Minutes of the Government Records Council
July 30, 2002
Commissioner Bass Levin called the meeting to order at 3:21 p.m.
Commissioner Bass Levin read the Open Public Meetings Statement.
Mr. Pfeiffer called roll as follows:
Present:
Vincent Maltese, Susan Bass Levin (Commissioner of Department of
Community Affairs), Virginia Hook, Dwight Pfennig (Deputy
Commissioner of the Department of Education and designee of the
Commissioner of Department of Education and Bernard Spigner.
Also Present: Barbara Conklin, Deputy Attorney General, Marc Pfeiffer, Acting
Executive Director, Joseph Greer, GRC Staff and Marc Leavitt, GRC
Staff.
Commissioner Bass Levin called for adoption of Robert Rules of Order as the operating
procedure for the Council. Ms. Hook moved to adopt Robert Rules of Order, with a second by
Mr. Spigner. The motion was adopted by a call of ayes and nays as follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Commissioner Bass Levin called for the nomination of Chair. Mr. Spigner nominated Vincent
Maltese, with a second by Ms. Hook. There were no other nominations. The nominations were
closed. The motion was adopted by a call of ayes and nays as follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Mr. Maltese was elected Chair.
Chair Maltese called for the nomination of Vice Chair. Deputy Commissioner Pfennig
nominated Bernard Spigner with a second by Ms. Hook. There were no other nominations. The
nominations were closed. The motion was adopted by a call of ayes and nays as follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Government Records Council
Minutes of July 30, 2002
Page 1
Nays: None
Abstain: None.
Mr. Spigner was elected Vice Chair.
Chair Maltese called for the nomination of Secretary. Mr. Spigner nominated Virginia Hook
with a second by Commissioner Bass Levin. There were no other nominations. The
nominations were closed. The motion was adopted by a call of ayes and nays as follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Ms. Hook was elected as Secretary.
Chair Maltese requested Council Comments. Council members commented on their role and
goal of the Government Records Council.
Chair Maltese called for the appointment of staff. Mr. Spigner moved to appoint Marc Pfeiffer
as Acting Executive Director, Marc Leavitt as Staff Associate and Joseph Greer as Staff
Associate, with a second by Ms. Hook. The motion was adopted by a call of ayes and nays as
follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Chair Maltese welcomed the staff aboard. Commissioner Bass Levin noted that copies of the
staff resumes are available to the public.
Chair Maltese introduced the Deputy Attorney General, Barbara Conklin.
Chair Maltese explained that the Council would have to adopt an interim Inquiry and Complaint
policy. Mr. Pfeiffer explained the policy and stated that copies of the policy are available in the
room, and available on the web. Mr. Pfeiffer noted that the alternative avenue is to file a
complaint with Superior Court. A copy of the interim Inquiry Complaint policy is hereto
attached.
Ms. Hook moved to adopt the interim Inquiry and Complaint Process with a second by Mr.
Pfennig. The motion was adopted by a call of ayes and nays as follows:
Government Records Council
Minutes of July 30, 2002
Page 2
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner. Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Chair Maltese stated that the Council will meet as often as necessary but that a meeting schedule
would also be adopted for the remainder of the year. The meetings will be scheduled for the
second Thursday of every month at 1:00 p.m., subject to postponement if there are no scheduled
agenda items. No meeting is scheduled for August; the next meeting is September 12, 2002.
Mr. Spigner moved to adopt the second Thursday of the each month as the meeting schedule
with a second by Ms. Hook. The motion was adopted by a call of ayes and nays as follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Chair Maltese explained that is was necessary to appoint a Governance Committee to
recommend the bylaws and other standing committees for the Council. The Governance
Committee will be responsible for recommending the rules and procedures of this Council. The
Committee will consist of two GRC members, the Executive Director and the Deputy Attorney
General. Chair Maltese stated that the Chair and Vice Chair of the GRC would serve on the
Committee with the Vice Chair as chair of the committee.
Commissioner Bass Levin moved to appoint the Governance Committee with a second by Ms.
Hook. The motion was adopted by a call of ayes and nays as follows:
Ayes: Mr. Maltese, Commissioner Bass Levin, Ms. Hook, Deputy
Commissioner Pfennig, and Mr. Spigner.
Nays: None
Abstain: None.
Chair Maltese opened the meeting for public comment. Chair Maltese noted that the intent of
the Council was to listen to comments and not debate policy or comment on matters which might
later arise in a Complaint requiring Council adjudication.
Guy Baehr, board member of New Jersey Foundation for Open Government (FOG), addressed
the Council on behalf of FOG and submitted a written copy of his comments, attached. Mr.
Baehr also distributed a copy of FOG’s report on OPRA, suggesting qualifications of, and civil
service status for the Council’s Executive Director, budget recommendations, and use of private
counsel to advise the GRC.
Ron Miskoff, member of the Society of Professional Journalists (SPJ), addressed the Council on
behalf of SPJ and submitted a written copy of his comments, attached. Mr. Miskoff suggested
Government Records Council
Minutes of July 30, 2002
Page 3
that police departments be made aware that criminal records and investigative records have
specific statutory definitions which address the release of information contained therein. Mr.
Miskoff also noted that a SPJ member advised him that, in his opinion, Executive Order 9
(Hughes) pertaining to police records is no longer valid after Executive Order 21 (McGreevey),
and is contrary to statements in the Custodian Handbook (page 30). Mr. Miskoff also stated that
electronic copies of municipal payroll records must be made available to the public even if a
private payroll company holds the records.
William Kearns, General Counsel of the New Jersey State League of Municipalities, noted that
the League has conducted seminars on OPRA which have been attended by over 2,000 elected
and appointed local officials, to date Mr. Kearns advised the Council that the League is willing
to conduct further educational seminars for local officials to assist the GRC. Mr. Kearns stated
that is it reasonable to expect some confusion and misunderstanding in applying OPRA but that
most errors would be made in good faith, and could be resolved with mediation or additional
education. However, formal advice or adjudication by the GRC will be required in some
circumstances.
Chair Maltese closed with his own public comments about the role of the Council in
implementing OPRA.
Commissioner Bass Levin moved to adjourn, with a second by Mr. Spigner. The motion was
adopted unanimously.
Chair Maltese adjourned the meeting at 3:58 p.m.
Respectfully submitted,
Virginia Hook
Secretary
Government Records Council
Minutes of July 30, 2002
Page 4
Minutes of the Government Records Council
October 10, 2002
Chairman Vincent Maltese called the meeting to order at 9:30 a.m.
Acting Executive Director Marc Pfeiffer read the Open Public Meetings Statement.
Chairman Maltese welcomed those persons in attendance, and led the Council and audience in
the Pledge of Allegiance.
Chairman Maltese noted that a communication has been received from Commissioner Bass
Levin about her appointment of Matthew U. Watkins as her designee for this meeting.
Mr. Pfeiffer called the roll as follows:
Present: Chairman Maltese, Mr. Watkins (Director of the Division of Local Government
Services and Commissioner Bass Levin’s designee), Secretary Virginia Hook, Dr.
Dwight Pfennig, Deputy Commissioner of the Department of Education and designee of
the Commissioner of the Department of Education and Vice Chairman Bernard Spigner.
Also Present: Barbara Conklin, Deputy Attorney General; Mr. Pfeiffer, Acting Executive
Director; Joseph Greer and Marc Leavitt, GRC Staff, and Lori Buckelew, Division of
Local Government Services.
Chairman Maltese called for adoption of the minutes of the July 30, 2002 meeting as prepared.
Mr. Spigner moved to adopt the minutes, with a second by Ms. Hook.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Chairman
Maltese.
Chairman Maltese called for the Executive Director’s report. Mr. Pfeiffer read a copy of the
report.
Chairman Maltese requested a report on Council Communications. Mr. Pfeiffer indicated that
the Council received a letter from Thomas Cafferty, attorney for the New Jersey Press
Association, indicating that there was no legal authority for records custodians to require
prepayment and deposits for duplicating records sought in an OPRA request, except for
anonymous requests for copies that would cost more than $5 to fulfill. Mr. Pfeiffer indicated that
the Attorney General’s Office is expected to issue legal advice shortly on the issue in
conjunction with a response to public comment on proposed state agency regulations pertaining
to OPRA.
The Council also received a communication from Richard Gutman, Esq. regarding the need for
records custodians to disclose the reasons for redactions made to government records and the
preferred method of accomplishing the redaction. Mr. Pfeiffer stated that the Council has drafted
a Records Note on the issues, which would be available shortly.
GRC Minutes
October 10, 2002
Chairman Maltese thanked Mr. Gutman, who was in the audience, for his letter.
Chairman Maltese asked Mr. Pfeiffer for any unfinished business. Mr. Pfeiffer stated there was
none.
Chairman Maltese asked Mr. Pfeiffer for any new business. Mr. Pfeiffer stated there was none.
Chairman Maltese asked Mr. Pfeiffer for any other business. Mr. Pfeiffer indicated there were
two matters: adoption of Bylaws and amendments to the Council’s Inquiry and Complaint
Policy. Mr. Pfeiffer noted that the proposed Bylaws have been provided to the Council for
review and approval.
Ms. Conklin explained the Bylaws. Chairman Maltese requested that Section II of the Bylaws be
amended to include the statutory provision of OPRA that grants the Council authority to hire an
Executive Director and such professional and clerical staff as it deems necessary, and that
Section III, Subsection 3(b) be amended to add the Secretary to those positions that are elected
by the Council.
Dr. Pfennig requested that Section III of the Bylaws be amended to include a provision
permitting public comment prior to the Council taking action on certain agenda items. Ms.
Conklin requested clarification that public comment would not be taken on pending GRC
Complaints but would be permitted on matters such as proposed advisory opinions or requests
for opinions. Dr. Pfennig concurred. Chairman Maltese confirmed with Ms. Conklin that the
Council could impose reasonable time limits on all public comment.
Chairman Maltese called for a motion to approve the Bylaws with the proposed amendments.
Ms. Hook moved to approve the Bylaws and the proposed amendments with a second by Mr.
Spigner.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Chairman
Maltese.
Mr. Pfeiffer discussed the revisions to the Council’s Inquiry and Complaint Policy. Mr. Pfeiffer
explained that there are approximately (12) complaints pending before the Council and that the
staff could not proceed to investigate them until the Council had approved a revised procedure
for handling the Complaints. The revisions were prompted by a review by the Division of Law
to ensure that the procedure would provide appropriate due process for the parties involved and
not jeopardize the confidentiality of documents.
Chairman Maltese asked whether the Inquiry and Complaint policy and Bylaws could be revised
if the Council deemed it necessary. Mr. Pfeiffer indicated that they could be amended as needed.
Ms. Conklin advised the Council that the amended Inquiry and Complaint policy must be
approved prior to the staff distributing the staff-prepared Statement of Information. Custodians
would use this form to respond to Complaints. It would become the basis on which staff would
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October 10, 2002
make recommendations for the disposition of a complaint. Ms. Conklin noted that the draft
Statement of Information had been reviewed and approved by the Attorney General’s Office.
Dr. Pfennig requested that Mr. Pfeiffer review the process for determining whether a matter
would be heard before the Council or Office of Administrative Law. Mr. Pfeiffer indicated that
the Council would make that decision on a case-by-case basis, but that generally speaking, he
anticipated that the Council might want to refer those cases to OAL that required extensive
testimony or examination of voluminous amounts of records.
Chairman Maltese called for a motion to approve the revisions to the Inquiry and Complaint
Process. Dr. Pfennig moved to approve with a second by Mr. Spigner.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Chairman
Maltese.
Chairman Maltese opened the meeting for public comment.
Richard Gutman, Esq. addressed the Council concerning complaints filed with the GRC on
behalf of his client Cynthia Teeters. Ms. Conklin suggested that Mr. Gutman not discuss
specifics about those cases. Mr. Gutman agreed and indicated that his client is frustrated with
the delay in processing her GRC complaints and questioned when the Council anticipated that
his client would be interviewed and Ms. Teeters’ cases adjudicated. Mr. Pfeiffer indicated that
no interview would take place and that once the government records custodian completes the
new Statement of Information form GRC staff could commence the investigation of the
Complaint and refer the matter to the Council for determination.
Mr. Gutman also raised a concern about the public’s right to comment prior to the Council
adopting agenda items. Mr. Gutman noted that the policy does not afford the requester an
opportunity to explain his or her position why the denial of access was without factual or legal
basis. Mr. Gutman added that under the original policy, the Executive Director makes a
preliminary decision on the statement supplied by the custodian but not by the requester. Mr.
Gutman argued that this process places the requester at a disadvantage. Cynthia Teeters
indicated that she agreed with Mr. Gutman’s comments.
Mr. Pfeiffer noted that Mr. Gutman’s concern had been anticipated by changes to the complaint
form to include space for the complainant/requester to provide the Council with a detailed
summary of the basis for the Complaint and instructs the requester to provide the Council with
all materials the requester wanted the Council to consider in support of the Complaint. A letter
will be forwarded to all complainants allowing them to amend their original complaints to
include the additional information.
Mr. Gutman asked if complaints would be heard during the Council’s November meeting. Mr.
Pfeiffer indicated that it might be logistically difficult to have items on the Council’s November
agenda due to the time it takes to process them. It will take 10 days for custodians to submit
Statements of Information, staff review, preparation of recommendations, and review by the
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October 10, 2002
parties prior to going to the Council: however, some Complaints should be before the Council for
adjudication by December.
Chairman Maltese thanked Mr. Gutman and Ms. Teeters for their comments.
Deborah Jacobs, appearing on behalf of the New Jersey Foundation for Open Government
raised several issues and made a number of suggestions as follows:
1. How many of the 59 complaints filed to date are unique?
2. What is the length of time it takes to resolve complaints?
3. The Council should keep the inquiry and complaint procedure simple.
4. The Council should issue a list of records that are disclosable to the public.
5. The Council should encourage custodians to respond promptly without waiting the
full seven business days.
6. The Council’s legal advisor should operate independently from the Attorney
General’s Office and use outside staff instead of in-house DCA personnel.
Chairman Maltese thanked Ms. Jacobs for her comments and indicated that Mr. Pfeiffer would
get back to her with answers on her specific questions.
Glen Blue, Director of the Investigation Division for Labor Management Concepts, Inc.
addressed the Council concerning private investigators being denied access to police records. Mr.
Blue submitted a written copy of his comments that is on file with the Council.
Chairman Maltese asked Mr. Pfeiffer and Ms. Conklin to meet with Mr. Blue to discuss his
concerns.
Chairman Maltese thanked Mr. Blue for his comments.
Elaine Hinkle, representing the Municipal Clerks Association of New Jersey, stated that many
of the clerks and residents object to disclosing citizen phone numbers that appeared on public
records. She also noted that clerks were receiving conflicting information being provided by the
County Prosecutors Offices statewide relating to the disclosure of accident reports. Some clerks
are being told that accident reports should be disclosed in their entirety while other clerks are
being advised not to disclose the entire report. Also, some clerks are being advised to charge
anywhere from $10 and up for copies of accident reports, while others are being advised to
charge OPRA fees.
Chairman Maltese thanked Ms. Hinkle for her comments.
Cindy McBride, of Current Status, Inc. stated that companies such as hers received more
cooperation from municipal governments and local authorities prior to OPRA; that there is now a
lot of confusion, and that some municipal clerks are delaying release of records to property
search companies. The delays are having an adverse impact on her business and delaying
property closings. Chairman Maltese asked whether this is general interference by
municipalities or confined to a few municipalities. Ms. McBride indicated that the problem
stems primarily from some municipalities and several municipal utility authorities and that some
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October 10, 2002
MUA and municipal attorneys are not returning phone calls. She added that some MUAs are
holding property tax organizations hostage by providing the information requested in an
expedited fashion, but at a higher fee.
Mr. Watkins indicated that he wants the names of those public agencies engaging in the practices
noted by Ms. McBride. Mr. Watkins stated that this is not appropriate and the problem must be
dealt with.
Mr. Pfeiffer noted that Ms. McBride is a former employee of the Division of Local Government
Service and former tax collector.
Mr. Pfeiffer stated that there appears to be a problem with matters involving property tax
payment status and motor vehicle accident reports and how some local organizations interpret
their responsibilities under OPRA.
Mr. Spigner indicated that some people hide behind the words of the law in order to avoid
complying with it. Mr. Spigner commented that he is embarrassed as a New Jersey resident to
hear of the problems encountered by the commenter in securing access to government records.
Ms. Hook stated that she was shocked by the behavior of custodians described by Ms. McBride.
Chairman Maltese thanked Ms. McBride for her comments.
Ms. Hook moved to adjourn, with a second by Mr. Spigner.
Chairman Maltese adjourned the meeting at 11:20 a.m.
Respectfully Submitted,
Government Records Council
5
Minutes of the Government Records Council
December 12, 2002
The meeting was called to order at 9:30 a.m., the Open Public Meeting Act statement was read,
and attendees said the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese; Matthew U. Watkins; Secretary Virginia Hook; and Vice
Chair Bernard Spigner. Mr. Watkins is serving as designee of Department of Community
Affairs Commissioner Susan Bass Levin.
Absent: Dr. Dwight Pfennig, the designee of Department of Education William Libera.
Also Present: Deputy Attorney General Barbara Conklin, Acting Executive Director
Marc Pfeiffer, and GRC Staff Marc Leavitt and Joseph Greer.
Mr. Maltese indicated that the Council would convene in Executive Session in accordance with
the Open Public Meetings Act. Mr. Maltese informed the audience that he would recuse himself
from any portion of the Executive Session or and regular session relating to a Complaint
concerning the City of Clifton due to a conflict of interest arising from the fact that his law firm
represents the City in other matters Mr. Maltese read a copy of Resolution Number 01-02
authorizing close session as well as statement as to the reason for rescuing himself from any
discussion involving the City of Clifton.
Ms. Hook moved Resolution Number 01-02, with a second by Mr. Spigner. The motion was
adopted by a roll call:
Ayes: Mr. Watkins, Ms. Hook, Mr. Spigner and Mr. Maltese
Nays: None
The Council convened in Closed Session at 9:35.
The Council reconvened in regular session at 10:40 A.M.
Roll Call: Present: Mr. Maltese, Matthew U. Watkins, Virginia Hook, Dr. Dwight
Pfennig and Bernard Spigner.
Absent: None
Also Present: Barbara Conklin, Marc Pfeiffer, Marc Leavitt and Joseph Greer.
Mr. Maltese called for adoption of the minutes of the October 10, 2002 meeting as prepared. Mr.
Spigner moved to adopt the minutes, with a second by Ms. Hook.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.
GRC Minutes
December 12, 2002
Mr. Pfeiffer reported under Old Business, that Richard Gutman’s request for guidance on
redactions is still under review however, he anticipates being able to provide a response within
the next two weeks.
Mr. Pfeiffer read a copy of the Executive Director’s report.
Mr. Pfeiffer indicated that there were five matters to discuss under New Business.
 Complaint 2002-33
Mr. Pfeiffer described Complaint 2002-3 3, Serrano v. South Brunswick Township. Mr. Pfeiffer
recommended that the Council defer action on this matter to provide the staff and the Attorney
General’s office an opportunity to consider a letter regarding the Executive Director’s Findings
and Recommendations received the day before from Thomas J. Cafferty, Esq., on behalf of Mr.
Serrano and The Home News.
Mr. Maltese called for a motion to defer consideration of Complaint 2002-33 until January’s
meeting. Ms. Hook moved to defer with a second by Dr. Pfennig.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook and Mr. Maltese
Nays: Bernard Spigner.
Complaint 2002-33 was deferred until January’s meeting.
 Complaints 2002-46 and 2002-55
Mr. Pfeiffer described Complaints 2002-46 and 2002-55, both involving the City of Paterson
Police Department. Mr. Pfeiffer reported that both complaints concern the $150 fee charged by
the Police Department for a printout of one day’s incident log or “blotter”. The Police
Department has reported that the fee represented $75 for a programmer’s time and $75 for
computer time. Mr. Pfeiffer stated that the $150 fee does not, in his opinion, meet OPRA’s
standard of “extraordinary expenditure of time and effort.” Mr. Pfeiffer further stated that the
complainants’ attorney provided copies of similar printouts from other municipalities, which had
been made available at OPRA’s standard per-page copy rate. Mr. Pfeiffer recommended that
Paterson refund complainant Linda Ellen Fisher the $150 within 30 days, less any per-page copy
cost, and provide a copy of the printout to Douglas Krisburg at OPRA’s standard per-page copy
rate.
Mr. Maltese requested an opinion from Ms. Conklin regarding the procedure by which the
Council could address the issue of complainants’ legal fees. Ms. Conklin stated that reasonable
legal fees are awarded to prevailing parties under OPRA. Ms. Conklin suggested that if the
requesters’ attorney and the custodian do not reach an agreement regarding the amount of
reasonable legal fees within 20 days, the Council could allow the Complainant’s counsel to
submit a written application for fees supported by the attorney certification typically required in
Superior Court proceedings. Mr. Maltese called for a motion to accept the Findings and
Recommendations (F&R) of the Executive Director in Complaints 2002-46 and 2002-55, with
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December 12, 2002
the following additions: 1) the City of Paterson shall refund complainant Linda Ellen Fisher $150
within 30 days minus OPRA’s per-page copy fees; and 2) the complainant’s attorney shall
attempt to reach accord with the City regarding reasonable attorney fees within 20 days. Ms.
Hook moved to accept the F&R with the foremention additions, with a second by Mr. Spigner.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.
Nays: None
Complaints 2002-46 and 2002-55 were adjudicated.
Mr. Pfeiffer recommended that the Council’s order become effective five days after execution to
allow the Custodian time to apply for a stay of the Council’s decision if the Custodian so desired.
 Complaint 2002-25
Mr. Pfeiffer described Complaint 2002-25, Janon Fisher v. County of Passaic, which concerns a
request for the unlisted cell phone numbers of certain County officials. Mr. Pfeiffer stated that
the County denied the request because disclosure of the numbers would compromise its ability to
communicate with key employees in the event of an emergency. Mr. Pfeiffer noted that Mr.
Fisher had not requested the cell phone billing statements that are disclosable, subject to lawful
redaction. Mr. Pfeiffer recommended that the Complaint be dismissed for the reasons set forth in
the F&R.
Mr. Maltese questioned why the Director of Nutrition needed an unlisted number but, after
discussion, the Chair deferred to the County’s judgment regarding its emergency needs.
Mr. Maltese called for a motion to accept the F&R. Ms. Hook moved to accept the F&R with a
second by Mr. Watkins.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.
Nays: None
The F&R of Complaint 2002-25 was accepted by the Council.
 Complaint 2002-33
Mr. Maltese informed the Council that he would have to recuse himself from consideration of
discussion regarding Complaint 2002-3 3, Janon Fisher v. Clifton. Mr. Maltese reiterated that he
has a conflict of interest with respect to this matter. Mr. Maltese appointed Mr. Spigner as
temporary Chair and exited the room.
Mr. Pfeiffer stated that the City of Clifton submitted a letter to the GRC indicating that it will
release a copy of the 911 tapes. Mr. Pfeiffer recommended that the Council delay action pending
the submission of the 911 tapes to the requester.
Ms. Conklin suggested the Council obtain a written withdrawal from the complainant.
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December 12, 2002
Mr. Spigner stated that with a decision or action by the Council, the City could not delay
production of the tape indefinitely and that parties would have to adhere to any deadlines the
GRC imposed for the Council to consider the matter settled.
Mr. Pfeiffer advised that the parties had been working under a condensed schedule in order to be
placed on this meeting’s agenda. Mr. Pfeiffer stated that this type of difficulty could be avoided
by imposing a deadline on submissions further in advance from the Council meeting.
Mr. Spigner called for a motion to accept the Executive Director’s recommendation to defer
consideration of Complaint 2002-33. Ms. Hook moved to accept the recommendation with a
second by Dr. Pfennig.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook and Mr. Spigner.
Nays: None
The Council deferred consideration of Complaint 2002-33.
Mr. Maltese returned to the meeting and opened the meeting for public comment.
Mr. Maltese placed a 5-minute limit on individual comments.
Patricia Jacob, resident of Paterson, discussed the difficulty in obtaining records from the
Township of Totowa. Mr. Maltese suggested that Ms. Jacob meet with GRC staff member
Joseph Greer following the meeting to discuss her concerns in detail
Mr. Maltese thanked Ms. Jacob for her comments.
Dr. Pfennig moved to adjourn, with a second by Mr. Spigner.
Roll Call: Ayes: Mr. Watkins, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.
Nays: None
Mr. Maltese adjourned the meeting at 11: 30 a.m.
Respectfully Submitted,
Government Records Council
4
Minutes of the Government Records Council
January 17, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Dale Caldwell, Assistant Commissioner Department of
Community affairs, Virginia Hook and Bernard Spigner. Mr. Caldwell was designated
substitute for Susan Bass Levin, Commissioner, Department of Community Affairs.
Absent: Dr. Dwight Pfennig, designee of Commissioner William Librera, Department
of Education.
The Chair read a resolution to convene in closed session for the purpose of receiving legal
advice concerning the complaints scheduled for adjudication that day. Ms. Hook moved to
adopt the resolution, which was seconded by Mr. Spigner. All members present approved the
motion. The Council conducted a closed session between 9:35 a.m. and 10:45 a.m.
The Council reconvened in open session at 10:50 a.m. at the Department of Community
Affairs, Room 129, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Dale Caldwell, Assistant Commissioner Department of
Community affairs, Virginia Hook and Bernard Spigner. Mr. Caldwell was designated
substitute for Susan Bass Levin, Commissioner, Department of Community Affairs.
Absent: Dr. Dwight Pfennig, designee of Commissioner William Librera, Department of
Education.
Also Present: Deputy Attorney General Barbara Conklin, Acting Executive Director Marc
Pfeiffer, and GRC Staff Marc Leavitt and Joseph Greer
Mr. Maltese called for the election of a Chairman, Vice Chairman and Secretary for the
Government Records Council for 2003.
Mr. Spigner made a motion nominating Mr. Maltese, Chairman, with a second by Ms. Hook.
There were no other nominations. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.
Ms. Hook made a motion nominating Mr. Spigner, Vice Chairman, with a second by Mr.
Maltese. There were no other nominations. The motion was adopted by roll call:
GRC Minutes
January 10, 2003
Ayes: Mr. Caldwell, Ms. Hook, Mr. Maltese and Mr. Spigner.
Mr. Spigner made a motion nominating Ms. Hook, Secretary, with a second by Mr. Maltese.
There were no other nominations. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Mr. Spigner, Mr. Maltese and Ms. Hook.
Mr. Maltese congratulated the newly elected officers.
Mr. Pfeiffer read a copy of Resolution 02-03 establishing the 2003 GRC meeting schedule. Mr.
Caldwell made a motion to adopt the schedule, with a second by Ms. Hook. The motion was
adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Maltese called for adoption of the Minutes of the December 12, 2002 regular meeting as
prepared. Mr. Spigner moved to adopt the minutes, with a second by Ms. Hook. The motion
was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese
Abstention: Mr. Caldwell (not present at the December 12 meeting)
Mr. Maltese called for adoption of the Minutes of the December 12, 2002 Executive Session as
prepared. Mr. Spigner moved to adopt the minutes, with a second by Ms. Hook. The motion
was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese
Abstention: Mr. Caldwell
The Council shall approve release the December 12, 2002 Executive Session minutes once all
litigation concerning the Complaints discussed are concluded.
Mr. Pfeiffer read a copy of the Executive Director’s report.
Mr. Pfeiffer stated that the GRC had received two items of correspondence, which he briefly
discussed.
Mr. Pfeiffer briefly explained the GRC Record Note concerning redactions of material from
government records.
Mr. Pfeiffer indicated that there were two items of unfinished business.
• Complaint 2002-32: Fisher v. City of Clifton.
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GRC Minutes
January 10, 2003
Mr. Maltese recused himself from this discussion because his law firm represents the City of
Clifton, the custodian in this case, in other legal matters. Mr. Spigner temporarily assumed the
duties of Chairman.
Mr. Pfeiffer reviewed the matter and noted that the custodian had recently notified the Council
that the City had recently reviewed the matter with the County Prosecutor’s office and had
decided to provide access to the 911 tape. The requester asked the Council to consider fining
the custodian for failure to provide timely access. Mr. Pfeiffer recommended that the Council
conclude that the custodian in this case did not “knowingly and willfully” violate the provisions
of OPRA. Mr. Spigner made a motion to adopt the Executive Director’s recommendation,
second by Ms. Hook. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook and Mr. Spigner
Following the roll call, Mr. Maltese returned and assumed the duties of Chairman. •
Complaint 2002-33, Serrano v. South Brunswick Township.
Mr. Pfeiffer explained that this complaint involved denial of access to a request for a copy of a
telephone call to 911 made by a person since indicted for murder and now awaiting trial.
Ms. Conklin described the Middlesex County Prosecutor’s arguments why the 911 tapes should
not be released. Ms. Conklin noted that the defendant who made the 911 call did not object to
the release of the tape. Ms. Conklin added that the Prosecutor filed a motion several days ago
asking the trial judge to prohibit any party to the criminal trial, including the Township, from
revealing the content of the tape. Frederick DeVesa, Presiding Judge of the Criminal Division
of Middlesex County Superior Court denied the motion and placed comments on the record
concerning OPRA. A transcript of the Judge’s decision and comment was provided to the
Council.
Mr. Pfeiffer explained that the 911 tapes sought by Mr. Serrano are not “criminal investigatory
records” under OPRA and recommended that the Council grant access to the 911 tape for the
reasons set forth in the Executive Director’s Amended F&R of January 13, 2003 as
supplemented January 17, 2003.
Mr. Maltese read into the record a statement addressing this matter and access to 911 tapes in
general.
Mr. Maltese called for a motion to adopt the Executive Director’s F&R dated January 13, 2003
as supplemented January 17, 2003. Ms. Hook moved to accept the F&R, with a second by Mr.
Caldwell. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook and Mr. Maltese
Nays: Mr. Spigner
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GRC Minutes
January 10, 2003
Mr. Maltese called for any New Business

Complaint 2002-58: Reda v. Township of West Milford
Mr. Pfeiffer briefly described the issues presented in the request for e-mails, cost of liability
settlements and copies of specific legal opinions. Mr. Maltese asked the Council to vote on
each type of record sought by the requester.
1.
With respect to e-mails, the Executive Director recommended that the Council require
the Township to submit to the Council and requester proof within 20 business days that
the e-mails were not government records accessible under OPRA.
Ms. Hook moved to adopt this recommendation as set forth in the Executive Director’s F&R of
January 13, 2003, with a second by Mr. Caldwell. T he motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese
2.
Cost of Liability settlements: the Executive Director recommended that the Council
dismiss this portion of the complaint because the request seeks information in the
possession of a Governmental Insurance Fund, and not the custodian.
Mr. Caldwell moved to adopt this recommendation as set forth in the Executive Director’s
F&R of January 13, 2003, with a second by Mr. Spigner. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.
3. Copies of specific legal opinions: the Executive Director recommended that the Council
dismiss this portion of complaint because no written legal advice was rendered.
Ms. Hook moved to adopt this recommendation as set forth in the Executive Director’s F&R of
January 13, 2003, with a second by Mr. Caldwell. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.

Complaint 2002-72: Moore v. Township of Washington.
Mr. Pfeiffer briefly described the issues presented by the requester and the custodian
concerning this request for meeting minutes of the local planning board and vouchers from the
planning Board attorney and engineering consultant. Mr. Pfeiffer recommended that the
Council award access to the records as set forth in his F&R dated January 13, 2003; and caution
the custodian and Chief Financial Officer concerning the handling of the request rather than
penalize them under OPRA.
Mr. Spigner moved to adopt the F&R, with a second by Ms. Hook. The motion was adopted by
roll call:
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GRC Minutes
January 10, 2003
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese. •
Complaint 2002-82: Fenichel v. Ocean City Board of Education.
Mr. Pfeiffer briefly described the issues presented by the requester and the custodian
concerning this request for access to three specific research papers by teachers and/or
supervisors at Ocean City High School. Mr. Pfeiffer recommended that the Council award
access to the papers and the identities of the authors as set forth in his F&R dated January 13,
2003.
Mr. Spigner moved to adopt the F&R, with a second by Ms. Hook. The motion was adopted by
roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Maltese opened the floor to public comment.
Mr. William Kearns, Counsel for the New Jersey League of Municipalities, thanked the
Council for providing information regarding the complaints to be adjudicated at its meetings. .
Mr. Kearns informed the Council that the League has provided and will continue to provide
seminars to assist municipal clerks and other record custodians in implementing OPRA. Mr.
Kearns indicated that the League looks forward to working with the Government Records
Council.
Ms. Donna Snyder, representing the State Municipal Clerk’s Association, stated that Clerks
have been informed of their obligations under OPRA and that the Association will continue to
assist Clerks in understanding and meeting those obligations.
Mr. Caldwell moved to adjourn the meeting, with a second by Mr. Spigner. The motion was
adopted by roll call:
Mr. Caldwell, Ms. Hook, and Mr. Spigner and Mr. Maltese.
Mr. Maltese adjourned the meeting at 11:30 a.m.
Respectfully submitted,
Virginia Hook, Secretary
5
Minutes of the Government Records Council
February 13, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Dale Caldwell, Assistant Commissioner Department of
Community Affairs, Virginia Hook and Bernard Spigner. Mr. Caldwell was designated
substitute for Susan Bass Levin, Commissioner of the Department of Community
Affairs.
Absent: Dr. Dwight Pfennig, designee of Commissioner William Librera of the
Department of Education.
The Chair read a resolution to convene in closed session to receive legal advice concerning the
complaints scheduled for adjudication today. Mr. Caldwell moved to adopt the resoluti on,
which was seconded by Ms. Hook. All members present approved the motion. The Council
conducted a closed session between 9:35 a.m. and 10:35 a.m.
The Council reconvened in public session at 10:45 a.m. at the Department of Community
Affairs, Room 129, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees said the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Dale Caldwell, Assistant Commissioner Department of
Community Affairs, Virginia Hook and Bernard Spigner. Commissioner Susan Bass
Levin provided a letter designating Mr. Caldwell as her representative.
Absent: Dr. Dwight Pfennig, designee of Commissioner William Librera, Department
of Education.
Also Present: Acting Executive Director Marc Pfeiffer, Assistant Executive Director Paul Dice,
Deputy Attorney General Barbara Conklin, and GRC staff members Marc Leavitt and Joseph
Greer.
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Maltese called for adoption of the Minutes of the January 17, 2003 regular meeting as
prepared. Mr. Caldwell asked the Executive Director to ensure that meeting minutes reflected
that the Council voted by Resolution to go into Closed Session and reconvened its regular
meeting at the conclusion of the closed-door session.
GRC Minutes
February 13, 2003
Mr. Caldwell moved to adopt the minutes, with a second by Mr . Spigner. The motion was
adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Maltese called for adoption of the Minutes of the January 17, 2003
Executive Session. Mr. Spigner moved to adopt the minutes, with a second by Mr. Caldwell.
The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese
The Council stated its intention to release the February 13, 2003 Executive Session minutes
once all litigation concerning the Complaints discussed therein concludes.
Mr. Pfeiffer read the Executive Director’s report, a copy of which is available for public
inspection. Mr. Pfeiffer indicated that the GRC now has an index of complaints listed on its
website, that the GRC received no communications, and that there was one item of old
business:
• Complaint 2002-33: Serrano v. South Brunswick Township
Mr. Pfeiffer briefly explained the history of this complaint and indicated that the Middlesex
County Prosecutor’s Office had sought a stay of the Council’s Final Decision pending appeal in
the Appellate Division. Mr. Pfeiffer noted that the Chair had extended the deadline for
providing access to the tape from January 31 to February 13.
Ms. Conklin noted that the requester opposed the application and summarized the parties’
arguments for and against the stay. Ms. Conklin stated that the Council could decide the
Prosecutor’s application using the criteria used by Courts in deciding stay applications,
specifically; 1) irreparable harm if the stay is not granted; and, 2) likelihood of success on
appeal by the party requesting the stay. Ms. Conklin stated that the requester argued that there
would be no irreparable harm from disclosing the content of the tape because Judge DeVesa
had denied the prosecutor’s request for a protective order on January 16, ruling that the parties
could obtain a fair trial despite release of the tape.
Mr. Caldwell observed that the Council should judge the stay application on its own merits in
reference to the appropriate legal criteria and not on the basis of how they had voted on the
original OPRA Complaint. Ms. Conklin stated that if the Council decided not to grant the
application it would be appropriate for the Council to extend the deadline for access to the 911
by a few days more, to provide the prosecutor time to submit an application for a stay to the
Appellate Division. The Council discussed the matter further and Mr. Spigner made a motion
to deny the Prosecutor’s application for a stay. Ms. Hook seconded the motion. The motion
was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.
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GRC Minutes
February 13, 2003
Mr. Maltese called for any New Business.

Complaint 2002-6, Teeters v. NJ DYFS
Mr. Pfeiffer briefly explained the issues presented by the requester and the custodian
concerning this request for information for a comprehensive set of records from the DYFS’
Bureau of Licensing concerning “ A Child’s Hope International, Inc.”, an adoption agency.
Mr. Pfeiffer recommended that instead of adopting the F&R, the Council should give DYFS
until February 28, 2003 to: 1) produce documents contained in the complainant’s original
request as described in the Director’s F&R or provide a statement explaining why the records
are not accessible under OPRA or do not exist; and 2) submit written arguments whether the
requester was a prevailing party and whether the custodian should be penalized for willfully
and knowingly violating the law.
The Council held a brief discussion concerning this matter.
Ms. Hook moved to accept Mr. Pfeiffer’s oral recommendation, with a second by Mr.
Caldwell. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.

Complaint 2002-15: Teeters v. NJ DYFS
Mr. Pfeiffer briefly described the issues presented in the request for access to records of an
investigation that “ A Child’s Hope International, Inc.” was falsely advertising it was licensed
to perform adoptions in the State of New Jersey. Mr. Pfeiffer observed that several days prior
to the meeting, DYFS had produced a copy of an October 2000 letter from DYFS to the agency
finding the charges valid, but failed to provide a copy of the complaint that initiated the
investigation.
Mr. Pfeiffer recommended that instead of adopting the Director’s F&R, the Council should
give DYFS until February 28, 2003 to: (a) to produce the complaint mentioned in the October,
2000 letter and any DYFS investigation of it, or explain why they were not accessible under
OPRA or did not exist; and (b) submit written arguments whether the requester was a
prevailing party and whether the custodian should be penalized for willfully and knowingly
violating the law.
Mr. Maltese moved to accept Mr. Pfeiffer’s oral recommendation, with a second by Mr.
Caldwell. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.

Complaint 2002-30: Durkin v. NJ State Police
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GRC Minutes
February 13, 2003
Mr. Pfeiffer explained that this case involved a request for a portion of a State Police
Intelligence Services Section (ISS) report created by a detective with the NJ State Police. Ms.
Conklin explained that there is a federal statute, which prohibits the State Police from
disclosing such intelligence reports to persons who were not in law enforcement and did not
have a need to know the information. In this case, the State Police affirmed that the requester
was neither in law enforcement nor had a need to know the information. The Executive
Director recommended that the Council dismiss this case.
Mr. Caldwell moved to adopt the F&R and dismiss the complaint, with a second by Ms. Hook.
The motion was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.

Complaint 2002-88: Minuskin v. NJ Department of Transportation
Mr. Pfeiffer briefly explained that this matter involved a request for a copy of an appraisal of
certain property conducted for the NJ State Department of Transportation and submitted on
DOT’s behalf in a condemnation proceeding which was now on appeal in Superior Court.
Mr. Maltese proposed that the Council convene a hearing to learn how appraisals were used in
condemnations and subsequent appeals and who had access to them.
Ms. Hook moved to hold a hearing on this matter, with a second by Mr. Caldwell. The motion
was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese.

Complaint 2002-47: Blue v. Wall Township Police Department
Mr. Pfeiffer briefly explained the issues presented by the requester and the custodian
concerning this request for any and all police records, operations reports, supplemental reports
related to police contact with Robert E. Sammon and an arrest which allegedly occurred
February 20, 2002. Mr. Pfeiffer recommended that the Council defer action on this complaint
pending advice from the Division of Criminal Justice.
Ms. Hook moved to defer action on this complaint, with a second by Mr. Spigner. The motion
was adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, Mr. Spigner and Mr. Maltese
Mr. Pfeiffer introduced the new Assistant Executive Director of the GRC, Paul Dice. Mr. Dice
provided an overview of his professional training and experience
Mr. Maltese opened the floor to public comment. No comments were made.
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GRC Minutes
February 13, 2003
Mr. Caldwell moved to adjourn the meeting, with a second by Mr. Spigner. The motion was
adopted by roll call:
Ayes: Mr. Caldwell, Ms. Hook, and Mr. Spigner and Mr. Maltese.
Mr. Maltese adjourned the meeting at 11:30 a.m.
Respectfully submitted,
Virginia Hook, Secretary
5
Minutes of the Government Records Council
March 13, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Dale Caldwell, Assistant Commissioner Department of
Community Affairs, Dr. Dwight Pfennig, Deputy Commissioner, Department of
Education, Virginia Hook and Bernard Spigner.
Absent: None
The Chair read a resolution to convene in closed session for the purpose of receiving legal
advice concerning the complaints scheduled for adjudication that day. Ms. Hook moved to
adopt the resolution, which was seconded by Mr. Caldwell. All members present approved the
motion. The Council conducted a closed session between 9:35 a.m. and 10:45 a.m.
The Council reconvened in open session at 10:50 a.m. at the Department of Community
Affairs, Room 129, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Dale Caldwell, Deputy Commissioner Department of
Community Affairs, Dr. Dwight Pfennig, Deputy Commissioner, Department of
Education, Virginia Hook and Bernard Spigner.
Also Present: Deputy Attorney General Barbara Conklin, Acting Executive Director
Marc Pfeiffer, Assistant Executive Director Paul Dice and GRC Staff Marc Leavitt and
Joseph Greer.
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Maltese called for adoption of the Minutes of the February 13, 2003 regular meeting as
prepared. Mr. Pfeiffer stated that the minutes from the February and March meetings would be
adopted during the April meeting.
Mr. Pfeiffer read a copy of the Executive Director’s report, which is available for public
inspection.
Mr. Pfeiffer stated that the GRC had received two items of correspondence, which he briefly
discussed.
Mr. Pfeiffer indicated that there were six items of unfinished business.
GRC Minutes

March 13, 2003
Complaint 2002-33, Serrano v. South Brunswick Township
Ms. Conklin indicated that on March 11, 2003, the Superior Court, Appellate Division heard
arguments regarding the motion filed by the Middlesex County Prosecutor’s Office requesting a
stay of the Government Records Council’s final decision granting the requester access to the 911
tapes in the matter of Serrano v. South Brunswick Township. Ms. Conklin added that the Court is
expected to issue its decision shortly.
Mr. Maltese commented that the Council would await the signed order from the Appellate
Division before considering any further action on the matter.
Complaint 2002-46 and 55, L.E. Fisher and Krisburg v. City of Paterson
Mr. Pfeiffer explained that staff and legal advisors are currently reviewing submissions from
both parties concerning the issue of prevailing parties. Mr. Pfeiffer noted that the process for
determining prevailing party attorney fees is also under review..

Complaint 2002-58, Reda v. Township of West Milford
Mr. Pfeiffer indicated that the GRC requested that the attorney representing the Township of
West Milford submit a letter certifying that the e-mails requested by Mr. Reda are not
government records accessible under OPRA. There was no action for the Council to take at
this time.

Complaint 2002-6 and 15, Cynthia Teeters v. DYFS
Mr. Pfeiffer stated that the staff is still reviewing the documents submitted by the parties
involved in these cases. Mr. Pfeiffer noted that we are awaiting submission of additional
information from DYFS and expects to provide a Final Finding and Recommendation at the
next Council meeting.

Complaint 2002-47, Blue v. Township of Wall Police Department
Mr. Pfeiffer indicated that the Division of Law is currently reviewing Title 39 relating to the
disclosure of DWI records and expects to receive legal advice from regarding this subject prior
to the next meeting.
Mr. Maltese requested that this matter be placed on the next Council agenda.
Mr. Pfeiffer indicated that there were four items under New Business

Complaint 2002-39, L.E. Fisher v. Township of Fairfield
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GRC Minutes
March 13, 2003
Mr. Pfeiffer recommended that this item be removed from the agenda pending the submission
of a written response to the Executive Director’s Finding and Recommendations from the
custodian’s attorney.
Mr. Maltese directed the Executive Director to contact the custodian’s attorney to request a
written submission to the F&R within the next (10) days. Ms. Hook made a motion to adopt
the Executive Director’s recommendation to remove this item from the agenda including Mr.
Maltese’s directive, with a second by Mr. Spigner. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.

Complaint 2002-34, L.E. Fisher v. Township of Cedar Grove
Mr. Pfeiffer explained that this complaint involves a request for a copy of a recent invoice to
the Township of Cedar Grove from Outside Counsel. The Township provided the requester a
copy of a recent invoice without explaining redactions to the invoice.
Mr. Pfeiffer noted that the timing of preparing the Findings and Recommendations on the case
did not allow the Council sufficient time to review it for this meeting. The Council agreed to
hold the cases over until the next meeting, but that in the meantime the parties be asked to
provide comments on the Findings and Recommendations so that they may be considered when
the Council hears the matter.

Complaint 2002-35, L.E. Fisher v. New Jersey Institute of Technology
Mr. Pfeiffer stated that this complaint involves a request for a copy of a recent invoice to NJIT
from an outside Counsel. The custodian provided the requester with a copy of a recent invoice
without explaining redactions.
Mr. Pfeiffer noted that the timing of preparing the Findings and Recommendations on the case
did not allow the Council sufficient time to review it for this meeting. The Council agreed to
hold the cases over until the next meeting, but that in the meantime the parties be asked to
provide comments on the Findings and Recommendations so that they may be considered when
the Council hears the matter.

Complaint 2002-36, L.E. Fisher v. Passaic County Community College
Mr. Pfeiffer explained that this complaint involves a request for a copy of a recent invoice to
Passaic County Community College from outside counsel. The custodian provided the
requester a copy of a recent invoice without explaining redactions to the invoice. In a letter
dated March 9, 2003, the custodian’s attorney provided the requester access to the invoices
with no redactions. Based upon the custodian’s attorney providing access to the unredacted
invoice, the Executive Director recommended that the dismiss that portion of the Complaint
seeking access to the invoices and requested that the parties submit written comments by noon
3
GRC Minutes
March 13, 2003
on March 28, 2003 substantiating whether the requester is a prevailing party entitled to
reasonable attorney’s fees. Ms. Hook made a motion to adopt the Executive Director’s Finding
and Recommendations, with a second by Mr. Spigner. The motion was adopted by roll call:
Ayes: Mr. Caldwell, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Pfeiffer recommended that the Council consider holding a special meeting in April and that
amendments to the Council’s inquiry and complaint policy will be considered at the next
meeting
Mr. Maltese opened the floor to public comment. No comments were made.
Mr. Spigner moved to adjourn the meeting, with as second by Mr. Caldwell. The motion was
adopted by roll call:
Ayes: Mr. Caldwell, Dr. Pfennig, Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Maltese adjourned the meeting at 11: 35 a.m.
Respectfully submitted,
Virginia Hook, Secretary
4
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
April 10, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Matthew U. Watkins (designee of Commissioner Susan
Bass Levin, department of Community Affairs), Virginia Hook and Bernard Spigner.
Absent: Dr. Dwight Pfennig, Deputy Commissioner, Department of Education
The Chair read a resolution to convene in closed session to receive legal advice concerning the
complaints scheduled for adjudication that day. Mr. Watkins moved to adopt the resolution,
which was seconded by Ms. Hook. All members present approved the motion. The Council
conducted a closed session between 9:35 a.m. and 10:30 a.m.
The Council reconvened in open session at 10:45 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read and
attendees recited the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Virginia Hook, and Bernard Spigner.
Absent: Mr. Matthew U. Watkins and Dr. Dwight Pfennig
Also Present: Deputy Attorney General Barbara Conklin, Acting Executive Director
Marc Pfeiffer, Assistant Executive Director Paul Dice and GRC Staff Marc Leavitt and
Joseph Greer.
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Maltese called for adoption of Minutes from the Public meetings of February and March
2003 as well as the closed sessions of February and March 2003. Mr. Pfeiffer explained that
selected portions of closed session minutes from December 12, 2002, January 17 2003, and
February 13, 2003 meetings would not be released until the conclusion of litigation related to
those matters. Mr. Pfeiffer indicated that the following Complaints would be omitted from the
open and closed sessions minutes: Complaint 2002-46 & 2002-55 from December 12, 2002;
Complaint 2002-58 from January 17, 2003; Complaints 2002-6, 2002-15, 2002-47 and 2002-88
from the February 13, 2003 meeting. Mr. Spigner moved to adopt the minutes as prepared with a
second by Ms. Hook. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese.
GRC Minutes
April 10, 2003
Mr. Pfeiffer read the Executive Director’s report, a copy of which is available for public
inspection. Mr. Pfeiffer also stated that a copy of the Executive Director’s report is available on
the GRC website.
Mr. Pfeiffer stated that the Council had received no formal communications. Ms. Conklin
briefly explained the Appellate Division decision upholding the Council’s Final Decision
awarding access to a 911 tape in the matter of Serrano v. South Brunswick Township. Ms.
Conklin also discussed Courier News v. Hunterdon County Prosecutor, in which the Appellate
court reversed a Law Division decision denying access to a different 911 tape. Both cases are
published court decisions and are available on the GRC website.
The Council commended Ms. Conklin for her efforts in defending the Council’s decision in
Serrano.
Mr. Maltese called for any Unfinished Business.
Mr. Pfeiffer explained that the GRC is awaiting advice from the Attorney General’s office
concerning the circumstances under which an OPRA requester is a “prevailing party” eligible to
recoup reasonable attorney’s fees under OPRA. Mr. Pfeiffer added that Complaints 2002-46 and
55; 2002-34, 2002-35 and 2002-36 involve questions concerning prevailing party status. Mr.
Pfeiffer added that he expects to obtain legal advice by the next Council meeting.

Complaint 2002-6 and 15, L.E. Fisher v. DYFS
Mr. Pfeiffer indicated that the custodian has provided additional documentation in
Complaint 2002-6 and 2002-15, Teeters v. DYFS. Mr. Pfeiffer added that he expects this
matter to be adjudicated at a subsequent meeting.

