wyatt and states that it is totally “misplaced” because in said case the request was for medical information of a large number of people.
April 24, 2006 Complainant’s continuation of response to the Custodian’s SOI. The Complainant requests that DOBI release to him the copies of prior psychiatric evaluation reports from 1988, 1989, and 1990. (The Complainant has since filed another complaint with the GRC in reference to these reports.) The Complainant alleges that the contents of the reports have been made known to the employees mentioned in them.
May 2, 2006 Custodian’s Counsel’s response to both of the Complainant’s responses to the SOI. Counsel states that the Complainant makes a number of unsubstantiated allegations against the Department, all of which have nothing to do with the sole issue before the GRC, which is whether the report from Dr. Chiapetta should be disclosed. Custodian’s Counsel also objects to the fact that the Complainant’s letters discuss at great length alleged mistreatment he received by the Department nearly twenty (20) years ago. Finally, Custodian’s Counsel states that the incessant submissions from the Complainant should be stricken from the record as irrelevant and unauthorized filings inconsistent with the rules of the GRC and other forums.
May 8, 2006 Complainant’s response to Custodian Counsel’s May 2, 2006 letter. The Complainant states that he is not a danger to anyone and he has never hurt anybody in his entire life.
Analysis Whether the Custodian unlawfully denied access to anyof the records requested? 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
OPRA also states that:
“…a public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy…” (Emphasis added.) N.J.S.A. 47:1A-1
OPRA defines a government record as follows:
“ … 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.
Further, OPRA states that the Custodian has to prove that a denial of access is authorized by law. 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.
OPRA states in part:
"Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:
[p]ersonnel or pension records of any individual shall be accessible when required to disclosed by another law…or when authorized by an individual in interest… (Emphasis added.) N.J.S.A. 47:1A-10.
The Complainant submitted his OPRA request on December 6, 2005. He states that the psychiatric report has totally damaged his personal credibility and he states that his privacy has been grossly invaded. The Complainant states that the information in the evaluation report belongs to him, and DOBI has no business in keeping it.
The Complainant cites N.J.A.C. 4A:1-2.2(b) which provides that individual personnel records are not public records and shall not be released other than to the subject employee. The Complainant states that he is the subject employee, and is therefore entitled to a copy of the report. The Complainant goes on to state that N.J.S.A. 47:1A-3.a.[4] is not applicable because there was no investigation, nor is there any investigation currently going on. The Complainant asserts that there is nothing in the report that is inimical to the public interest. The Complainant goes on to cite N.J.S.A. 47:1A-10 which states that personnel records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by the state or when authorized by the individual in interest.
Custodian’s Counsel states that on December 6, 2005, the Complainant submitted his OPRA request to the Department seeking a copy of the report prepared by Dr. Chiapetta. Counsel goes on to state that the Department denied the Complainant’s request based on N.J.S.A. 47:1A-3.a. (the requested information is part of an investigation and might jeopardize the safety of a Department employee) and N.J.S.A. 47:1A-10 (the requested record is not part of the employee’s personnel file subject to disclosure).
Custodian’s Counsel states that the Department remains gravely concerned about disclosing any part of the report to the extent it might jeopardize the security or privacy interests of any of its employees, including the Complainant. Counsel cites Executive Order # 49 (EO 49) and states that workplace violence or threats will not be tolerated, and that each agency shall implement strategies to prevent workplace violence.
Custodian’s Counsel states, however, that under the unique circumstances of this case, especially the fact that the OPRA request was made by the Department employee who actually underwent the examination, the Department is willing to disclose the entirety of the psychiatric report to the Complainant except for one paragraph which will not be disclosed for privacy and security reasons.
In reference to the paragraph the Custodian deems non-disclosable, Custodian’s Counsel cites Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3rd Cir. 1981), and states that case law is replete with matters involving workplace violence. Custodian’s Counsel goes on to state that disclosure of the redacted information would impact the privacy interests of employees who expressed concerns, in private and in confidence, to the Department, about working with the Complainant. Counsel goes on to state that producing the report in unredacted form would have a chilling effect on the future disclosure of such confidential information. Custodian’s Counsel alleges that such disclosure would ultimately directly affect the security afforded to all employees, who are entitled to work in a safe, nonviolent environment.
Custodian’s Counsel cites Wilcox, supra, and Perino, supra, and states that the GRC has recognized that disclosing the name of an informant or complainant could result in unsolicited contact and confrontation between the informant and the complainant, and that redaction is appropriate.
In both Wilcox and Perino, the Council found that the Complainant’s stated need for access did not outweigh the citizen’s expectation of privacy. (In Wilcox, the Complainant requested the name of the person who brought an alleged zoning violation of the Complainant’s play fort to the Township of West Caldwell’s attention. In Perino, the Complainant requested a Police call sheet that included the name of an individual who complained about noise at the Complainant’s address). The Council also found that disclosure of said information could result in unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives.
Based on the Council’s rulings in Wilcox and Perino, as well as N.J.S.A. 47:1A-1 (a public agency’s responsibility and obligation to safeguard a citizen’s right to privacy), the Custodian may not have unlawfully denied access to the one paragraph the Custodian wishes to redact. However, the Council should conduct an in camera inspection of the one paragraph to determine whether the Custodian has unlawfully denied access to this information or not.
In Hewitt v. Longport Police Department, GRC Case No. 2004-148 (March 2005), the Council determined that an “individual in interest” means the person who is the subject of the personnel file. Therefore, based on the fact that the OPRA request was made by the Department employee who actually underwent the examination, and is the subject of the report, the Complainant is entitled to the entire report, except for the one paragraph that is deemed non-disclosable. Based on the Council’s decision in Hewitt, the Custodian unlawfully denied access to this record. It should be noted that Custodian’s Counsel informed the GRC staff that they were willing to disclose the report except for the one paragraph that is not disclosable.
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:
Prepared By: Christopher Malloy Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
[1] No legal representation [2] Represented by the Division of Law (DOL) [3] The Complainant cited N.J.S.A. 47:1A-3, however, N.J.S.A. 47:1A-3.b. does not apply to DOBI because it is not a law enforcement agency. [4] The Complainant cited N.J.S.A. 47:1A-3, however, N.J.S.A. 47:1A-3.b. does not apply to DOBI because it is not a law enforcement agency. |
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