Complaint 2002-58, Reda v. West Milford
Mr. Pfeiffer explained that the custodian’s attorney provided a letter listing the e-mails. A
copy of the attorney’s letter certifying the information regarding the e-mails will be
forwarded to the complainant for review and approval. The GRC will follow up with the
complainant to determine if he agrees with the letter and accompanying documentation
from the custodian’s attorney.

Complaint 2002-47, Blue v. Township of Wall Police Department
Mr. Pfeiffer explained that the Council is awaiting legal advice from the Division of Law
concerning this case.

Complaint 2002-88, Minuskin v. NJ Department of Transportation
Mr. Pfeiffer indicated that the custodian has been granted additional time to respond to the
GRC after reviewing a transcript of Council proceedings in this matter and will respond with
a revised set of filings. Mr. Pfeiffer recommended and it was moved by Ms. Hook and
3
GRC Minutes
April 10, 2003
seconded by Mr. Spigner that the existing order for a hearing be suspended and the case be
returned for investigation and issuance of new Findings and Recommendations. The motion
was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Maltese called for any New Business

Complaint 2002-39, L.E. Fisher v. Township of Fairfield
Mr. Pfeiffer indicated that due to a late filing, the Finding and Recommendation was not
available in time for this meeting. Mr. Pfeiffer expects to submit the F&R in time for the
next Council meeting.

Complaint 2002-71, Edwards v. City of Jersey City
Mr. Pfeiffer recommended that the Council withdraw this complaint from consideration at
this time as the custodian requested additional time to file a response. Council concurred
with the Executive Director’s recommendation.
Catherine Starghill, Staff Associate of the State’s Privacy Study Commission delivered a
presentation concerning the Commission’s work. The Commission was created pursuant to
Section 15 of OPRA. A copy of the presentation is available for public inspection.
Mr. Pfeiffer explained the amendments proposed to the Council’s Inquiry and Complaint Policy.
A copy of the proposed amendments are available for public inspection on the GRC’s website.
Mr. Maltese indicated that the GRC welcomed public comment on the proposed amendments
and would consider same prior to taking formal action to adopt the amendments.
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Spigner moved to adjourn the meeting, with a second Ms. Hook. The motion was adopted by
roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese.
Mr. Maltese adjourned the meeting 11:35 a.m.
Respectfully submitted,
Virginia Hook, Secretary
3
DRAFT MINUTES OF THE GOVERNMENT RECORDS COUNCIL
June 12, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Matthew U. Watkins (designee of Commissioner Susan
Bass Levin, Department of Community Affairs), Virginia Hook and Bernard Spigner.
Absent: Dr. Dwight Pfennig, Deputy Commissioner, (designee of Commissioner William
Librera, Department of Education).
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning the
complaints scheduled for adjudication that day. Ms. Hook moved to adopt the resolution, which
was seconded by Mr. Watkins. All members present approved the motion. The Council
conducted a closed session between 9:35 a.m. and 10:35 a.m.
The Council reconvened in open session at 10:50 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read and
attendees recited the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present:
Absent:
Chair Vincent Maltese, Virginia Hook, Bernard Spigner and Matthew U.
Watkins
Dr. Dwight Pfennig
Also Present: Deputy Attorney General Barbara Conklin, Deput y Attorney General
Juliet Wyne, Acting Executive Director Marc Pfeiffer, Assistant Executive
Director Paul Dice and Division of Local Government Staff Member Lori
Buckelew.
Mr. Maltese called for adoption of Minutes from the Public meeting of April 10, 2003. Mr.
Spigner moved to adopt the minutes as prepared with a second by Ms. Hook. The motion was
adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese.
Nays: None
Abstain: Mr. Watkins
Mr. Maltese called for adoption of the closed session minutes from the April 10, 2003 meeting.
Ms. Hook moved to adopt the minutes as prepared with a second by Mr. Spigner. The motion
was adopted by roll call:
7/17/2003
Page 2
Ayes: Ms. Hook, Mr. Spigner and Mr. Maltese.
Nays: None.
Abstain: Mr. Watkins
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Pfeiffer provided the Council a copy of the Executive Director’s report, and provided copies
for public inspection. Mr. Pfeiffer stated that a copy of the Executive Director’s report will be
posted on the GRC website. Mr. Watkins moved to accept the Executive Director’s report with a
second by Ms. Hook. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Mr. Maltese noted that the Council has received from the Attorney General’s office advice on the
award of attorney fees to a requestor who prevails in a proceeding under OPRA. Ms. Conklin
explained that in general, a party will not be considered a “prevailing party” entitled to recoup
reasonable attorney’s fees under OPRA unless the Council adjudicates the requestor’s Complaint
and awards the requestor access to some or all of the records sought. Additional discussion on
the matter appears in the Executive Director’s Findings and Recommendations in cases 2002-08,
2002-35, 2002-36 scheduled for adjudication today.
Mr. Maltese called for any Unfinished Business.
• Complaint
2002-34, L.E. Fisher v. Township of Cedar Grove
Mr. Pfeiffer indicated that the custodian provided access to portions of the invoice describing
work performed by outside counsel which appeared in the voucher and recommended that the
Council find that the remaining redactions on the invoice were lawful under OPRA because they
contained privileged material reflecting deliberative changes and consultative communications
between counsel and client. Mr. Pfeiffer recommended that the complaint be dismissed and the
requestor’s application for attorney fees denied. Ms. Conklin noted that the attorney client
privilege belongs to the client and can only be waived by the client. Mr. Maltese stated he
disagreed with the Executive Director’s recommendation because the reasons given by the
custodian for the redaction were insufficient. Mr. Maltese stated that the specific nature of the
redactions must be explained not just described as being “Attorney Client privileged”. Mr.
Watkins moved to accept the Executive Director’s June 12 th Findings and Recommendations
with a second by Ms Hook. The motion was called by roll call:
Ayes: Mr. Watkins and Ms. Hook
Nays: Mr. Spigner and Mr. Maltese
The motion was defeated as a result of the tie.
7/17/2003
Page 3
The Chair entertained discussion on how the Council should proceed with the matter. In
response to questions, Ms. Conklin advised that when the Council next met to consider the
Complaint, it would be obligated to adjudicate: (1) whether the redaction was lawful, (2) the
timeliness of the custodian’s response, and (3) whether the requestor was a prevailing party
under OPRA. Mr. Watkins suggested that a special meeting be held in July to resolve this
complaint. Mr. Maltese directed Mr. Pfeiffer to schedule a special meeting in July.
 Complaint 2002-35, L.E. Fisher v. New Jersey Institute of Technology
In a June 12, 2003 F&R supplementing his earlier F&R of March 13, 2003, Mr. Pfeiffer
recommended that the Council find that the material redacted from the invoice is attorney client
privileged, that the custodian has not waived the privilege by providing access to other portions
of the invoice and that, therefore, the redactions were lawful under OPRA. Mr. Pfeiffer further
recommended that the application for attorney fees be denied because the requester was not a
“prevailing party” under OPRA because she did not obtain a final decision from the Council
granting access to the record. Mr. Pfeiffer further recommended that the Council dismiss the
complaint. Mr. Watkins moved to accept the Executive Director’s Findings and
Recommendations with a second by Mr. Spigner. The motion was called by roll call:
Ayes: Ms. Hook, Mr. Spigner and Mr. Watkins
Nays: Mr. Maltese
The motion was approved by a 3-1 vote and the complaint was dismissed.
 Complaint 2002-36, L.E. Fisher v. Passaic County Community College
In a Supplemental F&R dated June 12, 2003, Mr. Pfeiffer recommended that the Council find
that the requester is not a “prevailing party” under OPRA because the custodian provided the
unredacted record (an invoice from outside counsel) voluntarily and, consequently, the Council
need not adjudicate whether the record was accessible under OPRA. Mr. Pfeiffer further
recommended that the Council decline to find that the Custodian knowingly and willfully
violated OPRA or acted unreasonably under the totality of the circumstances based upon the
requester’s claim that the custodian failed to provide adequate written justification for
withholding access in the initial response to the OPRA request. Mr. Pfeiffer observed that the
occasions on which the custodian had explained the basis for the redactions were set forth in his
March 13, 2003 F&R attached to the June 12th Supplement. Mr. Spigner moved to accept the
Executive Director’s Findings and Recommendations in the matter with a second by Ms. Hook.
The motion was called by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None
The motion was approved and the complaint was dismissed.
7/17/2003
Page 4
 Complaint 2002-45 and 55, L.E. Fisher v. Krisberg v. City of Paterson
Mr. Pfeiffer noted that the parties’ submissions on the amount of attorney fees claimed by the
requestor are undergoing legal review.
 Complaint 2002-58, Reda v. Township of West Milford
Mr. Pfeiffer noted that the staff is communicating with the parties to ascertain the status of the
complaint given the documents that have been submitted. A recommendation will be
forthcoming.
 Complaint 2002-6 and 2002-15, Teeters v. DYFS
Mr. Pfeiffer noted the submissions from DYFS have been received and are continuing to be
reviewed. It is anticipated that a recommendation will be forthcoming at the July meeting.
 Complaint 2002-47, Blue v. Township of Wall
Mr. Pfeiffer noted that advice on the matter from the Division of Law is anticipated in the next
few weeks.
 Complaint 2002-39, L.E. Fisher v. Township of Fairfield (Essex)
Mr. Pfeiffer noted that the custodian’s certification explaining the redactions from the legal
voucher and the requester response thereto are under legal review.
Mr. Maltese requested that Mr. Pfeiffer resolve as many of the pending cases as possible at the
Council’s July meeting.

Inquiry and Complaint Procedure
Mr. Pfeiffer observed that amendments to the Council’s Inquiry and Complaint Policy had been
proposed at the Council’s April meeting. After further internal review and consideration of
public comment, several additional changes were being recommended. Mr. Pfeiffer
recommended that the revised amendments be placed on the GRC website and the public
comment period be extended. Mr. Maltese stated that the comment period will be extended to
June 30th.
 Complaint 2002-8, L.E. Fisher v. Essex County Sheriff’s Department
Mr. Pfeiffer explained that the custodian had only recently, based upon advice from the Division
of Criminal Justice, released a copy of the Sheriff’s daily activity blotter. Mr. Pfeiffer
recommended that the Council reject the requestor’s claim for attorney fees since there was no
need for the Council to adjudicate the question of access to the record. Mr. Pfeiffer
recommended that the Council find that the custodian did not knowingly and willfully violate the
7/17/2003
Page 5
provisions of OPRA since its initial decision to withhold access and its subsequent decision to
provide access was the result of conflicting legal advice regarding the confidentiality of the
record requested. Mr. Spigner moved to accept the Executive Director’s Findings and
Recommendation dated June 12, 2003 with a second by Mr. Watkins. The motion was called by
roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None
The motion was approved and the complaint was dismissed.
 Complaint 2002-83, Wisniewski/Bukowski v. Union County Surrogate
Mr. Pfeiffer explained that the Division of Law advised that the Council lacked jurisdiction over
the complaint because OPRA does not apply to the judiciary and the Surrogate and the
Surrogate’s office are part of the State’s judiciary. Mr. Pfeiffer observed that after he issued his
June 12, 2003 Findings and Recommendations, the requestors asked for additional time to
comment on the issue of Council jurisdiction. . Ms. Conklin advised that further submissions
from the requestors would not change the Division’s legal advice to the Council. Mr. Watkins
stated that there was no reason for the Council to wait for further comment from a requestor
when the Council had no jurisdiction over the Complaint. Mr. Watkins moved to accept the
Findings and Recommendations of the Executive Director dated June 12, and dismiss the
complaint for lack of jurisdiction, with a second by Ms. Hook. The motion was called by roll
call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None
The motion was approved and the complaint was dismissed.

By-Laws Amendment
Mr. Pfeiffer reviewed the proposed By-Law Amendments and recommends that the order of
business be changed so that “case adjudication” will follow “communications”, which would be
followed by new business and old business. Mr. Pfeiffer also recommended the Council
eliminate the public comment period currently scheduled to occur prior to Council adjudication
of cases but retain the public comment period currently held at the end of the agenda. These
amendments will be placed on the GRC website. Mr. Maltese requested that adoption of the
amendments be placed on the agenda at the Council’s special meeting in July.
Mr. Maltese opened the floor to Public Comment.
Albin Wagner, from the State’s Division of Archives and Records Management, commented that
the Council should consider a censure process for those custodians that do not comply with the
7/17/2003
Page 6
seven-day response period in OPRA. Mr. Wagner further commented that OPRA reinforces
DARM’s emphasis on the need for good record keeping.
Hearing no further comment, Mr. Maltese closed the public comment period.
Mr. Watkins moved to adjourn the meeting, with a second Ms. Hook. The motion was adopted
by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Mr. Maltese adjourned the meeting 12:13 p.m.
Respectfully submitted,
/s/ Virginia Hook, Secretary
Dated:
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
Public Meeting of July 10, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present: Chair Vincent Maltese, Matthew U. Watkins (designee of Commissioner Susan
Bass Levin, Department of Community Affairs), Diane Schnoyers (designee of
Commissioner William Librera, Department of Education), Virginia Hook and Bernard
Spigner.
Absent: None.
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning
various complaints filed with the Council including complaints scheduled for adjudication that
day. Ms. Hook moved to adopt the resolution, which was seconded by Mr. Spigner. All
members present approved the motion. The Council conducted a closed session between 9:38
a.m. and 10:45 a.m.
The Council reconvened in open session at 10:55 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present:
Chair Vincent Maltese, Virginia Hook, Bernard Spigner, Diane Schnoyers,
and Matthew U. Watkins
Absent:
None.
Also Present: Deputy Attorney General Barbara Conklin, Deputy Attorney General
Juliet Wyne, Acting Executive Director Marc Pfeiffer, and Assistant
Executive Director Paul Dice.
Mr. Maltese opened the floor to Public Comment. No comments were made.
Mr. Maltese called for adoption of the public meeting minutes from June 12, 2003. Mr. Watkins
moved to adopt the minutes as prepared with a second by Mr. Spigner. The motion was adopted
by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
Abstain: Ms. Schonyers.
8/22/2003
Page 2
Mr. Maltese called for adoption of the closed session minutes from June 12, 2003 meeting. Ms.
Hook moved to adopt the minutes as prepared with a second by Mr. Watkins. The motion was
adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
Abstain: Ms. Schnoyers.
Mr. Pfeiffer provided the Council a copy of the Executive Director’s report, and provided copies
for public inspection. Mr. Pfeiffer stated that a copy of the Executive Director’s report will be
posted on the GRC website.
Mr. Pfeiffer noted that several late communications were received from the public on the
proposed amendments to the Inquiry and Complaint Procedure of the Council. As a result of
those comments, the Executive Director determined to withdraw the amendments from Council
action today to allow for review and response to comments received.
Unfinished Business
• Complaint 2002-34, L.E. Fisher v. Township of Cedar Grove
Mr. Pfeiffer noted that at the last meeting the motion on this case resulted in a tie vote. Mr.
Pfeiffer explained that when the custodian first redacted information from an attorney voucher,
no reason was provided and discussions then took place between the custodian and the requestor.
The custodian’s counsel later submitted to the Council a detailed certification explaining that the
redactions were necessary to protect information protected by the attorney-client privilege. .
Mr. Pfeiffer stated that he found the explanation adequate and recommended the complaint be
dismissed. Ms. Conklin stated that the Council should decide: (1) whether the redactions
contained attorney client privileged material as alleged and were, therefore, lawful under OPRA;
and, (2) whether the custodian’s original response to the request was adequate under OPRA.
Mr. Pfeiffer advised the Council that the complaint was filed in July 2002 and a Records Note
regarding procedures for redacting text from records was not issued until August/September
2002. Mr. Maltese stated that he concurred with Judge Sweeney’s view that legal bills should
not contain attorney client privileged information. Mr. Watkins informed the Council that, to the
contrary, governing bodies usually request that type of information to determine whether to pay
an invoice. Mr. Watkins suggested that the Executive Director or the Division of Local
Government Services advise local units that descriptions of legal discussions with clients or legal
theories or mental impressions of attorneys should appear only on a supplement to the invoice
and not the invoice itself.
After discussion, Mr. Watkins moved that the Council adopt the Executive Director’s July 10
Findings and Recommendation that the information redacted was attorney-client privileged, that
the redaction was lawful under OPRA; that the custodian provided a reason for the redaction as
required under OPRA, and that the Complaint be dismissed with a request that the Executive
8/22/2003
Page 3
Director to quickly advise all local units of the need to remove attorney client privileged material
from billing invoices onto a supplemental piece of paper. Ms. Hook seconded the motion. The
motion was adopted by roll call:
Ayes: Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
 L.E. Fisher and Krisberg v. City of Paterson (Complaint 2002-46 and 55)
Mr. Pfeiffer advised that the Council is still waiting for the Attorney General’s legal advice. It is
anticipated that advice will be provided at the next meeting.
 Teeters v. DYFS (2002-6 and 2002-15)
Mr. Pfeiffer noted that at the Chair’s request, the Division of Law was asked to provide advice
on the case. Ms. Conklin noted that in the event the Council concluded that it could not resolve
the matter on the papers due to outstanding material questions of fact, a hearing would be
required, either before the Council or before an Administrative Law Judge. Mr. Pfeiffer stated
that he believed that there were questions of fact requiring a hearing and recommended that the
matter be referred to Office of Administrative Law as a contested case by July 21 unless the
Attorney General’s office advised to the contrary by that time.
Ms. Hook moved to accept the Executive Director’s recommendation with a second by Mr.
Spigner. The motion was adopted on a call of ayes and nays as follows:
Ayes: Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
Mr. Pfeiffer noted that the following cases are pending and no Council action is anticipated
today.

Reda v. Township of West Milford (2002-58)
Mr. Pfeiffer noted that the custodian’s counsel recently submitted for staff review an itemized
explanation for each of the e-mails claimed as privileged. Mr. Pfeiffer stated that he anticipates
the matter would be ready for Council consideration by August.

Blue v. Township of Wall (2002-47)
Mr. Pfeiffer noted legal advice was expected shortly and that the matter would likely be ready
for Council consideration by August.

L.E. Fisher v. Township of Fairfield (Essex) (2002-39)
8/22/2003
Page 4
Mr. Pfeiffer noted that the Custodian filed a certification and explanation for the redaction of the
legal vouchers and that the requestor’s filing is currently under legal review.

Inquiry and Complaint Procedure
Mr. Pfeiffer advised the Council that many comments were received on the proposed
amendments to Council procedure and that staff is reviewing them.

Approval of Proposed By-Laws
Mr. Pfeiffer summarized the proposed changes to the bylaws as follows: (1) eliminate the first of
two public comment periods and (2) replace “old and new business” with “case adjudication.”
Mr. Spigner moved to eliminate the first public comment period and replace “old and new
business” with “case adjudication,” with a second by Ms. Hook. The motion was adopted on a
call of ayes and nays as follows:
Ayes: Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
New Business

2002-70 Zaccaria v. Township of Wall
Mr. Pfeiffer explained that the complaint concerned a request was for test results done by the
Township engineer on an underground pipe at a housing development. While the documents
were ultimately provided 60 days after the request, the custodian initially denied access because
the records were not stored in the municipal building.
Mr. Pfeiffer recommended dismissing the portion of the Complaint seeking access to the record
and ask that the custodian explain the delay in producing the records. After discussion, matter,
Ms. Hook moved to adopt the Findings and Recommendations of the Executive Director; to
dismiss the portion of the Complaint seeking access to the records; to reserve decision on the
issue of custodian penalty under OPRA; and to require the Custodian to submit to requestor and
Council by July 31, 2003: (1) a full explanation why access to the records was not afforded
within seven business days of receipt of the OPRA request; and, (2) a description of the training
and education the custodian has received to date regarding OPRA. Mr. Watkins seconded the
motion. The motion was adopted on a call of ayes and nays as follows:
Ayes: Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.

2002-86 Russomano v. Township of Edison
Mr. Pfeiffer explained that the complaint involves a deficient response to a request seeking
answers to questions concerning the Township of Edison’s affordable housing obligation under
8/22/2003
Page 5
the State’s Fair Housing Act. The custodian provided an initial response by telephone and letter
indicating that the Township Administrator would respond to the request at a later, unspecified
date. It was not until October 28, 2002 that the requestor received a written response that the
Township rejected the “request” because it sought information and not government records.
Mr. Pfeiffer observed that the custodian was still obligated to respond to the requester within
seven business days of receipt of the request, rejecting the request or advising the requestor of
the specific date by which a response would be provided. Since the custodian’s omission in this
instance appeared to Mr. Pfeiffer not to have been a willful or knowing violation of OPRA, he
recommended that the Complaint be dismissed without penalty to the custodian. Ms. Wyne
confirmed that the “request” was a series of questions not a list of records. Ms. Conklin stated
that the requestor had submitted two subsequent OPRA requests concerning Edison’s affordable
housing plan that were not part of this Complaint.
Ms. Hook moved to adopt the Findings and Recommendations of the Executive Director; to
dismiss the Complaint; and to warn the custodian that within seven business days of receipt of
OPRA requests the custodian must either provide access to records or state the specific date by
which a response to the request will be provided. Ms. Schonyers seconded the motion. The
motion was adopted by roll call:
Ayes: Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
• 2003-28 Cottrell v. Borough of Glassboro
Mr. Pfeiffer explained that the complaint involves a dispute between the requestor and the
custodian challenged the custodian's behavior towards the requestor in fulfilling a records
request. The request was for a copy of a petition on file with the clerk and the custodian's
decision to compel the requestor to pay for a complete copy of the minutes of two Borough
Council meetings when the requestor sought only specific pages. The requestor asked for action
taken against the custodian due to an alleged a verbal dispute, which was contradicted by the
custodian.
As the documents were provided in a timely basis and the requester received a refund on her
money for the pages of the minutes she did not request, Mr. Pfeiffer did not see a basis on which
the Council would need to fine the custodian and that, therefore, the complaint should be
dismissed. With regard to action against the custodian, Mr. Pfeiffer advised that he was
withdrawing his recommendation to ask the governing body review the custodian’s action in
handling the OPRA request. After discussion, the Council concluded that a copy of Final
Decisions could be sent to governing bodies, but that in this case no formal communication
requesting review was appropriate. Ms. Schonyers moved to accept the Executive Director’s
Findings and Recommendations and dismiss the complaint. Mr. Spigner seconded the motion.
The motion was adopted by roll call:
Ayes: Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Watkins and Mr. Maltese.
Nays: None.
8/22/2003
Page 6
Public Comment
Joseph Tyrell, member of New Jersey Foundation for Open Government (FOG), questioned the
Council on facts underlying Zaccaria v. Wall Township and suggested that custodians who
delayed in providing access to records should be fined. In connection with another matter not
pending before the Council, Mr. Tyrell stated that a group of Hoboken residents had requested a
list of city of employees who are permitted to take city cars home. The City denied the request
on the grounds such a list did not exist. Mr. Pfeiffer stated that the Council was not aware of
such a circumstance, however, there should be records that clearly state that information that the
residents requested. Mr. Pfeiffer further stated that if the Council received an inquiry in this
matter, Council staff would work with the requestor and the custodian to resolve the matter.
Donna Synder, Administrator/Municipal Clerk of Mansfield Township (Burlington County) and
member New Jersey Municipal Clerks Association, stated that the clerks were aware of the need
to comply with Council directive and decisions and that she would advise Association members
regarding the Council Decisions and the issues discussed at today’s meeting.
Hearing no one further, Mr. Maltese closed the public comment period.
Several members then commented on the Council’s complaint handling process and the fact that
while there have been delays in the past, progress was being made to reduce the backlog of older
complaints.
Mr. Watkins moved to adjourn the meeting with a second Mr. Spigner. The motion was adopted
by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins, Ms. Schonyers and Mr. Maltese.
Nays: None.
Mr. Maltese adjourned the meeting 12:13 p.m.
Respectfully submitted,
Dated: August 14, 2003
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
August 14, 2003
The meeting was called to order at 9:39 a.m. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Mr. Pfeiffer called the roll:
Present:
Chairman Vincent Maltese, Matthew U. Watkins (designee of
Commissioner Susan Bass Levin, Department of Community
Affairs), Virginia Hook and Bernard Spigner
Absent:
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution and Mr. Spigner seconded the motion. All members present approved the
motion. The Council met in closed session from 9:39 to 10:44 a.m.
The Council reconvened in open session at 10:55 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Pfeiffer called the roll:
Present:
Absent:
Chair Vincent Maltese, Virginia Hook, Bernard Spigner and
Matthew U. Watkins
Diane Schonyers
Also Present: Deputy Attorney General Barbara Conklin and Deputy Attorney
General Juliet Wyne, Acting Executive Director Marc Pfeiffer,
Assistant Executive Director Paul Dice and Staff Associates Marc
Leavitt and Chris Malloy.
Mr. Maltese called for adoption of the minutes from the public meeting of July 10, 2003.
Mr. Watkins moved to adopt the minutes as prepared with a second by Mr. Spigner. The
motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
Page 1
Mr. Maltese called for the adoption of the closed session minutes from the July 10, 2003
meeting. Ms. Hook moved to adopt the minutes as prepared with a second from Mr.
Spigner. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
Mr. Maltese called for the Executive Director’s report. Mr. Pfeiffer distributed a copy of
the report to the Council and stated that copies are available for public inspection.
Mr. Maltese asked if the Council had received any new communications. Mr. Pfeiffer
reported that none had been received.
Mr. Maltese then moved on to the matter of Council adjudications.

L.E. Fisher and Krisberg vs. the City of Paterson (2002-45 and 2002-55)
Mr. Pfeiffer said the Council previously issued a Decision that the copying fees levied by
the city for a copy of a single day’s police blotter were not lawful under OPRA and that
the requestors were “prevailing parties” entitled to reasonable attorney’s fees under
OPRA. Because the parties could not settle the amount of fees, the requestors submitted
fee applications for Council adjudication. Mr. Pfeiffer recommended that the Council
find that:
 Requestor’ s legal counsel should receive $150 per hour for 12.13 hours of work
for a total of $1,819.50 in fees.
 The fee enhancement sought by requestor’s attorney is not appropriate under
OPRA.
Following a discussion, Mr. Maltese moved to accept the Executive Director’s Finding
and Recommendations, seconded by Ms. Hook. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None

Blue vs. Township of Wall (2002-47)
Mr. Pfeiffer explained that this case involved a request by a private detective for records
of a driving while intoxicated incident (DWI) and a question of redaction of personal
information from certain records. The custodian claimed that the DWI documents were
records of a criminal investigation and pursuant to OPRA were not disclosable.
Mr. Pfeiffer recommended that the Council:
 Find that the DWI records are not criminal investigatory records under OPRA
because they concern Title 39 Motor Vehicle violations that are not punishable as
crimes themselves nor are they related to allegations of criminal activity in this
case.
Page 2



Find that OPRA does not afford the requestor access to information such as social
security or driver’s license numbers because the requestor is a licensed private
investigator.
Order the disclosure of the requested reports, including previously redacted
information such as address and age of the defendant.
Find that the custodian did not willfully and knowingly violate OPRA.
After Council discussion, Mr. Watkins moved that the Council accept the Executive
Director’s Finding and Recommendation. Mr. Spigner seconded the motion. The motion
was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None

Zaccaria vs. Township of Wall (2002-70)
Mr. Pfeiffer explained that the Township custodian initially denied a request for records
stored by the Township consulting engineer in his private office because the custodian
did not have access to the records. The records were provided significantly after the 7day deadline, with no notice to the requester when the records would be made available.
Mr. Pfeiffer recommended that the Council dismiss the complaint and remind the
custodian that:
 OPRA mandates access to government records even if they are in storage.
 Custodians, officials, officers and employees handling OPRA requests should
know where their government records are stored.


OPRA at N.J.S.A. 47: 1A-5(i) requires custodians to, within seven business days
following receipt of a request for records in storage, advise requesters of they date
can expect to receive the records.
When a custodian does not have direct access to records, the OPRA request can
be delegated to someone who does have access with instructions to provide them
either to the requester or the custodian.
The Council discussed the matter and raised questions concerning its ability to issue
reprimands and assess fines when custodians violate OPRA. The Council directed Mr.
Pfeiffer to research the matter and present recommendations at the next Council meeting.
Mr. Spigner made a motion to accept the Executive Director’s Finding and
Recommendations. Ms. Hook seconded the motion. The motion was adopted by roll
call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
Page 3
• Janeczko vs. Division of Criminal Justice & N.J. State Police (2002-79 and 200280)
Mr. Pfeiffer explained that the complaints involve a request for copies of a police
investigation of criminal activity at Fort Dix and nearby municipalities that culminated in
the shooting of the suspect. The custodian denied access because the records were part of
a criminal investigation and confidential under OPRA. While the requestor had obtained
access to some redacted records concerning the incident from the Department of the
Army under the Federal Freedom of Information Act, the State custodians declined to
provide access. The Executive Director recommended that the Council find the records
sought are criminal investigatory records and are not subject to disclosure under OPRA.
He also recommended that the requestor be advised to consider an application for the
records under the Common Law.
Mr. Watkins made a motion was made to accept the Findings and Recommendations of
the Executive Director. Mr. Maltese seconded the motion. After discussion, the Council
agreed also to authorize Mr. Pfeiffer to advise the requestor that OPRA did not limit her
ability to seek access to the records under the Common Law. The motion was adopted by
roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
• Jacob vs. Borough of Totowa (2002-113)
Mr. Pfeiffer explained that the requested records included copies of licenses, “listed
businesses,” and police tapes of certain incidents that were more than a month old. The
custodian’s response was not timely, not written as required under OPRA and failed to
provide the requestor notice of her rights of appeal under OPRA. The custodian excused
the inadequate response on the basis that the records had been previously provided to the
requestor and they were unable to contact the requestor by telephone. There was
confusion in the record about the dates of the requests as described in the requestor’s
complaint as compared to those on record with the custodian.
Mr. Pfeiffer recommended that the Council find that:
1. In light of the confusion about requests for “listed businesses” in a a claimed
September and submitted October 4, 2002 requests, and the December 6, 2002
request, that those portions of the Complaint be dismissed;
2. Neither the Borough's responses to previous requests from the requestor nor the
Borough's attempted verbal contact to the requestor complied with OPRA
requirements for responding to a records request, as OPRA requires that responses
be in writing;
3. That the custodian provided untimely access to the records responsive to the
December 6, 2002 request for licensing information;
Page 4
4.
That no records exist in response to the December 6, 2002 request for police
tapes, and;
5. That under the facts of this case, OPRA was violated, but, the actions of custodian
did not unreasonably deny access under the totality of the circumstances; and that
the Council,
6. Dismiss the complaint because of the confusion that surrounds the request.
It was also recommended that the Council formally reprimand the custodian and the
police chief for violating the OPRA seven-business days response deadline and for failing
to provide the requestor the OPRA rights of appeal and provide a copy of the reprimand
to the Borough Council. Finally, the complaint should be dismissed because of the
confusion that surrounds the requests.
The Council discussed the matter. Mr. Maltese suggested that the proposed reprimand be
discussed to the following meeting, as the Council has not yet established a reprimand
policy. A discussion then ensued about reprimands.
In lieu of a reprimand, Mr. Watkins suggested that the Council send a letter to the
Borough Council and the individuals regarding the Council’s decision so appropriate
measures could be taken to ensure adequate Borough response to other OPRA requests.
Mr. Maltese asked for a motion to accept all the Executive Director’s Findings and
Recommendations except the proposed reprimand and, instead, to instruct the Executive
Director to advise the Borough Council and the individuals of the Council’s decision.
Mr. Watkins offered the motion as stated, which was seconded by Mr. Spigner. The
motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
Blanchard vs. Rahway Board of Education (2003-57)
Mr. Pfeiffer explained that this complaint involves a custodian, on advice of counsel,
denying access to the individual employment contracts of a school superintendent and to
audiotapes of a public meeting of the Board of Education.
After the initial denial, the requestor contacted the staff of the GRC for guidance on the
denial. The requestor was advised that the records sought were government records
subject to public access; in the case of the employment contract, access should have been
provided immediately pursuant to N.J.S.A. 47: 1A-5(e). The requestor provided a copy of
the GRC’s response to the custodian who requested that the board attorney review the
matter. The attorney eventually responded that the records should be disclosed. The fact
that the requestor was a candidate for the Board of Education, that the request was made
prior to the election, and that the delays resulted in access after the election adds to an
impression that access to the records was deliberately delayed. However, the records
were made available to the requestor, and there is no evidence that the initial denial of
access in this case was a knowing and willful violation of OPRA because the Board
Page 5
attorney has advised the Council in writing that an error of judgment was made by a
junior associate who advised the custodian in the matter.
As a result, Mr. Pfeiffer suggested that the Council dismiss the Complaint and caution the
custodian to promptly discuss with the GRC any legal advice that appears inconsistent
with any provision of OPRA, the Custodian Handbook, GRC Final Decisions or GRC
advice to the requestor.
The Council discussed various aspects of knowing and willful violations and whether the
school board attorney is an “official” subject to a fine under OPRA. Mr. Maltese asked
the GRC’s legal counsel to research whether or not a school board attorney is a public
official subject to fine under OPRA.
Mr. Maltese objected to Mr. Pfeiffer’ s characterization of the custodian’s initial denial of
access as “unreasonable.” Mr. Maltese acknowledged that while there was a violation of
OPRA, the custodian’s actions were not unreasonable under the totality of the
circumstances, in light of the advice provided by the Board attorney.
The Council continued to discuss the case and how the GRC should address a custodian
response that does not comply with OPRA but still falls short of the OPRA “knowing and
willful” standard.
Mr. Maltese asked for a motion in lieu of adopting the Recommendations the Executive
Director, proposed as follows:
 There had been a violation of OPRA in so far as the requester was denied
immediate access to the superintendent’s employment contract and denied access
to audio tapes of an open public meeting within seven business days following
receipt of the OPRA request.
 Consideration of penalties under OPRA is deferred until the next Council
meeting.



Before that meeting, Council’s attorney will provide advice whether a school
board attorney is a “public official” and subject to fine under OPRA.
The custodian’s initial denial of access was not “unreasonable” under the totality
of the circumstances.
The Executive Director is instructed to advise the custodian, the board of
education, and the Board’s attorney of the GRC’s actions in this case.
Mr. Spigner made the motion, which was seconded by Ms. Hook. The motion was
adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
Council considered unfinished business.
Page 6
Mr. Pfeiffer reviewed L.E. Fisher vs. Township of Fairfield (2002-34) and Reda vs.
Township of West Milford (2002-58) and indicated that both cases were under review
and anticipated that that the matters would be ready for action at the Council’s
September, 2003 meeting.
Mr. Maltese asked Mr. Pfeiffer to describe the status of the proposed amendments to the
Council’s Inquiry and Complaint policy. Mr. Pfeiffer indicated that written comment had
been received from several individuals and interest groups, that all comments had been
reviewed, and that no significant substantive changes to the proposed amendments were
required at this time. Mr. Pfeiffer recommended that the Council approve the
amendments to the Policy as proposed with the minor changes suggested by GRC staff in
response to comments received. Mr. Pfeiffer noted that the Policy is a work in progress
that can be modified on an on-going basis. Mr. Watkins made a motion to accept the
amendments to the proposed amendments as modified by GRC staff, which was
seconded by Mr. Spigner. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
Mr. Maltese opened the floor to public comment.
Dr. Anne Barron of Highland Park addressed the Council on several issues including
responses to various OPRA requests filed with specific towns. An outline of Dr.
Barron’ s presentation is attached hereto and made part of these minutes. Chairman
Maltese advised Dr. Barron to take advantage of her right under OPRA to file a
complaint in the event she believed she had been denied access to a government record.
Mr. Pfeiffer suggested that Dr. Barron discuss the GRC Complaint process with Paul
Dice.
Lois Lebbing of Highland Park addressed the Council. She did not provide a written
outline of her presentation. Ms. Lebbing expressed frustration with custodians’ delay in
providing access to government records. She stated that the seven-day deadline for
response to some of her requests had been missed. Further, some of the responses had
been verbal rather than in writing as required by OPRA. Ms. Lebbing also stated that she
has difficulty with some OPRA request procedures. Also, she said that in the past
Piscataway would not provide access to pending zoning applications before they were
voted upon. Now the municipality provides access to such documents. She alleged that
Piscataway charged $50.00 for copies of minutes of public meetings. Further, some of
the minutes on microfilm did not include attachments referred to in the minutes. Overall,
she said, it is harder now to access records than it was before OPRA was enacted. She
asked that the Council send reminders to all municipalities about their responsibilities
under OPRA.
Mr. Maltese stated that there appeared to be no complaints from the commenter on file
with the Council and recommended that the commenter take advantage of her right under
Page 7
OPRA to do so. Ms. Lebbing expressed a lack of familiarity with the OPRA appeal
process. Mr. Pfeiffer stated that custodians should have posters in the public area of their
offices and narratives on the OPRA request forms advising the public how to appeal a
denial of an OPRA request. Ms. Lebbing said she had not seen such notices. A general
discussion then ensued regarding custodian responsibilities. Mr. Maltese directed Ms.
Lebbing to Mr. Dice for assistance in obtaining complaint forms.
Mr. Pfeiffer indicated that GRC staff would contact Highland Park and Piscataway to
determine whether the municipalities were complying with their obligations under OPRA
to advise the public of procedures to appeal a denial of an OPRA request.
Hearing no more public comment, Mr. Maltese called for a motion to adjourn. The
motion was offered by Mr. Watkins, seconded by Ms. Hook and approved by a roll call
vote:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins and Mr. Maltese
Nays: None
The meeting was adjourned at 12:12 p.m.
Respectfully submitted,
Dated: September 11, 2003
Page 8
GOVERNMENT RECORDS COUNCIL
September 11, 2003 Public Meeting – Open Session
The meeting was called to order at 9:35 a.m. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. Chairman Vincent Maltese read the Open Public
Meetings Act statement.
Mr. Pfeiffer called the roll:
Present:
Vincent Maltese, Chairperson; Bernard Spigner, Vice Chairperson;
Virginia Hook, Secretary; Matthew U. Watkins (designee of
Commissioner Susan Bass Levin, Department of Community
Affairs) and Diane Schonyers (designee of Commissioner William
Librera, Department of Education).
Also Present: Barbara Conklin and Juliet Wyne, Deputy Attorneys General;
Marc Pfeiffer, Acting Executive Director; Paul Dice, Assistant
Executive Director and Marc Leavitt, Staff Associate.
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution with a second by Bernard Spigner. All members approved the resolution. The
Council met in closed session from 9:35 to 10:30 a.m.
The Council reconvened in open session at 10:40 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The attendees recited the Pledge of
Allegiance, after which Mr. Pfeiffer called the roll:
Present:
Vincent Maltese, Chairperson; Bernard Spigner, Vice Chairperson;
Virginia Hook, Secretary; Matthew U. Watkins and Diane
Schonyers.
Also Present: Barbara Conklin and Juliet Wyne, Deputy Attorneys General;
Marc Pfeiffer, Acting Executive Director; Paul Dice, Assistant
Executive Director and Marc Leavitt, Staff Associate
Mr. Spigner asked for a moment of silence in remembrance for those lost two years ago
at the World Trade Center and other sites.
Mr. Maltese asked for a motion to accept the closed and open minutes of the August 14,
2003 meetings that the Executive Director distributed prior to this meeting. Mr. Watkins
moved to accept the motion as stated with a second by Mrs. Hook. The motion was
adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Mr. Watkins, Mr. Maltese
1
Abstentions: Ms. Schonyers
Nays: None
Mr. Pfeiffer presented the Executive Director’s monthly report. He said that Attorney
General advice regarding “knowing and willful” conduct under OPRA and whether
school board attorneys could be considered “public officials” subject to OPRA penalties
were not ready for this meeting. Copies of the Executive Director’s report were made
available to the public.
Shain vs. the Township of Lakewood (2002-110)
Mr. Pfeiffer explained that this complaint concerns a November 2002 request for copies
of all "initial statements and questionnaires" of tax-exempt property in the Township.
There are over 500 such documents. Given a combination of workload, statutory
deadlines in the office, and staff leave schedules, the custodian advised that the request
would not be fulfilled until the end of January. The requestor did receive copies as they
were made. 150 copies were provided within the first seven days. The requester filed a
complaint at the end of December.
Because the requestor has received all of the requested records, the only remaining issue
for Council adjudication is whether there has been a violation of OPRA under N.J.S.A.
47:1 A-11. In this regard, the Executive Director recommends that because the request for
access substantially disrupted agency operations and the Township attempted to reach a
reasonable solution with the requestor for providing the documents, the Township was
justified in denying access by not providing the documents within seven business days.
Therefore, there was no violation of OPRA under N.J.S.A. 47:1A-1 1. Mr. Pfeiffer
recommended that the case be dismissed.
Mr. Maltese asked for a motion to approve the Findings and Recommendation of
Executive Director dated September 4, 2003. Mr. Spigner offered the motion as stated.
Ms. Schonyers offered a second. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr. Maltese
Nays: None
Shain vs. the Township of Lakewood (2003-111)
Mr. Pfeiffer stated that the complaint concerns a request for copies of contracts of a
certain attorney hired by the Township and copies of itemized statements of work
performed by said attorney over a period of time. The Township failed to provide
immediate access to the request for contracts and provided the itemized statements five
months later. No explanations for the delay have been provided. The requestor has
received all requested documents.
2
There are contradicting claims concerning when documents were made available to the
requestor (December or April). These claims become irrelevant in the context of the
initial failure to disclose on a timely basis.
Mr. Pfeiffer stated his finding that the custodian violated the requirements of OPRA to
provide access to copies of contracts immediately upon request, and waiting five months
to provide copies of the itemized statements of attorney invoices. However, there was
also no factual basis to conclude that the custodian knowingly and willfully violated
OPRA. He recommended that the case be dismissed. Further, he recommended that the
custodian and governing body be warned that future violations of this nature could result
in a finding that the custodian “knowingly and willfully” violated OPRA.
The Council members discussed the education of custodians and the concept of “knowing
and willful” violations of OPRA.
Mr. Maltese suggested that the Council accept the Findings and Recommendation of
Executive Director dated September 5, 2003 with the following modifications:
 Dismiss the portion of the complaint seeing access to the records;
 Carry the “knowing and willful” penalty issue to the October meeting given the
Council’s need for advice from the Office of the Attorney General; and
 Advise the Executive Director to seek an explanation from the custodian why the
custodian’s actions do not rise to the level of a knowing and willful violation.
Mr. Watkins offered the motion as stated. Ms. Schonyers offered a second. The motion
was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr. Maltese.
Nays: None
Brower vs. Chatham Township (2003-30)
Mr. Pfeiffer explained that this complaint concerns a request for the "name of the person
who called the custodian to complain" that a candidate's wife was working at a polling
place. The custodian certified that a written record of the name of the person does not
exist. The requestor claims that the custodian admitted to him that the name of the
complainant was in a file, but upon going to obtain it, decided not to disclose it. The
custodian denies that such an admission was made, and asserts that she walked to her file
cabinet because the "intimidating attitude" of the requestor, a newly elected Council
member, made her extremely nervous. The Township Administrator confirms that no
record exists, as does the Manager of the County Board of Elections.
Mr. Pfeiffer explained that the credible evidence supports the conclusion that a
government record identifying the name of the individual who questioned the custodian
does not exist and recommends that the Council dismiss the Complaint. Mr. Pfeiffer
observed that even if the custodian knows who the individual is, OPRA does not require a
custodian to create a government record if none exists.
3
Mr. Maltese asked for a motion to accept the Findings and Recommendation of Executive
Director dated September 5, 2003. Mr. Spigner offered the motion as stated. Ms. Hook
offered a second. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr. Maltese
Nays: None
Seery v Upper Pittsfield (Complaint 2003-38)
Mr. Pfeiffer explained that this complaint concerns a request for copies of GIS "maps"
the requestor claims he observed being presented by the Township mayor at various
municipal meetings and which were stored in the municipal building. The custodian
denied access claiming that the maps were "not the property" of the municipality because
they were loaned to the mayor by vendor developing of the mapping program on a
personal basis and were not final products. The map vendor stated the maps were not yet
"available for public use" because the mapping is still being tested for accuracy but
admitted they had been made available to several municipalities to support "time
sensitive internal projects."
Mr. Pfeiffer stated his finding that the maps are government records and that any
notations or markings on the maps may be redacted if they qualify as confidential
material under OPRA. He concluded that the custodian did not knowingly and willfully
violate OPRA by denying access in this case and recommended that the Council order the
custodian to provide the requestor access to the maps.
A discussion then ensued.
Mr. Maltese called for a motion accept the Findings and Recommendation of Executive
Director dated September 5, 2003 with an added provision that the order of access will be
effective 10 days from the meeting date to provide the custodian an opportunity to appeal
the decision, if so desired. Ms. Hook offered the motion as stated. Mr. Spigner offered a
second. The motion was adopted by roll call.
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr. Maltese
Nays: None
Reda vs. Township of West Milford (Complaints 2002-58 and 2003-49)
Mr. Pfeiffer suggested the Council combine these cases as they involve substantially the
same type of documentation. He stated that the complaints involve claims of advisory,
consultative, or deliberative (ACD) privilege for a large and undetermined number of emails between the Township manager or clerk and two named council members. This is
the Council’s first case concerning e-mail claimed to be ACD and the first in which an
index of records is necessary.
4
One complaint concerns e-mails sent or received between January 1, 2002 and September
19, 2002, and the other, September 20, 2002 through January 17, 2003. The custodian
provided an index of 130 e-mails in Compliant 2002-58 that was of limited use and
recently advised that a professional search of its computer system revealed additional emails requiring indexing. The custodian has offered to provide an index for e-mails
covered by Complaint 2003-49.
Mr. Pfeiffer explained that the description of the e-mails in the custodian’s index do not
provide sufficient information to allow the Council to assess the custodian’s claim of
confidentiality. Given the time-consuming process of in camera inspection and the
likelihood many more e-mails will be added to the complaints, Mr. Pfeiffer recommended
that the matters be referred to the Office of Administrative Law for hearing, assembly of
a record, and an Initial Decision of findings of fact and conclusions of law pursuant to the
Administrative Procedures Act that the Council may accept, reject or modify.
Ms. Hook offered a motion to accept the Interim Findings and Recommendations of
Executive Director dated September 5, 2003 and transmit the matters to OAL. Mr.
Watkins offered a second. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr. Maltese
Nays: None
Blanchard v. Rahway Board of Education (2003-57)
Mr. Maltese noted that Blanchard v. Rahway Board of Education would be carried over
until the Council’s October meeting. In response to communications from the requestor,
Mt. Maltese instructed Mr. Pfeiffer to advise the requester that if the Council imposed a
fine, the money would not go to the requestor.
L.E. Fisher v. the Township of Fairfield (Essex) [2002-38]
Mr. Pfeiffer stated that this complaint involved a request for an attorney voucher that the
custodian initially disclosed with redactions to protect alleged attorney-client privileged
material. Over the course of the investigation, and through correspondence between the
parties and the Council, the custodian revealed additional material while maintaining the
privileged nature of remaining redactions. At issue were the justifications for the
privileges and the challenge to the privilege presented by the disclosure of information to
a legal adversary.
The custodian recently produced the full, unredacted invoice. Because the custodian has
voluntarily disclosed the requested record, the requestor is not a prevailing party for the
purposes of awarding attorney fees under OPRA. Although the custodian and custodian
counsel was less than thorough in complying with the OPRA requirements for providing
an explanation for the redactions, there is no evidence to support a finding that the
custodian knowingly and willfully violated OPRA. Under these circumstances, Mr.
Pfeiffer recommended that this complaint be dismissed.
5
A discussion among the Council members then ensued regarding prevailing party.
Mr. Maltese asked for a motion to accept the Findings and Recommendations of
Executive Director dated September 5, 2003. Mr. Watkins offered the motion as stated.
Ms. Schonyers seconded the motion.
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr.
Maltese Nays: None
Mr. Maltese turned to new business.
Mr. Pfeiffer reported on the proposed Custodian Consequence Policy in cases where
custodian conduct fell short of a knowing and willful violation of OPRA. The proposed
policy would allow the Council to issue custodians reminders, admonitions or reprimands
and, finally, censure.
Mr. Maltese stated it was the consensus of the Council to solicit public comment on the
proposal and post it on the GRC web site. He asked for a motion. Mr. Watkins offered
the motion as stated. Mr. Spigner seconded the motion. The motion was adopted by roll
call:
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr.
Maltese. Nays: None
Mr. Maltese opened the meeting to the public.
Cynthia Jablonski, Department of Treasury, asked about the Seery case. Since the
municipality did not own the map, who would be liable if its release resulted in damages
to the owner. Mr. Maltese said it was produced by an outside company for use by the
governing body, and became a public record when it was taken to the municipal building
to be used. Deputy Attorney General Barbara Conklin said that the Council could not
generalize about such a broad question, since the facts in each case would be different.
Donna Snyder, clerk and business administrator for Mansfield Township, and
representing the state Municipal Clerks Association, asked Mr. Pfeiffer about site plans
and architectural plans. She said that in the former case, it was necessary to prevent
removal of site plans from government offices for copying in order to preserve the
integrity of the files and that her practice is to call the architect before her staff made
copies of copyrighted plans.
Leslie Fehrenbach of Rutgers University reminded the Council that not all custodians are
municipal clerks and urged the Council to make information available to state universities
and colleges in a timely fashion.
6
Mr. Maltese asked for a motion to adjourn. Ms. Schonyers offered the motion as stated.
Mr. Watkins seconded the motion.
Ayes: Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Watkins, Mr. Maltese.
Nays: None
The meeting was adjourned at 11:40 a.m.
Respectfully submitted,
Virginia Hook, Secretary
7
GOVERNMENT RECORDS COUNCIL
October 9, 2003 PUBLIC MEETING – OPEN SESSION
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Joe Monzo (designee of Commissioner
Susan Bass Levin, Department of Community Affairs), Virginia
Hook, Bernard Spigner, and Diane Schonyers, (designee of
Commissioner William Librera, Department of Education)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Mr. Spigner. All members present approved the motion.
The Council met in closed session from 9:35 to 10:40 a.m.
The Council reconvened in open session at 10:45 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Joe Monzo (designee of Commissioner
Susan Bass Levin, Department of Community Affairs), Virginia
Hook, Bernard Spigner, and Diane Schonyers, (designee of
Commissioner William Librera, Department of Education)
Also Present: Deputy Attorney General Barbara Conklin, Acting Executive
Director Paul Dice and Staff Associates Chris Malloy and Donna
Siminski.
Mr. Maltese discussed Mr. Pfeiffer’s stepping down as the Acting Executive Director of
the Government Records Council. Mr. Spigner made a motion to appoint Mr. Dice as the
Acting Executive Director, seconded by Ms. Hook.
Ayes:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr.
Maltese.
Nays:
None
Mr. Maltese asked Mr. Dice to review personnel matters. Mr. Dice discussed the
additional staff that was hired as well as the resignation of a staff member.
1
Mr. Maltese called for the adoption of minutes from the public meeting of September 11,
2003. Mr. Spigner moved to adopt the minutes as prepared with a second by Ms. Hook.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, and Mr. Maltese.
Nays:
None
Abstention:
Mr. Monzo
Mr. Maltese called for the adoption and release to the public of the closed session
minutes from September 11, 2003. Ms. Schonyers asked that the minutes be amended to
reflect her attendance. A motion to accept the minutes with amendments was made by
Ms. Schoyners and seconded by Mr. Spigner. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Abstention:
Mr. Monzo
Mr. Maltese called for the Executive Director’s report. Mr. Dice distributed a copy of the
report to the Council and stated that copies are available for public inspection.
Mr. Maltese addressed the issue of “knowing and willful” as contained in OPRA as well
as attorney and custodian penalties. The Council had asked the Division of Law to
provide the GRC with advice in connection with the phrase, knowing and willfully.
Deputy Attorney General, Barbara Conklin reviewed her advice to the Council. She
stated that “willful” constitutes an intentional act, which is committed with the
knowledge that the act is contrary to the requirements of OPRA. If the Council believes
in any case that the facts on the record as written, might constitute a knowing and willful
violation, and unreasonable under the totality of the circumstances, then the Council
should have a hearing to allow the custodian and anyone else with relevant knowledge an
opportunity to present their case. After the hearing the Council may interpret the facts
and apply the record to the legal standard that the Division of Law has provided.
A conversation then ensued.
Mr. Maltese addressed the Council:
“As you just heard from DAG Conklin, the DOL advises this Council that the phrase
“knowingly and willfully” means “an intentional act which is committed with knowledge
that the act is contrary to the requirements of the statute”. To the best of my knowledge,
the standard concerning violations considered to be “knowing and willful in the civil
context, has not been specifically addressed by our Courts although our courts have
addressed the concept of “willful misconduct” as pointed out by the DOL, and it is as a
2
result of those cases that the DOL concludes that the definition of “willful and knowing”
is equivalent to the definition of “willful misconduct”, meaning an intentional act which
is committed with knowledge that it is contrary to the requirements of law. The DOL
further advises that before the GRC can impose a fine on a public official, officer,
custodian or employee, which I will collectively refer to as “officials”, the question of
whether the official’s conduct is “knowing and willful” must be based on facts which
must be determined in a plenary hearing conducted pursuant to the New Jersey
Administrative Procedures Act N.J.S.A. 52:14B-1.
The issue before us today is whether the Council is required in each case where it is
inclined to impose a fine pursuant to N.J.S.A. 47:1A-1 1a, to first conduct a hearing to
determine whether an official “willfully and knowingly” intended to violate OPRA. The
DOL has concluded that such a hearing is required in such cases. I respectfully disagree
with that conclusion. Although I agree that a hearing to determine the official’s intent in
denying a document request is appropriate in those instances where the statutory mandate
is unclear or reasonably susceptible to different interpretations, I do not agree, absent
mitigating circumstances, that such a hearing is required where an official violates a
clear, plain explicit or unambiguous provision or mandate of the statute. For example, I
do not believe a “specific intent” hearing is warranted if an official denies a request for a
copy of a specific voucher pursuant to 47:1A-5e, or if an official never responds to a
records request or fails to respond to a records request within the time period established
in subsection (i) of that section, or if an official charges a requestor $15 for a one page
copy of a meeting agenda in violation of 47:1A-5b. Where the statutory mandate is clear,
unambiguous, explicit and plain on its face it is my view that, absent mitigating
circumstances, a “specific intent” hearing is not required as a condition precedent to the
imposition of a fine on the offending official under 47:1 A-11 a.
The DOL’s advise relies in part on a New Jersey Supreme Court case entitled Fielder v.
Stonack, 141 N.J. 101 (1995) to support the proposition that there must be some
knowledge that the act is wrongful in order for the conduct to be considered willful,
however, Chief Justice Robert Wilentz writing for the majority, observed that “Like
many legal characterizations, willful misconduct is not immutably defined but takes
its meaning from the context and purpose of its use.” Chief Justice Wilentz goes on to
observe that the meaning may also differ depending on the common-law rule or the
statute to which it is relevant, and perhaps even differently within such rule or statute
depending on the facts. Other courts have had an opportunity to explore the definition of
“knowing and willful” and have concluded that the words do not have a single, fixed or
uniform meaning. Their meanings, moreover, will often vary depending on the context in
which used or the offense charged Carmody v. Rhode Island Conflict of Interest
Commission 509 A.2nd 453, (S.Ct. 1986).
Admittedly, many of the provisions of OPRA are not shining examples of clarity,
however, the Act does contain certain mandates which are clear, unambiguous, explicit
and direct. Some provisions clearly require an official to take specific action, while
others prohibit certain actions. Although it is my opinion that a “specific intent” hearing
to prove whether or not an official actually had a specific intent to violate the statutory
3
mandate is not required when the mandate is clear and explicit, I do agree that if the
mandate is confusing, unclear or reasonably susceptible to different interpretations, a
hearing is in order to determine an official’s intent.
OPRA is acclaimed by many to be one of the most serious public access laws in the
United States. I agree with this appraisal, and I am convinced that our Legislature
intended to set the tone with respect to public access of government records in New
Jersey. Although I agree that it was not the Legislature’s intent to impose strict liability
on officials who unwittingly violate OPRA, I believe the Legislature has given the
Council and our Courts sufficient latitude to find that in those cases where the mandate
was clear, unambiguous explicit and plain, a hearing to prove that the official did not
intend to violate those mandates is not required.”
A discussion then ensued.
Mr. Maltese addressed responses to proposed custodian consequence policies and
proposed that the comment period be extended, by consensus until November 3, 2003.
Mr. Dice will update the GRC web page and send notice of the extension through the
GRC list-serve.
The cases on the agenda were then addressed.
Jackson vs. Kean University (2002-89)
Mr. Dice reviewed the facts of the case and informed the Council that the Division of
Law asked for additional time to do more legal research. The complaint was removed
from the agenda for the October 9, 2003 Council meeting.
Mr. Maltese asked if the case would be ready for next month’s Council meeting.
Spielholz vs. Township of West Orange (2003-88)
Mr. Dice outlined the issues in the complaint and recommended that the Council:
 Dismiss the complaint.
 Find that the custodian provided access to the video tapes in a timely manner
 Find that the $15 per tape copy charge is reasonable and permitted pursuant to
N.J.S.A 47:1A-5.
 Dismiss the allegations of video tampering
Mr. Monzo moved to accept the Acting Executive Director’s recommendations, seconded
by Mr. Spigner. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Monzo, Ms. Schoyners, Mr. Spigner and Mr. Maltese
Nays: None
4
Shain vs. Lakewood Township (2002-111)
The case was continued from the August 14, 2003 meeting based on Council’s need for
advice from the Office of the Attorney General on what constitutes a knowing and willful
violation. Mr. Dice provided an overview of the case.
Conversation followed.
Mr. Maltese confirmed that the access portion of the complaint is dismissed and that the
Council finds that the custodian did violate OPRA because documentation was not
provided within the seven business days.
Mr. Maltese proposed that a penalty of $1,000 be imposed on the custodian pursuant to
N.J.S.A. 47:1A-1 1a. The penalty is imposed because the custodian knowingly and
willfully committed a violation of OPRA.
A conversation ensued.
Deputy Attorney General, Barbara Conklin advised the Council that if they believe that a
custodian knowingly and willfully violated OPRA, that custodian must be given the
opportunity to defend themselves.
A motion as follows was made by Mr. Spigner and seconded by Mr. Maltese:

The records custodian, Bernadette Standowski, violated OPRA by
providing access to the government records sought approximately five
months after the OPRA request was received;

The custodian knowingly and willfully denied access to the requested
government records;

The denial of access was unreasonable under the totality of the
circumstances;

The custodian is fined $1,000.00 pursuant to N.J.S.A. 47:1A-7(e) and
N.J.S.A. 47:1A-11.
Deputy Attorney General, Barbara Conklin stated that the motion is contrary to the legal
advice she has provided.
The motion was passed on a roll call:
Ayes: Ms. Hook, Mr. Monzo, Ms. Schoyners, Mr. Spigner and Mr. Maltese.
Nays: None
Mr. Maltese directed Mr. Dice to issue the order to the custodian.
5
Blanchard vs. Rahway Board of Education (2003-57)
Mr. Dice provided an overview of the case:

The Council first considered this case at the August 14, 2003 meeting, but it was
continued based on Council’s need for advice from the OAG.

Denial of immediate access to the employment contract of the school
superintendent.


Denial of access to audiotapes of a public meeting.
Dismiss the denial of access complaint because the requestor ultimately
received the contracts. This was decided at the August Council meeting.
Mr. Maltese advised the Council that they are discussing the application of a penalty for
the custodian, and asked for a motion to dismiss the portion of the complaint to fine the
attorney. Mr. Monzo offered a motion as stated by Mr. Maltese. It was seconded by Mr.
Spigner and approved on roll call:
Ayes: Ms. Hook, Mr. Monzo, Ms. Schoyner, Mr. Spigner and Mr. Maltese.
Nays: None
Mr. Maltese opened a discussion to determine if the custodian in this complaint should be
fined. A discussion regarding the custodian’s actions ensued.
Mr. Maltese asked for a motion regarding a fine in this case. Mr. Spigner offered a
motion to not fine the custodian as the custodian had not violated OPRA in the totality of
the circumstances. It was seconded by Ms. Hook and adopted on roll call:
Ayes: Ms. Hook, Mr. Monzo, Ms. Schoyner, Mr. Spigner and Mr. Maltese.
Nays: None
Mr. Maltese then asked if there was any new business.
Mr. Maltese opened the floor to public comment.
Kerri Blanchard of Rahway, addressed the Council regarding her complaint. She stated
that the facts as discussed are incorrect. The information she requested was given to her a
month and a half after she requested it, not two weeks. Ms. Blanchard expressed her
dissatisfaction with her case. She stated that there is no recourse for the public and that
the Council does not want the public to have access to records.
6
Elise Bokekio of Rahway addressed the Council stating that she was generally pleased
with its actions. She also discussed the circumstances in the Kerri Blanchard case.
Albin Wagner, Chief of the Bureau Records Management, Division of Archives and
Records Management addressed the Council regarding the physical location of records.
Mr. Wagner states that there are guidelines about record retention schedules and
guidelines about leave of absence records and other time records.
Hearing no more public comment, Mr. Maltese called for a motion to close the public
portion, and a motion to adjourn at 12:20 p.m. The motion was offered by consensus and
approved by roll call:
Ayes: Ms. Hook, Ms. Schoyner, Mr. Spigner and Mr. Maltese Nays:
None
Respectfully submitted,
Virginia Hook, Secretary Government Records Council
7
DRAFT MINUTES OF THE GOVERNMENT RECORDS COUNCIL
November 13, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Joe Monzo (designee of Commissioner
Susan Bass Levin, Department of Community Affairs), Virginia
Hook, Bernard Spigner, and Diane Schonyers, (designee of
Commissioner William Librera, Department of Education)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Mr. Spigner. All members present approved the motion.
The Council met in closed session from 9:35 to 10:50 a.m.
The Council reconvened in open session at 10:45 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Joe Monzo (designee of Commissioner
Susan Bass Levin, Department of Community Affairs), Virginia
Hook, Bernard Spigner, and Diane Schonyers, (designee of
Commissioner William Librera, Department of Education)
Also Present: Deputy Attorney General Barbara Conklin, Juliet Wyne, Acting
Executive Director Paul Dice and Staff Associates Chris Malloy,
Donna Siminski, Anthony Carbabelli, Gloria Luzzatto, and Brigitte
Lillie.
Mr. Maltese asked Mr. Dice to review personnel matters. Mr. Dice reviewed the staff
changes including the addition of Anthony Carbabelli and Gloria Luzzatto as new case
managers and Brigitte Lillie as an administrative assistant.
Mr. Maltese called for the adoption of minutes from the public meeting of October 9,
2003. A motion to accept the minutes was made by Mr. Monzo and seconded by Mr.
Spigner. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr.
Maltese.
None
Open Session Minutes – November 13, 2003 Meeting
1
Mr. Maltese called for the adoption and release to the public of the closed session
minutes from October 9, 2003. A motion to accept the minutes was made by Mr. Spigner
and seconded by Ms. Schonyers. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Mr. Maltese asked for the Executive Director’s Report. Mr. Dice distributed a copy of
the report to the Council and stated that copies are available for public inspection.
Mr. Dice gave an overview of the number of inquiries, web-site hits and cases that were
handled by the GRC.
Mr. Dice reviewed communications received by the GRC.
Mr. Maltese asked Deputy Attorney General Barbara Conklin to explain a request for the
council to reconsider the action taken in the Lakewood case. Ms. Conklin explained the
motion for reconsideration and the penalty imposed on the Lakewood clerk. Mr. Maltese
asked that the motion for reconsideration to be placed on the December 2003 agenda.
Roll call was taken to confirm that the issue of reconsideration would be heard at the
December meeting.
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Minuskin vs. Department of Law and Public Safety, Division of Law (2202-88)
Mr. Dice reviewed the complaint and recommended that the Council find that:
1.
The custodian provided access to the appraisal done for Aftab on October 3, 2003,
citing DOT regulations permitting access to this record at the conclusion of the
litigation (in this case, on July 12, 2003)
2. DOT’s appraisal report is confidential pursuant to N.J.A.C. 16:1A-3.2(a)2 as
made applicable to OPRA pursuant to Executive Order #21 (July 8, 2002) and is,
therefore, confidential pursuant to OPRA until such time as all acquisitions for the
road project in question are complete.
3. Neither facts nor case law support the requester’s claim that confidentiality has
been waived and, therefore, no hearing is appropriate.
4. Although the portion of the Complaint seeking access to the records can be
dismissed, the Executive Director recommends that the Council reserve decision
on custodian penalty and ask the custodian to fully explain all efforts made to
locate the documents sought by the requestor and explain why the Aftab appraisal
Open Session Minutes – November 13, 2003 Meeting
2
was not discussed in the custodian’s October 15, 2002 reply to the OPRA request,
the custodian’s SOI or any subsequent Division correspondence, until March
2003.
A discussion ensued regarding existing regulations.
Mr. Maltese asked for a motion to request additional information and certification from
the custodian to be received by the Government Records Council no latter than December
1, 2003. The custodian was asked to supply the following:
1.
2.
3.
4.
Why was the appraisal not located until March 4, 2003?
What gave rise to the custodian finding it on March 4, 2003?
Why did the custodian not release the appraisal following conclusion of the
condemnation litigation on July 12, 2003?
How was the custodian notified that the condemnation litigation ended on July 12,
2003?
In addition, the custodian shall submit a certification explaining why the Council should
not consider his actions as having knowingly and willfully violated the Open Public
Records Act in the totality of the circumstances.
No action was taken on any of the points of the complaint at the November 13, 2003
meeting. The entire case will be addressed at the December meeting.
The above was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Jackson vs. Kean University (2002-98)
Mr. Dice outlined the issues in the complaint and recommended that the Council find
that:
1.
2.
Kean University should disclose existing documentation that is responsive to the
request with appropriate redactions pursuant to OPRA provisions. Such disclosure
should be made within ten business days following receipt of the Council’s Order.
The remaining portions of the complaint should be dismissed. In dismissing these
portions of the complaint, the Council should find that:
a. The University is not responsible for developing a list of government
documents maintained by the organization.
Open Session Minutes – November 13, 2003 Meeting
3
b.
c.
There is no indication that the form lacks compliance with OPRA. Further,
there is neither legislative intent nor statutory obligation for the university
to prepare a list of government documents.
The custodian responded to the request in a timely manner given that the
response was made within the extension of time granted by the requester.
The custodian’s alleged statement that the University did not have an obligation to
create a document was apparently in response to a different OPRA request and is
not before the GRC for adjudication.
4. A documents physical location should not be a determing factor to decide whether
or not a record should be disclosed.
5. Leave of absence information should be disclosed.
3.
Mr. Maltese asked Deputy Attorney General Juliet Wynne to make any additional
comments pertaining to this complaint.
A motion to accept the Acting Executive Director’s recommendations was made by Ms.
Hook and seconded by Mr. Spigner. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Loigman vs. Monmouth County Prosecutor’s Office (2003-44)
Mr. Dice provided an overview of the issues in the complaint and recommended that the
council find:
1. The timeliness of the custodian’s response regarding access to the documentation
that was not in dispute must be addressed in two sections:
a. The requester received the 2003 name and salary information sevenbusiness days following the request.
b. The requester received the 2002 name and salary information 26 days
following the request. The custodian stated that this was an error that
her office found after receiving the requester’s Denial of Access
Complaint. The custodian released the 2002 name and salary
information three days following receipt of the Denial of Access
Complaint.
The Executive Director finds that the custodian violated N.J.S.A. 47: 1A5(i) by not providing the 2002 salary and name information to the
requester within the prescribed seven business days. However, the
custodian’s actions do not rise to the level of a knowing and willful
violation given the custodian’s explanation regarding her confusion
Open Session Minutes – November 13, 2003 Meeting
4
surrounding the salary negotiations. She corrected her mistake within three
days of being notified of same.
2.
The custodian has provided the requested list of all detectives in the Office of the
Monmouth County Prosecutor showing as to each their names and salaries for
calendar years 2002 and 2003.
3. While the custodian is not required to disclose the unredacted employment
application, pursuant to N.J.S.A. 47:1A-10, she must disclose the requested “law
enforcement experience (employer and length of service) prior to employment by
the Monmouth County Prosecutor” to the extent it discloses conformity with
specific experiential, educational or medical qualifications required for the
position of detective.
4. The custodian has ten business days from the date of receipt of the Council’s
Order to comply with #3 above. The custodian or counsel of record shall also
provide the Acting Executive Director with written notice of compliance within
said timeframe.
5. The complaint should be dismissed upon the custodian’s compliance with “3” and
“4” above.
Mr. Maltese recommended that the custodian address the two areas of violation with
certification as to her actions to be provided to the Government Records Council no later
than December 1, 2003.
Mr. Maltese asked for two motions to be made:
1. Require the custodian to disclose the “law enforcement experience (employer and
length of service) prior to employment by the Monmouth County Prosecutor” to
the extent it represents conformity with specific experiential, educational or
medical qualifications required for the position of detective. Such disclosure
should be made pursuant to the provisions of pursuant to N.J.S.A. 47:1A-10.
2. Order the custodian to submit a certification to the Council detailing why the
2002 name and salary information was not disclosed in a timely manner and why
the delay should not be considered by the Council as a knowing and willful
violation of the Open Public Records Act in the totality of the circumstances. Said
certification shall be submitted to the Government Record Council’s Acting
Executive Director Dice no later than December 1, 2003.
Ms. Schoyners made the motions. Mr. Monzo seconded the motions and they were
adopted on roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Open Session Minutes – November 13, 2003 Meeting
5
Katinsky vs. Township of River Vale (2003-68)
Mr. Dice reviewed the details of the complaint and recommended that the Council find:
1. Find that the custodian provided the requested documents to the requester and
certified they were complete, correct and contained no redactions.
2. Find that the integrity of public records under these circumstances is outside the
jurisdiction of the Open Public Records Act.
3. Dismiss the complaint.
A motion to accept the Acting Executive Director’s recommendation was made by Ms.
Hook. The motion was seconded by Ms. Schoyners and adopted on roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Blau vs. Union County, Office of the County Clerk (2003-75)
Mr. Dice reviewed the details of the complaint and identified the issue as the cost of the
records requested. Mr. Dice recommended that the Council find:
1.
2.
3.
4.
5.
Find that the per page charge for paper copies of records on file with the county
clerk is $2.00 per page pursuant to N.J.S.A. 22A:2-29. N.J.S.A. 47:1A-9(b)
indicates that OPRA will not abrogate other statutes.
Find that the fee for digital copies of records on file with the county clerk is
dictated by N.J.S.A. 47:1A-5.
Order the custodian to advise the Acting Executive Director and the requester by a
date certain the cost of providing requestor digital copies, along with a detailed
explanation of the basis for the cost. If the requestor agrees to the charge in
writing, the Acting Executive shall provide the custodian 10 business days within
which to provide requestor the records. If the requester advises in writing that he
is challenging the lawfulness of the charge under OPRA, the Acting Executive
Director will afford the custodian the opportunity to reply and shall prepare the
issue for adjudication by the Council.
Find that the request for copies “on a continuing basis” is not valid under OPRA
and that the requestor must submit a new OPRA request to the custodian for each
new batch of documents sought.
Find that the custodian did not provide a timely response to the request for digital
copies of the clerk’s records. A verbal denial of access was provided 10 business
days after the request. The deputy custodian made written inquiry to requestor as
to format 15 business days later; the custodian made an offer to provide copies at
$2 per page, 17 business days after the request. The custodian’s initial response
should have been in writing as soon as possible but no later than seven business
days following the request. N.J.S.A. 47:1A-5i.
Open Session Minutes – November 13, 2003 Meeting
6
6. Find that the custodian’s actions, however, do not constitute a knowing and
willful violation of OPRA.
A discussion ensued regarding the charges for electronic copies and. Ms. Conklin
reviewed that OPRA provides for the cost of electronic copies.
Mr. Maltese asked for a motion for the following:
1.
The per page charge for paper copies of records on file with the county clerk is
$2.00 per page pursuant to N.J.S.A. 22A: 2-29.
2. The fees for digital copies of records on file with the county clerk is dictated by
N.J.S.A. 47:1A-5.
3. The custodian is to advise the Acting Executive Director and the requester by
December 1, 2003 the cost of providing the requestor digital copies, along with a
detailed explanation of the basis for the cost.
4. The request for copies “on a continuing basis” is not valid under OPRA and that
the requestor must submit a new OPRA request to the custodian for each new
batch of documents sought.
5. Submit a certification to the Council detailing why the denial of access response
was not provided in a timely manner and why the delay should not be considered
by the Council as a knowing and willful violation of the Open Public Records Act
in the totality of the circumstances. Said certification shall be submitted to the
Government Record Council’s Acting Executive Director Dice no later than
December 1, 2003.
A motion was made by Ms. Schonyers and seconded by Mr. Spigner. The motion was
adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
None
Blau vs. Somerset County (2003-86)
Mr. Dice reviewed the issues of the complaint and recommended that the Council:
1.
Find that the per page charge for paper copies of records on file with the county
clerk is $2.00 per page pursuant to N.J.S.A. 22A:2-29. N.J.S.A. 47:1A-9(b)
indicates that OPRA will not abrogate other statutes.
2. Find that the fee for digital copies of records on file with the county clerk is
dictated by N.J.S.A. 47:1A-5.
3. Order the custodian to advise the Acting Executive Director and the requester by a
date certain the cost of providing requestor digital copies, along with a detailed
explanation of the basis for the cost. If the requestor agrees to the charge in
Open Session Minutes – November 13, 2003 Meeting
7
writing, the Acting Executive shall provide the custodian 10 business days within
which to provide requestor the records. If the requester advises in writing that he
is challenging the lawfulness of the charge under OPRA, the Acting Executive
Director will afford the custodian the opportunity to reply and shall prepare the
issue for adjudication by the Council.
4. Find that the requestor’s letter of June 17, 2003 was a valid written request
pursuant to OPRA.
5. Find that the custodian’s response of June 27, 2003 was one business day late but
that this delay does not rise to the level of a knowing and willful violation of
OPRA.
6. Find that the request for copies “on a regular monthly basis” is not valid under
OPRA and that the requestor must submit a new OPRA request to the custodian
for each new batch of documents sought.
Mr. Maltese asked for a motion to accept the amended Acting Executive Director’s
recommendation to find:
1.
2.
3.
4.
5.
6.
The per page charge for paper copies of records on file with the county clerk is
$2.00 per page pursuant to N.J.S.A. 22A: 2-29.
The fees for digital copies of records on file with the county clerk is dictated by
N.J.S.A. 47:1A-5.
The custodian is to advise the Acting Executive Director and the requester by
December 1, 2003 the cost of providing the requestor digital copies, along with a
detailed explanation of the basis for the cost.
The request for copies “on a continuing basis” is not valid under OPRA and that
the requestor must submit a new OPRA request to the custodian for each new
batch of documents sought.
The requester’s letter of June 17, 2003 was a valid written request pursuant to
OPRA.
The custodian’s response was one business day late but the delay did not rise to
the level of a knowing and willful violation of OPRA.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Monzo, Ms Schonyers, Mr. Spigner and Mr.
Maltese.
Nays:
None
Mr. Maltese asked for a status report on pending cases. Mr. Dice provided an update of
on the progress of several complaints.
Mr. Maltese asked if there was any new business. No new business was presented.
Mr. Maltese opened the floor to public comment.
Open Session Minutes – November 13, 2003 Meeting
8
William Check addressed the Council regarding the “Matrix System” for Homeland
Security. Mr. Maltese advised that Mr. Dice would speak to him in more depth outside
of the meeting.
Andrew Glascow addressed the Council about the delay in prolonged requests and the
negative impact it has on businesses. He also stated that the Council set the standard for
knowing and willful too high.
Mr. Glascow objected to the determination on standing OPRA requests and noted that he
believed that the GRC staff presentations indicated that such requests were provided for
under the Act.
Mr. Maltese invited Mr. Glascow to submit his recommendations to the Council for their
review.
Hearing no more public comment, Mr. Maltese called for a motion to close the public
portion, and a motion to adjourn at 12:20 p.m. The motion was offered by Mr. Spigner
and seconded by Mr. Monzo. The motion was approved by roll call:
Ayes: Ms. Hook, Mr. Monzo, Ms. Schoyner, Mr. Spigner and Mr. Maltese Nays:
None
Respectfully submitted,
/s/ Virginia Hook, Secretary
Open Session Minutes – November 13, 2003 Meeting
9
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
December 11, 2003
The meeting was called to order at 9:30 a.m. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner, and
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education)
Absent:
Joe Monzo (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Mr. Spigner. All members present approved the motion.
The Council met in closed session from 9:35 to 10:30 a.m.
The Council reconvened in open session at 10:3 5 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner, and
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education)
Absent:
Joe Monzo (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Also Present: Deputies Attorney General Barbara Conklin, Juliet Wyne, and
Andrea Grundfest, Acting Executive Director Paul Dice and Staff
Associates Chris Malloy, Donna Siminski, Anthony Carbabelli,
Gloria Luzzatto, and Brigitte Lillie.
Mr. Maltese asked Mr. Dice to review personnel matters. Mr. Dice reviewed the staff
changes including the addition of Andrea Grundfest, Deputy Attorney General. The
addition of a paralegal and resignation of an existing staff associate.
Mr. Maltese called for the adoption of minutes from the public meeting of November 13,
2003. A motion to accept the minutes was made by Ms. Hook and seconded by Ms.
Schoyners. The motion was adopted by roll call:
1
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Mr. Maltese called for the adoption and release to the public of the closed session
minutes from November 13, 2003. A motion to accept the minutes was made by Ms.
Schonyers and seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Mr. Maltese asked for the Executive Director’s Report. Mr. Dice stated that there were
no reports at this time.
Mr. Maltese asked for a review of any communications. Mr. Dice overviewed
communications received by the GRC.
Mr. Maltese requested to change the complaint adjudication agenda and recused himself
from the Wicks complaint. Mr. Spigner stepped in for Mr. Maltese.
Douglas Wicks vs. Bernards Township Board of Education (2002-107)
Mr. Maltese recused himself from all discussions and the vote relating to this case. He
asked Mr. Spigner to serve in his absence.
Mr. Dice reviewed the issues in the complaint providing that the complainant challenges
the denial of an OPRA request to inspect the checks payable to Mr. Reinzi’s and Horizon
Group, the billing records and correspondence between the township BOE and the law
firm representing the BOE on a legal issue.
Mr. Dice recommended that the Council:
1.
Find that the copies of the checks, one of which contained redactions, satisfied
this aspect of the request and this was confirmed verbally on November 14, 2003.
2. Find that the synopsis of the billing records was not in conformity with N.J.S.A.
47: 1A-5(e) and the custodian is to provide the requestor immediate access to the
requested billing records, subject to appropriate redactions.
3. To further determine if the correspondence is actually privileged, the custodian
will be required to submit an index of the privileged documents by listing for each
document the date, type of document, subject matter of the document, persons
copied on the document, the sender and receiver of the document and an
2
explanation of why each document is privileged which should include a nonconclusory, comprehensive presentation of all factual grounds and legal analyses.
The listing is to be provided to the Acting Executive Director no later than 10
days following the GRC decision.
4. Find that the custodian responded in a timely manner in six business days.
Mr. Spigner asked for a motion to support the Acting Executive Director’s
recommendations. The motion was made by Ms. Hook and seconded by Ms. Schonyers.
The motion was adopted by roll call.
Ayes:
Ms. Hook, Ms Schonyers, and Mr. Spigner
Nays:
None
Absent:
Mr. Monzo, Mr. Maltese
Mr. Maltese returned to the Council meeting following the vote.
Evelyn Gardner v. Division of Youth and Family Services (DYFS) (2002-68)
Mr. Dice provided the members of the Council with an overview of the complaint. The
case involved a request for information from DYFS pertaining to the requestor’s
adoption.
Acting Executive Director recommended that the Council find that there is a disclosure
exemption or limitation for each requested item in accordance with N.J.S.A. 47: 1A-9,
“Other Laws, regulations, privileges unaffected.” The Executive Director further
recommends that the Council find that:
1. The requested information is confidential pursuant to:
a. N.J.A.C. 10:133G-2.5 (adoptive information)
b. N.J.A.C. 10:133G-2.3 (third party records in DYFS files)
c. N.J.S.A. 2A: 4A-60 (juvenile court records)
d. N.J.S.A. 9:6-8.10a (child abuse reports and investigations)
e. N.J.A.C. 10: 1B-2.2(7) (identifying information regarding foster care
placements such as dates of placement and names of caregivers)
f. N.J.S.A. 9:6-8.10a (DYFS caseworker identity)
2. The information voluntarily provided to the requestor by DYFS pertaining to her
adoption and medical history is accessible by the requestor only under N.J.A.C.
10:133G-2.2(d) and N.J.A.C. 10:133G-2.3 at DYFS’ discretion and does not
make those documents publicly accessible pursuant to OPRA.
3. The custodian responded in a timely fashion to the OPRA request in 7-business
days. While the custodian voluntarily provided discretionary information beyond
the 7-day timeline, requestor access to those records is not governed by OPRA;
and
3
4. This complaint should be dismissed.
A motion to accept the Acting Executive Director’s recommendation was made by Ms.
Hook. The motion was seconded by Ms. Schonyers and adopted by roll call.
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Mr. Maltese asked Mr. Dice to advise the requester that there are other alternate forms of
access that she may wish to pursue in this matter.
Eva Grecco v. City of Garfield (2003-31)
Mr. Dice provided an overview of the complaint and recommended that the Council:
1. Find that the custodian advised that the requested document was not made,
maintained or kept by the City of Garfield. Therefore, there was no denial of
access to a “Government Record” pursuant to OPRA and the complaint should be
dismissed.
2. Find that it is not appropriate for the GRC to address the issue of whether the
record request form used by the City of Garfield was in compliance with N.J.S.A.
47:1A-5 as there has been no denial of access to a government record under
N.J.S.A. 47:1A-1.1
3. Dismiss the complaint.
4. The custodian responded in a timely manner in one business day.
Mr. Spigner asked for clarification regarding Garfield’s position. Conversation ensued
among the Council members regarding certification in the form of an affidavit.
A motion to accept the Acting Executive Director’s recommendation was made by Ms.
Schonyers and seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Nancy Davis v. Rumson Fair-Haven BOE (2003-56)
Mr. Dice presented the facts of the complaint to the Council and recommended that they:
1. Find that the requested minutes of the BOE meeting are “government records”
pursuant to N.J.S.A. 47:1A-1.1.
4
2. Find that the requested Executive (“closed”) session minutes are exempt from
disclosure pursuant to the Open Public Meetings Act (OPMA) at which the public
body discusses anticipated litigation, N.J.S.A. 10:4-12(b)(7) and that pursuant to
the BOE statement, the BOE discussed in that closed session the same incident
for which it has received a Tort Claims Notice on behalf of Michael Rafi. .
3. Dismiss the Complaint.
4. Find that the custodian responded in a timely manner, within one business day.
Mr. Spigner questioned the Government Records Council jurisdiction over this matter.
Mr. Maltese stated that the Acting Executive Director could communicate to the
requester that she may have legal recourse under the Open Public Meeting Act.
Ms. Hook made a motion to accept the Acting Executive Director’s recommendation and
Mr. Spigner seconded it. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Fred Burnett – Data Trace v. County of Somerset (2003-129)
Mr. Dice reviewed the issues in this case involving the fees for producing copies of the
requested documents in a TIFF format on a CD-Rom, microfilm and paper and
recommended that the Council:
1. In this case, the per page charge for paper copies should be $2.00 per
page. N.J.S.A. 47:1A-9(b) indicates that OPRA will not abrogate other
state regulations. The custodian has accurately indicated that N.J.S.A.
22A:2-29 should govern the per page charge for paper copies of the
subject records. However, this case may only partially involve a request
for paper copies.
2. The fee for digital, microfilm and tape format copies of records on file
with the county clerk is dictated by N.J.S.A. 47:1A-5.
3. Order the custodian to advise the Acting Executive Director and the
requestor by date certain what the cost of providing the requestor copies of
the documents in the requested medium would be. The custodian must
also provide a detailed explanation of the basis for the cost(s).
The Custodian’s counsel alleges its records are found in a certain
number of “books” that will take a certain number of days to copy
onto CD. However, no attempt is made to differentiate between
records currently in paper, microfilm or computer. The custodian
should advise the requestor and the Executive Director. Such
explanation should include but not be limited to:
5

What categories of records exist only in printed (paper) form
that are not yet on microfilm or computer, the dates of the
records in each category, the cost of providing (a) paper
copies as calculated by N.J.S.A. 22A:2-29 or (b) computer
scanned images of these records in TIFF format on CD-Rom
pursuant to N.J.S.A. 47:1A-5. Here we assume that the clerk
no longer places paper records onto microfilm and, instead,
scans them onto computer. If this is incorrect, the custodian
should also state the cost of providing microfilmed images of
the paper copies.

What categories of records are currently available on
microfilm that are not yet scanned onto computer and readily
available in TIFF format on CD-Rom, the dates of the
records in each category, and the cost of (a) providing paper
copies of microfilmed records; (b) providing a duplicate
microfilm tape and (c) transferring microfilm images into
TIFF format on CD-Rom.

What categories of records are already scanned onto
computer, the dates of records in each category, and the
cost of providing copies of these records in TIFF format on
CD-Rom.
The costs associated with duplicating specific types of
records such as maps or oversized records.


The time it will take to provide the requestor microfilm copies
and CD rom copies for each category of records.
The custodian may, of course, allow the requestor to visit its office and
make copies if legitimate security concerns can be addressed. It is possible
that county employees working alongside requestor’s staff can scan
images onto CD Rom securely and more quickly than the county staff can,
working alone. If the requestor agrees to the charge in writing, the Acting
Executive shall provide the custodian 10 business days within which to
provide requestor the records unless the custodian provides credible proof
that providing the records within that time would substantially disrupt
agency operations.
If the requestor advises in writing that he is challenging the lawfulness of
the charge under OPRA, the Acting Executive Director will afford the
custodian the opportunity to reply and shall prepare the issue for
adjudication by the Council.
4. The custodian responded in a timely manner in two business days.
6
Deputy Attorney General Barbara Conklin added that the OPRA provisions apply to
digital copies as well as microfilm and that N.J.S.A. 22A:2-29 applies only to printed,
paper copies of records.
Mr. Maltese recommended that the Council review the Blau v. Somerset County in
regard to time periods and conditions and impose the same in this complaint. After
clarification, Mr. Maltese asked for a motion to accept the Acting Executive Director’s
recommendation with the same time allotment as imposed in the Blau case. Therefore,
recommendation number three would be amended to reflect the time period provided to
the custodian.
Mr. Spigner asked if there is a standard that exists providing guidelines for copy costs to
all formats. Mr. Dice addressed the issue stating that a set cost would vary depending on
geographic location throughout the State. A conversation regarding the various costs
ensued.
Mr. Maltese asked for a motion to accept the amended Acting Executive Director’s
recommendation. Mr. Spigner made the motion and Ms Hook seconded it. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Shain v. Township of Lakewood (2002-1 1)
Mr. Dice read the Motion for Reconsideration and Request for Due Process Hearing
submitted by the custodian’s counsel. Acting Executive Director Dice recommended that
the Council accept the Motion for Reconsideration and then refer the matter to the Office
of Administrative Law for a hearing to determine if the custodian knowin gly and
willfully violated OPRA.
Mr. Maltese asked for a motion to amend the Council’s previous order to read:



Refer the Complaint to the Office of Administrative Law (OAL):
Request an expedited hearing;
To retain the right to make the final decision after receipt of the decision from
OAL; and
 Remove bullets two and three which address the custodian’s fine and the
recommendation to dismiss the complaint.
The motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
7
Nays:
None
Absent:
Mr. Monzo
Arthur Minuskin v. New Jersey Division of Law (2002-88)
Mr. Dice reviewed the Complaint heard by the Council at the November meeting. Mr.
Dice was asked to seek explanations and certification from the custodian. Mr. Dice
recommended that the Council adopt the November 6, 2003 Finding and
Recommendations, and find:



The custodian properly responded to the request;
Correctly denied the request; and
The request was handled in a timely manner.
A motion to accept the Acting Executive Director’s recommendation as amended was
made by Mr. Spigner and seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Robert Blau v. Union County (2003-75)
Mr. Dice reviewed the responses provided by the parties pursuant to the Council’s
November 13, 2003 Final Decision on Access; Interim Order on Cost of Duplication and
Custodian Penalty. Mr. Dice informed the Council that a request for reconsideration was
submitted in addition to the requested paperwork.
Mr. Dice recommended that the Council:



Consider the issue of knowing and willful;
Refer the request for an evidentiary hearing to the Office of Administrative Law;
and
Deny the request for reconsideration.
Deputy Attorney General Barbara Conklin explained to the members of the Council that
the motion for reconsideration is based only on the portion of the order that is asking the
custodian to provide copies of the records in a DVD or CD-ROM format and to estimate
the cost.
Mr. Maltese asked for a motion to deny the motion for reconsideration. Ms. Schonyers
made the motion and it was seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
8
Nays:
None
Absent:
Mr. Monzo
Mr. Maltese suggested referring the issue of cost to the Office of Administrative Law. A
motion was made by Ms.Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
A motion to refer the knowing and willful issue in this matter to the Office of
Administrative Law was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Robert Blau v. Somerset County (2003-86)
Mr. Dice reviewed the responses provided by the parties pursuant to the Council’s
November 13, 2003 Final Decision on Access; Interim Order on Cost of Duplication and
Custodian Penalty. Mr. Blau has asked for an evidentiary hearing. Mr. Dice
recommended that the issue of cost be referred to the Office of Administrative Law.
A motion to refer the issue in this matter to the Office of Administrative Law was made
by Ms. Hook and seconded by Mr. Spigner. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Absent:
Mr. Monzo
Mr. Maltese opened the meeting to the public.
9
Neil Carol from Hudson County. Asked what the Government Records Council was
planning in regard to e-mails.
Donna Synder from Mansfield Township. Ms. Synder asked the Council if they have had
time to reach out to other bodies and associations to stress the seriousness of their part in
timely compliance, back to the custodians.
Hearing no more public comment, Mr. Maltese called for a motion to close the public
portion, and a motion to adjourn at 12:20 p.m. The motion was approved by consensus.
Respectfully submitted,
/s/ Virginia Hook, Secretary
10
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
January 8, 2004
The meeting was called to order at 9:40 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner, and
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education), Joe Monzo (designee of Commissioner
Susan Bass Levin, Department of Community Affairs)
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning
the complaints to be adjudicated that day. Ms. Hook moved to adopt the resolution that was
seconded by Ms. Schonyers. All members present approved the motion. The Council met in
closed session from 9:40 to 10:40 a.m.
The Council reconvened in open session at 10:40 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner, and
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education), Joe Monzo (designee of Commissioner
Susan Bass Levin, Department of Community Affairs)
Also Present: Deputies Attorney General Barbara Conklin, Juliet Wyne, Acting
Executive Director Paul Dice and Staff Associates Chris Malloy,
Donna Siminski, Anthony Carbabelli, and Gloria Luzzatto.
Mr. Maltese called for the election of Officers for 2004 and entertained nominations for
Chairman, Vice Chairman and Secretary. A motion was made by Mr. Spigner and seconded
by Ms. Hook to nominate Vincent Maltese as Chairman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner, Mr. Maltese,
Nyes:
None
A motion was made by Ms. Hook and seconded by Mr. Monzo to nominate Bernard Spigner
as Vice Chairman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner, Mr. Maltese,
1
Nyes:
None
A motion was made by Mr. Spigner and seconded by Ms. Schonyers to nominate Virginia
Hook as Secretary. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner, Mr. Maltese,
None
Mr. Maltese asked Mr. Dice to review the meeting schedule for 2004. Mr. Dice advised that
the 2004 Council meetings could be held on the second Thursday of the month and that
conflicts with this schedule occurred in February and November due to State Holidays and
scheduling conflicts for the meeting room. He recommended the alternate dates of February
10, 2004 and November 10, 2004 for the meetings held in February and November. A
motion to accept the meeting dates as presented by Mr. Dice was made by Mr. Monzo and
seconded by Ms. Schonyers. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese.
None
Mr. Maltese asked Mr. Dice to review comments received regarding the Custodian
Consequence Procedure. He indicated that a number of comments were received and the
comments period had been open for approximately 90 days. Mr. Maltese recommended that
the comments period be closed as of January 15 and that once closed, the Council review and
analyze all the responses. A motion to accept the Chairman’s recommendation was made by
Mr. Monzo and seconded by Mr. Spigner. The motion was adopted by roll call.
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
Mr. Maltese asked Mr. Dice to review personnel matters. Mr. Dice reviewed the staff
changes indicating that Donna Siminski’s was leaving the Government Records Council staff
and that Erin Malone and Kimberly Gardner had been hired as Case Managers, bringing the
total to five Case Managers to handle inquiries and complaints.
Mr. Maltese called for the adoption and release to the public of the closed session minutes
from December 11, 2003. Mr. Dice noted that Mr. Monzo was absent and did not vote in the
closed session meeting and this will be reflected in the minutes. Ms. Schonyers noted that
her name needed to be added to the attendance roster for this meeting. A motion to accept
the minutes as amended was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
2
Nays:
None
Abstain:
Mr. Monzo
Mr. Maltese asked that the minutes from the public meeting of December 11, 2003 reflect
that he recused and excused himself from the room in the Douglas Wicks v. Bernards
Township Board of Education (2002-107) case. Mr. Maltese called for adoption of the
minutes as amended. A motion to accept the minutes as amended was made by Ms. Hook
and seconded by Ms. Schonyers. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Abstain:
Mr. Monzo
Mr. Maltese asked for the Executive Director’s Report. Mr. Dice distributed the complaint
and inquiry report and indicated that it had 112 open and 153 closed complaints to date. He
noted that in the month of December the GRC received 72 inquiries.
Mr. Maltese asked for a review of any communications. Mr. Dice overviewed
communications received by the GRC.
Rose Rosenbaum v. Rutgers University (2002-91
Mr. Dice reviewed the issues in the complaint indicating the complainant challenged the
denial of an OPRA request for copies of written responses to an Opinion Survey
Questionnaire conducted in 1998 by the Center of Wildlife Damage Control, a component of
Rutgers University, concerning crop damage attributable to the white-tailed deer. The survey
questionnaire was shared with members of the New Jersey Legislature during consideration
of a bill. Mr. Dice recommended to the Council that:
1.
The survey responses sought by the requestor are academic research records
exempted from disclosure under N.J.S.A. 47:1A-1.1.
2. The privilege of confidentiality or non-disclosure was not waived because the
New Jersey State Legislation considered the use of this survey for a bill.
Unlike a common law or regulatory privilege, a statutory exemption cannot be
waived.
3. The custodian responded to the open public records request 22 days after the
initial written letter dated July 23, 2002 from the requestor. The University’s
response was not in a timely manner. The custodian submitted a certification
regarding her actions.
3
In reviewing the certification from the custodian, Mr. Dice noted that the custodian received a
copy of the request August 5, 2002, sent the OPRA form to the complainant on August 7 for
completion and responded to the request on August 15. Mr. Dice recommended that the
Council find that the custodian responded in a timely manner in 7 business days once she
became aware of the request.
Mr. Maltese asked that the custodian be advised to communicate the process for completing a
records request and directing record requests to the custodian in an expeditious manner.
A motion was made by Ms. Hook to adopt the Acting Executive Director’s recommendation
with the modification that the custodian acted in a timely manner in 7 business days once she
became aware of the complainant’s records request. Mr. Spigner seconded the motion. The
motion was adopted by roll call.
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
Davis v. City of Hackensack (2003-2)
Mr. Dice provided the members of the Council with an overview of the complaint. The case
involved a verbal request for records and challenged a special service charge that was
included in copying records. Mr. Dice recommended to the Council that the complaint be
dismissed for the following reasons:
1. Pursuant to N.J.S.A. 47: 1A-5(g), “a request for access to a government shall be in
writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed
to the appropriate custodian.” Based on the facts in this case, namely the February 28,
2003 certification from Louis J. Garbaccio, the request in this case was oral.
2. The requestor has not provided any proof that a written request was made.
3. The Council has no jurisdiction over complaints concerning responses to oral requests
for government records.
Ms. Schonyers asked who had the responsibility to tell the requestor they were required to
submit a written request for records. Mr. Maltese explained that the custodian had the
responsibility to inform the requestor of the proper procedures for submitting an OPRA
request, and it was the Council’s responsibility to interpret the law. He stated that a request
must be in writing pursuant to N.J.S.A. 47:1A-5(g), which did not occur in this case. Mr.
Maltese recommended that the Council adopt the Acting Executive Director’s
recommendations to dismiss the case. However, he added that the complainant has the right
to submit the same request again in writing.
A motion to accept the Acting Executive Director’s recommendation was made by Ms. Hook
and seconded by Ms. Schonyers. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
4
Nays:
None
Perry v. New Jersey Department of Corrections (2003-32)
Mr. Dice provided the members of the Council with an overview of the complaint. The case
involved a request of the Department of Correction for a copy of a written statewide policy
prohibiting prison disciplinary hearing officers from providing in-person, physical
confrontation to inmates of adverse witnesses.
Mr. Maltese indicated that to determine whether the requested document was attorney-client
privilege required a detailed explanation by the custodian and would be required to make a
determination in this case.
Ms. Schonyers, Mr. Monzo and Mr. Spigner agreed that clarification was needed regarding
the outline of the training session.
Mr. Maltese asked Mr. Dice to coordinate the structure for an in-camera review of the
document and schedule it for the February Agenda. Mr. Maltese also asked that the
custodian address the timeliness and “knowing and willful” timeliness records response issue
at the same time that the Council does its in-camera review of the document. A motion to
accept the following recommendations was made by Mr. Monzo and seconded by Mr.
Spigner.
1. Proceed with an in-camera review of the outline of the training session conducted by
the department’s attorneys for disciplinary hearing officers and supervisory staff.
2. Order the custodian to testify at the February 10, 2004 Council meeting regarding
why the Council should accept that the outline of the training session conducted by
the department’s attorneys for disciplinary hearing officers and supervisory staff is
attorney-client privileged and, therefore, non-disclosable.
3. Order the custodian to testify at the February 10, 2004 Council meeting regarding why
the Council should not consider the custodian to have knowingly and willfully violated the
Open Public Records Act by not responding to the request until 14 days after the request
was made.
The motion was adopted by roll call.
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
5
The Times of Trenton Publishing Corporation, publisher of the Trenton Times v.
Department of Law and Public Safety, Division of Criminal Justice (2003-78)
Mr. Dice provided the members of the Council with an overview of the complaint, stating
that the case involved Trenton Times requesting the membership roster and applications of
the Baron Athletic Association from the investigatory file of the New Jersey Division of
Criminal Justice and it denial on the grounds that it was a criminal investigatory record
exempt from disclosure under N.J.S.A. 47:1A-1.1. He stated further that the requestor’s
counsel also challenged the Division of Law providing legal advice to the Government
Records Council in the case as representing a conflict of interest. The Acting Executive
Director recommended that the Council find that:
The requested documents are “criminal investigatory records” and exempt from
disclosure pursuant to N.J.S.A. 47:1A-1.1.
2. Requestor counsel’s position that the Rules of Professional Conduct prohibit the
Division of Law from providing legal advice to the Government Records Council
should be dismissed on the basis of Carol Johnston’s, Senior Deputy Attorney
General, November 20, 2003 letter to requestor’s counsel.
3. The custodian responded to this request in a timely manner in 6 business days.
4. The complaint should be dismissed
1.
Mr. Maltese discussed whether a document or documents that are considered criminal
investigatory records are sealed from disclosure when OPRA permits the right to access
certain information during an active criminal investigation pursuant N.J. S.A. 47:1 A-3 (b). He
recommended that the custodian review the requested documents, addressing whether the
roster and application or parts thereof may be subject to disclosure under N.J.S.A. 47:1A3(b) or exempt from disclosure under some other statute.
Mr. Maltese asked the Deputy Attorney General for their legal opinion regarding the
irreconcilable conflict of interest issue asserted by the complainant’s counsel.
Deputy Attorney General Barbara Conklin advised that Ms. Johnston letter to the
Government Records Council set forth the legal obligation of the attorney generals office to
represent all state agencies and specifically responded to Mr. Robinson’s concerns asking
that the Council dismiss the State’s Attorney General as their legal counsel in this case. Ms.
Conklin recommended to the Council that based on Ms. Johnston’s letter no further action
was needed on this issue.
The motion was made by Mr. Maltese to request the custodian to submit certification
addressing whether the roster and application or parts thereof may be subject to disclosure
under N.J.S.A. 47: 1A-3(b) or exempt from disclosure under some other statute. Ms. Hook
seconded the motion. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
6
Nays:
None
Newark Morning Ledger Co., Publisher of Star-Ledger v. New Jersey Sports &
Exposition Authority (NJSEA) (2003-43)
Mr. Dice provided the members of the Council with an overview of the complaint. The case
involved a request for the turnstile numbers, which represented the physical number of
people passing through the gate for games played by the New Jersey Devils and New Jersey
Nets at the New Jersey Sports and Exposition Authority’s Continental Arena from October 1,
2002 to the date of the request. The Acting Executive Director respectfully recommends the
Council find that:
1.
2.
3.
4.
5.
6.
The requested information (the turnstile numbers) is a government record pursuant to
N.J.S.A. 47:1A-1.1 as the turnstile numbers are made, maintained and kept by the
New Jersey Sports and Exposition Authority.
The NJSEA has failed to meet its burden of proof that the turnstile numbers are a
trade secret or proprietary commercial or financial information pursuant to N.J.S.A.
47:1 A- 1.1.
The NJSEA has failed to meet its burden of proof that disclosure of the turnstile
numbers would give an advantage to competitors or bidders.
The requested information is subject to public access under the Open Public Records
Act (OPRA). Therefore, the custodian will provide the requestor with the turnstile
numbers for the Devils and Nets games from October 1, 2002 to the date of the
request.
The response by the custodian to the requestor was made in a timely manner in 7business days.
The requestor is a prevailing party and is to submit documentation regarding their
reasonable attorney’s fees for determination by the Government Records Council
pursuant to N.J.S.A. 47:1A-6.
.
The Deputy Attorney General Juliet Wyne advised the Council that under OPRA, the
custodian had the burden of proof to show that the turnstile numbers fit within the
exemptions and the custodian had not met their burden of proof in this case. She explained
that they claimed that the turnstile numbers were a trade secret or proprietary information
and had not explained why the turnstile numbers fit within the exemption, making conclusory
allegations. The custodian never proved that the turnstile numbers were the property of the
teams and the custodian counsel admitted that the license agreements were silent on this. She
advised further that the actual attendance figures are made public and to claim that the
physical attendance numbers were confidential and a trade secret was an inconsistent
position. They have not sufficiently met the burden of proof to claim that disclosure of the
turnstile numbers would give an unfair advantage to bidders.
Mr. Maltese recommended that the order become effective 10 days from the date of the
decision and the records reflect that the requested records encompass the period from
October 1, 2002 to the date of the records request.
7
A motion to accept the Acting Executive Director’s recommendations and include the
modifications was made by Mr. Spigner and seconded by Ms. Hook. The motion was
adopted by roll call without Mr. Monzo’s participation as he had stepped out of the room.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Linda a. Bava and Mark M. Bava v. Bergen County School District (2003-84)
Mr. Dice presented the facts of the complaint to the Council indicating that the complainants
requested admissions files, test scores, teacher recommendations and comparison test scores
for their child who had applied to one of the Bergen County Academies. He noted that the
complainants were denied access to their child’s teachers’ recommendations and admissions
test scores of other students citing a Department of Education regulation restricting access.
The Acting Executive Director recommended that the Council find that:
1. In response to an oral request made between April 15, 2003 and early May 2003, the
custodian provided access to Ashley Bava’s completed application to Bergen County
Academy (BCA), her Franklin Avenue Middle School (FAMS) grade transcripts and
her BCA mathematics admission test results.
2. A student’s teachers’ recommendations are part of a student’s “pupil record” pursuant
to N.J.A.C. 6:3-6.1 and are not publicly accessible under Open Public Records Act
(OPRA).
3. Based on the information presented to the custodian regarding “comparison test
scores,” the Custodian reasonably interpreted the term as a request for all BCA
applicants test scores and names.
4. A student’s score on an admissions test is part of their “pupil record” pursuant to
N.J.A.C. 6:3-6.1 and is not publicly accessible under OPRA.
5. The requestor’s letter of November 30, 2003 limiting the term “comparison test
scores” only to successful BCA applicants, without names and ranked by district is
materially different from the written OPRA request made to the custodian and should
not be considered part of the Complaint. The requestor may submit a new OPRA
request to the custodian for this data.
6. The custodian responded to the requestor in a timely manner.
7. The complaint is dismissed.
The Deputy Attorney General Barbara Conklin advised that parents have certain rights to
access their own child’s school records pursuant to N.J.A.C. 6:3, but when the complainant’s
made an OPRA request they are making a request as a citizen and not as a parent and are
precluded from access pursuant to N.J.S.A. 47:1A-9. Ms. Schonyers added that under
N.J.A.C. 6:3, the parent can only access their own child’s information and not other pupils
information.
8
A motion to accept the Acting Executive Director’s recommendation was made by Mr.
Spigner and seconded by Mr. Monzo. The motion was adopted by roll call.
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
Robert Cruz v. New Jersey Parole Board (2003-114)
Mr. Dice reviewed the issue in the complaint stating that a written OPRA request was not
made in this case as required in N.J.S.A. 47: 1A-5(g). He advised that the Council lacked
jurisdiction in the case and recommended that the Council dismiss the complaint.
A motion to accept the Acting Executive Director’s recommendation was made by Ms. Hook
and seconded by Mr. Monzo. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
Larry Loigman v. Monmouth County Prosecutor’s Office (2002-44) – Continuation
Mr. Dice presented the following documents that were received in response to the Council’s
November 13, 2003 Final Decision for the Council’s consideration:
1. December 15, 2003 certification from custodian outlining and explaining the events
that gave rise to a delay in providing the requestor with the requested 2002 name and
salary information.
2. December 15, 2003 certification from custodian explaining that she never received
the Council’s November 13, 2003 Final Decision on Access; Interim Decision on
Custodian Penalty which had been sent to her by the Council’s staff via e-mail.
3. December 18, 2003 letter from custodian to Gloria Luzzatto of the Council explaining
that the charges for the requested information would be $79.75 for copying and
$415.83 for labor.
4. December 22 2003 letter from Requestor objecting to the charges outlined in the
custodian’s December 18, 2003 letter and stating that he had not been offered the
option of inspecting the records rather than receiving copies.
Mr. Maltese made the following motion which was seconded by Ms. Hook:
1. The requestor has the right to inspect the records and not receive copies if he so
chooses.
2. Extraordinary labor charges for preparing the records for inspection will not be
charged given that the custodian has not explained the rationale for applying such
charges.
9
3. Should the requestor require copies of all or parts of the selected documentation, such
charges, pursuant to N.J.S.A. 47:1A –5, shall not exceed $79.75.
The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
Jackson v. Kean University (2002-98)
Mr. Dice reviewed the following information with the Council that was received in response
to the Council’s November 13, 2003 Final Decision:
1.
December 10, 2003 letter from custodian enclosing the requested information
pursuant to the Council’s November 13, 2003 Final Decision.
2. Paul Dice’s verbal recount at the open session of the January 8, 2004 meeting of a
telephone conversation of the same date that Gloria Luzzatto of the GRC had with the
requestor. The requestor informed Luzzatto that the information she received did not
contain the leave of absence information she’s seeking for a particular individual.
Referring to the information received, the Acting Executive Director recommended the
Council find that the Acting Executive Director elicit a certification from the custodian to the
effect that the information she provided to the requestor comprises the entirety of what Kean
University has on record and which is responsive to the request, with the appropriate
redactions, pursuant to the Open Public Records Act.
A motion to accept the Acting Executive Director’s recommendation was made by Ms.
Schonyers and seconded by Mr. Spigner. The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
Fred Burnett v. Somerset County Clerk (2003-129)
Mr. Dice reviewed a written response to the Council’s December 11, 2003 Final Decision on
Access; Interim Order on Cost Duplication that was received from the requestor’s counsel
stating that the parties reached an agreement in the case. Mr. Dice recommended that the
Council close this case based on the response received from the requestor’s counsel. A
motion to accept the Acting Executive Director’s recommendation was made by Ms. Hook
and seconded by Mr. Spigner. The motion was adopted by roll call.
Ayes:
Nays:
Ms. Hook, Mr. Monzo, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
10
Mr. Maltese opened the meeting to the public. There were no public comments. Mr. Maltese
called for a motion to close the public portion, and a motion to adjourn at 12:25 p.m. The
motion was approved by consensus.
Respectfully submitted,
/s/ Virginia Hook, Secretary
11
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
FEBRUARY 10, 2004
The meeting was called to order at 9:40 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner, and Diane
Schonyers, (designee of Commissioner William Librera, Department of
Education), Assistant Commissioner Charles Richman (designee of
Commissioner Susan Bass Levin, Department of Community Affairs)
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning the
complaints to be adjudicated that day. Mr. Richman moved to adopt the resolution that was
seconded by Mr. Spigners. All members present approved the motion. The Council met in
closed session from 9:40 to 11:30 a.m.
The Council reconvened in open session at 11:30 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner, and Diane
Schonyers, (designee of Commissioner William Librera, Department of
Education), Assistant Commissioner Chuck Richman (designee of
Commissioner Susan Bass Levin, Department of Community Affairs)
Also Present: Deputy Attorney General Karen DuMars, Acting Executive Director Paul
Dice and GRC Attorney Advisor Susan Jacobucci, Staff Associates Chris
Malloy, Anthony Carbabelli, Erin Mallon, Kimberly Gardner and Gloria
Luzzatto.
Mr. Maltese read into the record a statement from Commissioner Bass Levin designating
Assistant Commissioner Mr. Charles Richman as her designee.
Mr. Maltese asked for the Executive Director’s Report. Mr. Dice indicated that the Government
Records Council made significant progress in processing cases for adjudication before the
Council. He stated that 47 cases are planned for hearing before the Council in two February 2004
meetings. He added that Commissioner Susan Bass Levin has committed the necessary
resources, which include the following additions to the GRC staff. In-house Council, Susan
Jacobucci; Case Managers: Erin Mallon, Kimberly Gardner, and an Administrative Assistant,
1
Marion Davies. He stated further that an additional Council meeting would be held in March to
continue to address cases that need adjudication.
Mr. Dice summarized the number of open and closed cases: 47 open cases scheduled for
adjudication in February; two cases are on appeal; seven are at the Office of Administrative Law;
five cases are in mediation; 46 cases are in scheduled for future adjudication and 168 cases are
closed.
Mr. Maltese thanked Commission Levin and the staff for their support in moving business
forward through the GRC. Mr. Maltese stated he was extremely pleased with the level of
cooperation the council has received from the Commissioner. The Commissioner has promised
and dedicated her staff and resources to ensure that the committee in an efficient manor serves
the citizens of the state.
Communications:
Mr. Maltese asked Mr. Dice for any communications. Mr. Dice read communication received
from Joseph Monzo, who served on the Council. Mr. Maltese asked Mr. Dice to respond to Mr.
Monzo and thank him for his service on the council.
Mr. Maltese called for motion to adopt the minutes of the Open Session Meeting held January 8,
2004. There was a motion to accept minutes as written by Mr. Spigner, seconded by Ms. Hook.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Abstain:
Mr. Richman
Mr. Maltese called for a motion to accept the minutes from the Closed Meeting of January 8,
2004. There was a motion to accept the minutes by Ms. Hook, seconded by Mr. Spigner. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner and Mr. Maltese.
Nays:
None
Abstain:
Mr. Richman
Kenneth Vercammen v. Linden Police Department (2002-103)
Mr. Dice reviewed the issues in the complaint indicating the complainant challenged the denial
of OPRA requests made to the Linden Police Department seeking to inspect various police
records such as criminal complaints and arrest records and reports. Mr. Dice recommended to
the Council that the complaint be dismissed because:
2
1. The October 11, 2002 request should be denied, as the request was not date specific.
2. The October 30, 2002 request should be denied, as the request was not date specific.
3. The October 31, 2002, two requests, should be denied as the request was not date specific.
4. The November 15, 2002 should be denied for two reasons, one the request was not date
specific; second the request was for criminal investigatory records.
5. The November 26, 2002, should be denied these records were not in existence.
6. The December 4, 2004 request should be denied these reports are criminal
investigatory records and are not subject to disclosure.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation.
The motion was made by Ms. Hook and seconded by Mr. Mr. Richman. The motion was
adopted by roll call:
Ayes: Ms. Hook, Mr. Richman Ms. Schonyers, Mr. Spigner and Mr.
Maltese Nays: None
Kenneth Vercammen v. City Plainfield (2002-109)
Mr. Dice reviewed the issues in the complaint indicating the complainant challenged the denial
of 8 OPRA requests made to the city of Plainfield seeking to inspect various police records such
as criminal complaints and arrest records and reports. Mr. Dice recommended to the Council
that the complaint be dismissed because:
1. October 23, 2002 requests should be denied, as the request was not date specific.
2. October 30, 2002, requests should be denied, as the request was not date specific.
3. November 5, 2002 was filed with the municipal court, this is invalid because
this is the judicial branch, and is not subject OPRA this request should be denied.
4. November 7, 2002 requests should be denied in its entirety; because
arrests are criminal investigator reports are not available under OPRA.
5. December 4, 2002, requests for arrest reports between November 20, and
December 9, should be denied as the request represents criminal investigatory
records, i.e. arrest reports are not subject to disclosure under OPRA.
6. December 5, 2002 request for arrest reports between November 20, to
December 9, should be denied as the request represents criminal
investigatory reports, not subject to disclosure under OPRA.
The Custodians position inspection fees included can be disregarded because all the request seek
confidential records were in valid because the request were not date specific.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation: A
motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted by roll
call:
3
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Michael Diamond v. Old Bridge (2003-15)
Mr. Dice reviewed the issue in the case indicating that the complainant made a request to the
Township of Old Bridge for records concerning the sale or trade in of weapons since 1985 within
a police department and whether a special service charge of $247.20 was warranted. The
custodian responded to the requestor in a timely manner. Subsequent to filing the complaint, the
requestor stated that he know longer wished to have the records. Mr. Dice recommended that the
case be dismissed for the following reasons:
1. The custodian has not met its burden in explaining the “Special service charge” of
$247.20 was warranted and access should be permitted.
2. Since the requestor no longer seeks the records, the issue of providing access is moot.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation to
dismiss the case. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Killino v. Municipal Clerk, Delran Township (2003-20)
Mr. Dice stated that this case involved a request for training records for firearms, vehicular
pursuit and emergency medical service for the Delran Police Department. The custodian has
certified that they have provided all the documents that are responsive to the request. Mr. Dice
recommended that the case be dismissed. Mr. Maltese called for a motion to accept the Acting
Executive Director’s recommendation to dismiss. A motion was made by Ms. Schonyers and
seconded by Mr. Spigner. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Ian Shearn v. Office of the Governor (2003-53)
Mr. Dice stated this case involved a request for the Governors’ public and private schedules
since his inauguration. Mr. Dice stated that the governor’s daily private meeting schedule
between his inauguration and August 1, 2002 are exempt from disclosure pursuant to N.J.S.A.
4
47:1A-9(b) on the grounds of Executive Order #26 and recommended that the case be dismissed.
Mr. Maltese added that the advice of the Division of Law the public and private schedules of the
Governor would not be subject to disclosure unless approved by the Governor.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook seconded by Mr. Richman. The motion was adopted by roll call:
Ayes: Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays: None
Christopher White v. William Paterson University (2003-80)
Mr. Dice stated that both parties voluntarily signed an agreement to mediate on January 22,
2004. Mr. Dice recommended that GRC forego any adjudicatory action pending the outcome of
mediation. Mr. Maltese called for a motion to accept the Executive Directors recommendation.
A motion was made by Mr. Richman and seconded by Mr. Spigner. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr.Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Carfax v. Division of Motor Vehicles (2003-87)
Mr. Dice stated the case involved a request for the 2001 raw accident database of the New Jersey
Motor Vehicles that included vehicle identification numbers of vehicles in accidents. He stated
that under N.J.A.C. 13:18-11 .3c the Division of Motor Vehicles database and information
contained in it do not constitute public records. Mr. Dice recommended the case be dismissed as
the denial of access to the requested information was proper pursuant to N.J.S.A. 47:1A-9 and
N.J.A.C. 13:18-11 .3c. Mr. Maltese entertained a motion to accept the Acting Executive
Director’s recommendation to dismiss. A motion was made by Ms. Hook and seconded by Ms
Schonyers. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Christopher Botta v. Borough of Ramsey (2003-102)
Mr. Dice stated the case involved a request for e-mail correspondence from the Mayor Richard
Muti to the Borough of Ramsey Construction Code Official Robert Connell and find. He
indicated that a letter of correspondence from the Mayor outlined the content of the e-mail and
find that the requested document contained personnel information not subject to disclosure under
5
the provisions of OPRA, N.J.S.A 47:1A-10. Mr. Dice recommended that the complaint be
dismissed.
Mr. Maltese called for a motion to accept the Acting Executive Director’s Recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion was
adopted by a roll call vote:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Kathleen Cannon v. Division of Development Disability, Dept. of Human Services (2003-96)
Mr. Dice stated that the case involved a request for major incident reports from the New Lisbon
Developmental Center for the years 2000, 2001, 2002, and 2003. He indicated that the custodian
maintained that the information was confidential pursuant to a series of statues and regulations
outlined in the findings and recommendations of the case. Mr. Dice recommended that the
complaint be dismissed because:
1. The custodian has provided credible information that the requested records are
confidential pursuant to N.J.S.A. 30:4-24.3 and N.J.A.C. 10:41-2.4, and the denial of
access was in accordance with the law.
2. The requested reports are not accessible under N.J.S.A. 47:1A-1.1 and N.J.S.A. 1A-9.
Mr. Maltese called for a motion to accept the Executive Directors recommendation to dismiss the
case. A motion was made by Ms. Schonyers and seconded by Mr. Richman. The motion was
adopted by a roll call vote:
Ayes:
Nays:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and
Mr. Maltese.
None
Paff v. N.J. Dept of Labor (2003-98)
Mr. Dice stated that the requestor asked to close this complaint on January 22, 2004. The Acting
Executive Director recommended that the case be closed. R. Maltese called for a motion to
accept the Acting Executive Director’s recommendation. A motion was made by Mr. Richman
and seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
6
Stormes v. Sussex Borough Planning Board (2003-103, 2003 –104, 2003-105)
Mr. Dice stated that the GRC Staff have attempted to reach the complainant by Certified letter,
overnight UPS delivery, and a third overnight UPS. Mr. Dice indicated that all the
correspondence has been returned and we have been unable to locate Mr. Stormes. The Acting
Executive Director recommended that complaint number 2003-103, 2003-104 and 2003-105 be
dismissed and closed. Mr. Maltese called for a motion to accept the Acting Executive Director’s
recommendation to dismiss. A motion was made by Ms. Hook and seconded by Mr. Richman.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and
Mr. Maltese
Nays:
None
Christopher White v. William Patterson University (2003-109 and 2003-1 13)
Mr. Dice stated that both parties have requested mediation. The Acting Executive Director
recommended that the Council forego any adjudicatory action pending the outcome of
mediation. Mr. Maltese called for a motion to accept the Acting Executive Directors
recommendation. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was adopted by a roll call:
Ayes:
Nays:
Ms. Hook, Mr. Richman, Ms Schonyers, Mr. Spigner and Mr. Maltese.
None
Merion v. Ho-Ho Police (2003-121)
The Acting Executive Director stated that case number 2003-12 1 was a duplicate file and
recommended that it be closed. Mr. Maltese called for a motion to accept the Acting Executive
Director’s recommendation. A motion was made by Ms. Hook and seconded by Ms. Schonyers.
The motion was adopted by roll call:
Ayes:
Nays:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
None
7
Jann Giacoboni v. Administrative Office of the Courts (2003-127)
Mr. Dice stated that the case involved a request for “Judge’s calendars from ACMS (Automated
Case Management System) and vacation, personal time for Judge B. Mariano for various dates.”
Mr. Dice stated that the GRC lacked jurisdiction over the Administrative Office of the Courts
and recommended that the case be dismissed. Mr. Maltese reminded members of the Council that
N.J.S.A. 47: 1A-7g provided that the GRC does not have jurisdiction over the judicial or
legislative branches of the state government. Mr. Maltese called for a motion to accept the
Acting Executive Director’s recommendation. A motion was made by Mr. Richman and
seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Francis Bennett v. N.J. Department of Corrections ((2003-138)
Mr. Dice stated based on the requestor’s January 24, 2004 statement that the complaint was
resolved and required no further action he recommended that the complaint be dismissed. Mr.
Maltese called for a motion to accept the Acting Executive Director’s recommendation to
dismiss the case. A motion was made by Mr. Spigner and seconded by Ms. Hooks. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Beverly Marinelli v. Lumberton Township (2003-141)
Mr. Dice stated that the requestor wrote to the GRC on January 22, 2004, asking that the file be
closed. Based on the requestor’s statement, Mr. Dice recommended that the complaint be
dismissed. Mr. Maltese called for a motion to accept the Acting Executive Director’s
recommendation. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
8
Mitchell Rait, Esq. v. N.J. Department of Environmental Protection (2003-145)
Mr. Dice stated that on February 4, 2004 the requestor withdrew his complaint via a letter. The
Acting Executive Director recommended that the Council dismiss the complaint.
Mr. Maltese called for a motion to dismiss the complaint as recommended. A motion was made
by Mr. Spigner and seconded by Mr. Richman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Sandra Horner v. Delanco Township (2004-3)
Mr. Dice stated that both parties signed an agreement for mediation on January 21, 2004 and the
parties resolved the case on January 28, 2004. The Acting Executive Director recommended that
the Council dismiss the complaint on the grounds that the parties resolved the complaint in
mediation. Mr. Maltese called for a motion to dismiss the complaint. A motion was made by
Ms. Hook and seconded by Mr. Richman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Janice Jackson v. Kean University (2002-98) Continuation
Mr. Dice stated that the Council considered the case at the January 8, 2004 meeting and the
Council ordered disclosure of the records and a certification from the custodian stating the
information sent to the requestor represented the entirety of what Kean University had on record
that was responsive to the complainant’s request. Mr. Dice informed the Council the custodian
provided the requested certification and recommended that the complaint be dismissed. Mr.
Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by M. Hook and seconded by Mr. Schonyers. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Douglas Wicks v. Bernard Township Board of Education (2002-107)
Mr. Maltese recused himself from this case. Mr. Dice stated that the council considered this
complaint at the December 11, 2003 meeting, subsequently issued at December 30, 2003
Revised Final Decision on Access. He indicated that the custodian provided the requestor with
the billing records on December 1, 2003. On February 4, 2004, in response to Mr. Dice’s
request, the custodian’s counsel provided a certification on behalf of the custodian stating that
“The documents that the Board has, or has access to, which are responsive to Mr. Wick’s
9
October 28, 2002 request, and disclosable pursuant to the provisions of the Open Public Records
Act, have been provided to Mr. Wicks.” Mr. Dice stated that the custodian complied with the
Council’s Order and recommended that the complaint be dismissed. Mr. Maltese called for a
motion to accept the Acting Executive Director’s recommendation to dismiss the complaint. A
motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner
Nays:
None
Recused:
Mr. Maltese
Gregory Perry v. Dept of Corrections (2003-32) Continuation
Mr. Dice stated that the Council considered the case at its January 8, 2004 meeting and voted to
have an in camera proceeding at the February 10, 2004 meeting with the custodian to review the
written outline of the training session conducted by the department’s attorneys for disciplinary
hearing officers and supervisory staff and to have the custodian respond to a knowing and willful
violation of OPRA. Mr. Dice noted that based on legal advice sought in the case following the
January 8, 2004 meeting, he recommended that the Council find:
1. That the outline of the training session conducted by the department’s attorneys for
disciplinary hearing officers and supervisory staff is attorney-client privileged as it
represent legal counsel provided to the Department of corrections and there is no basis
for testimony or an in camera proceeding.
2. The custodian’s testimony before the Council regarding the issue of a potential knowing
and willful violation would jeopardize her right to an evidentiary hearing to which she is
entitled and the Council should request a certification from the custodian to determine
whether a plenary hearing should be arranged.
Mr. Maltese asked Mr. Dice to secure a statement from the custodian certifying that the
information contained in the training manual is attorney client privilege and the reason she is
making that claim. Mr. Maltese indicated that the Council would re-visit the case at the next
Council meeting in February. Mr. Maltese called for a motion to require the custodian of the
Dept. of Correction to supply the Council by the next meeting with a certification confirming
that the information contained in the training manual is attorney client privlege and the reasons
for that ascertain. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
10
Newark Morning Star Ledger v NJSEA (2003-44) Continuation
Mr. Dice stated the complaint was heard at the January 8, 2004 meeting and the New Jersey
Sports and Exposition Authority has confirmed to the GRC that it has complied with the
Council’s Order to give the Star-Ledger access to the turnstile numbers for the Continental Arena
relating to the Nets and Devils. With respect to the remaining issue of requestor’s attorney’s fees
as the requestor is the prevailing party, Mr. Dice stated the requestor’s attorney submitted their
application for attorney’s fees. In reviewing the application, Mr. Dice indicated that a more
detailed description of the services rendered with corresponding time expended for each service
was needed. The Acting Executive Director noted that on February 2, 2004 the requestor’s
attorney was asked to provided the following information:
1.
2.
“copies of weekly time sheets for each person in 0.1 increments (6 minutes)
Evidence that the rates charged is in accordance with prevailing market rates in the
‘relevant community’, taking into account the skill level, similar experience and
reputation.”
The Acting Executive Director recommended that the Council forego further adjudicatory action
until the requestor’s attorney provides the information requested to the GRC and the custodian
and its counsel have an opportunity to review same.
Mr. Maltese suggested that the information provided also include copies of all time sheet for any
professional that worked on the matter. Mr. Maltese called for a motion to accept the Executive
Director’s recommendation to forego further adjudicatory action until the requestor provides the
information requested by the Council. A motion was made by Ms. Schonyers and seconded by
Mr. Spigner. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Larry Loigman v. Monmouth County Prosecutor’s Office (2003-44) Continuation
Mr. Dice stated that the case was a follow-up to what the Council considered at its January 8,
2004 meeting:
1.
The requestor has the right to inspect the records and not receive copies if he so
chooses.
2. The custodian shall not charge an extraordinary labor charges given that the rationale for
applying such charges.
3. Should the requestor require copies of all or parts of the subject documentation,
such charges, pursuant to N.J.S.A. 47: 1A-5(b), shall not exceed $79.75.
11
Mr. Dice stated that the parties have not gotten together to resolve this situation.
The Acting Executive Directors recommended that the Council:
1. Provide the parties with ten business days from the date of receipt of the order
written for February 10, 2004 meeting to finalize their positions with respect to
the Council’s January 8, 2004 Supplemental Order. Such positions must be
provided in writing to the Acting Executive Director by the close of said ten-day
timeframe.
2. Direct the Acting Executive Director to process any issues identified by the
parties in re ga rd t o t he J anuar y 8, 2004 S uppl em ent al Orde r n t he
norm al course o f administrative action.
3. Find that a lack of presentation of issues within the ten-day timeframe stated in
“1” above will result in the Council’s dismissal of this complaint.
Mr. Maltese stated the parties should be given ten business days to meet and five calendar days
thereafter for written responses. Mr. Maltese called for a motion to accept the Acting Executive
Director’s recommendation as modified. A motion was made by Ms. Schonyers and seconded by
Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Trenton Times v. Dept. of Law, Division of Criminal Justice (2003-78) Continuation
Mr. Dice stated the Council considered this matter at the January 8, 2004 meeting. The Council
directed Mr. Dice elicit a certification from the custodian stating why the membership roster and
membership applications to the Baron Athletic Association are not subject to N.J.S.A.47:1A3(b). He stated that the GRC received a response from the custodian’s counsel on January 22,
2004 that was responsive to the Council’s Interim Decision. The Acting Executive Director
recommended that the complaint be dismissed because the requestor’s May 13, 2003 OPRA
request sought records, not information and the custodian properly denied access pursuant to
N.J.S.A. 47:1A-1.1 and 3(b). Mr. Maltese stated that because the information was categorized as
a criminal investigatory record, it was proper for the custodian to deny access. Mr. Maltese
called for a motion to accept the Acting Executive Director’s recommendation to dismiss
complaint. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion was
adopted by a roll call:
Ayes:
Ms. Hook, Mr. Richman, Ms. Schonyers, Mr. Spigner and Mr. Maltese
Nays:
None
Mr. Maltese opened the meeting to the public. There were no public comments. Mr. Maltese
called for a motion to close the public portion and a motion to adjourn the meeting at 12:37 p.m.
12
The motion was made by Ms. Hook and seconded by Mr. Richman. The motion was approved
by consensus.
Respectfully submitted,
/s/Virginia Hook, Secretary
13
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
FEBRUARY 27, 2004
The meeting was called to order at 9:00 AM. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman, (designee of Commissioner Susan Bass Levin,
Department of Community Affairs
Absent:
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education.
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning
the complaints to be adjudicated that day. Ms. Hook moved to adopt the resolution that was
seconded by Mr. Spigner. All members present approved the motion. The Council met in
closed session from 9:00AM to 11:40AM
The Council reconvened in open session at 11:45 AM in room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Dice called the roll:
Present:
Absent:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman, (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Diane Schonyers, (designee of Commissioner William Librera)
Also Present: Deputies Attorney General Karen Dumars, Acting Executive Director
Paul Dice and GRC Attorney Advisor Susan Jacobucci, Staff Associates
Chris Malloy, Anthony Carbabelli, Erin Mallon, Kimberly Gardner and
Gloria Luzzatto.
Mr. Dice introduced the new staff members.
Mr. Maltese called for a motion to accept the minutes as written, from the February 10, 2004
open session. A motion was made by Mr. Richman, and seconded by Mr. Spigner. The
motion was adopted by a roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner and Mr. Maltese
1
Absent:
Ms. Schonyers
Nays:
None
Mr. Maltese called for a motion to accept the minutes from the February 10, 2004 closed
session as written, a motion was made by Mr. Spigner, and seconded by Ms. Hook. The motion
was adopted by a roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner and Mr. Maltese
Absent:
Ms. Schonyers
Nays:
None
Mr. Maltese asked for the report of the Acting Executive Director. Mr. Dice indicated there
were 93 open cases. He reviewed the breakdown of the cases as follows: Sixty- seven are
scheduled to be heard by the GRC; ten cases are work in progress; two on appeal to the
Superior Court Appellate Division; six are in the office of Administrative Law; eight cases are
in mediation. Total closed cases one hundred ninety.
Mr. Maltese thanked the Council and the staff for all their efforts in bringing the GRC up to
date.
Mr. Maltese asked for a review of any communications. Mr. Dice indicated that there were no
communications to report.
Mr. Maltese stated that case 2003-34, Warren Cundiff v. NJ Dept. of Law and Public Safety
would not be heard on this agenda.
Mr. Maltese indicated that he would recuse himself from the meeting during the discussion of
the following cases:
Jim Edwards v. City of Jersey City (2002-7 1)
Raymond Cibo, Jr. V. Rowan University (2003 -42)
Jose Falto v. Union City (2003 -62)
Jim Edwards v. Jersey City Municipal Utilities Authority (2003 -72)
Andrew McCalley v. Rowan University (2003-90)
Jim Edwards v City of Jersey (2002-71)
Mr. Dice stated, the complainant challenges the denial of access to copies of a memorandum
prepared by Assistant Corporation Counsel Nora Kallen addressed to former Corporation
counsel Alexander Booth, Jr.; an April 2002 memorandum advising the Jersey City Municipal
Utilities Authority (“MUA”), and the City’s construction code official, that the mayor’s
rescinding of MUA fees was illegal; and any correspondence between Booth and Jersey City
Building Official Michael Regan. Certifications from various current and former City officials
2
establish that the April 2002 advice concerning the legality of the mayor’s rescinding of the
MUA fees was communicated verbally, and does not exist in written form. In addition, the
certifications allege that with the exception of the Kallen memorandum, all documents
requested by Mr. Edwards were either provided to him or do not exist or are not maintained by
the City.
The Acting Executive Director respectfully recommended the Council dismiss the case for the
following reason:
1. The Kallen memorandum created by the City Law Department and conveyed to the
MUA is the only document at issue in this case and is exempt from disclosure under
N.J.S.A. 47: 1A-1 .1 because it constitutes “inter –agency or intra-agency advisory,
consultative, or deliberative material.”
2. Based on the Certification submitted by the custodian all documents requested we
either provided by the requestor or do not exist.
Mr. Spigner called for a motion to accept the Acting Executive Director’s recommendation and
amended the recommendations to include “2” above. A motion was made by Ms. Hook and
seconded by Mr. Richman made the motion. The was adopted by a roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner
Recused:
Mr. Maltese
Absent:
Ms. Schonyers
Nays:
None
Raymond Cibo, Jr. V Rowan University (2003-42)
Mr. Dice stated the requestor is seeking information concerning the reasons for raises
awarded to Management employees. Information about the salaries of the employees
during the specified time period was provided, but the Custodian denied access to the
reasons for salary increases on the grounds that this information was exempt from
disclosure as confidential personnel records, that pursuant to N.J.S.A. 47:1A-10. The case
should be dismissed.
The Acting Executive Director respectfully recommended that the Council dismiss the case
pursuant to N.J.S.A. 47:1A-10.
3
Mr. Spigner called for a motion to accept the Acting Executive Director’s recommendation.
The motion was made by Ms. Hook, and seconded by Mr. Richman. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner
Recused:
Mr. Maltese
Absent:
Ms. Schonyers
Nays:
None
Jose Falto v. Union City (2003-62)
Mr. Dice reviewed the case indicating that the requestor was provided and opportunity by the
custodian to review the information in question.
The Acting Executive Director recommended the Council find that if the requestor has not
responded to the Government Records Council staff’s February 18, 2004 letter giving him five
business days to make arrangements with Union City to review the documents, the case should
be dismissed. Mr. Spigner noted for the record that the custodian failed to meet the statutory
time frame in responding to the request. Mr. Spigner called for a motion to accept the Acting
Executive Director’s recommendation to dismiss. A motion was made by Ms.Hook and
seconded by Mr. Richman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner
Recused:
Mr. Maltese
Absent:
Nays:
Ms. Schonyers
None
Jim Edward v. Jersey City MunicipalAuthority (2003-72)
Mr. Dice stated that the requestor received approximately 300 pages of documents responsive
to the request and the custodian withheld approximately five pages of material claimed to be
privileged. The Custodian asserted that the redacted portions of the Booth memorandum, and
the McManimon and Carr memoranda all are exempt from disclosure pursuant to attorneyclient privilege. The Kallen memorandum cannot be provided because it cannot be found
among the files of the JCMUA or the files turned over to its current attorneys from the former
counsel who allegedly received the memorandum from the Jersey City Law Department. In
addition, the Custodian noted that a “Vaughn Index” would be redundant in this case, because
the claims of privilege were listed and explained in the two responses provided to the
Requestor on September 23, 2002 and June 11, 2003. Counsel for the JCMUA argued further
4
that no fine should be granted because the Requestor seeks a penalty against the JCMUA,
which cannot itself be fined under OPRA. The JCMUA contended that the Custodian
responded to the OPRA request in good faith by turning over approximately 300 pages of
documents, and withholding fewer than five pages of material for which detailed and legally
justifiable explanations were provided on two separate occasions. Finally, the Custodian
argued that since the Requestor does not assert that he received advice of counsel, he did not
incur legal fees compensable pursuant to OPRA.
The Acting Executive Director recommended the Council find that the complaint should be
dismissed because:
1. The Custodian met its burden of showing that the redactions in the Booth
memorandum, and the entire McManimon and Carr memoranda.properly
invoked the exception for attorney-client privilege to deny access under
N.J.S.A. 47:1A-1.1 of OPRA.
2. The certification of the Custodian adequately explained why the Kallen
memorandum was not supplied.
3. A “Vaughn Index” is unnecessary as the custodian met its burden in showing
the privileged nature of information and documents in this matter.
4. The custodian violated the requirements of OPRA in failing to respond to the
request within a seven business day time period. The custodian responded on
September 23, 2002 and provided over 300 pages documents responsive to the
request. The delay in response was not “knowing and willful” under the OPRA
statute and no fine is warranted.
5. The June 11, 2003 response of the JCMUA to the Requestor’s April and May
2003 telephonic requests for reconsideration of his claims also does not provide a
basis for a fine, since there currently are no time requirements for a response
to a request for reconsideration, nor does an oral demand for documen ts
constitute an OPRA request subject to the seven-day deadline.
6. Since all the challenged denials of access are soundly based in law and fact, and the
requestor was not represented no issues of attorney’s fees are warranted.
Mr. Spigner called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Mr. Richman seconded by Ms. Hook. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner
Recused:
Mr. Maltese
Absent:
Nays:
Ms. Schonyers
None
Andrew Mc C alley v. Rowan University (2003-90)
5
Mr. Dice stated, the requestor is seeking information concerning the reasons for raises awarded
to Management employees. Information about the salaries of the employees during the
specified time period was provided, but the Custodian denied access to the reasons for salary
increases on the grounds that this information was exempt from disclosure as confidential
personnel records.
The Acting Executive Director recommended the council find that the denial of access was
properly withheld pursuant to N.J.S.A. 47: 1A-10 and the complaint should be dismissed.
Mr. Spigner called for a motion to adopt the Acting Executive Director’s recommendation.
The motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner
Recused:
Mr. Maltese
Absent:
Ms. Schonyers
Nays:
None
Mr. Maltese returned to the meeting after discussions of the above cases and decisions
adopted.
Yehuda Shain V. Lakewood Township (2002-112)
Mr. Dice stated, that this complaint involves a request to review all the applications for tax
exemption, the initial and further statements, supporting documents, and all correspondence
and notes pertaining to residential real estate owned by Beth Medrash Govoha.
He stated further at issue in the case is the redaction of resident’s names in the forms entitled
“Standard Questions for Parsonages, Faculty, Student Housing, etc.” and a claim that some of
requested supporting documentation was missing.
The custodian maintained that all requested documents were provided to the requestor and the
only information not disclosed were residents’ names, the number of children residing at the
property and personal income information, citing specific provisions in support of their
position. Also, the custodian’s counsel provided an Affidavit to the requestor to affirm that the
documents provided were true and complete and the only information not disclosed were the
residents’ names and letters to and from the Municipal Attorney and the Municipal Tax
Attorney to the Assessor.
The Acting Executive Director recommended the Council dismiss the complaint on the basis
of:
1. All requested documents were provided to the requestor
6
2.
The redaction of the residents’ names to protect the disclosure of financial
information included in the requested documents was proper under Executive Order
#26 and the provisions of N.J.S.A. 47: 1A-9.
3.
An affidavit was provided from the Township certifying that true and accurate
copies of the files were made, with the exception of the names of residents, and
attorney/client communications, which the requestor does not appear to be seeking.
A motion to accept the Acting Executive Director’s recommendation was made by Mr. Spigner
and seconded by Ms. Hook The vote was adopted by roll call.
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese, Mr.Spigner
Absent:
Ms. Schonyers
Nays:
None
Dale V. Baranoski v. NJ Dept. of Law, Division of Criminal Justice (2003-5)
Mr. Dice stated that the complaint involved four requests for on-site inspection, review and
copies as determined by the requestor of documents and information concerning allegations of
misconduct and/or complaints filed by the requestor against the police agencies in Burlington
County and forwarded to the Division of Criminal Justice (CDJ) through the Burlington
County Prosecutor. The custodian’s counsel indicates that documents sought in request C-225
and C-227 are the same documents sought in requests C-226 and C-281.
A privilege index was provided to the GRC on January 14, 2004 concerning the records to
which access was denied. However, Mr. Dice noted that the index did not provide sufficient
facts for the Acting Executive Director to reach a conclusion whether the records being
withheld from the requestor were “advisory consultative or deliberative” or “Attorney Client
privilege” as claimed.
The Acting Executive Director recommended the Council find that:
1.
The requestor was provided access to a portion of the administrative file and the
complete transcript pertaining to the request and received copies of documents
requested.
2. The custodian properly denied access to the requested criminal investigatory record
pursuant to N.J.S.A. 47:1A-1.1
3. The privilege index provided by the custodian’s council does not adequately document
why the records withheld from the requestor were privileged and its connection to the
claimed privilege.
7
4. The custodian should be given an opportunity to submit to the Acting Executive
Director, by a date certain, further documentation in support of the claim of privilege for
each of the documents identified in the custodian counsel’s privileged index.
Mr. Maltese called for a motion to accept the Acting Director’s recommendation and order the
custodian’s counsel to provide a detailed explanation of each document contained in the
privileged index by March 5 to the Acting Executive Director and that a lack of providing said
information would result in an order by the council to release the documents at issue subject to
necessary redactions.
A motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese
Absent:
Ms. Schonyers
Nays:
Mr. Spigner
Alisa Camacho v. City of Paterson (2003-9)
Mr. Dice stated, the requestor asserts that the custodian did not promptly and fully respond to
her records request. He indicated that the requestor’s claim is based on the fact that she was
directed by the custodian to contact the Deputy Police Chief for the requested records only to
be informed by him that he did not maintain such records.
Mr. Dice stated that the custodian claims that all information requested and what was available
through the Special Events Coordinator was submitted to Ms. Camacho on January 17, 2003,
and responded to the issue of timeliness by stating that there was a newly appointed Special
Events Coordinator who needed to search for the records.
The Acting Executive Director recommended the Council find that:
1.
The custodian violated the requirements of OPRA by not denying or providing access
to copies of requested records that were responsive to the Complainant’s request within
the statutorily required seven business days.
2.
The custodian violated the requirements of OPRA in failing to respond to the request
within a seven business day time period. The delay in response was not “knowing and
willful” under the OPRA statute.
3. That the complaint should be dismissed.
Mr. Maltese called for motion to accept the Acting Executive Director’s recommendation, and
noted for the record that the custodian did not adhere to the statutory time frame in responding
8
to the request. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Spigner, Mr. Maltese
Absent:
Ms. Schonyers
Nays:
None
Mr. Spigner excused himself for the balance of the meeting.
Joseph Belth v. N.J. Dept of Banking & Insurance (2003-29)
Mr. Dice stated this complainant requested a copy of the request by Clarendon National
Insurance Co. for permission to pay interest on outstanding surplus notes, and a copy of
DOBI's denial of this request.
Mr. Dice stated further that the requestor also argued that DOBI should have supplied copies of
the requested documents, with confidential information redacted. However, he stated DOBI
maintained that the documents were entirely confidential and could not be redacted
DOBI denied the request in its entirety, based on the Open Public Records Act (“OPRA”)
exemptions for "proprietary commercial or financial information obtained from any source"
and "information, which, if disclosed, would give an advantage to competitors."
The Acting Executive Director recommended that the Council dismiss the complaint because:
1.
DOBI has met its burden of showing that the requested documentation is exempt from
disclosure under the “proprietary commercial or financial information,” and “advantage
to competitors” sections of OPRA. N.J.S.A. 47:1A-1.1.
2.
DOBI has met its burden of showing that the requested information is exempt pursuant
to laws that include, but are not necessarily limited to, N.J.S.A. 17:23-24f; N.J.S.A.
17:27A-6. N.J.S.A. 47:1A-9.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation.
The motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
9
Ed Meakem v. Municipal Clerk of Pompton Lakes (2003-66)
Mr. Dice stated that the complaint filed June 4, 2003 alleges denial of an OPRA request to the
Borough of Pompton Lakes seeking to inspect a letter from the Pompton Lakes Borough
Administrator to the Pompton Lakes Borough Board of Adjustment Attorney.
Mr. Dice indicated that the record reflects in the OPRA request, the reques ter did receive
access to the plans dated October 27, 2000 and also received a letter from the Pompton Lakes
Borough Engineer regarding the RSIS standard for Baker Cannonball Run. The custodian
stated, however, that access to the letter from the Borough Administrator to the Borough
Attorney was denied alleging it is not public information as it is considered “attorney-client”
privilege due to potential litigation. The custodian also alledges that a Board of Adjustment
Attorney would include all attorneys or attorneys hired for special cases.
Mr. Dice noted further that the custodian affirms in the Statement of Information that the letter
is subject to “attorney-client privilege,” therefore exempt from OPRA.
The Acting Executive Director respectfully recommended that the Council dismiss the
complaint because:
1. N.J.S.A. 47: 1A-1 .1 (“OPRA”) states “A government record shall not include the
following information, which is deemed to be confidential for the purposes of
P.L.1963, c.73 (N.J.S.A. 47: 1A-1 et seq.) as amended and supplemented: any record
within the attorney-client privilege.”
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Mr. Richman seconded by Ms. Hook. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Harvey Kesner v. NJ Dept. of Banking & Insurance (2003-67)
Mr. Dice stated, at issue in this case is the denial of access to documents regarding the MIIX
Group, Inc. (“MIXX”) and its subsidiaries, which concerned its request to continue operations
in “solvent run-off”, and the draft financial documents submitted by MIIX Advantage
regarding its proposed business operations. On December 24, 2002, the custodian released 175
pages of requested documents as follows:
• DOBI’s report of examination as to the organization of the MIIX Advantage’s
application for certificate
10
• Revised MIIX Advantage feasibility plan dated May 17, 2002, and other undescribed
documents.
Mr. Dice stated further that the custodian asserted that all the documents withheld were exempt
from disclosure under N.J.S.A. 17:23-24f, N.J.A.C. 11:1-36.6 and –39.10(a), and N.J.S.A.
47:1 A- 1.1 (exempting proprietary financial information and advisory, consultative or
deliberative records).
The Acting Executive Director recommended the Council dismiss the case on the basis the
documents at issue in the case are exempt under “Other laws regulations, privileges complaint
on the basis that the custodian has met its burden of showing that the requested unaffected” and
“advisory, consultative and deliberative” provisions of OPRA. N.J.S.A. 47: 1A-9 and N.J.S.A
17:23-24f, N.J.A.C.1 1-36.6, N.J.A.C. 11:2-39.10(a) and N.J.S.A.47:1A-1-1.
Mr. Maltese made a motion to accept the Acting Executive Director’s recommendation.. A
motion was made by Ms. Hook and seconded by Mr. Richman. The motion was adopted by
roll call.
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Tina Renna v. County of Union (2003-100)
Mr. Dice stated, the complaint involved a request for a copy of the proposal of Xerox to the
County of Union to run print shop. At the time of the request, the custodian was told that the
information was proprietary information and that, if released, it would have given an unfair
advantage to the competition of Xerox.
After receiving approval through the counsel of Xerox, the records were released to the
complainant.
The Acting Executive Director recommended the Council dismiss the complaint on the basis
Of:
1.
2.
The custodian properly denied access at the time of the request because:
o The information was considered proprietary based on representation made by
Xerox Corporation.
o The information would have given an unfair advantage to the competition based
on representation made by Xerox Corporation.
The county did release the documents with proper approval from the counsel of Xerox.
11
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr.Richman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
T.S. v. NJ Division of Criminal Justice (2003-102
Mr. Dice stated that the this case involved a request for records alleged to be, or to have been,
contained in the Department of Law Public Safety, Division of Criminal Justice’s file #CJ 953614-H. The Division of Criminal Justice denied the request on the grounds that “there is no
record information.”
Mr. Dice indicated that the requestor stated his belief that the documents in the Department of
Criminal Justice’s file #CJ95-3614-H may have been destroyed an on June 1, 2003, explained
that his request included documents relating to such destruction, if it is proven that the file
documentation was in fact destroyed.
Mr. Dice stated that alternatively, the phrase “no record” information” is a unique term used in
N.J.S.A. 2C:52-15 and is the mandatory response to requests for access to records that have
been expunged. Expunged records are not destroyed. They are, however, not publicly
accessible as a matter of law.
The Acting Executive Director recommended that the Council accept the custodian’s
certification in the Statement of Information that there is “no record information,” conclude
that file #CJ95-3614-H is not accessible under the Open Public Records Act (“OPRA”) and
dismiss the complaint.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
12
Star- Ledger v. New Jersey Sports & Exposition Authority (2003-107)
Mr. Dice stated, that the complaint involved a denial of access to the NJSEA’s contract with
Bruce Springsteen for 10 concerts at Giants Stadium in July and August of 2003; the NJSEA
contract for Jon Bon Jovi’s two concerts Aug. 7 and 8, 2003 at Giants Stadium; and all related
correspondence, both regular and electronic, directly related to these contracts.
Mr. Dice stated, on February 12, 2004, the requestor’s attorney confirmed by letter to the GRC
that the Star-Ledger received the requested information from the custodian and wished to
withdraw their complaint.
The Acting Executive Director respectfully recommended, that the Council dismiss the case on
the basis the Star- Ledger received all requested information and withdrew their complaint.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr.Richman. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Michael Dean V. Chatham Borough (2003-108)
Mr. Dice stated that the requestor asserted the custodian did not fully respond to his records
requested and believed that he has not been given an exact cost to date of the tax appeal for 181
Passaic Avenue, Block 34, Lot 73. The complainant believed that he has been denied his
request for the breakdown of time spent by the mayor, each councilperson, and all other
borough employees on this matter. The October 31, 2003 Affidavit of Pat Aceto, the tax
assessor of the Borough of Chatham, states, “I do not provide nor am I required to provide,
produce or manufacture a document showing a detailed breakdown of time expended.”
The Acting Executive Director respectfully recommended the Council dismiss the case
because:
1.
It is not in the jurisdiction of the Government Records Council to verify the accuracy of
the records in question.
2.
The credible information shows that the Borough has no records responsive to the
amount of time spent by the Assessor, Borough employees, the mayor and each council
13
person on the tax appeal or the bills for real estate experts and the portion of the
complaint pertaining to these records request should be dismissed.
3. Upon information supplied to the GRC, the Borough of Chatham does not use a tax
appeal attorney. There are, therefore, no records responsive to the request.
The council voted unanimously to hold the case in abeyance until the next meeting.
It was further decided that Mr. Dice would seek a certification from the custodian that there
were no attorney bills resulting from the tax appeal and if same exists, they will be provided to
the requestor subject to necessary redactions.
Irvin Beaver v. Township of Middletown (2003-111)
Mr. Dice reviewed the issues in the case regarding the delay in the custodian’s response. The
custodian explained the delay was attributed to the following:



The Township needed to retrieve information that dated back 40 years and thus,
the project involved extensive research
The Middletown clerk went on maternity leave on September 5, 2003
The Township hired a deputy clerk in November 2003
The Acting Executive Director recommended the Council find that:
1.
The custodian violated the requirements of OPRA by not denying or providing access
to copies of requested records that were responsive to the Complainant’s request within
the statutorily required seven business days.
2. The custodian violated the requirements of OPRA in failing to respond to the request
within a seven business day time period. The custodian responded on October 17, 2003
with all of the requested records where they existed. The delay in response was not
“knowing and willful” under the OPRA statute. It is recommended that this case be
dismissed.
Mr. Maltese asked that the custodian be informed of the statutory time frame involved in
responding to a request pursuant to the OPRA. Mr. Maltese called for a motion to accept the
Acting Executive Director’s recommendation with the additional recommendation. A motion
was made by Ms. Hook, and seconded by Mr. Maltese. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
14
Cynthia McBride v. Gloucester Twp. Tax office (2003-118)
Mr. Dice stated that based on the requestor’s February 23, 2004 Email to the GRC, he
respectfully recommended that the Council dismiss the complaint.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr.Richman. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Gina Calogero v. Borough of Emerson (2003-119)
Mr. Dice stated this is a request for various documents comprising approximately 29 items, and
he indicated that the custodian has not met the burden of proof regarding a claim for a special
service charge, that resulted in a denial of access. The Acting Executive Director
recommended the Council find that:
1.
The custodian has not demonstrated that a special service charge is warranted in this
case.
2. Access should be granted to all documents in existence at the time of the request, which
the borough had custody of, and which are not exempt under the Open Public Records
Act (“OPRA”).
3. The complaint should be dismissed.
Mr. Maltese noted for the record that the custodian violated the OPRA statutory time frame in
responding to an OPRA request. Mr. Maltese called for a motion to accept the Acting
Executive Director’s recommendation. A motion was made by Mr. Richman and seconded by
Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Marie Bailey V. NJ Dept of Treasury (2003-124)
Mr. Dice stated that the case involved a denial of access for a copy of an investigation and
determination report from the Hunterdon County Board of Taxation to the New Jersey
Department of Treasury-Division of Taxation and reports/correspondence from the “respected”
15
New Jersey Department of Agriculture employee who inspected the property in question.
Furthermore, the name of the party within the Division of Taxation who received the report
from Hunterdon County Board of Taxation and who communicated the report.
The Acting Executive Director recommended that the Council dismiss the complaint because:
1.
The June 4, 2003 request was addressed by the custodian alleging that the
records in question were verbally reported, therefore, unable to be produced.
2. The June 16, 2003 request was addressed by the custodian stating the identity of
the Division of Taxation employee responsible for the receipt of the reports and
the status of his employment.
3. On October 17, 2003, the custodian affirmed that all the responsibilities under
OPRA were carried out and the requester received information regarding the
request specifically the inability to produce the report.
4. According to OPRA (N.J.S.A. 47:1A-1.1), a government record is defined as
“any paper, written or printed book, document, drawing, map, planphotograph,
microfilm, data processed or image processed document, information stored or
maintained electronically or by sound-recording or in similar device, or any
copy thereof, that has been made, maintained or kept on file in the course of his
or its official business,” therefore, no records exist in the above defined form.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr. Richman. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Michael Dean v. Chatham Borough (2003-130)
Mr. Dice stated that the statement of information provided by the Custodian and the legal
arguments presented by the Custodian’s counsel fail to address the question of whether or not
any other “government records” (as defined by OPRA) exist with respect to the Complainant’s
request.
The Acting Executive Director respectfully recommended that the Council order the custodian:
1. Ascertain the existence of any additional documents that (a) are relevant to the
Complainant’s request and (b) meet the definition of “government record” under
OPRA;
16
2. If such documents do exist, determine whether there is any exception to granting public
access to the document under OPRA or other applicable law; and
3. If no exception exists, make such document(s) available to the Complainant.
4. Provide certification to the above items, within five business days to the Acting
Executive Director.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Christopher Maloney v. Borough of Jamesburgh (2003-137)
Mr. Dice stated that the complaint involved a denial of access to a list of all municipal
employees by salary, title and overtime for the years 1999, 2000, 2001, 2002, 2003.
Mr. Dice indicated that the Custodian certified in writing that the requested records were
provided to the Complainant in the exact form which such records are maintained by the
municipality (subject to appropriate redaction) and that a more concise form of the requested
records did not exist.
The Acting Executive Director recommended the Council dismiss this denial of access
complaint for the following reasons:
1. The fees charged by the Custodian were within the fee limitations set forth under
OPRA;
2. The Custodian has certified that the records were provided to the Complainant in the form
that they are maintained by the municipality, therefore the Custodian responded
appropriately to the request;
3. The allegedly non-responsive information provided to the Complainant was, in fact,
responsive or, in the alternative, was reasonably maintained by the Custodian as part
and parcel of the information provided to the Complainant; and
4. Current year information was immediately accessible in a form that complies with the
immediate access provisions of OPRA.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr.Richman. The motion was adopted by roll
call:
17
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Jordan Mariano v. NJ Dept. of Environmental Protection (2003-140)
Mr. Dice stated that this OPRA Complaint filed November 3, 2003 alleged a denial of an
OPRA request to the New Jersey Department of Environmental Protection (“NJDEP”) for the
dissemination of the list of users of chlorine gas in New Jersey. The Requestor is a
representative of Chlorinators Incorporated, a Florida-based distributor of equipment for the
chlorine industry.
Mr. Dice explained that the NJDEP maintained that the denial of the OPRA request was proper
because the release of such records would violate Executive Order No. 21, which provides for
confidential treatment of information that would, if released, “substantially interfere with the
State’s ability to protect and defend the State and its citizens against acts of sabotage or
terrorism, or . . . would materially increase the risk or consequences of potential acts of
sabotage or terrorism.” Because the release of the list of chlorine users could assist
terrorists/saboteurs in targeting the facilities of such chlorine users, NJDEP denied the OPRA
request.
The Acting Executive Director respectfully recommended that the Council dismiss this
complaint because the information requested was within the ambit of Executive Order No. 21.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr. Richman. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Walter McDonald v. NJ Dept. of Treasury (2003-147)
Mr. Dice stated that the Requestor challenged the sufficiency of the Division of Taxation’s
response to four OPRA requests, all of which sought records related to a 1997 state tax
judgment against the requestor recouping an improperly issued tax refund and subsequent
years’ underpayment of tax. Requestor denies ever receiving the refund check, the notice of the
18
tax deficiency dated September 26, 1996 or the subsequent judgment against him recorded
electronically in Essex County Superior Court on August 11, 1997.
He noted that Department of Treasury, Office of Management and Budget maintained that
they provided the requestor a copy of the refund check in question, signed by him, from its
files at 33 West State Street, and also provided an electronic computer entries describing the
various stages of notice to requestor and entry of judgment, as the hard copies of the
documents were destroyed in March 2000 pursuant to Disposal Authorization #45-690
The Acting Executive Director recommended the Council find that:
1.
The complaint should be dismissed because the Division custodian provided access to
all Division of Taxation records extant that are responsive to the 4 OPRA requests at
issue.
2. The one record withheld, a Division investigation of a complaint filed by the requestor
against a named Division employee, is a confidential record within a Division
employee’s personnel file pursuant to N.J.S.A. 47:1A-10. Requestor has been informed,
however, of the result of the investigation, specifically, that the Division’s Office of
Criminal Investigation (OCI) found no evidence to support requestor’s allegations.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr.Richman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Richard Linderman v. NJ Dept of Community Development (2003-1540)
Mr. Dice stated that denial of access complaint filed December 20, 2003 alleged a denial of an
OPRA requests to review copies of the original certificate of occupancy issued by North
Brunswick for each of the Condominium units located in the Renaissance Village I
condominium development.
Mr. Dice stated the custodian sent a request to Mr. Linderman on 1/15/2004 requesting
address information so that they could clarify the request.
The Acting Executive Director respectfully recommended that the Council send a letter to Mr.
Linderman requesting that he provide the information requested by the custodian to the
custodian’s office within five business days of receipt.
19
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
David Herron v. Montclair Board of Education (2004-2)
Mr. Dice stated that this OPRA Complaint alleges a denial of a request to review copies of
expense checks related to certain accounts managed by the Montclair Board of Education. The
Custodian filed a Statement of Information in connection with this complaint, alleging that
records were made available with the exception of November 2003 account statements as they
had not yet been received.
The Acting Executive Director respectfully recommended that the Council dismiss the
complaint because the Custodian affirmed in the Statement of Information that the records
requested were made available to the Complainant with the exception of account statements for
November 2003, which had not been received at the time of the OPRA request
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms Hook and seconded by Mr. Richman. The motion was adopted by
roll call:
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
John Pusterhofer v. Shrewsury Boro School District (2004-5)
Mr. Dice stated that on February 19, 2004, the requestor advised the GRC he wished to
withdraw his complaint.
The Acting Executive Director respectfully recommended that the Council close this case on
the basis of the requestor’ s withdrawal.
Mr. Maltese called for a motion to accept the Acting Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr. Richman. The motion was adopted by
roll call:
20
Ayes:
Ms. Hook, Mr. Richman, Mr.Maltese
Absent:
Ms. Schonyers, Mr. Spigner
Nays:
None
Yehuda Shain v. Lakewood Township (2002-111)
Mr. Dice stated that this case was considered in the December 11, 2003 meeting and referred to
the Office of Administrative Law for an evidentiary hearing on whether there was a knowing
and willful violation of the OPRA. Subsequent to the referral, the case was returned to the
GRC by the OAL based on a letter from the requestor indicating he wanted to close the file.
Mr. Dice recommended that the Council dismiss the case based on the requestor’s wishes that
the case be closed.
Mr. Maltese indicated that the requestor is unable to close the case in this matter given the fact
that at the OAL hearing he would be a witness. Mr. Maltese stated that he would prefer that
the GRC council confer with the Office of Administrative Law and report back at the next
meeting. The council voted unanimously to modify the Acting Executive Directors
recommendation to seek legal counsel regarding whether the council should refer the
complaint back to the OAL for a continuation of the determination on whether there was a
knowing and willful violation under OPRA in the totality of the circumstances. The Council
concluded that the case would be held in abeyance based the Chairman’s recommendations.
Hearing no public comments, Mr. Maltese called for a motion to adjourn. The motion was
made by Ms Hook and seconded by Mr.Richman. The motion was approved by a consensus.
The meeting adjourned at 1:25pm
Respectfully submitted,
/s/Virginia Hook, Secretary
Dated:
21
22
23
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
March 11, 2004
The meeting was called to order at 8:30AM. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman, (designee of Commissioner Susan Bass Levin,
Department of Community Affairs, Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.
Mr. Maltese read the resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Ms. Schonyers. All members present approved the
motion. The Council met in closed session from 8:30AM to 10:55AM
The Council reconvened in open session at 11:00 AM in room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman, (designee of Commissioner Susan Bass Levin,
Department of Community Affairs, Diane Schonyers, (designee of
Commissioner William Librera
Also Present: Deputies Attorney General Karen Dumars, Executive Director Paul
Dice, Assistant Executive Director Gloria Luzzatto, GRC Attorney
Advisor Susan Jacobucci, Staff Associates Chris Malloy, Anthony
Carbabelli, Erin Mallon, Kimberly Gardner.
Mr. Maltese introduced Commission Susan Bass Levin. Commissioner Levin delivered a
brief progress report on the success of the Government Records Council. The
Commissioner thanked the Council for their dedication and professionalism. The
Commissioner also thanked the staff for their outstanding work effort. Commissioner
Levin officially announced the appointment of Mr. Dice as the Executive Director.
Mr. Dice gave a status report on the cases as follows: There are 39 scheduled for today,
19 scheduled for March 30, 2 on appeal to Superior Court, 6 cases to the office of
Administrative Law, 6 cases in mediation, 5 cases are a work in progress, not scheduled
for a specific agenda, closed 211.
Mr. Maltese stated that they would forgo a reading of the minutes from the February 27,
2004 meeting and adopt them at the next meeting.
Mr. Dice indicated there were no personnel matters or communications to report
Mr. Maltese recused himself from the meeting during the discussion of the following
cases:
Michael Galdieri vs. Jersey City Incinerator Authority (2003 -152)
Michael Galdieri vs. Jersey City Incinerator Authority (2003 -153) White
vs. William Patterson University
(2004-0 10)
Michael Galdieri v. Jersey City Incinerator Authority (2003-152)
Mr. Dice stated that this (“OPRA”) Complaint filed November 22, 2003 alleges denial of
an OPRA request to the Jersey City Incinerator Authority (“Authority”) seeking copies of
various personnel records, minutes, resolutions and personal financial disclosure forms.
The Custodian asserts in the Statement of Information that the requested records, except
for Mr. Dabney’s personal financial disclosure form, were provided to the Requester with
a letter dated December 19, 2003. Further, the Custodian asserts in the Statement of
Information that the personal financial disclosure form is not a record within its custody
but must be requested from the City Clerk’s Office.
The Executive Director respectfully recommended that the Council dismiss the complaint
because:
1. The Custodian provided access to Michael Galdieri’s personnel and employee
file.
2. The Custodian provided access to all the records requested that were made,
maintained, and kept on file with its December 19, 2003 response to the
Requestor.
3. N.J.S.A. 47:1A-5(h) provides that “[a]ny officer or employee of a public agency
who receives a request for access to a government record shall forward the
request to the custodian or direct the requestor to the custodian of the record.”
Mr. Spigner called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Richman and seconded by Ms. Hook. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner
Nays:
None
Recused:
Mr. Maltese
Michael Galdieri v. Jersey City Incinerator Authority (2003-153)
2
Mr. Dice stated that the Open Public Records Act (“OPRA”) Complaint filed December
3, 2003 alleges denial of an OPRA request to the Jersey City Incinerator Authority
(“Authority”) seeking copies of various communications, log books, reports and other
records relating to employees’ time reporting systems.
The Custodian asserts in the Statement of Information that the requested records, except
all communications concerning Mr. Michael Galdieri which was provided to the
Requester pursuant to a later request, either did not exist at the date of the request, were
too vague for compliance with the request, or the Requestor must pay the statutorily
mandated fee for reproduction of the records.
The Acting Executive Director respectfully recommended that the Council:
1. Order the Custodian to certify whether the daily electronic time scan reports
for each environmental inspector/officer, as well as personnel, for 1/29/03
through 1/31/03 and 2/24/03 through 3/7/03 did or did not exist as of the date
of the request.
2. Further order the Custodian to explain the inconsistency between its
statements in its September 16, 2003 response that the electronic time scan
reports might be exempt from disclosure because they might jeopardize
building security or computer program security and its statements in the
Statement of Information that the records do not exist because they are
destroyed after six months.
3. Order the Requester to revise his request for copies of the daily log book as it
relates to employee vacation, personal, sick and compensation days within
five business days to be more specific regarding date, author and subject
(employee) of the records.
4. Order the Custodian to explain the inconsistency between its statements in its
September 16, 2003 response that the copies of the daily log book as it related
to employee vacation, personal, sick and compensation days were exempt
from disclosure due to the personal nature of the records and N.J.S.A. 47:1A10
which provides that personnel and pension records are not considered
government records except for certain information contained within them (i.e.
payroll records) and its statements in the Statement of Information that the
request is too vague for the Custodian to comply with the request.
5. Order the Custodian to explain the inconsistency between its statements in it
September 16, 2003 response that the records relating to employee vacation,
sick and personal time for all non-union personnel for 1/28/03 through
4/11/03 were exempt from disclosure due to the personal nature of the records
and N.J.S.A. 47:1A-10 which provides that personnel and pension records are
not considered government records except for certain information within them
(i.e. payroll records) and its statements in the Statement of Information that
the records will be made available upon the Requester’s payment of the
statutorily mandated fee for reproduction of the records.
3
6.
Order the Custodian to certify whether records regarding the proper or
improper function of the employee hand scanner and time clock did or did not
exist as of the date of the request.
7. Further order the Custodian to explain the inconsistency between its statement
in the September 16, 2003 response that the records regarding the proper or
improper function of the employee hand scanner and time clock were exempt
from disclosure because they might jeopardize building security and its
statement in the Statement of Information that no such records existed as of
the date of the request.
The Council voted to adopt the entirety of the Executive Director’s Findings and
Recommendations and ordered the custodian to reply to Executive Director, Paul Dice,
regarding Items “1,” “2,” “4,” “5,” “6” and “7” above within ten business days of receipt
of the Councils Interim Decision. The Council further ordered the requestor to reply to
Executive Director, Paul Dice, regarding Item “3” above within ten business days of this
Interim Decision.
Mr. Spigner called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Hook and seconded by Ms Schonyers. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr. Spigner
Nays:
None
Recused:
Mr. Maltese
White v. William Patterson University (2004-10)
Mr. Dice stated that the Complainant alleges that the William Patterson University Police
released their report number 0300611 to University employees on January 23, 2003. Said
report, a copy of which is attached to the Complainant’s Denial of Access Complaint,
includes personally identifiable information such as Complainant’s social security
number.
Mr. Dice noted that the custodian did not submit a Statement of Information in the case
but stated it’s position in a letter to the complainant indicating the incident reports were
not confidential when distributed to intra departments for educational use. The Executive
Director respectfully recommended that the Government Records Council “Council”)
dismiss this complaint on the grounds that the complaint is outside the Council’s
jurisdiction pursuant to N.J.S.A. 47: 1A-7(b).
Mr. Spigner called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Richman and seconded by M. Hook. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr. Spigner
4
Nay:
Recused:
None
Mr. Maltese
Yehuda Shain v. Lakewood (2002-111)
Mr. Dice reviewed the Supplemental Finding and Recommendations of the case and
recommended that the Council:
1. Dismiss the Complainant’s opposition to the Council’s acceptance of the
custodian’s motion for reconsideration on the basis that the Council has received
legal advice from the Division of Law that acceptance of the motion is proper and
within the Council’s purview.
2. Refer this case back to the OAL for a determination on whether the Custodian had
knowingly and violated N.J.S.A. 47: 1A-1 et seq. in the totality of the
circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Spigner and seconded by Ms. Schonyers. The motion was
adopted by roll call:
Ayes:
Nays:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
None
Dale Baranoski v. Division of Criminal Justice (2003-5)
Mr. Dice stated at its March 11, 2004 public meeting, the Government Records Council
(“Council”) considered the March 11, 2004 Findings and Recommendations of Executive
Director set forth below and all related documentation submitted by the parties.
1. Order the custodian to release the documents it believes are fully disclosable,
arguably the 28 records referenced in the OAG proposal, pursuant to N.J.S.A.
47:1A-1 et seq. to the Complainant within five business days of the custodian’s
receipt of the Council’s order.
2. Order the custodian to release the documents it believes are partially disclosable,
arguably the 40 records referenced in the OAG proposal, pursuant to N.J.S.A.
47:1A-1 et seq. to the Complainant within five business days of the custodian’s
receipt of the Council’s order.
3. Order the custodian to provide Executive Director Paul Dice written confirmation
of compliance with “1” and “2” immediately above within five business days of
the custodian’s receipt of the Council’s order.
4. Order the custodian to provide Executive Director Paul Dice with a detailed
certification of why the Council should not consider the custodian to have
knowing and willfully violated N.J.S.A. 47:1A-1 et seq. in the totality of the
circumstances surrounding the complainant’s July 12, 2002 and July 30, 2002
5
Open Public Records Act requests within five business days of the custodian’s
receipt of the Council’s order.
5. Forego any determination of the acceptability of the custodian’s March 5, 2004
explanations of why the Council should accept the arguments that selected
documents are privileged and, therefore, nondisclosable until the custodian has
complied with “1-4” immediately above.
The Council unanimously voted to postpone a decision on the Executive Director’s
Recommendations until the GRC counsel reviews the custodian counsel’s March 5, 2004
explanations of why selected documents are privileged and exempt from disclosure. The
Executive Director will report the results of his findings to the Council at the March 30,
2004 Meeting.
Charles Cannon, Jr. v. Atlantic City Board of Education (2003-36)
Mr. Dice stated this a case involving footage of the inside and outside of the old Atlantic
City High School. The requestor has stated he has not received that which is being
sought. . To date, the complainant alleges that he has received only a portion of the
requested material.
The Custodian contends that they offered Mr. Cannon the opportunity to come and view
the documents and pick and choose that which he is looking for on at least two occasions.
The custodian is seeking clarification from Mr. Cannon and they will make copies for
him.
The Executive Director respectfully recommended that the Council dismiss this
complaint for the following reasons:
1.
The Custodian has certified that all of the requested information in the possession
of the school district has been provided to the Complainant.
2.
The Custodian has offered the Complainant the opportunity to review and select
whatever additional footage he is seeking.
3. Complainant has provided insufficient proof that the Custodian or school district
is withholding the requested information notwithstanding their certification to the
contrary.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation. A
motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
6
Newark Morning Ledger v. New Jersey Sports & Exposition Authority (2003-43)
Mr. Dice stated that he received a letter dated March 1, 2004 from custodian’s counsel
advising him that the parties have reached an agreement regarding the attorney’s fee and
the remaining issue is receipt of the final payment that has been agreed upon. The parties
have asked the Council to hold the case pending on the attorney’s fee application for one
month, so they can work out the administrative details between them.
The Executive Director respectfully recommended that the Council advise the parties that
they have until April 8, 2004 to resolve their differences and provide the Council with
written confirmation of same.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation. A
motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Robert Hopewell, III v. Passaic Valley Sewerage Commission (2003-48)
Mr. Dice stated based on the information received from the requestor’s counsel and
custodian, the issues in the complaint have been resolved. Government Records Council
staff sent a January 29, 2004 to the complainant requesting a written reply regarding the
resolution of the case by February 9, 2004. Since there was no reply to the January 29,
2004 letter, another letter was sent via UPS on February 18, 2004 indicating that the case
would be closed. Delivery was confirmed and the case is considered closed.
The Executive Director recommended that based on the Staff’s inability to communicate
with Mr. Hopewell, the Council dismiss the complaint.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation. A
motion was made by Ms Hook and seconded by Ms. Schonyers. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner,
Nays:
None
Abstain:
Mr. Maltese
Timothy Probe v. Div. of Criminal Justice, Dept of Law & Public Safety (2003-63)
7
Mr. Dice stated that this Open Public Records Act (“OPRA”) Complaint filed December
3, 2003 alleges denial of an OPRA request to the Department of Law & Public Safety –
Division of Criminal Justice seeking a copy of the Office of Insurance Fraud Prosecutor
case #01-012166-24 and all other related documents under the name of Leonard Probe.
The Requester alleges that he was improperly denied access to these records. The
Custodian asserts in the Statement of Information that the requested records are “criminal
investigatory records” and are, therefore, exempt from disclosure under OPRA. The
Custodian further asserts that the records are not subject to public access under OPRA
because they are exempt as confidential under the New Jersey Insurance Fraud Protection
Act and regulations promulgated by the Department of Banking and Insurance.
The Executive Director respectfully recommended that the Council dismiss the complaint
because:
1. The custodian has met its burden of showing that the requested records and
documents are exempt from disclosure under the provisions of OPRA,
N.J.S.A. 47: 1A-9 as they are considered confidential privileged from
disclosure under N.J.A.C. 11:16-6.12 and N.J. S.A. 1 7:33A- 11
2. The requested records are also exempt from disclosure under N.J.S.A. 47:1A1.1 as “criminal investigatory records.”
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Sipgner and seconded by Mr. Richman. The motion was
adopted by roll call:
Ayes:
Nays:
Abstain:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
None
None
Larry Loigman v. Division of State Police (2003-81)
Mr. Dice stated that this OPRA complaint alleges denial of an OPRA request to review
copies of all reports, notes, statements, or other documents relating to the investigation of
false “Megan’s Law” letters, in which Complainant was the victim, in or about February
2000 and thereafter.
The record shows that the Custodian denied the request based upon the fact that the
requested records constitute criminal investigatory records, which are exempt from public
access under OPRA.
The Acting Executive Director respectfully recommended that the Council dismiss this
complaint because the custodian certified in their statement of information that the
requested information and documents are criminal investigatory records which
established public access was properly withheld under the provisions of N.J.S.A. 47: 1A1.1.
8
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation. A
motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Skip DeBiasse v. Madison Borough (2003-91)
Mr. Dice stated that the complaint involved 5 different requests for documents. Mr. Dice
stated that the record reflects that the custodian provided access to the complainant in
request 1, 2 & 5, and that the custodian has additional information to clarify the
information sought in the request for certificates of occupancy
The Executive Director respectfully recommended the Council find that:
1. The custodian has provided access to the complainant for requests numbered “1”,
“2” and “5”
2. Mr. DeBiasse is to provide the information requested by the custodian in requests
numbered “3” and “4” concerning certificates of occupancy with a copy to the
Executive Director within five business days. Failure to provide the requested
information will result in the case being dismissed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Sipgner and seconded by Ms. Schonyers. The motion was
adopted by roll call:
Ayes:
Ms. Hook, M Schonyers, Mr. Richman, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Joseph Fournier v. Hudson County Prosecutor’s Office (2003-93)
Mr. Dice stated that the complaint involved a request for copies of
complaints/summonses issued in connection with an incident involving a given individual
and alleges the refusal to fully provide the requested complaints/summonses that were
issued in connection with an alleged assault and based on hand-written notes regarding
the documents provided, Complainant believes that the Custodian has withheld
information relevant to his request.
Mr. Dice stated that the Custodian provided the GRC with copies of the documents that
were sent to the Complainant and affirmed that such documents fully comply with the
9
Complainant’s request. He noted that the Complainant has offered no proof that the
documents provided to him are not fully compliant with the OPRA request.
The Executive Director respectfully recommended that the Council dismiss the case since
the Complainant has provided no proof that the Custodian’s response was not in
compliance with OPRA and that the Custodian has affirmed that the documents provided
to the Requestor fully satisfy his request.
Mr. Maltese noted for the record that the Custodian’s in this matter was untimely in
fulfilling the complainant’s request.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation. A
motion was made by Ms Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, M Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Robert Blau v. Essex County Register (2003-97)
Mr. Dice stated that a request for all deeds and mortgages in digital format was subject of
the complaint. He indicated further that the custodian has not supplied the GRC with a
Statement of Information regarding the complaint. Mr. Dice also stated that the lack of
response in this case should be considered a denial of access.
The Executive Director respectfully recommended that the Council find:
1.
The custodian’s lack of response should be considered a denial of access.
N.J.S.A.47: 1A-5(i).
2.
The Council should deem that the documents are disclosable given that the
custodian has not offered a defense.
3. Order the custodian to provide the requestor and Executive Director Paul Dice
with a detailed estimate of the bases for the cost(s) of providing the requested
digital copies for those documents in existence with the Essex County Registrar
on June 25, 2003 and which are responsive to the complainant’s request. Such
cost estimate(s) should be in keeping with the provisions set forth in N.J.S.A.
47:1A-5 within five business days of the custodian’s receipt of the Council’s
order.
4.
Mr. Blau seeks information on a continuing basis. The GRC finds that this is not
appropriate to seek information on a continuing basis since OPRA deals with the
present and past tense, not the future.
10
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation as
revised. A motion was made by Mr. Spigner and seconded by Mr. Richman. The
motion was adopted by roll call:
Ayes:
Ms. Hook, M Schonyers, Mr. Richman, Mr. Spigner, Mr. Maltese
Nays:
Abstain:
None
None
Daryl Pitts v. Department of Corrections (2003-99)
Mr. Dice stated that this case involved a request for the complainant’s own prison
medical records from 1985 through present. Mr. Dice noted the record indicates that the
complainant received the requested documents.
The Executive Director respectfully recommended that the Council dismiss the case
because the Complainant had signed documentation on February 26, 2004 that he
received the requested documents. Mr. Dice also stated that no further action is needed
by the Government Records Council.
Mr. Maltese called for a motion to accept the Executive Directors recommendation. A
motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Michael Dean v. Borough of Chatham (2003-108)
Mr. Dice stated that at the February 27, 2004 public meeting, the Government Records
Council (“Council”) considered the February 23, 2004 Findings and Recommendations
of Executive Director and all related documentation submitted by the parties. Whereby
the Council voted to hold its decision in the case pending receipt of the following:
The Council instructs the custodian to review it’s invoice and provide a written
certification that there are no attorney bills resulting from the tax appeal for Block
34, Lot 73, 181 Passaic Avenue. Should invoices contain any entry of attorney
bills said bills are to be disclosed to the requestor, subject to necessary redactions
pursuant to N.J. S.A.47:-1A-1et seq.
Mr. Dice stated further that subsequent to the Council’s order, the custodian submitted a
March 5, 2004 certification stating that the borough does not have any additional
11
documents that meet the definition of a “Government Record” and therefore
recommended that the council dismiss the complaint.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Rick Merino v. Borough of Ho-Ho-Kus (2003-110)
Mr. Dice stated that the complaint alleges a denial of an OPRA request to review copies
of (1) all moving violations by Officer Michael Tuttle during career with Ho-Ho-Kus
Police Department, including names and addresses of those cited (2) training records of
Officer Tuttle; and (3) records of complaints or internal reprimands against Officer
Tuttle. The Complainant also alleges that the custodian overcharged him for duplicating
the requested records. Mr. Dice noted that the record shows that the custodian did provide
access to redacted copies of the requested summons but denied access to the training
records, complaints and internal reprimands.
The Executive Director recommended that the Council find that:
1. Notwithstanding the Records Retention and Disposition Schedule for
summonses, if the Custodian does, in fact, possess records of summonses for
any prior period that were issued and requested in the OPRA request, such
records must be provided to the Complainant pursuant to the provisions of
N.J.S.A. 47: 1A-1 et. seq. Although the Records Retention and Disposition
Schedule calls for the destruction of summonses within one month after
disposition of the offense, if such records have not been destroyed, they
remain subject to public access.
2. Training records of Officer Tuttle must be made available to the Complainant
pursuant to N.J.S.A. 47:1A-10. Personnel records that “disclose conformity
with specific experiential, educational or medical qualifications required for
government employment” shall be considered a government record and must
be made available for public access.
3. The Complainant’s request to review the records of complaints filed against
Officer Tuttle were properly denied by the Custodian. N.J.S.A. 47: 1A-10
provides in pertinent that “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 public record and shall not be made available for public access”
12
[emphasis added]. As a result, records of complaints filed against Officer
Tuttle and/or reprimands he has received are not subject to public access.
4. Assuming that the number of pages provided to the Complainant was, in fact,
27 double-sided pages, the Complainant should be refunded $18.25. The
Complainant was charged $64.25 ($25.00 for a copy of a videotape and
$39.25 for 27 double-sided photocopies). The maximum fee for photocopies
under OPRA (at N.J.S.A. 47: 1A-5) and the fees listed by the Custodian on its
document request form are identical ($0.75 for the first ten pages, $0.50 for
the second ten pages, and $0.25 for each page thereafter). The maximum
allowable fee for 54 pages (i.e. 27 times 2) is, therefore, $21.00. Accordingly,
the Custodian must issue a refund to the Complainant in the amount of
$18.25.
Mr. Maltese suggest that the Council postpone its decision on whether the addresses
and names were properly redacted on the documents pertaining to the prior month’s
moving violation summonses of Officer Tuttle pending further review by the GRC’S
legal counsel. A motion was made by Ms. Hook and seconded by Ms. Schonyers.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Marie Bailey v. Department of Agriculture (2003-116)
Mr. Dice stated that this complaint was filed September 25, 2003 in which the
complainant was seeking to inspect dealer certificates, dealer inspection reports, and
dealer forms and list that disclose the names of other nurseries and dealers from whom
DuBrow’s Nurseries, Inc. purchases stock.
The Executive Director recommended that the Council dismiss the complaint because:
1. The custodian addressed the June 5, 2003 request when copies of the annual
dealer inspection reports and dealer certificates for DuBrow’s Nurseries, Inc.
were provided to the requestor.
2. The June 5, 2003 request was further addressed by the custodian when the
requestor was informed that pursuant to the Department of Agriculture’s
records retention policy, copies of the dealer forms and lists that disclose the
names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc.
purchases stock material are destroyed after one year and that there are no
records in the DuBrow’s Nurseries, Inc. files other than those already
provided to the requestor.
13
3.
The custodian addressed the June 26, 2003 request when copies of the reverse
sides of the annual dealer inspection reports and dealer certificates were
provided to the requestor.
4. On February 4, 2004, the custodian affirmed in the Statement of Information
that all the responsibilities under OPRA were carried out when the requestor
was provided the records that existed at the date of the request and
information regarding the inability to produce the dealer forms or lists that
disclose the names of other nurseries and dealers from whom DuBrow’s
Nurseries, Inc. purchases stock material.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation to
dismiss the case. A motion was made by Ms. Schonyers and seconded by Mr. Richman.
The motion was adopted by roll call vote.
Ayes:
Absent:
Nays:
Abstain:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr. Maltese
Mr. Spigner
None
None
Jann M. Giacoboni v. Superior Court of New Jersey (2003-126)
Mr. Dice reviewed the facts in the case indicating that the requestor was seeking motion
hearings of 3 judges from the Superior Court of New Jersey, Camden County Court
Reporters and Transcript Unit.
The Executive Director recommended that the Council find that the Government Records
Council lacks jurisdiction over this matter pursuant to N.J.S.A. 47: 1A-7 (g) and the case
be dismissed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation to
dismiss the case. A motion was made by Ms.Hook and seconded by Mr. Richman. The
motion was adopted by roll call vote.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
John Paff v. New Jersey Department of Labor (2003-128)
Mr. Dice stated the complaint involved a denial of access to a request of Certificate of
Debt documents. In reviewing the case Mr. Dice stated the Requestor alleges that the
Custodian did not relinquish all documents requested, however, the Requestor does
acknowledge a receipt of some of the documents, specifically the Debt of Judgment
Order and Warrant of Satisfaction.
14
Mr. Dice noted the Custodian asserts that the Requestor received redacted documents
from the file that are considered to be public record and filed with the Superior Court.
The Custodian certified, that the remaining documents requested are the Wage Record
and Tax Contribution File for Ms. Garbin and pursuant to N.J.S.A. 43:21-11 (g) are
confidential and are not subject to OPRA.
The Executive Director Recommended that the complaint be dismissed for the following
reasons:
1.OPRA (N.J.S.A. 47:1A-9) “shall not abrogate any exemption of a public record or
government record from public access heretofore made pursuant to P.L.1963, c.73
(N.J.S.A.47: 1A-1 et seq.);
2/The custodian certified that requested document contains information deemed
confidential under (N.J.S.A. 43 :21-1 et seq.)
Mr. Maltese called for a motion to accept the Executive Director’s recommendation to
dismiss the case. A motion was made by Ms. Schonyers and seconded by Ms. Hook.
The motion was adopted by roll call vote.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Michael Dean v. Chatham Borough (2003-130)
Mr. Dice stated that the subject case is on follow up from the February 27, 2004 public
meeting where the Council voted to hold its decision in the case pending receipt of the
following information:
Ascertain the existence of any additional documents relevant to the complainant’s
request and meet the definition of a Government Record under OPRA. If such
documents do exists, determine whether there is any exception of granting public
access to the document or documents’ under public law or other applicable law. If
no exception exists make such documents available to the complainant.
The Executive Director recommended that the complaint be dismissed, since the
custodian submitted a certification on March 5, 2004 stating that the borough does not
have any additional documents that meet the definition of a “Government Record.”
Mr. Maltese called for a motion to accept the Executive Director’s recommendation to
dismiss the case. A motion was made by Ms.Hook and seconded by Mr. Richman. The
motion was adopted by roll call vote.
15
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Gober v. City Burlington (2003-139)
Mr. Dice stated that the case involved a denial of access a request for various documents
made to the City of Burlington. Mr. Dice reviewed the facts of the case noting that the
Custodian, assert that with respect to certain correspondence, access was provided.
The conceptual drawings were not submitted and therefore not available, internal
correspondence was advisory, consultative and deliberative and not subject to access and
no appraisals existed.
Mr. Dice added that the custodian failed to submit a statement of Information as
requested by the GRC staff and recommended that the Council adopt the Findings and
Recommendation’s with the Council’s changes:
1. Order the requestor to provide specific details of the information still being
sought, which has not been provided by the custodian. A response to the
custodian and Executive Director, Paul Dice, must be provided within 10
business days after receipt of the Council’s Interim Order.
2.
The custodian will have 10 business days to reply to requestor’s response in
Item No. 1 above by providing access to the documents still sought by the
requestor pursuant to N.J.S.A. 47:1A-1 et seq.
3. Order the Custodian to provide public access to internal correspondence and
inter-agency correspondence, subject to redaction of any information in such
correspondence that is “advisory, consultative or deliberative” in nature.
Factual assertions made in such correspondence are not exempt from public
access under the relevant provisions of OPRA and the Custodian needs to
provide a detailed explanation for any documents withheld or redacted from
the Complainant.
4.
Order the Custodian to provide a certification explaining the delay in
responding to the request and why it should not be considered a knowing and
willful violation.
5. The custodian will have 10 business days to comply with Items No. 3 and 4
above after receipt of the Council’s Interim Order.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation as
amended with the changes to number # 1 and #5. A motion was made by Ms. Hook and
seconded by Mr. Spigner. The motion was adopted by roll call vote.
16
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Richard Wilcox v. The Township of West Caldwell (2003-142)
Mr. Dice stated that OPRA request filed on November 5, 2003 alleges a denial of access
of an OPRA request to the Township of West Caldwell seeking to inspect various records
of the Township Attorney and the Township Zoning Board of Adjustment. Mr. Dice
stated the Custodian states in the Statement of Information that the records are subject to
attorney client privilege and are therefore exempt from access under OPRA. The
Custodian alleged all documents in the requested file that are not exempt by attorney
client privilege were released to the requestor.
The Executive Director recommended that if the custodian has not complied with the
staff’s February 26, 2004 letter requesting explanations of why the
Council should consider the exempted documents as attorney/client privilege:
1. The Council should order the Custodian to provide same within five business
days.
2. The Council should order the custodian to fully explain he delay in responding
to the OPRA request within in five business days
Mr. Maltese suggested that the Council require the Custodian to respond to the GRC by
March 18, 2004. Also suggested was the fact that the Custodian did not act in a timely
manor, and should fully explain in a certified statement to the Executive Director by
March 18, 2004, their reasons for not responding to the requests in a timely manor. Mr.
Maltese called for a motion to adopt the Executive Director’s recommendation with the
council’s noted amendments. A motion was made by Ms. Hook and seconded by Mr.
Spigner. The motion was adopted by roll call.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Maryann Cotrell v. Glassboro Boro Hall (2003-143)
Mr. Dice stated that the Open Public Records Act Complaint filed October 14, 2003
alleges a denial of immediate access to an OPRA request for Ordinance #74-24 regarding
the parking of vehicles on the front lawn of a residence. He noted that the Requestor
alleges that under OPRA, she should have had immediate access to the Ordinance
including a copy and further asserted that the Custodian should be removed from office
for “conduct unbecoming a Records Keeper.”
17
Mr. Dice noted that the record shows that the Requestor was given immediate access to
review the Ordinance on the same day of the request and then received a copy the next
day, April 29, 2003.
The Executive Director recommended that the Council dismiss this complaint because:
1. According to N.J.S.A. 47:1a-5 (E), “[I]mmediate access ordinarily shall be
granted to budgets, bills, vouchers, contracts, including collective negotiations
agreements and individual employment contracts, and public employee salary and
overtime information.” OPRA does not specifically refer to ordinances in those
records that are “ordinarily” granted immediate access; therefore, the Custodian is
not in violation of this portion of the act.
2. According to N.J.S.A. 47: 1A-5(g), “A custodian shall promptly comply with a
request to inspect or examine, copy or provide a copy of a government record.”
The Custodian certifies that the Requestor was immediately given access to the
Ordinance book and allowed to review Ordinance #74-24 and received a copy of
the ordinance the following day.
3. N.J.S.A.47: 1A-5(i) states that a “custodian of a government record shall grant
access to a government record or deny a request for access to a government record
as soon as possible, but no later than seven (7) business days after receiving the
request.” The Custodian certifies that the Requestor received the record the
following day, April 29, 2003, thus complying with OPRA.
4. OPRA does not cite a matter regarding the “conduct of a Records Keeper” or
custodian.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Spigner and seconded by Ms. Schonyers. The motion was
adopted by roll call.
Ayes:
Nays:
Abstain:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
None
None
Donald Pelican v. City of Hoboken (2003-146)
Mr. Dice stated that this case involves a request for a series of bonds, as well as inquiring
about various financial decisions made by the city. Which the custodian certified in their
Statement of Information were provide to the requestor.
The Executive Director recommended that the Council dismiss this complaint on the
basis that the custodian has certified in the Statement of Information that it has complied
with the request by providing the documentation it was responsible for providing.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Spigner and seconded by Ms.Hook. The motion was adopted by
roll call.
18
Ayes:
Nays:
Abstain:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
None
None
Karen Waldron v. Boro of Pennington (2003-148)
Mr. Dice stated that the complainant requested a series of public and executive session
minutes, as well as lawsuit settlement documents relating to Jeff Wittkop. He noted that
the record indicates the Requestor also has a Superior Court case pending wherein she is
requesting the same documents.
The Executive Director recommended that the Council dismiss the case based on the fact
that there is pending action regarding the same documents in the Superior Court of New
Jersey. Mr. Dice stated that he would like to amend the Recommendation and Legal
analysis, to state “ prior pending action in Superior Court”.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Mr. Spigner and seconded by Ms.Hook. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Richard Linderman, Esquire v. Depart. of Community Development (2003-154)
Mr. Dice stated that the Government Records Council (“Council”) considered this case at
its February 27, 2004 meeting in which the Council ordered:
1. Mr. Linderman is to provide the information requested by the custodian with a
copy to the Acting Executive Director within five business days of receipt of the
decision.
2.Failure to provide the requested information will result in the case being
dismissed.
Mr. Dice stated that as of March 8, 2004 the GRC staff had not received the information
requested by the custodian from the requestor.
The Executive Director respectfully recommended that the Council dismiss the case since
the requestor failed to provide the requested information.
19
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
adopted by roll call.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Floyd Frederick Allen v. County of Warren (2003-155)
Mr. Dice stated that the complainant contended he was improperly denied access to the
harassment complaint against him and that he was not seeking the actual harassment
complaint, but was seeking information contained in the complaint. The record indicates
the Complainant was provided access to his personnel records in accordance with the
County’s policy to permit County employees to review their own personnel files.
Mr. Dice noted that the custodian denied access to the harassment complaint against the
complainant under the provisions of OPRA, N.J.S.A. 47:1A-10 and N.J.S.A. 47:1A-1.1.
The Acting Executive Director respectfully recommended that the Council dismiss this
case because:
1.
The complainant was provided access to all requested personnel records
pursuant to the County’s policy to permit County employees to review their
own personnel files.
2.
Access to the harassment complaint against complainant was properly denied
pursuant to:
N.J.S.A. 47: 1A-10 “...records relating to any grievance filed by or
against the individual are not considered a government record...;” and
b. The disclosure exception under N.J.S.A. 47:1A-1.1, which includes
“grievances” filed against an individual.
c. The information requested by the complainant is not a valid OPRA
request as it does not constitute a “Government record” under the
provisions of N.J.S.A. 47:1A-1.1.
a.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
20
Michael Bent v. Stafford Township Police Department (2004-7)
Mr. Dice stated the Complainant alleges a denial of an OPRA request made to the
Township of Stafford Police Department for various police reports and other materials
relating to an investigation of the Complainant in connection with various business and
personal matters. Mr. Dice noted further that the Custodian certified that: (1) all records
in connection with the request were provided to the Requestor, or do not exist.
The Executive Director recommended that the Council dismiss this complaint because:
(1) The Custodian has provided a certification that the records requested by the
Complainant have been provided to the Complainant or (2) do not exist.
Furthermore, there is no compelling evidence that a lack of truthfulness on the part of a
Custodian exists. The Council will not engage in speculative fact-finding when that
Custodian has certified as to the truthfulness of his or her response.
Mr. Maltese asked the staff to review the dates of the requests and Custodian
response dates.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted
by roll call.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese stated that the following cases involve voluntary withdrawls of complaints
on the part of the respective complainants.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendations to
dismiss all of the following cases on said basis:
Fisher vs. Hudson County Correctional Facility (2203-6 1)
Stile vs. Township of South Orange Village (2003-37)
Michael Deluca vs. Town of Guttenberg (2004-11)
Krohn vs. Ocean County Sheriff’s Department (2004-09)
Fred Berman vs. Board of Social Work Examiners (2004-0 1)
David Rothman vs. Department of Law & Pubic Safety (2003-15 1)
Jeannette Hallak vs. Department of Treasury (2003-149)
Daryl Pitts vs. Department of Corrections (2003-99)
Acme Research vs. City of Newark (2003-95)
Fisher vs. Bergen County Sheriff’s Office (2003-54)
21
A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese stated that the following two cases involve Agreements of the Parties to
participate in mediation:
Stephen Biss vs. Department of Transportation (2004-13)
Michael DeLuca vs. Town of Guttenberg (004-08)
Mr. Maltese called for a motion to forego any adjudication action pending the outcome of
mediation. The motion was made by Ms. Hook and seconded by Mr. Spigner. The
motion was adopted by roll call.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
Nays:
None
Abstain:
None
New Business:
Mr. Maltese discussed a piece of legislation A2455 which intends to amend a particular
section of OPRA to give custodians in certain agencies some discretion with respect to
the release of documentation as it relates to industries that may be the subject of sabotage
and noted that Mr. Dice has copies of this legislation.
22
Public Comment:
There were no public comments.
Mr. Maltese called for a motion to adjourn. A motion was made by Ms Hook and
seconded by Ms. Schonyers. The motion was adopted by roll call:
Ayes:
Nays:
Abstain:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.Spigner, Mr. Maltese
None
None
Government Records Council Meeting adjourned at 1 :00pm.
Respectfully submitted,
/s/Virginia Hook, Secretary
Dated:
23
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
April 8, 2004
The meeting was called to order at 9:00 AM. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman, (designee of Commissioner Susan Bass Levin,
Department of Community Affairs) Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Mr. Maltese read the resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms Hook moved to adopt the
resolution that was seconded by Mr. Spigner. All members present approved the motion.
The Council met in closed session from 9:00AM to 10:30AM. The Council reconvened in
open session at 10:45 AM in room 129 of the Department of Community Affairs, Trenton,
New Jersey. The Open Public Meetings Act statement was read and attendees recited the
Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman, (designee of Commissioner Susan Bass Levin,
Department of Community Affairs) Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Also Present: Deputy Attorney General Andrea Grundfest, Executive Director Paul
Dice, Assistant Executive Director Gloria Luzzatto, GRC Attorney
Advisor David Zipin, Staff Associates Chris Malloy, Anthony
Carbabelli, Erin Mallon, Kimberly Gardner and Marion Davies
Administrative Assistant.
Mr. Maltese called for a motion to accept the minutes of the Open Public Meeting
Minutes from the February 27, 2004 open session as written, motion was made by Mr.
Richman, and seconded by Mr. Spigner. The motion was adopted by a roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
1
Mr. Maltese called for a motion to accept the minutes from the February 27, 2004 closed
session meeting as written; a motion was made by Mr. Spigner, and seconded by Ms.
Hook. The motion was adopted by a roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Mr. Maltese asked for the report of the Executive Director, Paul Dice. Mr. Dice reviewed
the breakdown of the cases as follows: Forty-four cases scheduled to be heard - 29 (twenty
nine) for today and 15 (fifteen) scheduled for April 26, 2004. He noted that the March 30th
meeting was cancelled because the Council did not have a quorum, and a second meeting is
therefore scheduled in April. Of the 44 total cases - two are on appeal, six have been
referred to the Office of Administrative Law; seven are in mediation, 14 are work in
progress; there are a total of 240 closed cases.
Mr. Dice stated that there were no communications to report at this time.
Yehuda Shain v. Township of Lakewood (2002-111)
Mr. Dice stated that the Government Records Council (“Council”) considered this case at
its February 27, 2004 meeting. The Council voted unanimously at that meeting to direct
Executive Director Dice to seek legal counsel regarding whether the Council should refer
the complaint back to the OAL for a continuation of the determination on whether the
Custodian had knowingly and willfully violated N.J.S.A. 47: 1A-1 et seq. in the totality of
the circumstances.
At the March 11, public meeting the Council voted to:
1. Dismiss the Complainant’s opposition to the Council’s acceptance of the
custodian’s motion for reconsideration on the basis that the Council has received
legal advice from the Division of Law that acceptance of the motion is proper and
within the Council’s purview.
2. Refer this case back to the OAL for a determination on whether the Custodian had
knowingly and violated N.J.S.A. 47: 1A-1 et seq. in the totality of the
circumstances.
Mr. Dice stated that subsequent to the above Order, the Executive Director received Email
correspondence from the Complainant, Yehuda Shain, on March 25, 2004 stating that he
was withdrawing his complaint.
Executive Director, Paul Dice, recommended that the Council dismiss the case in its
entirety on the basis of the complainant’s voluntary withdrawal.
2
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Schonyers and seconded by Mr. Spigner. The motion was
adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Dale Baranoski v. Division of Criminal Justice (2003-05)
Mr. Dice stated that the subject case was continued from the March 11, 2004 meeting for
the GRC counsel to review the custodian counsel’s March 5, 2004 explanations of why
selected documents sought in the request are privileged and exempt from disclosure.
In a March 25, 2004 letter to the GRC subsequent to the Government Records Councils
Order, Mr. Dice noted the that Custodian’s Counsel indicated 28 of the 83 documents
delineated in their privilege log were disclosable in their entirety, 39 documents were
partially disclosable and 16 documents were considered inter-agency or intra-agency
advisory, consultative or deliberative, attorney-client privilege or legislative privileged. He
stated further that the Custodian’s Counsel asked for consideration from the Council to not
find a knowing and willful violation under the totality of the circumstances.
The Executive Director recommended that the Council:
1. Order the custodian to release the documents it believes are fully disclosable,
arguably the 28 records referenced in the OAG proposal, pursuant to N.J.S.A.
47:1A-1 et seq. to the Complainant within five business days of the custodian’s
receipt of the Council’s order.
2. Order the custodian to release the documents it believes are partially disclosable,
arguably the 40 records referenced in the OAG proposal, pursuant to N.J.S.A.
47:1A-1 et seq. to the Complainant within five business days of the custodian’s
receipt of the Council’s order.
3. Order the custodian to provide Executive Director Paul Dice written confirmation
of compliance with “1” and “2” immediately above within five business days of the
custodian’s receipt of the Council’s order.
4. Order the custodian to provide Executive Director Paul Dice with a detailed
certification of why the Council should not consider the custodian to have knowing
and willfully violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances
surrounding the complainant’s July 12, 2002 and July 30, 2002 Open Public
Records Act requests within five business days of the custodian’s receipt of the
Council’s order.
5. Forego any determination of the acceptability of the custodian’s March 5, 2004
explanations of why the Council should accept the arguments that selected
documents are privileged and, therefore, nondisclosable until the custodian has
complied with “1-4” immediately documents are privileged and, therefore,
nondisclosable until the custodian has complied with “1-4” immediately above.
3
Mr. Maltese suggested that the Council consider that the Custodian submit to the GRC
within five business days a certification confirming that the documents which the
Custodian believes to be disclosable have in fact been disclosed and that the Custodian
supplies to the Council copies of all of the documents referred to in the Vaughn Index
which the Custodian claims are partially disclosable or exempt from disclosure for and in
camera review by the Council to determine whether was proper in withholding said
document. Additionally, he suggested that the Custodian submit a certification to explain
why the Council should not consider knowing and willful under the totality of the
circumstances. Mr. Spigner and Mr. Richman noted their agreement with the suggested
changes and to ensure compliance. Mr. Maltese called for a motion to:
1. Order the Custodian to disclose all documents pursuant to OPRA and submit to
the council all documents that have been provided to the Council within five
business days.
2. Submit copies of all documents, which are partially disclosable, and not fully
disclosable to the Executive Director for an in-camera review by the Council.
A motion was made by Ms Hook and seconded by Mr. Spigner. The motion was adopted
by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Ms. Luzzatto noted administrative changes concerning to the subject case which were read
into the record.
Gregory Perry v. Department of Corrections (2003-32)
Mr. Dice stated that this matter was previously heard at the February 10, 2004 Council
meeting. The Council voted to direct the Executive Director to elicit a certification from
the custodian regarding why the Council should consider the outline of the training session
conducted by the Department of Corrections’ attorneys for disciplinary hearing officers and
supervisory staff to be attorney-client privileged and, therefore, not disclosable.
The Executive Director respectfully recommended that the Council dismiss the complaint
On the basis that the custodian’s certification adequately supports the custodian’ position
that the subject documents are protected by the attorney-client privilege and not disclosable
under N.J.S.A. 47:1A-1 et seq.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Spigner and seconded by Ms. Hook. The motion was
adopted by roll call.
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
4
Nays:
None
Larry Loigman v. Monmouth County Prosecutor (2003-44)
Mr. Dice stated that the Government Records Council (“Council”) considered this case on
follow-up at the January 8, 2004 meeting. At that meeting, the Council voted unanimously
to find that:
1.
The requestor has the right to inspect the records and not receive copies if he so
chooses.
2. The custodian shall not charge an extraordinary labor charge for preparing the
records for inspection given that the custodian has not explained the rationale for
applying such charges.
3. Should the requestor require copies of all or parts of the subject documentation,
such charges, pursuant to N.J.S.A. 47:1A –5(b), shall not exceed $79.75.
A Supplemental Order with an effective date of January 23, 2004 was issued in accordance
with the Council’s vote.
At its February 10, 2004 public meeting, the Council considered the Executive Director’s
Findings and Recommendations, voted to adopt same but amended them as follows:
1. The parties have ten (10) business days from the effective date of this Final
Decision to meet if the requestor seeks to inspect the records.
2. The parties have five (5) calendar days to confirm in writing to the Executive
Director their positions in response to the Council’s January 8, 2004 Supplemental
Order. Such positions must be provided in writing to the Executive Director by the
close of said five-day timeframe
Mr. Dice advised the Council that the requestor has not complied with the Council’s Final
Decision effective March 1, 2004. The Executive Director respectfully recommended that
the case be dismissed on the basis that the requestor has not confirmed to the GRC that he
made an attempt to contact the custodian to inspect the records.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made Ms. Schonyers and seconded by Ms. Hook. The motion was adopted by
roll call
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Skip DeBiasse v. Madison Borough (2003-91)
Mr. Dice stated that this matter was addressed at the March 11, 2004 meeting at which time
the Council determined that the custodian was legitimately seeking additional information
from the complainant. The GRC ordered the complainant to provide said information and
5
the complainant responded. The custodian claimed, however, that the specific information
provided was still too vague to determine the records being sought.The Executive Director
recommended that the Council dismiss the complaint on the basis that:
1. The Complainant’s March 23, 2004 response was unclear and no more specific
than what had been presented in the original request.
2. The Complainant did not respond to the Custodian in a timely fashion as
instructed by the Council.
Mr. Richman suggested that the Executive Director intervene with both parties to see if the
matter could be resolved. Mr. Maltese called for a consensus vote of the Council to direct
the Executive Director to conduct an intervention with both parties in an attempt to reach a
resolution and the Council will postpone any action in the case. The motion was adopted by
roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Gina Calogero v. Borough of Emmerson(2003-119)
Mr. Dice stated the that this case was considered at the February 27, 2004 and Council in
it’s interim decision ordered that:
1.
2.
3.
4.
The custodian has not demonstrated that a special service charge is warranted in this
case.
Access should be granted to all documents in existence at the time of the request,
which the borough had custody of, and which are not exempt under the Open Public
Records Act.
The issue raised by the requestor concerning receiving notice of her appeal rights is
moot, because she received actual notice.
This complaint should be dismissed.
Subsequent to the Council’s February 27, 2004 Order, the Custodian informed the
Government Records Council staff in letters dated March 9, March 12, 2004 and March 19,
2004 all documents responsive to the request were provided to the Complainant with the
exception of:
1.
2.
Emails to or from the mayor concerning borough business and sent or received
through the website and
Council Meeting Minutes of April 29, 2003 Borough of Emerson.
On March 11, 2004 letter from the Complainant to the Executive Director, the Complainant
acknowledges a partial receipt of all documents requested with the exception of “1” and
“2” above and draft resolutions that were subsequently provided on March 12, 2004.
Regarding the documents not disclosed, the custodian provided the following explanation:
6
1. Emails received by the Mayor of Emerson through the borough website that were not
published in the “question and answer” section of the borough website: You may
request that information of the Mayor through the Borough Attorney. I have no
copies of those records on file in the Borough Hall nor would I be able to retrieve
them from the website.
2. The April 29, 2003 minutes of the Borough Meeting would be disclosed once they
are approved.
The Executive Director recommended that the Council find the following:
1. Order the Custodian to disclose that which has not already been provided to the
Complainant in “1” above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq.
because the municipal clerk, as Custodian for the Borough, is responsible for
responding to the OPRA requests and/or coordinating responses to said requests.
The Custodian shall not place the burden of a request back on the Complainant to
contact the Borough Attorney or Mayor.
2. Order the Custodian to disclose that which has not already been provided to the
Complainant in “2” above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq.
The Custodian shall disclose only the “open session” minutes of the April 29, 2003
Borough Meeting, or in the alternate, where those minutes are yet to be approved,
the “open session” draft minutes.
3. The Custodian shall advise the Executive Director when “1” and “2” above are
complete.
4. This action should be completed within five business days.
Mr. Maltese called for motion to accept the Executive Director’s recommendation with
amendments. A motion was made by Mr. Richman and seconded by Ms. Hook. The
motion was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Jann M. Giacoboni v. Camden County Office of the Sheriff (2003-122)
Mr. Dice stated that the subject case involved a request for a writ of possession, various
correspondence and documents of forced lock out from property. The record indicates that
a portion of documents requested to not exist, some were not disclosed and one document
was not provided in the proper form.
7
The Executive Director recommended that the Council:
1.
Order the Custodian submit a copy of the Writ of Possession with state seal to
the Complainant;
2. Order the Custodian to supply the Complainant with any and all documents that
exist in regards to points numbered 2, 3, 6 and 7; and
3. For points numbered 4 and 5, the Custodian has certified that these documents
do not exist and pursuant to N.J.S.A 47:1A 1.1, no further action is needed.
Mr. Richman suggested that the council consider amending the recommendation to include
a response from the Custodian within five business days. Mr. Maltese called for a motion to
accept the Executive Director’s recommendation with the suggested amendment. A motion
was made by Mr. Richman and seconded by Mr. Spigner. The motion was adopted by roll
call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Pamela Kaithern v. West Cape May Borough Environmental Commission(2003-135)
Ms. Luzzatto reviewed the case indicating it involved requests for copies of Environmental
Commission Resolutions 101-107, Copy of Environmental Commission Letters Referenced
in #103-104, and Copy of Environmental Commission Resolutions and Attachments
Subsequent to Resolution #107. Ms. Luzzatto further stated the requestor acknowledges
receipt of the requested resolutions #101-107. She noted at issue was letter attachments
referenced in the resolution, which the custodian certified, could not be found in hard copy
and the documents could not be found in their volunteer’s computer
Ms. Luzzatto further noted the record indicates that the Custodian certified all resolutions
adopted by the West Cape May Environmental Commission, all attachments to Resolutions
adopted by the Environmental Commission in existence at the time of the request were
provided to the complainant.
Ms Luzzatto stated that it was the Executive Director’s recommendation that the Council
dismiss this Complaint for the following reasons:
1.
The Custodian has supplied a certification in her Statement of Information in which
she certifies that the Complainant was granted complete access to the
Environmental Commission files at all times during normal business hours.
2.
The Custodian certified that the letters referenced in Environmental Commission
resolutions 103 and 104 do not exist.
8
3. The Custodian certified in her Statement of Information that she complied with the
Complainant’s requests to review resolutions and attachments adopted by the West
Cape May Environmental Commission and that she had provided the Complainant
with copies of any and all resolutions in the Environmental Commission file.
4.
The Custodian has satisfied her duties under N.J.S.A. 47:1A-1 et. seq.
Ms. Schonyers questioned that the letters sought by the complainant were not saved in the
computer. Ms. Hook also expressed concern that the custodian did not insure that the
documents were preserved. Mr. Richman reinforced the need to address these issues in a
training session with record custodians.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was adopted
by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Newark Morning Ledger v. Department of Environmental Protection (2003-136)
Mr. Dice noted an Administrative Change to the Findings and Recommendations. Mr.
Dice reviewed the issues and the parties’ positions in the case, which involved a request for
the name and address of the victim of a Bear attack in a park. All informatio n was
provided except for the name and address of the victim. The Department of Environmental
Protection cited a proposed regulation enforceable under Executive Order 21 that exempts
the “identity of complainants” from public access.
The Executive Director recommended that the Council dismiss this Complaint on the basis
of:
1.
The Open Public Records Act provides that government records will be subject to
public access unless exempted therefore by, among other things, department or
agency rules and regulations and Executive Orders of the Governor.
2. Executive Order 21 issued by Governor McGreevey instructs all state departments
and agencies to respond to requests for public records in a manner consistent with
any proposed and pending rules and regulations relating to public records access.
3. The New Jersey Department of Environmental Protection has proposed rules and
regulations that exempt the “identity of complainants” from public access. Because
the requested information constitutes the “identity of a complainant” (i.e., the
victim complained to NJDEP about a bear attack), the Custodian acted properly in
denying access to such information.
Mr. Richman asked Ms.Grundfest for her opinion on Executive Order 21. Ms. Grundfest
advised that Executive Order 21 includes proposed regulations and does not reference a
9
termination date regarding proposed regulations. She concluded that it was proper to apply
the proposed regulation pursuant to Executive Order 21 and supercedes OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion
was adopted by roll call:
Ayes:
Mr. Maltese, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
Mr. Spigner
Gary Mosher v. Borough of Mendham (2003-150)
Mr. Dice reviewed the complaint, which concerned a claim that access had been denied on
an OPRA request for audiotape or CD copies of all meetings of the Borough‘s Council that
included executive sessions, if and when they become available to the public. He noted
that the complainant also had a Superior Court case pending wherein he was addressing his
OPRA issues.
The Executive Director recommended that the Council dismiss the case based on the fact
that there is prior pending action in the Superior Court of New Jersey pursuant N.J.S.A.
47:1A-6.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Mr. Richman and seconded by Mr.Spigner. The motion
was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Albert P. Poreda v. Hudson County(2004-14)
Mr. Dice noted an Administrative Change and read it into the record.
Mr. Dice reviewed the case noting that it involved a denial of access for a Copy of Scoring
Sheets Completed by Selection Committee, a Copy of Contract Awarded to Winning
Vendor, a Copy of Transcript of Pre-Bidders Conference and a Copy of transcript of
Freeholders’ Caucus. A request made on March 9, 2004 for the custodian’s statement of
information was unanswered. Thus, the custodian offered no defense in this case. Mr. Dice
further stated that given there was no defense the Executive Director recommended that the
Council order:
1. The Custodian’s lack of response was considered a denial of access pursuant to
N.J.S.A.47: 1A-5(i).
10
2.
3.
The Custodian was to disclose all requested information pursuant to N.J.S.A.
47:1A-1 et seq.
The custodian was to disclose the requested documents to the Complainant
within five business days of the Custodian’s receipt of the Council’s order.
Mr. Maltese suggested that the Council consider amending the Findings and
Recommendation to include the following:
1.
The custodian was to certify to the Executive Director within five business days
of receipt of this Order.
2. The custodian was to explain in a certification to the Executive Director why the
Council should not consider the custodian’s lack of response to the request is
not
3. a knowing and willful violation of the OPRA under the totality of the
circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Mr. Spigner and seconded by Ms. Schonyers. The
motion was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Trish Fanders v. Easthampton Board of Education (2004-16)
Mr. Dice stated that this case involved a request for resumes and credential of all
Administrators of the Easthampton School District. Mr. Dice further stated that in a
Statement of Information from the Custodian all documents requested were provided,
however the GRC has not been able to confirm whether or not the requestor has received
the information requested.
The Executive Director recommended that the Council:
1. Order a response from the Complainant to the Executive Director of the
Government Records Council (GRC) within 5 business days of receipt of the
decision indicating whether any of the requested information has not been
disclosed in response to said request.
2. Failure of Complainant to respond with the requested information in “1” above
will result in the case being dismissed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Ms. Schonyrers and seconded by Mr. Richman. The
motion was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
11
Nays:
None
Louis Perry v. Township of Pennsauken (2004-19)
Mr. Dice stated that this case involved a request for municipal boundary lines and legal
description on a deed or survey and the custodian claims they provided a copy of the
township map with boundary lines, but did not possess the legal description or survey
information that the requestor was seeking.
The Executive Director recommended that the Council:
1. Order the custodian to provide a certification to the Executive Director within 5
business days which identifies the specific documents provided to the requestor
2. And all documents responsive to the request that were not provided and why.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Ms. Hook and seconded by Ms. Schonyers The motion
was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
The Executive Director recommended that the Council dismiss the following cases on the
basis that the requestor’s in their respective case have voluntarily withdrawn their
complaint:

Stephen J. Biss v. Dept. of Education Division of Finance Office of Student
Transportation (2004-15)

Anthony Lopez v. Hudson County (2004-29)

Robert Edwards v. Housing Authority of Plainfield (2003-117)
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Mr. Spigner and seconded by Ms. Hook. The motion
was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
The following cases involve mutual agreements for mediation. The Executive Director
recommended that the Council and GRC staff forego any adjudicatory action pending the
outcome of mediation on the following cases:
12











Robert Blau v. Essex County Registrar (Carole Graves) (2003-97)
John M. Ward v. Village of Ridgewood (2003-131)
John M. Ward v. Village of Ridgewood (2003-132)
John M. Ward v. Village of Ridgewood (2003-133)
Fred Burnett v. Bergen County (2004-06)
Fred Burnett v. Mercer County (2004-20)
Larry Kohn v. Township of Livingston (2004-12)
Thomas Toth v. Ewing Township (2004-2 1)
Ms. Lois Lebbing v. Middlesex County Dept. of Planning (2004-25)
Ms. Lois Lebbing v. Middlesex County Dept. of Planning (2004-26)
Ms. Lois Lebbing v. Middlesex County Dept. of Planning (2004-27)
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Ms. Schonyers and seconded by Mr. Spigner. The
motion was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Ms. Lois Lebbing v. Township of Piscataway (2003-144)
The Executive Director recommended that the Council dismiss the subject case since
settlement has occurred through mediation:
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Ms.Hook and seconded by Ms. Schonyers. The motion
was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Newark Morning Ledger Co. Publisher of Star Ledger v. New Jersey Sports &
Exposition Authority (NJSEA) (2003-43)
Mr. Dice indicated that the subject case is on follow-up following the Council’s decision
that access was improperly withheld under OPRA and ordered disclosure and the
prevailing party’s Attorney’s Fee’s. The Counsel for the requestor submitted his
application for reasonable Attorney Fee’s to the GRC, and immediately after that entered
into discussions with the custodian regarding those Fee’s. On March 16, 2004, Mr. Dice
noted that the GRC received correspondence from the requestor’s counsel withdrawing the
complaint because the custodian has fulfilled the obligation with respect to the payment of
attorney’s fees.
13
The Executive Director respectfully recommended that the Council dismiss the complaint
on the basis that the requestor’s counsel confirmed in their March 16, 2004 correspondence
to the Government Records Council that the custodian has complied with the agreement to
pay the agreed attorney’s fees.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
proposed. A motion was made by Mr. Richman and seconded by Ms. Hook. The motion
was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
New Business:
Mr. Maltese announced that the next Government Records Council Meeting would be
Monday, April 26, 2004
Mr. Dice noted that the GRC Web Site was current with the Council’s Decisions, Findings
and Recommendation and the Executive Directors report.
Public Comment:
Ms. Ann Baron:
Ms. Baron noted that the New Jersey Foundation for Open Government would be hosting
the National Freedom of Information Coalition Conference in Newark. She indicated that
Mr. Maltese, Mr. Spigner and Mr. Dice would be in attendance. Ms Baron
commented as follows:
1.
She expressed concern about cases involving lost or destroyed documents and
felt that these issues could be eliminated if more financial penalties were
imposed on the custodian for not complying with OPRA.
Mr. Maltese responded indicating that a high threshold exists under OPRA
before a custodian penalty would be imposed. He acknowledged Ms. Baron’s
concerns, but indicated that any change or modification of OPRA would require
legislation. Mr. Spigner reconfirmed Mr. Maltese’s comments concerning
custodian penalties.
2. Ms. Baron commented that the Lebbing cases heard by the Council involved
Middlesex County, specifically the Borough of Highland Park and the Borough
of Piscataway. She indicated the two referenced boroughs did not provide GRC
contact information on their OPRA forms. She asked if the Executive Director
would address the issue.
14
Mr. Dice informed Ms. Baron that her concerns would be investigated to insure
the Boroughs were in compliance with OPRA.
Hugh Sharkey:
Mr. Sharkey identified himself as a CPA who specialized in analyzing electronic
information in databases and that he was also a member of the New Jersey CPA Society of
Government Accounting and Auditing Committee. He commented that he made an OPRA
request for information from his town’s electronic system and was denied access by the
Borough Clerk, the Deputy Borough Clerk, the Finance Officer and the Borough Attorney.
He indicated that he previously received the information, which access is now being
denied. He indicated that he felt the custodian knowingly and willfully intended to not
provide the electronic information requested. He asked whether his denial of access
complaint should be filed against the Borough Attorney, Mayor and Council or the
employees.
In response, Mr. Dice indicated the complaint should identify the Borough itself as the
party from which the records were being sought and that he would provide him with the
necessary information for filing the denial of access complaint.
Mr. Sharkey indicated that a filed a second records request for accounting documentation
on the disposition of a piece of First Aid Squad equipment and was denied access because
it is believed that the First Aid Squad was a not for profit entity, although it does receive
subsidies from the borough to support the ambulances, insurances and phone bills. Mr.
Sharkey wanted to know if this type of entity falls outside of OPRA because it is a not for
profit organization.
Mr. Dice responded by referencing N.J. S.A. 47:1 A- 1.1, which he indicated defines a public
agency and in general may address his situation. Mr. Maltese commented that the
Government Records Council was created under OPRA to assist the public to gain access
to government records disclosable under OPRA.
15
Mr. Maltese called for a motion to adjourn. A motion was made by Ms. Hook and seconded
by Mr. Spigner. The motion was adopted by roll call:
Ayes:
Mr. Maltese, Mr. Spigner, Ms. Hook, Mr. Richman, Ms. Schonyers
Nays:
None
Meeting adjourned at 12:30 PM
Respectfully submitted
/s/ Virginia Hook, Secretary
Dated
16
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
April 26, 2004
The meeting was called to order at 9:10 AM. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Mr. Dice called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Dale Caldwell (designee of Commissioner Susan Bass Levin,
Department of Community Affairs) Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Mr. Caldwell. All members present unanimously
approved the motion. The Council met in closed session from 9:15AM to 10:35AM.
The Council reconvened in open session at 10:45 AM in room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was
read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Dale Caldwell (designee of Commissioner Susan Bass Levin,
Department of Community Affairs, Diane Schonyers, (designee of
Commissioner William Librera, Department of Education)
Also Present: Deputy Attorney General Andrea Grundfest, Executive Director
Paul Dice, Assistant Executive Director Gloria Luzzatto, GRC
Attorney Advisor David Zipin, Staff Associates Chris Malloy,
Anthony Carbabelli, Erin Mallon, Kimberly Gardner.
Mr. Maltese called for a motion to accept the Open Public Meeting Minutes from the
March 11, 2004 meeting as prepared and amended. A motion was made by Mr. Spigner
and seconded by Ms. Schonyers. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
Mr. Caldwell
Mr. Dice stated that the Draft Minutes were available for review only until the amended
changes are completed.
1
Mr. Maltese called for a motion to accept the Closed Session Meeting Minutes as
proposed for the March 11, 2004. A motion was made by Mr. Spigner and seconded by
Ms. Schonyers.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
Mr. Caldwell
Executive Director, Mr. Paul Dice, gave his report as follows:
1. The current break down of cases: Two cases on appeal; six cases with the Office of
Administrative Law; sixteen cases in mediation; fifteen cases scheduled for (April 26,
2004) meeting; twenty-one cases scheduled for the May 13, 2004 meeting; two cases
schedule for the June 10, 2004; five cases are work in progress, making a grand total of
sixty seven open cases, of which thirty five are scheduled for a GRC agenda.
2. Mr. Dice announced that the Government Records Council has planned several out
reach programs starting in May and continuing through November. The presentations
involve the Department of Education, the League of Municipalities, Municipal Clerks
Association of New Jersey and AM/PM Services.
At Mr. Maltese’s request, Mr. Carabelli reported on the findings concerning the public
comment from Ms. Ann Baron at the April 8, 2004 meeting. Mr. Carabelli stated that, an
issue was raised at the public meeting regarding OPRA forms at three public agencies,
the Borough of Highland Park, Piscataway Township and Middlesex County. He
explained that he contacted all three of these agencies and reviewed their OPRA forms
with them to ensure their OPRA forms complied with Sections 5 (f) and 5 (g) of the
OPRA. In addition, the agencies were also notified that the GRC appeal process must
follow the provisions of 5 (j) and be properly displayed at the offices of each Custodian.
Calogero v. Borough of Emerson (2003-119)
Ms. Luzzatto stated this case was initially heard at the February 27, 2004 meeting when
the Council ordered access to all documents in existence at the time of the request, which
the Borough had custody of and was subject to OPRA. On April 8, 2004 the Council
determined that there were two items still outstanding from the request that involved emails and council meetings minutes. The Council ordered the Custodian to provide
same to the requestor and to inform the Executive Director when it was completed. On
April 15, 2004 the GRC received a letter from the Custodian advising that it had
complied with the Council’s order.
2
The Executive Director recommended that the Council find that all items with respect to
this complaint and request have been satisfied and that the complaint should be
dismissed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Caldwell. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Jann Giacaoboni v. Camden County Office of the Sheriff (2003-122)
Mr. Dice indicated that the case was heard at the April 8, 2004 public meeting and the
Council voted unanimously to adopt the entirety of the Findings and Recommendations at
the time. At issue was a copy of a Writ of Possession with the State seal; the requestor
received a Writ of Possession without the state seal. Additionally, the Custodian sent the
information to the GRC staff as opposed to the Requestor. Mr. Dice indicated that the
information should have gone from the Custodian to the Requestor so there would be no
intervening issues.
Subsequent to the Council’s April 8, 2004 Interim Decision, all documents available and
responsive to the request was provided to the requestor.
The Executive Director respectfully recommended that the Council dismiss the case as
the custodian has complied with the Council’s Interim Decision and all the requests.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
3
Richard Gober v. City of Burlington (2003-139)
Ms. Luzzatto stated that this case was on follow-up from the March 11, 2004 public
meeting, and involved a series of requests dealing with a townhouse development by the
Pennington properties in the City of Burlington. The Council in their March 11, 2004
decision ordered the requestor to supply specific details regarding the information still
being sought to the Executive Director, Paul Dice within 10 business days and the
custodian was to reply within 10 business days to the requestor’s response with the
documents still sought. Additionally, the Custodian was to provide a certification
explaining the delay in responding to the request and why it should not be considered a
knowing and willful violation. Subsequent to the interim decision the GRC received a
response from the custodian and the complainant. Because the complainant was out of
the country, there was a delay in receiving his reply. On April 7, 2004 the requestor did
respond to both the custodian and the GRC indicating that the custodian was now
providing him with the information that he was seeking and that his request was
completely satisfied. The Custodian’s certification explained the reasons for the delay in
responding to the request listing the following factors:
1. The city moved from its prior location disrupting operations.
2. The Custodian was assigned as Project Manager for the construction of a building
during 2003
3. The Custodian went on vacation for two weeks in August.
Based on the reasons given by the Custodian, the Custodian’s actions in this case did not
rise to a knowing and willful violation under OPRA.
The Executive Director respectfully recommended that the Council dismiss the case on
the basis of:
1.
2.
The custodian has fulfilled the complainant’s request.
There has been no knowing and willful violation of N.J.S.A. 47:1A-1 1 under the
totality of the circumstances
Mr. Maltese suggested that the custodian should be informed that when situations arise
that would require the custodian to not be available there should be an alternative plan
that would give an assistant the clearance to make the necessary decisions regarding
OPRA requests. Ms. Hook and Ms. Schonyers reiterated with similar statements.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Caldwell and seconded by Mr.Spigner. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
4
Richard Wilcox v. Township of West Caldwell (2003-142)
Mr. Dice stated that this case is on follow-up from the March 11, 2004 public meeting,
when the Council ordered:
1. The Custodian to provide a certification to fully explain why the Council should
consider the exempted documents as “attorney-client privileged.”
2.
The Custodian to provide a certification that full y explains the delay in
responding to the Open Public Records Act (“OPRA”) request.
Mr. Dice stated that following the March 11, 2004 the Government Records Council
received two Vaughn indexes from the Custodian’s Counsel and found that the rational
asserting the documents are attorney-client privilege was acceptable. However, the
custodian needed to clarify it’s statements regarding “ any records” / “all public” records.
The Executive Director respectfully recommended the following:
1. The Custodian has meet the burden of explaining that the records requested are
subject to “attorney-client privilege” and exempt under OPRA (N.J.S.A. 47:1A1.1) as demonstrated by means of a Vaughn Index, required by the Council’s
Interim Order of March 11, 2004, therefore, no further action is needed.
2. Pursuant to N.J.S.A. 47: 1A-5(i), the Custodian certifies and provides
documentation that she had complied by responding to an OPRA request within
the statutory seven (7) business day time frame and no further action is needed.
3. There are no provisions in OPRA that allows a municipal ordinance to abrogate a
statutory exemption.
4. The Council should order the custodian’s counsel to comply with the GRC Staff’s
request of April 19, 2004 and provide a re-certification of Ms. Edwards clarifying
the records in West Caldwell’s file that were disclosed to the requestor and if
needed, an explanation and Vaughn Index for any documents that were withheld.
The Council should order that the custodian’s counsel comply with this request
within five (5) business days after receipt of the Interim Order.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
5
Trish Fanders v. Easthampton Board of Education (2004-16)
Mr. Dice stated that in the April 8, 2004 Interim Decision, the Council ordered that:
1. The Complainant shall provide Executive Director Paul Dice with a response
within five (5) business days of receipt of this Interim Decision on Access
indicating whether any of the information requested in Complainant’s January 8,
2004 Open Public Records Act request has not been disclosed.
2. Failure of Complainant to respond in accordance with “1” above will result in
the case being dismissed.
Mr. Dice stated further that in a March 26, 2004 letter to the GRC, the Complainant
submitted a response regarding point #1 of the April 8, 2004 Interim Decision. In this
response, the Complainant highlighted two resumes that were not disclosed and two
resumes that were partially disclosed. Pursuant to the Open Public Records Act (OPRA),
the Custodian should provide all requested documents from the date of the original
request in January 2004.
The Executive Director recommended that the Council find that:
1. Pursuant to the Open Public Records Act (OPRA), the Custodian should provide
all requested documents from the date of the original request in January 2004.
2. The Custodian should disclose to the Complainant any outstanding requested
documents within 5 business days of receipt of this decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation
amending the Findings and Recommendations to reflect that the custodian anticipated a
response was needed and provided same on March 26, 2004 before the interim decision
was adopted. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Martin O’Shea v. Township of West Milford (2004-17)
Ms. Mallon stated that this complaint alleges a violation of OPRA regarding two requests
to the Township of West Milford. She explained that the request dated January 12, 2004;
sought all records, including emails, pertaining to the appointment of William De Marco
as West Milford Township Attorney. The second request dated January 29, 2004, sought
any records, including emails, not already released, pertaining to the process of selecting
6
the Township Council for 2004, including, but not limited to, applications, resumes,
interviews and discussions and comments regarding the candidates.
She noted that the custodian responded to the January 12, 2004 request on January 26,
2004, however, they did not meet the statutory seven (7) day time period allotted by
OPRA. Further, on January 26, 2004, a written response and copy of the actual contract
was provided to the requestor, which in Section 5(e) in OPRA should have been
disclosed immediately.
The custodian asserts that he did not officially respond to the requestor’s January 29,
2004 OPRA request because he felt that his response to the January 26, 2004 request
involved the same topic and was sufficient.
The Executive Director recommended that the Council find that:
1. OPRA provides that immediate access is ordinarily granted to budgets, bills,
vouchers, contracts, including collective negotiations agreements and individual
employment contracts, and public employee salary and overtime information
[N.J.S.A. 47: 1A-5 (e)]. The custodian should provide an explanation for their
failure to comply with the statutory seven (7) business day time period in
responding to the requestor’s January 12, 2004 OPRA request for any and all
records regarding the employment of Mr. DeMarco as the Township Attorney,
specifically why the contract was not immediately provided to the requestor.
2. According to OPRA, a custodian’s failure to provide a response to a request shall
be deemed a denial of access [N.J.S.A. 47:1A-5 (i)]. Although the custodian
considered the January 26 th and the January 29th requests to be similar, and felt
that his response to the January 26, 2004 request satisfied as a response to the
January 29, 2004 request, he should have provided a specific response to the
January 29, 2004 request. Pursuant to OPRA, the Council should order the
custodian to disclose all documents responsive to the January 29, 2004 request
within five (5) business days of the Council’s decision and inform the Executive
Director when this had been completed.
3. N.J.S.A. 47:1A-1 1 provides that a “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.” The Council should order the custodian to provide an explanation for
their failure to comply with the statutory seven (7) business day time period in
responding to the requestor’s January 29, 2004 OPRA request.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations with
amendments to recommendations #”1” and “3” to read ”provide a certification”. A
motion was made by Mr. Caldwell and seconded by Mr. Spigner. The motion was
adopted by roll call:
Ayes:
Nays:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
None
7
Abstain:
None
Michael D’Angio v. Berkeley Heights (2004-23)
Mr. Dice stated that the complainant advised the Government Records Council Staff on
April 12, 2004 that he was withdrawing the subject complaint based on the fact he
received most of the requested documents, and was confident he would receive the
remaining requested records.
The Executive Director respectfully recommended that the Council dismiss the complaint
based on the complainant’s voluntary withdrawal of his complaint.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Spigner and seconded by Ms. Schonyers. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
David Nystrand v. Netcong Police Department (2004-32)
Ms. Luzzatto stated that this case involved a request to the Netcong Borough Police
Department for a copy of a police photo. She indicated that the requestor presented the
request to the Netcong Borough Police Department and did not receive a response to his
request. The Police Department certified in their Statement of Information that the
photograph did not exist and that the Complainant was aware of this from his court
proceedings. However, the Custodian errored by in sending their response to the
requestor’s attorney without first confirming with the requestor that he had legal
representation.
The Executive Director recommended that the Council find that:
1. The requested photograph was never “made, maintained or kept on file”.
2. The Custodian violated N.J.S.A. 47:1A-5 when the response to the request was
made to the requestor’s attorney rather than the requestor on the presumption that
he was represented by legal counsel. The Custodian should be made aware that
absent a letter of legal representation, a response is to be made to the requestor.
3. The Custodian has satisfied her duties pursuant N.J.S.A. 47:1A-1 et seq.
4. The complaint should be dismissed.
8
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Ronald Miles v. Borough of Barnegat (2004-36)
Mr. Dice stated that the case involved three separate requests to Barnegat Township’s
Custodian of Records for:
1. The names of Township engineers from 1976-2003.
2. The year Catherine Street was excavated.
3. A copy of the old maps showing the vacated streets of Elm, Maple and First Ave.
with Cloverdale Rd.
Mr. Dice stated further that the record reflects there was frequent dialogue between the
complainant and the custodian but it is not clear to the GRC what is outstanding and what
is not.
The Executive Director, therefore, recommended that the Council find that:
1. In its February 19, 2004 to the Complainant, the Custodian provided a list of
Township Engineers from 1976 to 2004 in response to the Complainant’s requests
“1”.
2. The Custodian affirmed in a February 19, 2004 letter to the Complainant and later
certified in the Statement of Information that Catherine Street was a paper street
and had not been excavated and there were no maps in the Township’s possession
in response to request “2” and “3”.
3. The requestor should provide specific details of the information still being sought,
which has not already been provided by the Custodian. Said response is to be
provided to the Custodian and Executive Director, Paul Dice within 10 business
days from receipt of the Council’s decision. A lack of a response will result in the
case being dismissed.
Mr. Spigner suggested that the Council order the Custodian to provide a certification to
the Executive Director within five (5) business days of receipt of the Council’s Interim
Decision with an explanation for the delay in responding to the request and why the
Council should not consider their actions to be a “knowing and willful” violation under
N.J.S.A. 47:1A-11.
9
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
amended. A motion was made by Mr. Caldwell and seconded by Ms. Schonyers. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Gerard Lanosga v. Borough of Princeton (2004-37)
Mr. Dice stated that this is a request for any and all incident or arrest reports that involved
the complainant from 1967 through 1971 while he attended Princeton University.
Pursuant to an April 20, 2004 facsimile transmittal confirmation, unspecified records
were sent to the complainant. Via e-mail, carbon copied to the Government Records Staff
on April 20, 2004, the complainant acknowledged receipt of unspecified records via
facsimile. In the same e-mail, the complainant requested additional answers or
documents in regard to his request.
The Executive Director recommends that the Council order the custodian to provide
Executive Director Dice and the complainant with a certified statement that addresses the
following:


In whole or in part, what information and/or documentation was released
in accordance with the September 16, 2003 Open Public Records Act
request.
What information, if any was not released and why.
Said statement shall be provided to Executive Director Dice and the complainant within
five (5) business days of receipt of the Council’s order.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
10
Pat Moran v. Department of Environmental Protection (2004-39)
Mr. Dice reviewed the case stating that the Complainant indicated in his Denial of Access
Complaint that he verbally contacted Daren Shaffer at the Department of Environmental
Protection on February 11, 2004 requesting “who the inspecting engineer was who signed
off on the 6’-12’ stone used on the Lake Swannanoa Dam in 1997” and received a verbal
response that the documents did not exist.
Mr. Dice stated further that the Custodian contends that the complainant did not submit a
written request for the documents at issue in the complaint. The GRC requested from the
complainant confirmation that a written request was made; the complainant produced no
written request.
The Executive Director recommended that the Council:
1.
2.
Find that a written OPRA request was not made by the requestor as required in
N.J.S.A. 47:1A-5(g).
Find that the Government Records Council lacks the jurisdiction to adjudicate the
complaint.
3. Find that the complaint should be dismissed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Timothy Michael Seabrook v. Cherry Hill Police Department (2004-40)
Ms. Luzzatto stated that this case involved a request for any Investigation Work (minus
the police report) about an accident on 3/31/03 involving a car accident between the
Complainant and another driver in the Coastline parking lot. The requestor presented a
written request to the Cherry Hill Police Department although not dated it specifically
asked for an investigation report (work minus a police report). The Central Records
department responded with a copy of the police report; there was no further direction
given to the requestor.
The Custodian indicated in there Statement of Information that they did not treat this
complaint as an OPRA request because the Township processes hundreds of requests for
police reports in any given month. The Custodian also indicated the information sought
11
was not available through their department and needed to be directed to the Department
of Internal Affairs.
The Executive Director recommended that the Council find that:
1.
Although the Complainant submitted an undated request, the request constitutes a
valid OPRA request pursuant to N.J.S.A. 47:1A-5(g).
2. The Custodian violated N.J.S.A.47:1A-5(g) and 5(h) by not providing the
requestor with an explanation of why it was unable to comply with the request
and by not directing the requestor to the appropriate records custodian.
3. The Custodian’s Counsel has explained that no disclosable records exist, other
than those given to the Complainant.
4. The Custodian’s violation in “2” does not constitute a knowing and willful
violation under the totality of the circumstances because Central Records believed
this was a request for a police report rather than an OPRA request.
5. This complaint should be dismissed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Spigner and seconded by Ms. Hook The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Larry Kohn v. Township of Livingston (2004-43)
Mr. Dice stated that the complainant and the custodian voluntarily signed Agreements to
Mediate on March 31, and April 5, 2004. Based on same, the Executive Director
respectfully recommends that the Council and GRC staff forego adjudicatory action
pending the outcome of mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was adopted by roll call:
Ayes:
Nays:
Abstain:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
None
None
Mr. Maltese recused himself from this part of the meeting for the following cases:
Margaret Wolenski v. Bayonne Police Department (2004-31)
Carmine Venezia v. Jersey City Incinerator Authority (2004-44)
12
Carmine Venezia v. Jersey City Incinerator Authority (2004-44)
Mr. Dice stated that the requestor received a copy of the documents that he requested on
April 2, 2004. In a letter to the Government Records Staff on April 14, 2004, he
withdrew his Denial of Access Complaint.
The Executive Director recommended that the Council dismiss the complaint since
Mr. Venezia received a copy of the requested documents and on April 14, 2004 he
withdrew his complaint.
Mr. Spigner called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Caldwell. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
Nays:
None
Abstain:
None
Recused:
Mr. Maltese
Margaret Wolenski v. Bayonne Police Department (2004-31)
Mr. Dice stated that this case involved a request for a given report from the Bayonne
Police Department. A request made on April 1, 2004 for the custodian’s statement of
information was unanswered and no additional information has been provided from the
custodian in response to the complaint. Thus, the custodian offered no defense in this
case.
The Executive Director recommended that the Council:
Determine that the Custodian’s lack of response be considered a denial of access
pursuant to N.J.S.A.47: 1A-5(i).
2. Order the Custodian to disclose all requested information pursuant to N.J.S.A.
47:1A-1 et seq.
3. Order the custodian to disclose the requested documents to the Complainant
within five business days of the Custodian’s receipt of the Council’s order.
1.
Mr. Spigner called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Spigner, Mr. Maltese, Mr. Caldwell
13
Nays:
None
Abstain:
None
Recused:
Mr. Maltese
Mr. Dice announced that the Government Records Council is seeking Requests for
Qualifications (RFQ) for independent council representation. The RFQ is being
publicized in the Law Journal and the GRC website with a (30) thirty-day period to
respond.
Mr. Dice suggested that the Council forego any further action on the Baranoski Case &
the Cundiff Case pending the assignment of Independent Council. The Council agreed
by a consensus.
There were no comments from the public at this time.
Meeting adjourned at 12:45PM.
Respectfully submitted,
/s/Virginia S. Hook, Secretary
Dated
14
MINUTES OF THE
GOVERNMENT RECORDS COUNCIL
May 13, 2004
The meeting was called to order at 9:30 AM. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Dale Caldwell (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Absent:
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education.)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Mr. Caldwell. All members present unanimously
approved the motion. The Council met in closed session from 9:30AM to 10:45AM.
The Council reconvened in open session at 11:00AM in room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present: Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Dale Caldwell (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Deputy Attorney General Andrea Grundfest, GRC
Attorney Advisor David Zipin, Staff Associates Chris Malloy,
Anthony Carabelli, Erin Mallon, Kimberly Gardner
Absent:
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education)
Mr. Maltese asked the Executive Director, Mr. Dice, for a report on personnel. Mr. Dice
stated that the GRC received sixteen proposals in response to the RFQ’s for the
independent Council position. He stated that the RFQ’s are in the process of being
reviewed.
1
Mr. Maltese called for a motion to accept the Open Public Meeting Minutes from the
April 8, 2004 meeting as prepared and amended. A motion was made by Mr. Spigner
and seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain
Mr. Caldwell
Absent:
Ms. Schonyers
Mr. Maltese called for a motion to accept the Closed Session Meeting Minutes as
prepared for the April 8, 2004. A motion was made by Mr. Spigner and seconded by
Ms. Hook
Ayes:
Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
Mr. Caldwell
Absent:
Ms. Schonyers
Mr. Dice presented the Executive Director’s report. He reviewed the breakdown of cases
and inquiries as follows:
Nineteen cases (19) scheduled for May 13; fourteen (14) cases scheduled for June 10,
2004; five (5) cases on appeal; six (6) cases at the Office of Administrative Law; fourteen
(14) cases in mediation; sixteen (16) cases are a work in progress pending a specific
agenda. Total closed cases two hundred fifty-four (254). Inquiries received since January
1, 2004: eighty-eight (88) in January; one hundred fifty eight (158) in February and
March; seventy-four (74) in April; thirty-six (36) through May 12.
Mr. Dice discussed the outreach training programs scheduled/ and or completed with the
following organizations: NJ League of Municipalities, AM/PM Services, NJ Clerks
Association, Department of Education, HMFA, National Freedom of Information
Conference. Mr. Maltese announced that he would be doing a live interactive web cast
about the Government Records Council.
Darren Nance v. Scotch Plains Township police Department (2003-125)
2
Mr. Maltese summarized the case and noted that the involved parties in the case
voluntarily signed Agreements to Mediate and the Executive Director was recommending
the Council and GRC staff to forego adjudicatory action pending the outcome of
mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Caldwell and seconded by Ms. Hook.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
John M. Ward v.Village of Ridgewood (2003-131)
Mr. Maltese summarized the case and noted that the Complainant and the Custodian
voluntarily signed Agreements to Mediate and subsequently reached a settlement through
mediation. He stated that the Executive Director was recommending that the Council
dismiss the case since settlement had occurred through mediation
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Caldwell and seconded by Ms. Hook.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Michael DeLuca v. Town of Gutenberg (2004-8)
Mr. Maltese stated that in an April 21, 2004, letter to the Office of Dispute Settlement,
the requestor voluntarily withdrew his complaint and the Executive Director was
recommending that the Council dismiss the complaint.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Caldwell
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
3
Abstain:
Absent:
None
Ms. Schonyers
Stephen Biss v. New Jersey Motor Vehicle (2004-13)
Mr. Maltese summarized the case and noted that the Complainant and the Custodian
voluntarily signed Agreements to Mediate on March 8 & March 9, 2004 and that the
parties reached a settlement in mediation on April 19. 2004. He stated that the Executive
Director was recommending the Council dismiss the case since the parties reached a
settlement in the case.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Caldwell
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
Absent:
None
Ms. Schonyers
Albert Poreda v. Hudson County (2004-14)
Ms. Luzzatto stated that the case was continued from the April 8, 2004 public meeting of
the Government Records Council at which the Council ordered the Custodian to disclose
all the requested information and explain in a certification to the Executive Director why
the Council should not consider the Custodian’s lack of response to the request is not a
knowing and willful violation of the OPRA under the totality of the circumstances.
Subsequent to the order, the Custodian’s Counsel affirmed in a letter that to his
knowledge and understanding all of the requested documents had been provided to the
requestor and submitted documents to demonstrate that the responses had been submitted
in a timely manner to the Complainant in response to the request. The Complainant
advised that he had not received all requested information.
It was the Executive Director’s recommendation the Council find that:
1.
2.
The Custodian Counsel ‘s certification on April 22, 2004 indicates that he had
disclosed all requested information pursuant to N.J.S.A 47: 1Aet seq.
The Complainant should provide a detailed list of all records they have or have
not received to date and provide that within (5) business days of this order.
4
Mr. Maltese expressed concern that the certification came from Custodian’s Counsel and
not the Custodian of Records. He stated that the certification should come to the Council
in a legal certification that includes the penalty provision and is signed by the Custodian.
He expressed concern that should there be something wrong in the Attorney’s
certification, the attorney could claim attorney client privilege and the Council would not
be able to impose sanctions or penalties on the attorney. Mr. Maltese suggested that the
Executive Director’s recommendation be amended to require the Custodian of records to
submit a certification, containing the same information found in their attorney’s letter in a
legal certification format. Mr. Maltese suggested further that the Executive Director’s
recommendation in “2” be amended to order the Custodian, not the Complainant, to
indicate what documents were provided or not provided to the Complainant. He
remarked that it is the Custodian’s burden to show what has been supplied to the
Complainant. Ms. Hook reiterated and reinforced Mr. Maltese’s suggestions. It was
further suggested that the Custodian send a copy of their certification to the Complainant
by certified mail with a return receipt.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation’s
with the suggested changes. A motion was made by Mr. Caldwell and seconded by Ms.
Hook,
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
Louis Perry v. Township of Pennsauken (2004-19)
Ms. Luzzatto stated that the case involved a request for municipal boundary lines and was
continued from the April 8, 2004 meeting at which the Council ordered the Custodian to:
1.
2.
Provide a certification to Executive Director Paul Dice within five (5) business
days detailing what documents were provided to the requestor, and,
Provide a certification to Executive Director Paul Dice within (5) business days
detailing what documents were not provided to the requestor and why.
She stated that in a certification dated April 22, 2004, drafted by the Custodian’s counsel
and signed by the Custodian, the Custodian certified that the Township of Pennsauken
does not have the information that the Complainant was seeking; however they did
provide him with a copy of the township map with boundary lines.
It was the Executive Director’s recommendation that the Council dismiss the complaint
on the basis that the Custodian certified in its April 22, 2004 correspondence to the
5
Government Records Council, that the documents which were referenced in the
Complainant’s November 19, 2003 OPRA request, do not exist.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
Geri Weimer v. Middletown Clerk (2004-22)
Mr. Dice stated that the complaint alleges a denial of access regarding four OPRA
requests. The Complainant is seeking records, including payroll information, outside
work contracts, vehicle assignment information and specific payroll information.
Initially the Custodian requested clarification, the Complainant alleges that the
information was provided and the Custodian claims they never received it. Since the
positions of the parties could not be proved or disproved, it was the Executive Director’s
recommendation that:
1. The Council should order the Custodian to respond to the Complainant’s letter
dated January 22, 2004, which will be forwarded to the Custodian by the GRC
staff, pursuant to N.J.S.A. 47:1A-1.1 et seq. The Custodian should comply with
the order within five (5) business days.
2. The argument provided by the Custodian’s counsel that records pertaining to
work cards, overtime cards and attendance records are not disclosable pursuant to
N.J.S.A. 47:1A-3 (a), N.J.S.A. 47:1A-1.1 and Executive Order #9 for security and
criminal investigatory reasons needs further clarification. The Council should
order the Custodian to provide a certification as to the specific reaso n these
records should be considered “...criminal investigatory records...” and exempt
from disclosure or should contain appropriate redactions, pursuant to N.J.S.A.
47:1 A- 1.1 et seq. The Custodian should provide definitive statements explaining the
reasons the records are exempt. The Council should order the Custodian to comply
with the request for a certification within five (5) business days from the receipt of the
order.
3. Based upon the Statement of Information submitted by the Custodian’s counsel, the
invoices of “unpaid outside work for 2003” were submitted as supplemental information
to the GRC. The Council should order the Custodian to provide a certification as to
the records that are responsive to this request and certify that all records responsive to
this request, with exceptions provided under OPRA, were disclosed to the
Complainant. The Council should order the Custodian to comply with the
certification within five (5) business days from the receipt of the order.
6
4. The Custodian’s counsel argues that vehicle assignments are not disclosable for
security and surveillance reasons pursuant to N.J.S.A. 47: 1A-1 .1 and N.J.S.A.
47: 1A-3 (a). The Council should order the Custodian to provide further
explanation as to the relationship between vehicle assignments and security and
surveillance techniques. The Council should order the Custodian to comply with
the certification within five (5) business days from the receipt of the order.
Mr. Caldwell suggested that the Custodian outline the facts in specific detail.
Mr. Maltese also suggested that the Custodian certify the facts and give the GRC
supporting information as to why their security would be breached by the disclosure of
this information and noted for the record it appeared that the Custodian did not respond to
the requestor’s request. He also suggested that all the information responsive to the
council’s order be submitted in the form of a certification. Mr. Maltese recommended
that any further action on this case be postponed until the Custodian is instructed to
perform in accordance with the recommendations of the Council. Mr. Maltese suggested
further that the Custodian be given fifteen days to respond. Mr. Dice recommended that
the Council adopt the Findings and Recommendation with the proposed amendments.
Mr. Maltese also recommended that this case be noted in the Matrix.
Mr. Maltese called for a motion to accept the Executive Directors recommendations with
the suggested modifications. A motion was made by Mr. Caldwell and seconded by Mr.
Spigner. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
Larry Kreider v. Department of Transportation-Aeronautics (2004-24)
Mr. Dice recommended that the Council dismiss the complaint because Mr. Kreider
received a copy of the requested documents and on April 26, 2004 withdrew his
complaint. Mr. Maltese called for a motion to accept the Executive Director’s
recommendation as written. A motion was made by Ms. Hook and seconded by Mr.
Caldwell. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
7
Lois Lebbing v. Middlesex County Department of Planning (2004-25)
Mr. Dice stated that both parties reached a settlement in the case through mediation on
April 25, 2004. The Executive Director recommended that the Council dismiss the case
based on the fact that the parties reached a settlement.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Mr. Spigner. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell
Nays:
None
Abstain:
Mr. Maltese
Absent:
Ms. Schonyers
Lois Lebbing v. Middlesex County Department of Planning (2004-26)
Mr. Dice stated that both parties reached a settlement in the case on April 25, 2004
through mediation. The Executive Director recommended the Council dismiss the case
based on the fact that the parties reached a settlement.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Mr. Caldwell. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell
Nays:
None
Abstain:
Mr. Maltese
Absent:
Ms. Schonyers
Arthur Mourad v. Borough of Saddle River (2004-30)
Mr. Dice stated the case involved a request for the full first name, middle initial, last
name and title of all Borough of Saddle River police officers. The Custodian denied the
requestor’s OPRA request claiming that the Borough of Saddle River does not provide
information regarding their employees and also it contains personnel information that is
exempt under OPRA.
8
The Executive Director recommended that the Council order the Custodian of records to
provide the requestor with all the documents and information responsive to the request
consistent with the provisions of N.J.S.A.47:1A-10 of the Open Public records Act
(OPRA), subject to appropriate redaction.
Mr. Maltese recommended that the Custodian provide a written certification to the
Executive Director within five business days from receipt of the decision that explains
their response.
Mr. Maltese called for a motion to accept the Executive Directors recommendation with
the suggested change. A motion was made by Ms. Hook and seconded by Mr. Caldwell.
The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
Reginald Cole v. Township of Montague (2004-33)
Ms. Luzzatto clarified and noted a correction to be reflected in the record under
“response made” in the Findings and Recommendations should read “March 16, 2004”
not “March 16, 2003.”
Ms. Luzzatto stated that the case involved a request for a title search report on a specific
property in the Township of Montague. The request was made on November 12, 2003
and no indication in the record that there was a written response to the request. However,
the facts indicate that there was on-going dialogue between the parties and that dialogue
included the fact the document being sought did not exist at the time of the request. The
information provided in the record reflects that the title report, which was being sought,
did become available on December 3, 2003 but it was not provided to the requestor until
March 16, 2004 because it needed approval through the Mayor’s office.
It was the Executive Director’s recommendation that the Council dismiss the complaint
on the basis of:
1.
2.
The requested document was not in existence at the time of the request.
The Custodian went beyond what was required under OPRA by supplying a copy
of the title document for Block 48 Lot 44 when it became available.
3. Under the circumstances present in the case, the Custodian’s actions did not rise
to the level of a knowing and willful violation of OPRA.
9
Mr. Spigner stressed his concern about the untimely response in the case and how the
Council should treat this issue. Mr. Maltese noted that while the circumstances did not
rise to the level of a knowing and willful violation it was an untimely response and
suggested it be noted on the GRC Matrix to be revisited in the future. Mr. Maltese asked
Ms. Luzzatto to place the Custodian’s name in the “Custodian of Record” in the Findings
and Recommendations of the case.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
modified by the Council members comments. A motion was made by Ms. Hook and
seconded by Mr. Caldwell. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr.Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
Kathie Pontus vs. NJ Schools Construction Corporation (2004-34)
Mr. Dice stated that the case involved a request for copies in reference to a High School
project and summarized the issues: The Custodian asserts that clarification was sought
from the requestor regarding the request as no records could be found concerning the
project in NJSCC and certified that two records, without redactions, were provided to the
requestor on December 17, 2003 in response to the OPRA request of December 10, 2003.
The Custodian also asserts that after receiving a copy of the requestor’s Denial of Access
Complaint, she re-evaluated the documents sent to the requestor and noticed that a
section of the form was shaded, which may have appeared to be “blacked out,” and also
found more records regarding the OPRA request after conducting another search. Of the
additional records found, three records were withheld and one record was redacted. The
Custodian explained the basis for non-disclosure in a Vaughn Index submitted to the
Government Records Council.
It was the Executive Director’s recommendations that:
1. The Council should also accept that the Custodian certified no redactions were
made to the records released on December 17, 2003.
2. The Council should order the Custodian to provide a certification as to if the
records existed on December 10, 2003, the date of the original request, or if
the records existed in NJSCC files after December 10, 2003. The Council
should order that the Custodian comply with the order within five (5) business
days after the receipt of the decision.
3. The Council should accept that the Vaughn Index as it has met the burden of
proof in that the records were confidential because the records are “predecisional consultative, advisory and deliberative inter-agency documents”
and should not be disclosed, pursuant to N.J.S.A 47:1A-1.1 et seq.
10
Mr. Maltese suggested the Executive Director’s recommendation be amended to read:
That the Custodian certify why the first search did not reveal any records responsive to
the request and what specific records were found in the second search responsive to the
request.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
written with the suggested changes. A motion was made by Mr. Caldwell and seconded
by Ms. Hook. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent
Ms. Schonyers
Geri Doukali v. Borough of Magnolia (2004-35)
Mr. Dice stated that the case involved a request for access to itemized cellular phone bills for
the period January 2003 thru December 2003. The record reflects there is a document
request dated January 22, 2003 to the borough, a denial of access complaint dated
February 2004, and the Custodian’s statement of information responding to the January
22 request; however, the GRC does not have a copy of the January 22 request for
information and there is incomplete factual information provided in the case. It was the
Executive Director’s recommendation that the Council:
1.
Order the Custodian to explain in a certification whether the requested
records (itemized cell phone bills for January through December 2003) were
made, maintained, and kept on file at the time of the request, pursuant to
N.J.S.A. 47:1A-1 et seq.
2.
Order the Complainant to provide proof that she submitted an OPRA request
to the Borough of Magnolia dated February 4, 2004 for Itemized cell phone
bills; January, 2003 thru December 2003.
3.
Order the Custodian to explain why the requested bills were not disclosed
immediately pursuant to N.J.S.A. 47:1A-5(e) and why the council should not
consider this inaction a knowing and willful violation of the Act.
4.
Order the Custodian to explain the justification of any redactions made on the
bills provided to the Complainant.
Mr. Maltese discussed a similar situation in another case involving Passaic County
and cell phone use. Mr. Maltese suggested that the council accept the Executive
Director’s recommendations.
11
Mr. Maltese called for a motion to accept the Executive Director’s recommendation
as written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Mr. Maltese stated that the Marc Kagan v. University of Medicine and Dentistry of N J
(2004-3 8) case appearing on the Agenda would be postponed until the June 10, 2004
meeting.
Jeffrey Muska v. Millburn Township Board of Education (2004-41)
Ms. Luzzatto stated that the case involved a request for the final attorney bill from the
attorney retained to investigate an impropriety in the Custodian department for the
Millburn Board of Education. The Complainant also raises a timeliness issue in response
to the request. She stated that pursuant to N.J.S.A. 47: 1A-5(e) bills are to be available for
immediate access. The Complainant did not receive the bill immediately, but did receive
a redacted bill within seven (7) business days.
She stated further that in the Statement of Information, the Custodian asserted that
pursuant to N.J.S.A. 47: 1A-3 the bill in question is being investigated and therefore
should not be disclosed. Also, the Custodian stated that the matter was submitted to fee
arbitration and the bill was confidential pursuant to Court Rule R. 1 :20A-5.
It was the Executive Director’s recommendation the Council dismiss the complaint on the
basis of:
1. The requested attorney fee bills are exempt pursuant to Court Rule R 1 :20A-5 and
N.J.S.A. 47:1A-9.
2. The Custodian violated N.J.S.A. 47: 1A-5(e) by not providing the Complainant
immediate access to the requested bills. However, the Custodian did provide a
redacted copy to the Complainant within seven (7) business days. Therefore, the
Custodian’s actions did not rise to the level of knowing and willful violation
under OPRA.
Mr. Maltese remarked that the cited court rule supersedes OPRA pursuant sub-section 9.
Mr. Maltese suggested that the GRC staff inform Mr. Muska that once the arbitration is
completed the bill would be a public document available for inspection and that Mr.
Muska may desire to make another request at that time.
12
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Spigner and seconded by Ms. Hook The motion was
adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Barbara Penn & Jacqueline Faber v. Margate City (2004-42)
Ms. Luzzatto stated that the case involved a request for certificates of occupancy for
several units in the City of Margate and the information in the record indicates that they
did receive the certificates of occupancy for all of the units with the exception of unit #2.
The Custodian certified that unit #2 was not occupied at the time of the request and there
was no certificate of occupancy available.
It was the Executive Director’s recommendation the Council dismiss the complaint based
on the following:
1.
The Custodian certified that the records requested for units #3 and #5 were
provided to the Complainant pursuant to N.J.S.A 47:1A-1.1 et seq.
2. The Custodian certified that the record requested for unit #2 was not provided
because according to the City’s files, no one occupied the unit, therefore the
record was not “...made, maintained or kept on file...” as requested by the
Complainant (N.J.S.A. 47:1A-1.1 et seq).
3. There are no provisions in OPRA that address the validity of a record.
Ms. Luzzatto stated an issue of an untimely response was not made in the case the request
was made on January 29, 2004 and a response was not made until April 2, 2004. Mr.
Maltese recommended that the Custodian’s name be added to the GRC Matrix. He added
that in all of the cases where there is a timeliness issue the Custodian should be apprised
that the Council did take notice of the untimely response.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Caldwell. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
13
Abstain:
None
Absent:
Ms. Schonyers
James Gross v. NJ Department of Health (2004-48)
Ms. Luzzatto stated that the cased involved a request for a death certificate made to the
New Jersey Department of Health. In the request the Custodian raised several issues: 1.
They did not consider this to be an OPRA request because the individual making the
request completed the application for a death certificate, not an OPRA request form; 2.
The Custodian contends that Executive Order #18 governs the issuance of vital records
copies and was controlling with respect to access.
It was the Executive Director’s recommendation the Council find that:
1.
2.
3.
4.
The Complainant’s request met the requirements of an OPRA request and should
be considered a valid OPRA request pursuant to N.J.S.A. 47: 1A-5 (g).
Executive Order #18 governs the disclosure of the requested vital records in this
case and therefore said documents are exempt from public access under N.J.S.A.
47:1 A-1.
N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-9 does not abrogate any exemption of a
government record made pursuant to an executive order.
The case should be dismissed.
Mr. Maltese took exception to the recommendation stating that the Custodian could have
issued a certification, which is permitted by Executive Order #18. He stated further it was
his understanding that certifications may be issued for informational purposes only and it
is noted on the certification that it cannot be used for any legal purpose or identification.
He remarked that at a minimum, the Custodian could have issued a certification such as
that which is permitted by Executive Order 18 in lieu of the information specifically
requested in the OPRA request.
Mr. Dice stated that Executive Order 18 covers both certifications and death certificates.
In terms of offering an alternative, the request was for the death certificate. He states further
that the certificate provides certain things that a certification does not, and rather than prejudge the requestor’s intended use, the Custodian answered based on the document
requested. He recommended that because of the fundamental difference between the
certification and a death certificate the Council consider not the alternative, but the actual
document sought. Mr. Maltese and Mr. Dice continued the discussion with Mr. Maltese
calling for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Mr. Spigner and seconded by Mr. Caldwell. The motion was adopted
by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
14
Abstain:
None
Absent:
Ms. Schonyers
Daniel Meaders v. William Paterson University (2004-49)
Mr. Dice stated that the Complainant and the Custodian voluntarily signed Agreements to
Mediate. Based on same, the Executive Director recommended that the Council forego
any adjudicatory action pending the outcome mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Spigner and seconded by Ms. Hook.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Mr. Maltese recused himself from discussion in the following case.
Michael Galdieri v. Jersey City Incinerator Authority (2003-153)
Mr. Dice stated that the case was continued from the March 11, 2004 meeting when the
Council agreed that additional information was needed in the case since there were
conflicting reports and information. Mr. Dice stated that the information was received
and gave a factual accounting of what was in the record.
It was the Executive Director’s recommendation that the Council order the Custodian to:
1. Item number 1 of “Relevant Records Requested” in the Supplemental Findings
and Recommendations – The Custodian is to provide a certification listing all
documents in its possession at the time of the Complainant’s September 9, 2003
Open Public Records Act request and which is/are responsive to same. Said
response shall not be limited to just personnel records.
2. Item number 2 of “Relevant Records Requested” in the Supplemental Findings
and Recommendations – This portion of the complaint is dismissed based on the
fact that James Murphy, (Assistant Executive Director/Administration) certified
that these records did not exist at the time of the request. Therefore, the Council
need not address the security defense raised by the Custodian.
15
3. Item number 3 of “Relevant Records Requested” in the Supplemental Findings
and Recommendations – The Custodian is to provide access to the requested
information pursuant to N.J.S.A. 47: 1A-1 et seq. Such access shall be made
following the Custodian having provided the requestor with an estimate of copy
costs if applicable, and the requestor’s acceptance of same.
4. Item number 4 of “Relevant Records Requested” in the Supplemental Findings
and Recommendations – The Custodian is to provide access to the requested
information pursuant to N.J.S.A. 47: 1A-1 et seq. Such access shall be made
following the Custodian having provided the requestor with an estimate of copy
costs if applicable, and the requestor’s acceptance of same.
5. Item number 5 of “Relevant Records Requested” in the Supplemental Findings
and Recommendations – This portion of the complaint is dismissed based on the
Custodian’s certification that these records never existed.
The Custodian is to provide responses to the Executive Director, Paul Dice, as ordered in
“1,” “3” and “4” above within five (5) business days from receipt of the Interim Decision.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Mr. Caldwell and seconded by Ms. Hook. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Recused:
Mr. Maltese
Mr. Maltese called for new business and public comments. Hearing none, Mr. Maltese
called for a motion to adjourn. A motion was made by Mr. Caldwell and seconded by
Ms. Hook. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Caldwell. Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
16
The meeting adjourned at 12:40PM.
Respectfully submitted,
/s/ Virginia S. Hook, Secretary
Dated:
17
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
June 10, 2004
The meeting was called to order at 9:20AM in the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman (designee of Commissioner Susan Bass Levin,
Department of Community Affairs), Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning the
complaints to be adjudicated that day. Ms. Hook moved to adopt the resolution that was
seconded by Mr. Richman. All members present unanimously approved the motion. The
Council met in closed session from 9:20AM to 10:45AM. The Council reconvened in open
session at 11:00AM in room 129 of the Department of Community Affairs, Trenton, New Jersey.
The Open Public Meeting Act statement was read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman (designee of Commissioner Susan Bass Levin,
Department of Community Affairs), Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Deputy Attorney General Andrea Grundfest, GRC Attorney
Advisor David Zipin, Staff Associates Chris Malloy, Anthony Carabelli,
Erin Mallon, Kimberly Gardner.
Mr. Maltese asked for the Executive Director’s report on personnel. There was no information
to report on the subject.
Mr. Maltese called for a motion to accept the Closed Session Meeting Minutes from the April 26,
2004 meeting as written. A motion was made by Mr. Spigner and seconded by Ms. Hook. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, and Mr. Maltese
Nays:
None
Abstain:
Mr. Richman
Government Records Council Public Meeting Minutes – June 10, 2004 1
Mr. Maltese called for a motion to accept the Open Public Meeting Minutes for the April 26, 2004
meeting as written. A motion was made by Ms. Schonyers and seconded by Mr. Spigner. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Maltese
Nays:
None
Abstain:
Mr. Richman
Mr. Maltese called for the report of the Executive Director, Mr. Dice. Mr. Dice presented the
following Executive Director’s monthly report: Current status of complaints: a total of thirtyseven scheduled, twenty cases for the June Council meeting, thirteen cases scheduled for the July
8, 2004 meeting; five cases on appeal; six cases in the Office of Administrative Law; fifteen cases
in mediation; nine cases were work in progress; and two-hundred sixty four total closed cases.
There were a total of six hundred two inquiries for 2004 with one hundred four for May and
eighteen as of June 10, 2004.
Mr. Dice noted that the GRC Website lists outreach presentations attended by Mr. Dice and
Ms. Luzzatto, and an additional list of upcoming presentations. He added that in September and
October their audience would include Police Departments, Business Administrators, and School
Administrator’s. Ms. Schonyers expressed interest in participating in the presentations involving
the business and school administrators.
Mr. Maltese noted for the record that he recused himself from the following cases during the both
the Closed and Open Session of the June 10, 2004 meeting:
Michael Galdieri v. Jersey City Incinerator (2003-153)
Albert Poreda v. Hudson County (2004-14)
Anne Rademacher v. Borough of Eatontown (2004-18)
Marc Kagan v. University of Medicine and Dentistry of NJ 2004-3 8)
Donna Janeczko v. Division of Criminal Justice (2002-79)
Ms. Luzzatto reviewed the case stating the Council rendered their decision in the case on August
14, 2003 finding the records sought were criminal investigatory records and the case was appealed
to the Superior Court, Appellate Division on September 8, 2003. The GRC received a decision
from Superior Court, Appellate Division on May 26, 2004, affirming the Council’s decision.
It was the Executive Director’s recommendation that the Council close the case on the basis of the
Appellate Division of the Superior Court of New Jersey affirming the Government Records
Council’s Final Decision.
Government Records Council Public Meeting Minutes – June 10, 2004 2
Mr. Maltese called for a motion to accept the Executive Director’s recommendation but amend the
recommendation to read, “dismiss” instead of “close” and include a copy of the Supplemental
Findings and Recommendation. A motion was made by Ms. Hook and seconded by Ms.
Schonyers. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Richard Wilcox v. Township of West Caldwell ( 2003-142)
Mr. Dice stated that the case was on follow up from the March 11, 2004 GRC Council
meeting.
Mr. Dice reviewed the Custodian’s response to the interim decision, and the Complainant’s
response to same as set forth in the June 4, 2004 Findings and Recommendations of the Executive
Director and recommended that the Council dismiss the case on the basis of said
recommendations.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Mr. Spigner and seconded by Ms. Hook. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Trish Fanders v. Eastampton Board of Education (2004-16)
Ms. Luzzatto reviewed the case explaining the Council’s April 26, 2004 interim decision ordered
the Custodian to disclose all documents responsive to the Complainant’s January 8, 2004 request
and certify when they had complied with the request. She reviewed the details of the
Custodian’s response to the Council’s interim decision as set forth in the May 28, 2004 Findings
and Recommendations of the Executive Director. It was the Executive Director’s
recommendation that the Council dismiss the case on the basis of the Custodian’s certification
stating all available records responsive to the request were provided to the Complainant.
Mr. Maltese called for a motion to accept the Executive Director’s May 28, 2004 findings and
recommendation as written. A motion was made by Ms. Schonyers and seconded by Mr.
Spigner. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Government Records Council Public Meeting Minutes – June 10, 2004 3
Nays:
None
Abstain:
None
Martin O’Shea v. Township of West Milford (2004-17)
Mr. Dice reviewed the case indicating it was on follow-up from the April 26, 2004 meeting. He
reviewed the Custodian’s response to the Council’s order in which the Custodian admittedly failed
to respond verbally or in writing to the Complainant’s January 29, 2004 request until May 7, 2004
and responded to the January 12, 2004 request on the day it was submitted, but there was nothing
to support the Custodian’s allegation. He indicated further the Complainant maintained that he did
not receive responses to the January 12 and 29 requests. The Executive Director presented his
recommendations to the Council as set forth in the June 2, 2004 Findings and Recommendations of
the Executive Director.
Mr. Dice noted an administrative change to the Findings and Recommendations under in #1 of the
Executive Director’s recommendation that should read, “complained” instead of “grieve.”
Mr. Maltese called for a motion to accept the Executive Director’s June 2, 2004 findings and
recommendations as written. A motion was made by Ms. Hook and seconded by Mr. Spigner.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Kathie Pontus v. NJ Schools Construction Corporation (2004-34)
Mr. Dice reviewed the case stating that it was previously heard at the May 13, 2004 public meeting
and the Council ordered additional information from the Custodian. Mr. Dice continued stating
that when the request was received, the Custodian did a search for the records and found what she
thought were the only documents in existence pertaining to the request. The Custodian offered a
certification explaining her actions and the GRC staff found it to be acceptable. It was the
Executive Director’s recommendation that the Council dismiss the case as set forth in the
Executive Director’s June 4, 2004 findings and recommendations.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Mr. Richman and seconded by Mr. Spigner. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Government Records Council Public Meeting Minutes – June 10, 2004 4
Nays:
None
Abstain:
None
Geri Doukali v. Borough of Magnolia (2004-35)
Mr. Dice stated that the case was previously heard at the May 13, 2004 meeting and was on
follow-up regarding the Council’s interim decision.
It was the Executive Director’s recommendation set forth in the Findings and Recommendations
that the Council dismiss the case as the Custodian complied with all aspects of the May 13, 2004
Council’s Interim Decision.
Mr. Maltese called for a motion to accept the Executive Director’s June 4, 2004 findings and
recommendation as written. A motion was made by Ms. Hook and seconded by Mr. Richman. The
motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Arthur Mourad v. Borough of Saddle River (2004-30)
Mr. Dice explained that at the May 13, 2004 public meeting the Council ordered the Custodian to
provide the Complainant with all the documents and information responsive to the request
consistent with the provisions of N.J.S.A. 47:1A-10. Mr. Dice explained further that the case has
been returned to the Council because the Custodian alleged the Complainant was a convicted felon
and the disclosure of the records would present a security risk. He reviewed the June 2, 2004
Findings and Recommendations of the Executive Director pertaining to the Custodian’s allegations
and recommended that the Council should order the Custodian to comply with the staff’s June 3,
2004 letter to provide a written explanation and that failure to do so would result in determation
the records are disclosable pursuant to the Final Decision issued on May 13, 2004.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation with the
following amendments:
To affirm its May 13, 2004 decision ordering the custodian of records to provide the
complainant with all the documents and information responsive to the request consistent with
the provisions of N.J.S.A. 47:1A-10 of Open Public Records Act (“OPRA”) subject to
appropriate redaction. The case would be dismissed because the supplemental information
Government Records Council Public Meeting Minutes – June 10, 2004 5
provided by the custodian did not meet the burden of proof pursuant to N.J.S.A. 47: 1A-6 and
the documents sought are to be disclosed pursuant to N.J.S.A. 47:1A-10 subject to
appropriate redaction.
A motion was made by Mr. Spigner and seconded by Ms. Hook to accept the Executive
Director’s recommendations with the amended changes. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Ronald Miles v. Borough of Barnegat (2004-36)
Ms. Luzzattto explained that the case was previously heard at the April 26, 2004 meeting and the
Complainant was to provide specific details of the information still being sought in the request,
and the Custodian was ordered to provide a certification to explain the delay in responding to the
request and why it should not be considered a “knowing and willful” violation under OPRA. As
set forth in the June 2, 2004 Findings and Recommendations of the Executive Director, Ms.
Luzzatto reviewed the information submitted by the parties in response to the Council’s interim
decision. It was recommended that the Council dismiss the case as set forth in the Executive
Director’s recommendation.
Mr. Maltese called for a motion to accept the Executive Director’s June 2, 2004 findings and
recommendation as written. A motion was made by Ms. Hook and seconded by Ms. Schonyers.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Gerard Lanosga v. Borough of Princeton (2004-37)
Ms. Luzzatto explained that the case was previously heard at the April 26, 2004 meeting and the
Council ordered the Custodian to certify in whole or in part what information or documentation
was or was not released in accordance with the request dated September 16, 2004 and to explain
their position concerning information they did not disclose. The Custodian certified and provided
sufficient information to confirm that all the remaining documents that were being sought in regard
to the initial request are criminal investigatory and would exempt from disclosure under OPRA. It
was the Executive Director’s recommendation that the Council dismiss the complaint as set forth
in the said findings and recommendations.
Government Records Council Public Meeting Minutes – June 10, 2004 6
Mr. Maltese called for a motion to accept the Executive Director’s June 2, 2004 findings and
recommendation as written. A motion was made by Ms. Schonyers and seconded by Mr. Spigner.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Andrew Johnson v. NJ State Police (2004-46)
Ms. Luzzatto reviewed the case and the parties respective positions set forth in the May 31, 2004
Findings and Recommendations of the Executive Director. She noted that the case involved a
denial of access to investigatory reports from a specific identified file held by the State Police
Norris Barracks and an assertion that because the case is closed and the investigation is no longer
open, the information should be disclosed. Based on the Custodian’s detailed explanation
concerning the requested investigatory reports, they met the burden of proving said records were
exempt from disclosure under OPRA. It was respectfully recommended that the Council dismiss
the case based on the Executive Director’s recommendation set forth in May 31, 2004 findings and
recommendations.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Ms. Schonyers excused herself for the balance of the meeting.
Andrew Bilarczyk v. Over Brook High School (2004-56)
Ms. Luzzatto stated that the Custodian and the requestor voluntarily signed Agreements to
Mediate. Based on same, the Executive Director recommended that the Council forego any
adjudicatory action pending the outcome of mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Hook and seconded by Mr. Richman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Government Records Council Public Meeting Minutes – June 10, 2004 7
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
The following cases were presented together as they involved referrals to mediation:
Michael Shasho v. Borough of Ramsey (2004-57) and
Barbara Schwarz v. Department of Treasury (2004-59)
In each case the Custodian and the Complainant voluntarily signed Agreements to Mediate. Based
on same, the Executive Director recommended that the Council forego any adjudicatory action
pending the outcome of mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Hook and seconded by Mr. Richman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Barbara Schwarz v. Department of Human Services (2004-60)
Ms. Luzzatto reviewed the case that involved a denial of access to records concerning specific
identifiable individuals and the Church of Scientology. The respective positions of the parties
were reviewed as set forth in the May 31, 2004 Executive Director’s Findings and
Recommendations. It was recommended that the Council order a detailed explanation of the
Custodian’s justification supporting their claimed exemption to the requested records.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as set forth in
May 31, 2003 findings and recommendations. A motion was made by Ms. Hook and seconded by
Mr. Richman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Government Records Council Public Meeting Minutes – June 10, 2004 8
Absent:
Ms. Schonyers
Robert Campbell v. Township of South Harrison (2004-62)
Mr. Dice stated that this case involved a request for details of operating cost for the South Harrison
police department for certain budget years. The Custodian contends that the Complainant received
the records responsive to his May 19, request. However, he indicated that it was unclear if the
records released were responsive to the May 2 request and recommended further clarification from
the Custodian as set forth in the Executive Director’s recommendations to the Council.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as set forth in
the May 31, 2004 Executive Director’s findings and recommendations. A motion was made by Mr.
Spigner and seconded by Ms. Hook. The motion was adopted by roll call vote.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Mr. Maltese recused himself from the of the meeting during the discussions of the following cases.
Michael Galdieri v. Jersey City Incinerator Authority (2003-153)
Mr. Dice stated that this case was heard at the May 13, 2004 meeting at which time the Council
considered the Executive Director’s recommendation at that the time seeking various certifications
and clarifications. Mr. Dice reviewed the Custodian’s response to the Council’s Interim Decision as
set forth in the April 7, 2004 Findings and Recommendations of the Executive Director. Mr. Dice
recommended that the Council dismiss the case on the basis that the Custodian has complied with all
aspects of the Council’s Interim Decision.
Mr. Spigner called for a motion to accept the Executive Director’s recommendation as set forth in
the April 7, 2004 Executive Director’s findings and recommendations. A motion was made by Ms.
Hook and seconded by Mr. Richman. The motion was adopted by roll call vote.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Government Records Council Public Meeting Minutes – June 10, 2004 9
Recused:
Mr. Maltese
Albert Poreda v. Hudson County (2004-14)
Ms. Luzzatto stated that this case was initially heard at the Council’s Public Meeting held on
April 8, and May 13, 2004. This case involved a denial of access, lack of disclosure as well as a
delay in responding to the request. The Custodian indicated he complied with all aspects of the
request; however, the Complainant disagreed. In the May 13, 2004 Interim Decision, the
Council ordered a legal certification from the Custodian of records setting forth in detail what
and when information was provided to the Complainant and explaining the delay in responding
to the requests. Ms. Luzzatto reviewed the details of the Custodian’s response to the order as set
forth in the May 25, 2004 Executive Director’s Findings and Recommendations and
recommended that the Council dismiss the case on the basis of said findings and
recommendations.
Mr. Spigner called for a motion to accept the May 25, 2004 Executive Director’s findings and
recommendation as written. A motion was made by Ms. Hook and seconded by Mr. Richman.
The motion was adopted by roll call vote.
Ayes:
Nays:
Abstain:
Ms. Hook, Mr. Spigner, Mr. Richman
None
None
Absent:
Ms. Schonyers
Recused:
Mr. Maltese
Ann Rademacher v. Borough of Eatontown (2004-18)
Mr. Dice stated reviewed the case that involved a denial of access for a copy of a study done by a
non-public Jersey Professional Management Study and a claim by the Custodian that the study was
advisory, consultative or deliberative material and not disclosable under OPRA. He explained that
the GRC staff sought legal council in this case because it involved a non-pubic agency and the
question arose whether the advisory, consultative or deliberative privilege was applicable. Deputy
Attorney Grundfest reviewed the applicable legal considerations set forth in the June 9, 2004
Findings and Recommendations of the Executive Director and concluded that the report prepared
for the Borough by the Jersey Professional Management Company was exempt from disclosure
pursuant to N.J.S.A. 47:1A-1.1
The Executive Director recommended that the Council dismiss the case based on the fact that the
requested report was prepared by an outside third party consultant and does meet the definition of
“inter-agency or intra-agency advisory, consultative, or deliberative” exemption under OPRA.
Government Records Council Public Meeting Minutes – June 10, 2004 10
Mr. Spigner called for a motion to accept the June 9, 2004 Executive Director’s findings and
recommendation as written. A motion was made by Mr. Richman and seconded by Ms. Hook. The
motion was adopted by roll call vote.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Recused:
Mr. Maltese
Margaret Wolenski v. Bayonne Police Department (2004-31)
Mr. Dice reviewed the case as set forth in the June 2, 2004 Findings and Recommendations of
the Executive Director explaining that the case was on follow-up from the Council’s April 26,
2004 Interim Decision seeking additional information from the Complainant.
The Executive Director recommended that the Council dismiss the complaint on the basis that
the Complainant did not respond to the May 25, 2004 e-mail from the Government Records
Council staff.
Mr. Spigner called for a motion to accept the June 2, 2004 Executive Director’s findings and
recommendation as written. A motion was made by Ms. Hook and seconded by Mr. Richman.
The motion was adopted by roll call vote.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Recused:
Mr. Maltese
Marc Kagan v. University of Medicine & Dentistry of NJ (2004-38)
Mr. Dice reviewed the case as set forth in the June 2, 2004 Findings and Recommendations of the
Executive Director and recommended that the Council find that the records identified in “1” of the
Government Records Council Public Meeting Minutes – June 10, 2004 11
Executive Director’s recommendations be disclosed, that the records identified in “2” and “4” of
said recommendations are non-existent, and that the records identified in “3” of said
recommendations are not disclosable under OPRA.
Mr. Spigner called for a motion to accept the Executive Director’s June 2, 2004 findings and
recommendations as written. A motion was made by Mr. Richman and seconded by Ms. Hook.
The motion was adopted by roll call vote.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman
Nays:
None
Abstain:
None
Absent:
Ms. Schonyers
Recused:
Mr. Maltese
Mr. Spigner asked Mr. Dice if there was any new business, hearing none Mr. Spigner opened the
meeting for public comment.
Public Comment:
Mr. Robert Campbell thanked the Government Records Council staff and Council for their efforts
in bringing his case to a successful completion.
There were no other public comments. Mr. Spigner called for a motion to adjourn and by a
consensus the meeting was adjourned at 12:55 PM.
Respectfully submitted
/s/Virginia Hook, Secretary
Dated:
Government Records Council Public Meeting Minutes – June 10, 2004 12
MINUTES OF THE
GOVERNMENT RECORDS COUNCIL MEETING
July 8, 2004
The meeting was called to order at 9:10AM. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman (designee of Commissioner Susan Bass Levin,
Department of Community Affairs), Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Mr. Spigner moved to adopt the
resolution that was seconded by Ms. Hook. All members present unanimously approved
the motion. The Council met in closed session from 9:10AM to 10:30AM. The Council
reconvened in open session at 10:45AM in room 129 of the Department of Community
Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was read and
attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman (designee of Commissioner Susan Bass Levin,
Department of Community Affairs), Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Deputy Attorney General Andrea Grundfest, GRC
Attorney Advisor David Zipin, Staff Associates Chris Malloy,
Anthony Carabelli, Erin Mallon, Kimberly Gardner, Marion
Davies, Administrative Assistant.
Mr. Maltese called for a motion to add the discussion of independent counsel to the July
8, 2004 closed session meeting minutes. A motion was made by Mr. Spigner and
seconded by Ms. Hook. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
1
The May 13, 2004 open and closed session minutes will be presented to the Council for
approval at the August 12, 2004 Council meeting.
The Executive Director had no information to report on personnel matters.
Mr. Maltese called for reports from the Executive Director, Mr. Dice. Mr. Dices stated that
the Executive Director’s monthly report read as follows: The current status of complaints
are a total of thirty-three (33) cases scheduled - fourteen (14) for this council meeting;
seventeen (17) are cases scheduled for the August 12, 2004 meeting; two (2) for September
9, 2004 - five (5) cases on appeal; five (5) cases are in the Office of Administrative Law;
fourteen (14) cases are in mediation; sixteen (16) cases are work in progress and there are a
total of two-hundred seventy-nine (279) closed cases. The GRC staff is averaging
approximately one hundred four (104) inquiries per month. In January there were ninety
two (92); February, one hundred fifty eight (158); March, one hundred fifty five (155);
April seventy four (74); May, one hundred four (104); June, seventy (78). Mr. Maltese
asked about the status of the appeals at this time. Ms, Grundfest stated that the Department
of Law has filed the Statement of Items on all five cases and they are waiting for the
Appellate’s to file their briefs. Mr. Maltese asked for a report on the status of what is in the
Appellate Court to be presented at the next meeting.
Mr. Maltese asked Mr. Dice for a report on communications. Mr. Dice discussed the
various articles and information with reference to OPRA. Mr. Dice also stated the GRC
would continue to utilize the mediation service of the Office of Dispute Settlement under
the same contractual basis for the next fiscal year.
Mr. Maltese stated that he would be speaking at the League of Municipalities in November.
Mr. Dice briefly discussed the success of the outreach presentations to date.
Mr. Dice discussed the website and the changes that he plans to implement over the next
few months with the assistance of the Office of Information Technology.
Eugene Reda v. Township of West Milford (2003-58)
The Executive Director respectfully recommended that the Council dismiss the case
because the Complainant voluntarily withdrew the complaint.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was
adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
2
Eugene Reda v. Township of West Milford (2003-49)
The Executive Director respectfully recommended that the Council dismiss the case
because the Complainant voluntarily withdrew the complaint.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was
adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Rick Merino v. Borough of Ho-Ho-Kus (2003-110)
Ms. Luzzatto noted the following administrative changes to the Findings and
Recommendations of the Executive Director:
1.
2.
Include under documents reviewed a March 17, 2004 letter from the
Custodian’s council to the Government Records Council as a follow-up to the
interim decision.
Correction to pages 4 and 5 to read "Borough of Ho-Ho-Kus"
Ms. Luzzatto stated that the case was continued from the March 11, 2004 Council meeting
and the Council's interim decision seeking a legal advice on whether the address
information contained on the summonses were properly redacted. She also indicated a
second issue in the case involved the cost of duplicating the requested videotape.
Concerning the issue of disclosure, she stated that under advice of legal counsel, the GRC
staff was advised to apply a weighing or balancing test in this case to determine whether
the disclosure of the requested documents was proper. She explained that the seven factors
to be considered come from case law and Supreme Court decisions and are to be applied in
issues concerning third party privacy issues. In applying the balancing principals, it was the
Executive Director’s recommendation that the requested addresses contained in the moving
violation summonses of Officer Tuttle should be disclosed pursuant to the Open Public
Records Act.
With respect to the $50.00 charge for coping the requested videotape, the GRC staff
solicited information from the custodian to explain the basis of those costs. While the
custodian explained the copying involved approximately one and one-half hour of time, the
explanation did not support a special service charge in this particular case pursuant to
OPRA. Ms. Luzzatto reviewed the Executive Director’s recommendations that the Council
find:
1. The requested addresses of moving violation summonses of Officer Tuttle should
not have been redacted pursuant to the Open Public Records Act and balancing
the privacy interest against the interest in disclosure.
3
2.
A special service charge for copying the videotape is not warranted in this case.
The Custodian shall charge no more than the actual cost of the materials and
supplies in duplicating the record excluding the labor cost.
3. The Custodian shall reimburse the Complainant for the difference in the cost
determined in “2” and what the Complainant actually paid.
4. The Custodian should provide access to the requested addresses of moving
violation summonses and reimburse the Complainant $25 for the reproduction of
the requested video.
There was discussion between the council members concerning their role in applying the
balance test, the seven factors and weighing the reasonable expectation of privacy versus
the publics right to access the address information sought in the case. Ms. Grundfest
stated that the Council's determination in the subject case and the application set forth by
the Supreme Court in Doe v. Portiz does not mean that home addresses will always be
accessible under every circumstance. She explained that the Supreme Court decision
provides the Council with the ability to weigh and balance various circumstances present
in the subject case, the right to access that is weighed against the privacy interest of the
third party, which in the subject case are the individuals who received the traffic
summons. She explained further that the Council's decision in this case was not a
declaration of a future policy to be applied in all cases involving home addresses. She
commented that the GRC staff analyzed the seven factors and recommended to the
Council that the presumption was in favor of access and out weighed the expectation of
privacy individual’s who received the traffic summons. She added that among the
information appearing on the summonses, the driver’s license number is not disclosable
and was properly redacted. She added further that OPRA does not specifically say that
home addresses have to be redacted; rather the Council is required to analyze the
competing interests and come to a determination.
Mr. Maltese discussed the balancing principles and his understanding of how it is applied
in determining whether or not disclosure is proper. Mr. Richman indicated his concerns
with a determination that would result in disclosure of the addresses. Ms. Schooners was
not uncomfortable with the balancing test but felt she needed more clarification regarding
its application. The Council continued in their discussion about the adjudicatory
function and their decision in regard to access and the reasonable expectation of privacy.
Mr. Spigner and Ms. Hook indicated their concern in releasing the address information in
cited case. Ms. Grundfest stated that the Council had the ultimate determination to make
the final decision in the subject case. Mr. Dice stated that while respecting Ms. Grundfest
expertise he disagreed with her conclusions.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation to
disclose the address information on the summonses as it relates to this case. A motion
was made by Mr. Signer and seconded Ms. Schooners. The motion was not adopted.
Ayes:
Ms. Schooners, Mr. Maltese
Nays:
Ms. Hook, Mr. Spigner
Abstain:
Mr. Richman
4
Mr. Maltese and the other Council members discussed their options with the Executive
Director and the Deputy Attorney General. The discussions concluded with Mr. Maltese
calling for a second motion to not disclose the address information contained in the
summonses. A motion was made by Mr. Richman and seconded by Mr. Spigner. The
motion was adopted by roll call.
Ayes: Mr. Richman, Ms. Hook, Mr. Spigner
Nays: Ms. Schonyers, Mr. Maltese
Abstain: None
The Council voted unanimously to adopt items “2,” “3” and “4” of said findings and
recommendations. By a majority, the Council voted not to accept the Executive
Directors recommendations in item “1” of said findings and recommendations concerning
the disclosure of the address information and to review its decision in this matter at the
August 12, 2004 public meeting after seeking legal counsel.
Robert Tombs v. Brick Township Municipal Authorities (2003-123)
Ms. Luzzatto presented the information concerning the case as set forth in the “Findings
and Recommendations of the Executive Director” and indicated that through all the
information submitted by the parties, it was unclear why the requested geographical
information system could not be provided in digital format and could not be redacted to
eliminate any domestic security risk. Additionally, it was unclear from the information
provided by the parties as to what documents were being sought. She reviewed the
Executive Director’s recommendations that the Council find that:
1.
The record in this complaint is unclear concerning precisely what documents
are being sought.
2.
The record in this complaint is also unclear regarding why the digitally
formatted material cannot be redacted to eliminate domestic security risk(s).
3. The case should be referred to the Office of Administrative Law (OAL) for a
hearing to determine:
a.
What documents are being sought by the Complainant.
b.
What documents are maintained by the Brick Township Municipal
Utilities Authority and would be responsive to the Complainant’s
request.
c. The Description of topographical mapping data on the GIS disc.
5
d.
Any other information the OAL considers pertinent in determining
whether the information sought is disclosable.
e.
Whether copies of the Geographical Information System disc can be
reproduced in redacted form.
f. Whether a digital copy of the Brick Township Municipal Utilities
Authorities (BTMUA) GIS topographical mapping data, as requested,
is or is not disclosable, in whole or in part, pursuant to the Open Public
Records Act (OPRA) and the domestic security exemption in
Executive Order No. 21(1)(a).
g.
The expense(s) the BTMUA would have to incur to satisfy the
Complainant’s request if the BTMUA is found to have disclosable
government records that are responsive to said request.
Mr. Maltese commented that although timeliness was not raised as an issue in the cases, a
response to the request was not provided within the statutory time frame and should be
noted on the Matrix.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations. A
motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
John M. Ward v. Village of Ridgewood (2003-132)
The Executive Director respectfully recommended that the council dismiss the case
because the parties reached a settlement of the case during mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
6
John M. Ward v. Village of Ridgewood (2003-133)
The Executive Director respectfully recommended that the council dismiss the case
because the parties reached a settlement of the case during mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Gerald Weimer v. Middletown Township Clerk (2004-22)
Mr. Dice reviewed the case stating that it was initially heard at the May 13, 2004 public
meeting and the Council voted to elicit additional information from the Custodian
concerning why the information at issue was not disclosable.
The Case Manager, Ms. Mallon, reviewed the details of the case and the Executive
Director’s recommendations as set forth in the findings and recommendations of said
case.
Mr. Richman suggested that a statement to be added to the final decision to disclose the
records with appropriate redactions.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written with the suggested addition. A motion was made by Mr. Spigner and seconded by
Mr. Richman. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Larry Loigman v. Department of Treasury (2004-45)
Ms. Luzzatto reviewed the case details as set forth in the Executive Directors findings
and recommendations and presented the Executive Director’s recommendations that the
Council dismiss the case on the basis of:
1. The documents, which contain personal medical information, are exempt from
disclosure pursuant to the Open Public Records Act (OPRA).
7
2. The Custodian violated N.J.S.A.47: 1A-5(g) by not providing the complainant with
the specific basis for its denial of access in response to the request on February
18, 2004. While the basis of the denial was provided on April 6, 2004, it should have
been provided in the February 18, 2004 response pursuant to N.J.S.A. 47: 1A-5(g).
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Ms. Schonyers, Mr. Richman, Mr.. Maltese
Nays:
None
Abstain:
None
Not in Attendance:
Mr. Spigner
Karen Leibel v. Manalapan/Englistown Regional Schools (2004-52)
Mr. Dice stated that the case involved requests for a series of reports and adjustment
records regarding buses and bus drivers from the Manalapan/Englishtown Regional
School Board. The Case Manager, Ms. Mallon, reviewed the details of the case as set
forth in the Executive Director’s findings and recommendations and the Executive
Director’s conclusions and recommendations to the Council.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Hook. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Not in Attendance:
Ms. Schonyers
Barbara Schwarz v. Department of Correction (2004-61)
Ms. Luzzatto reviewed the details of the Executive Director’s findings and
recommendations of the case that involved a request for records of specific identified
individuals and the Church of Scientology. She indicated that the request was denied on
the basis that no records existed with respect to the individual’s cited in the request and
there was no information on the Church of Scientology. She indicated further that the
custodian’s certification explained the process used in conducting the records search.
8
The Executive Director recommended that the Council dismiss the case on the basis of
the custodian’s certification the Department of Corrections had no records responsive to
the request.
Mr. Maltese suggested that the Executive Director’s recommendation should be amended
to read all available records were provided existent to the request.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
amended. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Robert Campbell v. Township of South Harrison (2004-62)
Mr. Dice reviewed the details of the Executive Director’s findings and recommendations
of the case, stating that the Council ordered in the June 10, 2004 meeting for the
custodian to provide a certification explaining in detail what records were provided and
that which was not provided, and to explain the reason no written response was given to
the Complainant. Mr. Dice reviewed the information submitted by the Custodian in
response to the Council’s June 10, 2004 Interim Decision and recommended that the
Council dismiss the case.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations “1”
through “4” and review recommendation “5” at the August meeting. A motion was made
by Mr. Spigner and seconded by Ms. Schonyers to accept the Executive Director’s
recommendations as amended. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Roger Harvey v. Division of State Police (2004-65)
Mr. Dice indicated that this case involved any and all records and document relating to an
arrest of a specified individual. The Case Manager, Ms. Gardner, explained the details of
the case that were found in the Executive Director’s Findings and Recommendations. She
presented the Executive Director’s recommendation to the Council to dismiss the
complaint because the records requested were criminal investigatory records and not
disclosable pursuant to the Open Public Records Act.
9
Mr. Dice and Ms. Gardner noted a change to the findings and recommendations on page
“2” under the “Analysis” to reflect N.J.S.A. 47:1A-9A.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
amended. A motion was made by Ms Schonyers and seconded by Ms. Hook. The motion
was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Jeffrey Sauter v. Township of Clots Neck (2004-68)
Mr. Dice stated that the Complainant and the Custodian voluntarily signed Agreements to
Mediate and recommended that the Council and GRC staff forego adjudicatory action
pending the outcome of mediation.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner . The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman
Nays:
None
Abstain:
Mr. Maltese
William Heffron v. City of South Amboy (2004-69)
Mr. Dice stated that t he Complainant and the Custodian voluntarily signed Agreements
to Mediate and recommended that the Council and GRC staff forego adjudicatory action
pending the outcome of mediation
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Ms. Schonyers, Mr. Richman
Nays:
None
Abstain:
Mr. Maltese
10
There was no New Business. Mr. Maltese opened the meeting for public comment.
Hearing none, Mr. Maltese called for a motion to adjourn. The motion was adopted by
consensus.
The meeting adjourned at 12:15PM
Respectfully submitted,
/s/Virginia Hook, Secretary
Dated: September 9, 2004
11
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
August 12, 2004
The meeting was called to order at 9:1 5AM in the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Absent:
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education.)
Mr. Maltese read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Mr. Richman. All members present unanimously
approved the motion. The Council met in closed session from 9:20AM to 10:15AM.
The Council reconvened in open session at 10:30AM in room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Bernard Spigner,
Charles Richman (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Absent:
Diane Schonyers, (designee of Commissioner William Librera,
Department of Education.)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Deputy Attorney General Karen Dumars, GRC Attorney
Advisor David Zipin, Staff Associates Marion Davies, Chris
Malloy, Erin Mallon, Kimberly Gardner.
Mr. Maltese asked for the Executive Director’s report on personnel. Mr. Dice announced
the resignation of Mr. Anthony Carabelli from the position of case manager and
introduced Ms. Marion Davies as a new case manager. A replacement for Mr. Carabelli is
being recruited. Mr. Dice states that an offer of employment has been tendered to a
gentleman, whose name is being withheld at this time, for general counsel and we are
awaiting a response and negotiations regarding the offer.
1
Mr. Maltese called for a motion to accept the Closed Session Meeting Minutes from the May
13, 2004 meeting as written. A motion was made by Mr. Richman and seconded by Ms.
Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, and Mr. Maltese
Nays:
None
Abstain:
Mr. Richman
Mr. Maltese called for a motion to accept the Open Public Meeting Minutes for the May
13, 2004 meeting as written. A motion was made by Mr. Dice and seconded by Ms. Hook.
The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, and Mr. Maltese
Nays:
None
Abstain:
Mr. Richman
Mr. Maltese called for a motion to accept the Closed Session Meeting Minutes from the
June 10, 2004 meeting as written. A motion was made by Mr. Spigner and seconded by
Mr. Richman. The motion was adopted by roll call:
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, and Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese called for a motion to accept the Open Public Meeting Minutes for the June
10, 2004 meeting as written. A motion was made by Mr. Richman and seconded by Ms.
Hook. The motion was adopted by roll call:
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, and Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese called for the report of the Executive Director, Mr. Dice. Mr. Dice presented
the following Executive Director’s monthly report: Current status of complaints: a total of
2
52 scheduled, twenty-four cases for the August Council meeting, twenty-four cases
scheduled for the September meeting; four for the October meeting, six cases on appeal; six
cases in the Office of Administrative Law; fifteen cases in mediation; eleven cases were
work in progress. There is a monthly influx 15 complaints, 25 in July, and an average of 95
inquiries.
Mr. Dice also mentioned an article from the Daily Journal regarding a proposed ordinance
in the City of Vineland for a flat rate for special service charges.
DeBiasse vs. Madison Borough (2003-91)
Mr. Dice reviewed the case stating it had been heard at the April 26, 2004 meeting where
the Council directed the staff to intervene due to misunderstanding between the parties.
Intervention by phone consultation with both parties was successful and the Complainant
withdrew the complaint.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis of the Complainant’s withdrawn complaint.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion was
adopted by roll call.
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese proposed a single vote dismissing all cases that have been withdrawn or sent
to mediation. This will allow more cases to be heard at each meeting.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation that
the following cases be dismissed as withdraws: Kushner v. Borough of Riverdale (2004-4),
Schmidt v. Borough of Rumson (2004-47), Biss v. Sussex County Regional Transportation
Cooperative (2004-90), Rembis v. Clifton Board of Education (2004-97). A motion was
made by Ms. Hook and seconded by Mr. Spigner. The motion was adopted by roll call.
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese called for a motion to accept the Executive Director’s recommendation that
the following cases be dismissed for mediation: Exantus v. Department of Health, Newark
3
(2004-86), Giuditta v. Township of West Orange (2004-88), McGee v. Township of East
Amwell (2004-89), Russonmano v. Division of Motor Vehicle Commission (2004-92),
Grant v. Montville Township Board of Education (2004-97), McBride v. Teaneck
Township (2004-101). A motion was made by Mr. Spigner and seconded by Ms. Hook.
The motion was adopted by roll call.
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
Mr. Maltese (relating to 2004-86 and 2004-97)
Merino v. Borough of Ho-Ho-Kus
Mr. Dice presented a final decision prepared by Deputy Attorney General Andrea
Grundfest as the Council requested at the July 8, 2004 meeting. At Mr. Dice’s request Mr.
Maltese recapped the details of the vote of the Council from it’s July 8, 2004 meeting
where the Council employed the seven-part test adopted by the courts to determine the
disclosability of the names of individuals on a traffic summons. The Council voted three to
two that the names should not be disclosed due to the concern that disclosure might result
in unsolicited contact by the requestor to the individuals named in those summons. At that
time counsel was instructed to prepare a narrative for inclusion in the recommendation and
final decision, regarding the use of the seven-part test in this case. Mr. Dice presented the
aforementioned narrative to the Council.
Mr. Maltese called for a motion to incorporate the narrative as presented into the Executive
Director’s Findings and Recommendations and Final Decision. A motion was made by Mr.
Spigner and seconded by Ms. Hook. The motion was adopted by roll call.
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Ann Kozar v. Township of Woodbridge (2004-54)
Mr. Malloy presented the details of the case involving the Complainant’s request for a site
plan, an attachment to a resolution and a Certificate of Occupancy to which she did not
receive a written response. The Custodian contends that the Complainant was not denied
access and that all records responsive to the request were released to the Complainant. The
Complainant was given a verbal reply to her request for records. The Custodian certified
that the Complainant received all records responsive to the request.
4
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis of the Certification of the Custodian that all records responsive to the request had
been released to the Complainant.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Hook and seconded by Mr.
Spigner. The motion was adopted by roll call.
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Campbell v. Township of South Harrison (2004-62)
Ms. Mallon reviewed the case indicating it was a continuation of discussion from the July
8, 2004 meeting where the Council voted unanimously to adopt items 1-4 of the July 2,
2004 Executive Director’s Supplemental Findings and Recommendations. At that time the
Council wanted to consider further information submitted by the Complainant on July 2
2004 prior to closing the case. In the new information submitted by the Complainant it was
at issue that not all of the budget information requested was received from the Custodian
and the Custodian did not respond in a timely manner. The Custodian certified that the
Complainant received all available documents responsive to the request. Based on 1-3 of
the Executive Director’s Findings and Recommendations the case should be dismissed. Mr.
Maltese requested that the Custodian be placed on the matrix of violations.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that the Complainant received all documents responsive to the request.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written and add the custodian to the Matrix. A motion was made by Ms. Hook and
seconded by Mr. Spigner. The motion was adopted by roll call.
Ayes:
Mr. Richman, Ms. Hook, Mr. Spigner, Mr. Maltese
Nays:
None
Abstain:
None
Drillman v. Bayonne Police (2004-64)
Mr. Maltese recused himself and left the room leaving Mr. Spigner to officiate over the
meeting. Ms. Luzzatto stated that this case involves a Denial of Access to an investigation
5
report. The Custodian stated that the document is not releasable as it was part of an ongoing
criminal investigation and was in regard to a minor.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that the Custodian has met the burden of proving that the requested records were a
criminal investigatory record and are not disclosable per N.J.S.A. 47:1A-1.1.
Mr. Spigner called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Hook. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman
Nays:
None
Abstain:
None
Dabney Carter v. New Jersey State Parole Board (2004-66)
Mr. Maltese returned to the meeting. Ms. Mallon presented to the Council that the
Complainant in this case was requesting information related to a parole deliberation and
hearing however there is no evidence that he made an OPRA request. The Custodian states
that there was no OPRA request received however they did make mention of an
administrative request submitted to the parole board for the information, which was
released to the Complainant. These administrative requests had no bearing on the issue at
hand as they were submitted outside of the time period of the Complainant’s alleged OPRA
request. Additional information was received from the Complainant on August 12, 2004
and was taken into consideration.
Mr. Maltese wished to make it clear that every written request for a government document
is an OPRA request and should be treated as such.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that there is no evidence that an OPRA request was filed and the Complainant did
received requested records.
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
amended to include the Complainant’s additional information received on August 12, 2004.
A motion was made by Mr. Spigner and seconded by Ms. Hook. The motion was adopted
by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
6
Abstain: None
Diamond v. Camden County Prosecutor (2004-71)
Mr. Malloy stated that this case involved a Denial of Access to a letter written to Atlantic
City government officials regarding the legality of needle exchange programs in general.
The Custodian’s counsel asserted that the document was pre-decisional and was exempt
from disclosure under advisory, consultative and deliberative material.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that the document requested is advisory, consultative and deliberative material and
therefore exempt from disclosure.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion was
adopted by roll call.
Ayes:
Ms. Hook, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
Mr. Spigner
Smith v. Department of Corrections (2004-72)
Ms. Mallon stated that this case involved an April 20, 2004 request for a list of attendees at
the 24th Annual Conference on Public Sector Law Relations, a list of those state employees
who attended and whether they attended in pay status or on their own time. The
Complainant received 5 memos responsive to his request regarding 5 separate employees
acknowledging their attendance in UN (union business) status. The Complainant did not
feel that this information fully responded to his request. The Custodian certified that the
Department of Corrections would not know what other state employees left work that day for
the conference. The Conference was not hosted by the State or the Department of Corrections.
The Complainant stated that he submitted a request on April 19 also, however the Custodian
did not receive the request and the Complainant does not have proof of the written request.
The Custodian did not respond to the request until May 5, 2004 notifying the Complainant
of the cost for copies. Mr. Maltese asked that this Custodian be placed on the Matrix for
timeliness.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that all records responsive to the request have been released to the Complainant.
7
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
amended to place the Custodian on the Matrix for timeliness. A motion was made by Ms.
Hook and seconded by Mr. Spigner. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Santos v. The New Jersey State Parole Board (2004-74)
Ms. Mallon stated that this case involved a Complainant’s June 6, 2004 request for parole
eligibility information. The Complainant alleged that there was no response to his request
however there is evidence that the Custodian sent a response on June 16, 2004 advising the
Complainant of the copy costs and received no response therefore the documents were not
disclosed.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that the Custodian responded to the Complainant but did not receive the copy cost and
was therefore not required to disclose the records requested.
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
as written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Burlett v. Monmouth County Board of Freeholders (2004-75)
Mr. Malloy stated that this case involved a request for an audiotape from a Freeholder
meeting. The Complainant was informed via fax that the tape could not be released to her.
The Custodian’s counsel stated that the audiotape was not made available because they are
not legally required to tape record any freeholders meeting and the tape only serves as a
means to create a verbatim transcript of the meeting in a timely manner. The transcript was
provided to the Complainant who alleges that the transcript is not verbatim and that she
wished to receive a copy of the tape. The Custodian’s counsel had not declared any
exemptions under the law to support the withholding of this record.
It was the Executive Director’s recommendation that the Council order the disclosure of the
audiotapes with appropriate redactions pursuant to N.J.S.A. 47:1A-1 et. seq.
8
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
with an amendment imposing a deadline of 10 days to comply. A motion was made by Mr.
Richman and seconded by Ms. Hook. The motion was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Jason Smith v. The State Police (2004-76)
Ms. Gardner stated in her summary of the case that the request set forth in the
Complainant’s Denial of Access complaint was unclear. Furthermore, the Complainant had
not provided written documentation of his request for records and therefore the Council
staff was unable to determine what, if any, request for records had been submitted as a
written request. The Custodian certified that after doing a complete and thorough search of
their records they find no written request of any kind from the Complainant. After
requesting verification of the request from the Complainant and receiving no response it
has been determined that based on available evidence there was no written OPRA request
made.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis that there was no written OPRA request made and therefore the Council lacks
jurisdiction in this matter.
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
as written. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
DeWarren Hines v. New Jersey Department of Corrections (2004-81)
Ms. Gardner stated that the Complainant is requesting records from an adjudication of an
institutional correction from April 1979. The Custodian responded to the Complainant and
in the statement of information certifies that the records requested have been destroyed in
accordance with the Department of Corrections retention schedule and are therefore no
longer maintained and kept on file.
9
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis of the Custodian’s certification that states the records responsive to the request no
longer exist pursuant to the retention schedule of the Department of Corrections.
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
as written. A motion was made by Ms. Hook and seconded by Mr. Richman. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Burlett v. Monmouth County Sheriff’s Office (2004-85)
Ms. Gardner stated that this case concerns an issue of timeliness. The Complainant did not
feel that her request for 10 separate documents was in a timely manner. The Custodian
asserts that he made numerous attempts to contact the Complainant via telephone but was
unsuccessful in reaching her; leaving messages with coworkers. The Custodian did respond
to the request within 7 days requiring an extension of time to compile the records sought
however he did not provide the specific reason for the extension. Upon completion of the
extensive work required to fulfill the request the Complainant received all documents
requested on July 8, 2004.
It was the Executive Director’s recommendation that the Council dismiss the case on the
basis of the Custodian’s certification that states that attempts were made to contact the
Complainant within 7 days and there is no evidence of a knowing and willful violation of
N.J.S.A. 47: 1A-5(i).
Mr. Maltese called for a motion to adopt the entirety of said findings and recommendations
as written. A motion was made by Ms. Hook and seconded by Mr. Spigner. The motion
was adopted by roll call.
Ayes:
Ms. Hook, Mr. Spigner, Mr. Richman, Mr. Maltese
Nays:
None
Abstain:
None
Public Comment:
There were no public comments. Mr. Maltese called for a motion to adjourn and by a
consensus the meeting was adjourned at 12:30 PM..
Respectfully submitted,
10
Virginia Hook, Secretary
Dated:
1/13/05
11
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
September 9, 2004
The meeting was called to order at 9:15AM in the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Charles Richman (designee of
Commissioner Susan Bass Levin, Department of Community Affairs),
Absent:
Bernard Spigner, and Diane Schonyers, (designee of Commissioner
William Librera, Department of Education.)
Mr. Maltese read a resolution to convene in closed session to receive legal advice concerning the
complaints to be adjudicated that day. Ms. Hook moved to adopt the resolution that was second
by Mr. Richman. All members present unanimously approved the motion. The Council met in
closed session from 9:15AM to 10:30AM. The Council reconvened in open session at 10:45AM
in room 129 of the Department of Community Affairs, Trenton, New Jersey. The Open Public
Meeting Act statement was read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Virginia Hook, Charles Richman (designee of
Commissioner Susan Bass Levin, Department of Community Affairs).
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Deputy Attorney General Debra Allen, GRC Attorney Advisor
David Zipin, Staff Associates Christopher Malloy, Marion Davies, Erin
Mallon, and Kimberly Gardner.
Mr. Maltese asked for the Executive Director’s report on personnel. The Executive Director
Dice stated an offer was made for the Case Management position; however, no start date had
been set. Also an advertisement has been placed in the New Jersey Law Journal as well as an ad
on the New Jersey League of Municipalities website to recruit independent counsel.
Mr. Maltese called for a motion to accept the Closed Session Meeting Minutes from the July 8,
2004 meeting as written. A motion was made by Mr. Richman, and second by Ms. Hook. The
motion was adopted by roll call:
Ayes:
Mr. Richman, Ms. Hook, and Mr. Maltese
Nays:
None
Government Records Council Public Meeting Minutes – September 9, 2004 1
Abstain:
None
Mr. Maltese called for a motion to accept the Open Public Meeting Minutes for the July 8, 2004
meeting as written. A motion was made by Ms. Hook and second by Mr. Richman. The motion
was adopted by roll call:
Ayes:
Mr. Richman, Ms. Hook, and Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese stated that he would need to recuse himself from a several cases listed on the agenda,
which would mean the Council would not have a quorum. Therefore, the following cases were
adjourned until the next meeting: Hugh Sharkey v. Borough of Oceanport (2004-67), and Smith v.
Department of Corrections (2004-790. Mr. Maltese also stated that the Martin O’Shea v. West
Milford Township Board of Education case would not be heard because additional documentation
was received from both the Complainant and Custodian of Records, and it is of importance that the
council members review the correspondence and then discuss the case at the next meeting.
Mr. Maltese stated for the record that the Council would do a single motion on cases with similar
dispositions. The following cases should be dismissed because the complaints were settled in
mediation: Jeffrey Matfus v. Rivervale Board of Education (2003-50),
Jeffrey Matfus v. Rivervale Board of Education (2003-60),
Lois Lebbing v. Middlesex County Department of Planning (2004-27),
Kate Burlett v. Monmouth County Board of Freeholders (2004-75), and
Richard Rivera v. Town of West New York (2004-77). A motion was made by Ms. Hook to
dismiss the named cases for the reason stated, and second by Mr. Richman. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
Mr. Maltese noted that there was a group of cases withdraw by the complainants, which are:
Antoine Hayes v. New Jersey State Parole Board (2004-84), Joseph Renna v. County of Union
(2004-102), and Joseph Bernardell v. Moorestown Township (2004-117). A motion was made to
dismiss the cases for the reason stated by Ms. Hook, and second by Mr. Richman. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Government Records Council Public Meeting Minutes – September 9, 2004 2
Abstain:
None
Mr. Maltese noted for the record the third category of cases were moved into mediation at the
request of the parties, which are the following cases: David Herron v. Township of Montclair
(2004-115), Amy Hollenbeck v. Somers Point Police Department (2004-116),
Barbara Schwarz v. Department of Law and Public Safety (2004-121),
Barbara Schwarz v. New Jersey State Library (2004-123), and
Barbara Schwarz v. Department of Commerce (2004-124).
Mr. Maltese called for a motion to hold the cases in abeyance pending the outcome of mediation.
A motion was made by Ms. Hook, and second by Mr. Richman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
The next order of business on the agenda was to review the following cases:
Thomas Toth v. Ewing Township (2004-21)
Ms. Gardner stated that this case was heard at the Government Records Council Meeting on April
8th. At that time, the case was going to mediation. The case was not settled in mediation;
therefore, the case is before the Council today.
The Complainant requested access to the financial documents submitted by the Mayor to township
Council at the 02/23/04 agenda meeting, supporting the early retirement proposal. He does not
want individual identifying information, but seeks aggregate data that provides estimated savings,
costs, and other aggregate information. The Complainant does not believe that the information he
requested is “inter-agency or intra-agency advisory, consultative, or deliberative material.”
During the mediation process, the Township provided the Complainant with copies of redacted
documents responsive to his request on April 15, 2004, with redactions of employee vacation and
sick time and the analyses performed to estimate the annualized impact of various potential early
retirement situations.
It was the Executive Director’s recommendation that the Council dismiss on the basis that the
requested documents could not be released in whole or in part to the Complaint pursuant to OPRA.
Mr. Maltese called for a motion that the staff determine if the agenda meeting was a public
meeting, if so, the document(s) requested be released to the requester within ten (10) days of
receipt of the order, and a final determination will be made at the next meeting. A motion was
made by Ms. Hook, and second by Mr. Richman. The motion was adopted by roll call:
Government Records Council Public Meeting Minutes – September 9, 2004 3
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
Gerald Weimer v. Township of Middletown (2004-22)
Ms. Mallon stated that this case was before the Council at the July 8th, 2004 public meeting. At
that time the Council ordered a number of actions to be executed by the Custodian, primarily a
disclosure of records responsive to the request with appropriate redactions, and in the findings and
supplemental findings and recommendations of the case as outlined.
In response to the Council’s final decision on July 15th , 2004, all parties were informed that all
orders by the Council were to be completed within ten (10) days from receipt of the decision, and a
written confirmation transmitted to the Government Records Council (GRC) staff that the ordered
actions were completed. On August 10, 2004, the Complainant received a letter from the
Custodian’s counsel informing the Complainant that by fulfilling the request as ordered a special
service charge would apply. As to date the Complainant has not received the requested documents
and the Custodian has not complied with the Council’s final decision.
It was the Executive Director’s recommendation that the Council refer the case to the Office of
Administrative Law (OAL) for a hearing to determine whether or not the Custodian’s non
compliance with the Council’s order was effectively resulting in a denial of access to the requested
documents as well as a knowing and willful violation under the totality of the circumstances under
the Open Public Records Act (OPRA).
Mr. Maltese called for a motion to send the matter to OAL for a determination of a knowing and
willful violation and a referral back to the Council as to whether there should be a penalty. A
motion was made by Ms. Hook, and second by Mr. Richman. The motion was adopted by roll
call:
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
Karen Leibel v. Manalapan Englishtown Regional Board of Education (2004-50 & 2004-53)
Ms. Mallon stated that the Complainant made an OPRA request on Complaint No. 2004-53 on
April 2, 2004 seeking various items regarding the transportation facility as outlined in items one
through nine (1-9). The Complainant alleged that the Custodian did not disclose all the records
in response to her request. The Custodian denied items one through three, six, eight, and nine (13, 6, 8, and 9) because the requests were too broad in scope. Regarding items four and five (4
and 5), the Custodian denied access to the Complainant’s request because it was not applicable to
Government Records Council Public Meeting Minutes – September 9, 2004 4
the repair facility and no records were kept on file in response to that portion of the request. Item
seven (7) was released to the Complainant, however, she argues that the record was not given out
at the meeting on January 21, 2004, and was not in response to her request.
In Complainant No. 2004-50, the Custodian asked for clarification and resubmission of the
OPRA request for the items that were too broad on April 12, 2004, however, the Custodian never
received any clarification for requested items.
It was the Executive Director’s recommendation that the Council find that the Custodian did not
knowingly and willfully violate OPRA by seeking clarification of above mentioned items,
therefore, Government Records Council (GRC) asked the Council to give the Custodian seven
business days to respond to the request that were too broad, and to notify the Executive Director
upon completion.
Mr. Maltese called for a motion to focus on the Custodian's response being proper. A motion
was made by Ms. Hook, and second by Mr. Richman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
Karen Leibel v. Manalapan Englishtown Regional Board of Education (2004-51)
Ms. Mallon stated that the Complainant filed a Denial of Access Complaint on April 26, 2004,
alleging that the Custodian did not disclose all bills pertaining to the running of the bus garage and
transportation office as well as all documents pertaining to the maintenance and state inspection of
each bus. The Custodian responded to the request on April 2, 2004, and disclosed two documents
pertaining to the certificate of occupancy for the bus repair facility, and the construction cost for
the bus garage. On April 2, 2004 the Custodian upon clarification and resubmission of the request
also denied the other four requests. The Complainant must be more specific including a bus
number, or range of dates in order for the Custodian to fill the request.
It was the Executive Director’s recommendation that the Council dismiss the case on the basis that
the Custodian was proper in denying access to said records because he has met the burden of proof
that clarification is needed to fulfill the request, which the Complainant failed to resubmit request for
items in question.
Mr. Maltese called for a motion to accept the recommendation to dismiss. A motion was made by
Mr. Richman, and second by Ms. Hook. The motion was adopted by roll call:
Ayes:
Mr. Richman, Ms. Hook, and Mr. Maltese
Nays:
None
Government Records Council Public Meeting Minutes – September 9, 2004 5
Abstain:
None
John Paff v. City of Perth Amboy (2004-58)
Ms. Gardner presented that the Complainant submitted a request to the Custodian for several
items, and in response to his request were four issues in his complaint to the Government Records
Council (GRC). The first issue of the Complainant’s request was the Custodian failed to provide
the records in the medium he requested. The second issue was the Custodian improperly denied
him closed session meeting minutes. The third was the December 8, 2003 meeting minutes were
not included with the release information, and the fourth issue was the Custodian’s dilatoriness in
releasing the records five (5) weeks after the Complainant’s request.
The Custodian did release the records to the Complainant in paper form as kept on file by the City
of Perth Amboy. The denial of access to the closed session meeting minutes was not rel eased
because the Complainant did not specify the information he sought. The December 8, 2003
meeting minutes were released to the Complainant on June 23, 2004, and lastly there was ongoing
communication between the Custodian and Complainant in regard to the clarification and cost of
the records.
It was the Executive Director’s recommendation that the Council find that the Custodian needed to
explain the reason the records could not be converted and the cost for the conversion pursuant to
the Open Public Records Act N.J.S.A. 47:1A-1 et. seq. Also the Custodian should have release
any and all information pertaining to the closed session meeting minutes with the appropriate
redactions pursuant to N.J.S.A. 47:1A-1.1 et. seq. The issue for the December 8, 2003 meeting
minutes should be dismissed because the Custodian did provide the records to the Complainant.
Finally, the Custodian was not knowingly and willfully in violation of OPRA under the totality of
circumstances for failure to fully explain the fee charge for the copies requested by the
Complainant.
Mr. Maltese called for a motion to order the Custodian to convert records from paper form to
electronic if the Complainant still wants it. A motion was made by Ms. Hook, and second by Mr.
Richman. The motion was adopted by roll call:
Ayes:
Ms. Hook, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
Josef Wodeslavsky v. City of Englewood (2004-70)
Ms. Davies stated that the Complainant made his initial request for records to the City of
Englewood on June 1, 2004. The request went to the Construction Official Zoning Officer, who
acknowledges receipt of the request after his return from vacation on June 17, 2004, however, the
Custodian did not send out any information to the Complainant until June 22, 2004. Aft er no
response to the Complainant’s request, he filed a Denial of Access Complaint with the
Government Records Council Public Meeting Minutes – September 9, 2004 6
Government Records Council (GRC) on June 10, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. The
Complainant acknowledges that he received some records from the Custodian, but had not
received all the information requested in his original request.
In a letter dated August 24, 2004, the Complainant accused the Custodian of hiding and fabricating
documents, however, there was no evidence to support the allegation against the Custodian.
Therefore, the Complainant’s allegation of the fabrication of documents could not be addressed as
this issue was outside of the Council’s jurisdiction pursuant to N.J.S.A. 47: 1A-7(b).
It is the Executive Director’s recommendation that the Council should refer the case to the Office of
Administrative Law to determine if the Custodian and/or the personnel of the City of
Englewood knowingly and willfully violated OPRA by providing untimely responses, and
unexplained and staggered document submissions to the Complainant.
Mr. Maltese called for a motion to accept the recommendation as written. A motion was made by
Ms. Hook, and second by Mr. Richman. The motion was adopted by roll call:
Ayes:
Ms. Hooks, Mr. Richman, and Mr. Maltese
Nays:
None
Abstain:
None
Josef Wodeslavsky v. New Jersey Administrative Office of the Courts (2004-91)
Ms. Davies stated that the Complainant filed a Denial of Access Complaint with the Government
Records Council (GRC) on July 13, 2004 alleging a denial of access to information about the
courts Automated Case Management System (ACMS), the fees collected by the courts on
complaints, motions, answers with counter claims, and information on court personnel being able
to make changes at their discretion. The Complainant received a response on July 12, 2004, but
was not satisfied with the response from the Custodian. The Custodian denied the Complainant
access to view a demonstration of the ACMS pursuant to Court Rule 1:38.
It is the Executive Director’s recommendation that the Council dismiss the case because the GRC
does not have jurisdiction to regulate the Administrative Office of the Courts’ (AOC) process.
Therefore, the GRC lacks jurisdiction in this matter pursuant to OPRA.
Mr. Maltese called for a motion to accept the recommendation because the GRC lacked
jurisdiction. A motion was made by Mr. Richman, and second by Ms. Hook. The motion was
adopted by roll call:
Ayes:
Mr. Richman, Ms. Hooks, and Mr. Maltese
Nays:
None
Abstain: None
Government Records Council Public Meeting Minutes – September 9, 20047
Mr. Maltese opened the meeting for public comment. Having no public comments, Mr. Maltese
called for a motion to adjourn.
A motion was made by Ms. Hook, and second by Mr. Richman. The motion was passed by
consensus. The meeting was adjourned at 12:00 pm.
Respectfully submitted
/s/Virginia Hook, Secretary
Dated: 1-13/05
Government Records Council Public Meeting Minutes – September 9, 2004 8
MINUTES OF THE GOVERNMENT RECORDS COUNCIL
October 14, 2004
The meeting was called to order at 9:00 AM in the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Vice Chairman Bernard Spigner, Secretary Virginia Hook,
Kimberly Ricketts (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Absent:
Chairman Vincent Maltese, Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Also present: Deputy Attorney General Karen DuMars, GRC Counsel Advisor, David
Zipin, Executive Director Paul Dice and Assistant Executive Director Gloria Luzzatto,
Staff Case Managers, Marion Davies, Erin Mallon, Chris Malloy and Kimberly Gardner.
Mr. Spigner read a resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Ms. Ricketts. All members present unanimously
approved the motion. The Council met in closed session from 9:10AM to 10:15AM.
The Council reconvened in open session at 10:30AM in room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meeting Act statement was
read and attendees recited the Pledge of Allegiance.
Ms. Luzzatto called the roll:
Present:
Virginia Hook, Bernard Spigner, Kimberly Ricketts (designee of
Commissioner Susan Bass Levin, Department of Community
Affairs)
Absent:
Chairman Vincent Maltese, Diane Schonyers, (designee of
Commissioner William Librera, Department of Education.)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Deputy Attorney General Karen Dumars, GRC Attorney
Advisor David Zipin, Staff Associates Marion Davies, Chris
Malloy, Erin Mallon, Kimberly Gardner.
Fred Burnett v. Bergen County Clerk (2004-6)
Mr. Dice presented this case as one in which the complainant sought counsel licensed in
the state of California to represent him. Counsel for Bergen County raises this issue.
1
It was the Executive Director’s recommendation that the Council send notice to the
Complainant advising him that he must either work through a licensed NJ attorney or file a
motion to counsel for pro hoc vice.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Toth v. Ewing Township (2004-21)
Mr. Dice recommended that this case be rescheduled to allow for the appropriate procedure
to be formulated for the in-camera proceedings.
Wilcox v. Township of West Caldwell (2004-28)
Mr. Dice states that there are a number of issues under consideration in this request. The
initial request was for information and not a valid OPRA request. Then a valid OPRA
request was submitted and while the Complainant alleges otherwise a timely response was
given to the Complainant. There was a question of the redaction of the name and address of
a citizen who contacted the Township of West Caldwell to inform them of a possible
zoning violation. It is this name and address being requested. After adopting the balancing
test it was determined that the redactions were valid based on the fact that the release of
this information may lead to confrontation. There was also no statement on the Township’s
adopted request form regarding the right to appeal a denial of access. It is not statutorily
mandated that a form be used however they must adopt procedures that are in compliance
with the Act.
It was the Executive Director’s recommendation that the Council order that the Township
include on it’s OPRA request form a statement of the requestor’s right of appeal a denial of
access and dismiss the remainder of the complaint on the basis that the August 15, 2002
request for information is not a valid OPRA request, the Township responded to the
September 5, 2002 request on September 12, 2004, the Complainant received records
responsive to his request, the Township properly redacted the name and address from the
record based on a balancing test, and there is no evidence of a knowing and willful
withholding of documents; the Custodian properly responded to the request.
2
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Leibel v. Manalapan Englishtown Regional Board of Education (2004-50, 2004-53)
Ms. Mallon states that this was a Supplemental Findings and Recommendations following
the Council’s September 9, 2004 decision to accept the Executive Director’s Findings and
Recommendations with amendments. The Complainant has not been given documents
responsive to Item 7 on the Interim Decision, as she has not provided the proper
clarification needed to fulfill her request.
It was the Executive Director’s recommendation that the Council dismiss this complaint on
the basis that the Custodian has complied with the Council’s Interim Order of September 9,
2004 and responded to the complainant’s April 12, 2004 request for items A-C at issue.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Ricketts and seconded by Ms. Hook. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Paff v. City of Perth Amboy (2004-58)
Ms. Gardner states that this was a Supplemental Findings and Recommendations following
the Council’s September 9, 2004 decision ordering the Custodian to contact the
Complainant regarding the cost of the conversion of requested documents. The Custodian
did so and the Complainant responded in writing that he was not interested in receiving the
converted version of the records as he had already received a paper copy.
It was the Executive Director’s recommendation that the Council dismiss this complaint on
the basis that the Custodian has complied with the Council’s Interim Order of September 9,
2004.
3
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Hillenbrand v. NJ Board of Social Worker Examiners (2004-63)
Mr. Malloy stated that the Complainant requested documents in writing on two occasions
and received no response to his requests. The Custodian certifies that there is no record
responsive to the Complainant’s request for a “list of people and agencies/organizations
receiving 12/1/0 1 ‘Amended Verified Complaint’”. The Custodian states that the requests
for records were considered informal and therefore they did not offer a specific written
response to the Complainant, essentially denying access. They did give a verbal response
and followed up in writing but did not give a specific basis for the denial. This denial of
access is not deemed a knowing and willful violation under the totality of the
circumstances, as the Custodian did not believe the requests were, in fact, OPRA requests.
It was the Executive Director’s recommendation that the Council dismiss this complaint on
the basis that there were no records responsive to the requests and there is not a knowing
and willful violation of the law under the totality of the circumstances as the Custodian
considered the requests to be informal.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Sharkey v. Borough of Oceanport (2004-67)
Mr. Malloy states this is a request for information in an electronic format. The Custodian
states that the requested records are not available electronically but had offered the
Complainant the requested documents in the format in which they are maintained. The
Chief Financial officer stated that she did not know how to transfer the files to electronic
format but had in the past requested the assistance of the Borough Technician to configure
the information into and Excel spreadsheet. The Borough attorney had advised that the
records supplied in paper format met the requirements for OPRA. The Deputy Clerks
4
actions do not rise to a knowing and willful violation of the law as the records were given
to the Complainant in the paper format.
It was the Executive Director’s recommendation that the Council find the Custodian should
disclose the records in the requested format, informing the Complainant of the cost
involved in converting the document.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written with amendments stipulating the Custodian respond to the Complainant within 10days of receipt of the final decision sending notification to the Executive Director within
the same period of time. The motion was adopted by roll call:
Ayes:
Nays:
Abstain:
Ms. Hook, Ms. Ricketts, Mr. Spigner
None
None
Fallstick v. Haddon Township (2004-73)
Mr. Dice states that this case involves the Haddon Township Business Partnership Inc., and
Haddon Township. The following is at issue: was there a valid OPRA request made, was
access granted to the records or a specific reason for denial provided to the Complainant, is
Haddon Township Business Partnership Inc. considered a public agency and was Haddon
Township responsible for responding to OPRA requests on behalf of Haddon Township
Business Partnership Inc.? There were two OPRA requests made and the Custodian
certified that their office received these requests however; the records were not released
because there were no records responsive to the request. This reason was conveyed to the
Complainant verbally on the dates of the requests. As Township Ordinance #1082 created
the Haddon Township Business Partnership Inc. it should therefore be considered a public
agency operating separate from the Township itself, resulting in Haddon Township
Business Partnership Inc. being responsible for its own OPRA requests.
It was the Executive Director’s recommendation that the Council find that the February
13th and May 5th requests were valid OPRA requests and the township violated OPRA by
not providing a written response to these two requests. The Haddon Township Business
Partnership Inc. is a public agency however the requests to Haddon Township do not
constitute a valid OPRA request for this agency because they were a request for a transfer
of documentation to another public agency and therefore this complaint should be
dismissed with an intervention held with the parties to clear up any confusion.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written with amendments stipulating that and intervention will be held with the parties in
an attempt to resolve the request. A motion was made by Ms. Ricketts and seconded by Ms.
Hook. The motion was adopted by roll call:
5
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Bent v. Stafford Township (2004-78)
Ms. Mallon explained that this case involved a denial of access due to no response from the
records custodian to a May 3, 2004 request. The Complainant argues that the Custodian
withheld the records without providing any explanation. The Custodian states that there
was no written OPRA request filed by the Complainant on May 3rd but rather a request for
interpretations and opinions. There was an OPRA request then filed on March 23rd and a
response was provided on March 30 and the complainant was given all records responsive
to the request.
It was the Executive Director’s recommendation that the Council find that the May 3rd
correspondence to the Custodian was not an OPRA request and therefore the complaint
should be dismissed.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Jeffery Smith v. Department of Corrections (2004-79)
Mr. Malloy stated that this case involved a June 7, 2004 request for information on the
acquisition of trigger locking devices in the NJ Department of Corrections. The
complainant was then asked to clarify his request, as it was too broad. The Complainant
clarified the request on July 26 seeking a paper trail of the acquisition of weapon trigger
locking devices. The custodian responded to this request on August 13, 2004 stating that
while there is correspondence regarding the information he is requesting which he may
have the trigger locking devices were never actually acquired.
It was the Executive Director’s recommendation that the Council dismiss the complaint on
the basis that the Custodian has made available all records responsive to the June 7 request.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
6
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Douglas Mertrud v. Byram Township (2004-80)
Ms. Luzzatto stated that this was a request for copies of complaints filed on the municipal
court of the Township of Byram. The Custodian’s position is that the municipal court is a
judicial branch and the judicial records access is governed by court rules and not by OPRA.
Pursuant to N.J.S.A. 47:1A-7(g) the Government Records Council does not have
jurisdiction in this case.
It was the Executive Director’s recommendation that the Council dismiss the complaint on
the basis that the Government Records Council does not have jurisdiction in this case.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
Abstain:
None
Martin O’Shea v. Township of West Milford (2004-87)
Ms. Gardner stated that in this case the tort claim requested by the Complainant was
provided to him and the memos, letters, e-mails and other records that in anyway relate to
the tort claim are not disclosable pursuant to N.J.S.A. 47:1A-9. Therefore, the case should
be dismissed.
It was the Executive Director’s recommendation that the Council dismiss the complaint on
the basis that the Complainant has received all disclosable records responsive to the
request.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Hook and seconded by Ms. Ricketts. The motion was
adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
7
Abstain: None
Martin O’Shea v. West Milford Board of Education (2004-93)
Mr. Dice presented this case as involving access to a resolution and handwritten notes. The
Custodian states that the resolution requested was incorporated into meeting minutes
released to the Complainant. The handwritten notes, which the Custodian contends are
advisory, consultative and deliberative, do not appear from their defense to be privileged
information. No general nature description of the document has been offered.
It was the Executive Director’s recommendation that the Council order disclosure of the
handwritten notes from the June 22, 2004 closed session meeting with appropriate
redactions and that there is not a knowing and willful violation of the act.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
written with an amendment stipulating a response within 10 business days. A motion was
made by Ms. Hook and seconded by Ms. Ricketts. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts
Nays:
Mr. Spigner
Abstain:
None
Cynthia Colella-Gallenthin v. Borough of Merchantville (2004-95)
Ms. Luzzatto presented the issue at hand in this case as being a lack of response to the
Complainant regarding her OPRA request. There was some verbal communication at the
time the request was made, on June 10, 2004 but there was no follow up response by the
Custodian until the Denial of Access complaint was filed in July and the records were
released. The documents requested should have been provided immediately under N.J.S.A.
47: 1A-5(e).
The Executive Director amended the findings and recommendations after closed session to
recommend that a hearing be held by the Government Records Council to determine if this
is a knowing and willful violation of the OPRA.
Mr. Spigner called for a motion to accept the Executive Director’s recommendations as
amended stipulating that a hearing will be held by the Government Records Council to
determine if there is a knowing and willful violation of the law. A motion was made by Ms.
Ricketts and seconded by Ms. Hook. The motion was adopted by roll call:
Ayes:
Ms. Hook, Ms. Ricketts, Mr. Spigner
Nays:
None
8
Abstain: None
Ms. Ricketts had to excuse herself due to prior engagements. Those cases that remained on
the agenda were moved to the November meeting due to lack of a quorum
After a brief recess personnel matters were discussed.
The Executive Director, Paul Dice stated that a new case manager, Colleen McGann would
be starting on Monday replacing Anthony Carrabelli. Marion Davies will remain case
manager. Recruitment would be continuing in regard to independent legal counsel.
The Executive Director stated that there were 67 total cases scheduled for adjudication, 25
in November and 14 in December. 8 cases are on appeal, 8 cases at the Office of
Administrative Law, and 17 cases considered work in progress. In reference to inquiries; 95
were logged for August, 76 for September and 15 for October.
There was a minor problem in posting the agenda on the website however copies were
forwarded to the Trenton Times and the Star-Ledger.
During public comment Hugh Sharkey spoke and commended Chris Malloy on his work on
Mr. Sharkey’s OPRA complaint. He stated that he believed the 7 months that it took to
resolve his case the Oceanport taxpayers suffered. He feels that the records were
intentionally withheld by the Borough of Oceanport and questioned the number of cases the
Council has found a knowing and willful violations. Mr. Dice explained that there were
several cases at the Office of Administrative Law for a determination of a knowing and
willful violations. Mr. Sharkey also questioned the use of outreach. Mr. Spigner explained
that a knowing and willful violation carries a high threshold and the Government Records
Council staff has employed on-going outreach to instruct Custodians in the OPRA.
Meeting was adjourned at 12:30.
Respectfully submitted,
Virginia Hook, Secretary
Dated:
February 10, 2005
9
Minutes of the Government Records Council
November 9, 2004 Public Meeting - Open Session
The meeting was called to order at 9:00 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Chairman Vincent Maltese, Secretary Virginia Hook, Diane Schonyers (designee
of Commissioner William Librera, Department of Education)
Absent:
Bernard Spigner, Kimberly Ricketts (designnee of Commissioner Susan Bass
Levin, Department of Community Affairs)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria Luzzatto, Case
Managers Chris Malloy, Kimberly Gardner, Erin Knoedler, Marion Davies and Colleen
McGann, Deputy Attorney General Andrea Grundfest, Staff Advisor David Zipin
Mr. Maltese read the resolution to convene in closed session to receive legal advice concerning
the complaints to be adjudicated that day. Ms. Hook moved to adopt the resolution that was
seconded by Ms. Schonyers. All members present approved the motion. The Council met in
closed session from 9:05 a.m. to 10:45 a.m.
The Council reconvened in open session at 10:55 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was read
and attendees recited the Pledge of Allegiance.
Mr. Maltese asked Mr. Dice to review personnel matters. Mr. Dice discussed the addition of a
case manager to replace the resignation of a case manager several months earlier.
Mr. Maltese deferred the approval of the minutes to the end of the meeting to handle an
administrative matter concerning the GRC Complaint Toth v. Ewing Township, 2004-21. Mr.
Maltese reviewed the procedure for the “in camera” review of documents in said case that would
take place in closed session following the discussion of the other cases on the agenda. Mr.
Maltese received the documents in question from the Ewing Township Custodian Etta
Kimbrough, which were presented to Executive Director Paul Dice in a sealed envelope. The
Township’s Counsel Maeve Cannon informed the Council that the envelope contained a
certification from the Custodian as to the documents contained in the envelope and an index of
said documents.
GRC Minutes of Public Session – November 9, 2004
1
Mr. Maltese noted the following cases were settled in mediation:
1. Fred Burnett v. Mercer County, 2004-20
2. Andrew Bilarczyk v. Pine HIll Board of Education, 2004-56
3. William Heffron v. City of South Amboy, 2004-69
4. Examplaire Exantus v. Newark City of Department of Health, 2004-86
5. Cynthia McBride v. Teaneck, 2004-10 1
6. Da vi d He r ro n v . To wns hi p o f Mo nt cl ai r , 2 00 4 - 11 5
7. Amy Hollenbeck v. Somers Point Police Department, 2004-116
Mr. Maltese called for a motion to dismiss the cases on the basis of the settlements reached in
mediation. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Mr. Maltese noted the following cases were voluntarily withdrawn:
1.
2.
3.
4.
5.
6.
Cynthia McBride v. Middletown Township, 2004-104
Cynthia McBride v. Florham Park Tax Collector's Office, 2004-126
Harry Coleman v. NJ Department of Transportation, 2004-132
Josef Wodeslavsky v. City of Englewood, 2004-133
Karen Dubuske v. NJ Turnpike Authority, 2004-143
Harriet Rubenstein v. NJ Health Care Facilities Financing Authority, 2004-159 –
Mr. Maltese called for a motion to dismiss the cases on the basis the complaints were voluntarily
withdrawn. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion
was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Mr. Maltese stated that the following cases would be postponed until the December meeting:






White v. William Paterson University (2003-80)
Sharkey v. Borough of Oceanport (2004-67)
Gallenthin v. Borough of Merchantville (2004-95)
Kohlman v. East Orange (2004-99)
Gallenthin v. County of Gloucester (2004-106)
Cuba v. Essex County Superior Court (2004-131)
Christopher White v. William Paterson University (2003-109)
GRC Minutes of Public Session – November 9, 2004
2
Ms. McGann reviewed the background information of the case set forth in the Executive
Director’s November 1, 2004 Findings and Recommendations. Ms. McGann informed the
Council that the requested certification from the Custodian was received November 9, 2004 and
sufficiently addresses the remaining issues in the case. Ms. McGann requested that the Council
consider the recommendation of the Executive Director in light of the November 9, 2004
certification and find that the case be dismissed on the following basis:
1.
The Custodian certified that the requested records pertaining to the July 25, 2004 OPRA
request were non-existent.
2.
The Council should find that items 3, 4 and 5 of the complaint should be dismissed for
the purposes of this complaint. They are not subject of GRC Case 2003-109 and are
addressed in GRC Case 2003-113.
3. The staff has reviewed the Supplement to the Denial of Access and has determined that,
based on the Custodian’s August 7, 2003 response to the OPRA request, access to the
requested records has not been denied. There is no further action required by the
Council.
The Council members discussed the Custodian’s November 9, 2004 submission. Mr. Maltese
then called for a motion to accept the amended findings and recommendations of the Executive
Director. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was
passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Christopher White v. William Paterson University (2003-113)
Ms. McGann reviewed the background information of the case set forth in the Executive
Director’s November 1, 2004 Findings and Recommendations. Ms. McGann also reviewed the
November 8, 2004 certification from the Records Custodian, Marc Schaeffer, explaining that all
available records responsive to the OPRA requests were provided to the Complainant and
requested that the Council consider the Executive Director’s recommendations in light of
November 8, 2004 certification and amended the recommendations to reflect same. Ms. McGann
reviewed the amended recommendations to dismiss the case on the basis of:
1.
The Custodian’s certification that there are no separate records of witness statements
responsive to the request.
2.
The Custodian’s certification that there are no records responsive to the request for
“record request document from Complainant’s disciplinary file.”
GRC Minutes of Public Session – November 9, 2004
3
3.
The request for the “restriction list” was properly withheld pursuant to the Federal
Educational Rights and Privacy Act (FERPA), specifically, 20 U.S.C.A. 1232g and is
not abrogated by the Open Public Records Act (“OPRA”) pursuant to
N.J.S.A. 47:1A-9
4.
The Custodian violated N.J.S.A. 47: 1A-5(g) by requiring the Complainant to use the
University’s request form. However, the Custodian’s actions did not rise to the level
of a knowing and willful violation of OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the amended findings and recommendations of the
Executive Director. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Janon Fisher v. NJ Department of Law & Public Safety, Division of Law (2004-55)
Mr. Dice noted that Deputy Attorney General Andrea Grundfest recused herself from
representation for the Council and that Booker, Rabinowitz, Trenk, Lubetkin, Tully, DePasquale
and Webster is representing Council in this case. Mr. Dice reviewed the background information
of the case set forth in the November 3, 2004 Findings and Recommendations of the Executive
Director. The Council members discussed the recommendations and suggested the following
amendments to the “Conclusions and Recommendations of the Executive Director:” in number
“1” items “a” and “j” be combined, add “level, rate and number” to item “e” and change number
“2” to read: “Provide the Government Records Council with a certification outlining the
following.”
Mr. Maltese called for a motion to accept the findings and recommendations of the Executive
Director as amended. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Janon Fisher v. NJ Department of Law & Public Safety, Division of Law (2004-82)
Mr. Dice noted that Deputy Attorney General Andrea Grundfest recused herself from
representation for the Council and that Booker, Rabinowitz, Trenk, Lubetkin, Tully, DePasquale
and Webster is representing Council in this case. Ms. Luzzatto reviewed the background
information of the case set forth in the November 3, 2004 Findings and Recommendations of the
Executive Director. Mr. Maltese suggested that the recommendations be amended to order
disclosure within 15 days from receipt of the Council’s decision unless the Council is presented
with a Vaughn Index explaining the basis for the redactions. The Council members concurred.
GRC Minutes of Public Session – November 9, 2004
4
Mr. Maltese called for a motion to accept the findings and recommendations of the Executive
Director as amended. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Martin O’Shea v. West Milford Township Board of Education (2004-93)
Ms. Luzzatto reviewed the case and the November 2, 2004 submissions from the Custodian and
the Custodian’s counsel to the Government Records Council advising that a “Notice of Appeal”
was filed to the Appellate Division in the this case and the Custodian’s request for a Stay of the
Council’s ruling in the October 14, 2004 Interim Decision. Ms. Luzzatto reviewed the Executive
Director’s recommendation to grant the requested Stay. Council suggested that the
recommendation be amended to grant the Stay on the basis that the Public Agency is diligent in
processing their Appeal.
Mr. Maltese called for a motion to:
1. Grant the Custodian Counsel’s request for a Stay of the Council’s ruling in number “2” of
the Council’s October 14, 2004 interim decision on the basis the Public Agency filed a
“Notice of Appeal” in Superior Court on November 2, 2004 and the Public Agency is
diligent in processing their Appeal.
2. Dismiss number “1” of the Council’s October 14, 2004 interim decision on the basis of
the Custodian’s certification that the entirety of the requested resolution was contained in
the June 22, 2004 Board Minutes which the Complainant received on July 9, 2004 and the
Custodian complied with said determination.
The motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was passed on
roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese Nays:
None
William Osterman v. City of Trenton (2004-96)
William Osterman v. Trenton Police Department (2004-107
GRC Minutes of Public Session – November 9, 2004
5
Ms. Gardner reviewed the background information of both cases set forth in the November 1,
2004 Executive Director’s Findings and Recommendations. The Council discussed conducting a
hearing on whether a knowing and willful violation exists in the case and suggested a tentative
date for January 2005. Mr. Maltese called for a motion to accept the Executive Director’s
Findings and Recommendations in #1 and #2 and amend the recommendations to include that
the Council will conduct a hearing in January 2005 for a determination of whether a knowing
and willful violation exists pursuant to OPRA under the totality of the circumstances, and the
basis for the denial of access to the following records request as addressed in the complaints:
a) Statistical Data
b) Personnel Transfers
c) Case #2004-107 in its entirety
The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was passed on
roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr.
Maltese Nays: None
Larry Loigman v. Borough of Matawan (2004-98)
Mr. Malloy reviewed the background information of the case set forth in the October 5, 2004
Findings and Recommendations of the Executive Director. Mr. Maltese suggested that the
custodian’s response to #3 of the recommendations should be within 10 calendar days from
receipt of the order. Ms. Schonyers noted an administrative correction on page one of the
findings and recommendations to include that the complainant may view, inspect and receive a
copy of said documents. Mr. Maltese called for a motion to accept the Executive Director’s
Findings and Recommendations as amended.
The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was passed on
roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Allison Lassiter v. New Jersey Department of Environmental Protection (2004-100)
Ms. Luzzatto reviewed the background information of the case set forth in the Executive
Director’s November 2, 2004 Findings and Recommendations and the recommendation that the
GRC Minutes of Public Session – November 9, 2004
6
case be referred to the Office of Administrative Law for determination as detailed in said
recommendations. Ms. Schonyers suggested that the recommendations include the additional
determination by the Office of Administrative Law for costs associated to exporting the records
in the requested medium.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as amended. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr.
Maltese Nays: None
Christine Gillespie v. Newark Public Schools ( 2004-105)
Ms. Luzzatto reviewed the background information of the case set forth in the Executive
Director’s October 1, 2004 Findings and Recommendations with the recommendation that the
case be dismissed as all available records responsive to the OPRA requests were provided to the
Complainant and the Council lacks jurisdiction to determine the validity of a record.
Administrative changes were noted on page 3 of said findings and recommendations.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director with the noted administrative changes. The motion was made by Ms. Schonyers and
seconded by Ms. Hook. The motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr.
Maltese Nays: None
Christine Cirello v. Department of State (2004-109)
Ms. Davies reviewed the background information of the case set forth in the October 1, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case based on the Complainant having received the requested information.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as written. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese Nays:
None
Ross Kushner v. Township of West Milford (2004-111)
Ms. Gardner reviewed the background information of the case set forth in the November 1, 2004
Findings and Recommendations of the Executive Director. Deputy Attorney Andrea Grundfest
GRC Minutes of Public Session – November 9, 2004
7
added that the Executive Director’s recommendations were based on the specific information in
the case finding that the custodian had not met the burden of proving any factual or legal basis
for requiring any kind of access agreement. The Council, Executive Director and Ms. Gardner
discussed the delay in responding to the request, however, noted that the parties acknowledge
verbal communication.
Ms. Schonyers suggested that the custodian be informed of the OPRA obligation for a written
response to explain any delay in providing access. Ms. Schonyer’s suggested further that the
custodian’s name be placed on the Matrix with a footnote stipulating there was verbal
communication between the parties. Mr. Maltese added that the custodian certify compliance
within ten (10) business days from receipt of the Council’s decision.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as amended. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Larry Loigman v. Middletown Township (2004-112)
Ms. Davies reviewed the background information of the case set forth in the November 1, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis that the requested “Letter of Resignation of Chief
Pollinger” was properly withheld pursuant to N.J.S.A. 47:1A-10. Mr. Maltese asked Deputy
Attorney General Andrea Grundfest for legal clarification of the enumerated provision of OPRA
as it relates to the resignation letter in question. Ms. Grundfest explained that the personnel
exemptions of OPRA contain certain exclusions, such as, the reason for separation from
employment and to the extent the reason for separation is not personal to the individual, the
information may be disclosable. Mr. Maltese suggested that the recommendations be amended
to reflect that the Custodian shall provide access to the requested resignation letter pursuant to
N.J.S.A. 47:1A-10 with appropriate redactions of any personal information that would violate
the individual’s privacy under the Open Public Records Act.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as amended. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Barbara Schwarz v. NJ Department of Health & Senior Services (2004-118)
GRC Minutes of Public Session – November 9, 2004
8
Ms. Davies reviewed the background information of the case set forth in the October 20, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis of the custodian’s certification that there were no records
responsive to the request.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was
passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Barbara Schwarz v. NJ Division of Local Government Services (2004-119)
Ms. Davies reviewed the background information of the case set forth in the October 20, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis of the custodian’s certification that there were no records
responsive to the request.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was
passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Barbara Schwarz v. Department of Community Affairs (2004-120)
Ms. Davies reviewed the background information of the case set forth in the October 20, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis of the custodian’s certification that there were no records
responsive to the request.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Barbara Schwarz v. NJ Department of Law and Public Safety (2004-121)
GRC Minutes of Public Session – November 9, 2004
9
Ms. Davies reviewed the background information of the case set forth in the October 25, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis of the custodian’s certification that there were no records
responsive to the request pertaining to the specific named individuals and the custodian was
proper in withholding a copy of the documents pertaining to the “Church of Scientology”
because the payment of $27.50 was not received from the Complainant. Council suggested
adding the number of pages to item #2 of the recommendations.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as amended. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese Nays:
None
Barbara Schwarz v. NJ Department of Agriculture (2004-122)
Ms. Davies reviewed the background information of the case set forth in the October 20, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis of the custodian’s certification that there were no records
responsive to the request.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr.
Maltese Nays: None
Barbara Schwarz v. NJ Department of Education (2004-125)
Ms. Davies reviewed the background information of the case set forth in the October 20, 2004
Findings and Recommendations of the Executive Director with the recommendation that the
Council dismiss the case on the basis of the custodian’s certification that there were no records
responsive to the request.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
passed on roll call:
GRC Minutes of Public Session – November 9, 2004
10
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Florence Perino v. Borough of Haddon Heights (2004-128)
Mr. Malloy reviewed the background information of the case set forth in the November 2, 2004
Findings and Recommendations of the Executive Director. Mr. Malloy detailed the balancing
test factors and corresponding responses. He noted further that factor “6” in the analysis should
be amended to reflect the deletion of the paragraph after “none” because it was not applicable to
the case and the insertion of “the Complainant wanted the information in order to apologize.”
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as amended. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Joseph Renna v. County of Union (2004-136)
Mr. Malloy reviewed the background information of the case set froth in the November 1, 2004
Findings and Recommendations of the Executive Director. An administrative change was noted
on page “1” of the findings and recommendations that “August 3rd” should be “September 3,
2004” Mr. Maltese expressed concern about the County’s policy limiting conversion of medium
was contrary to the provisions of OPRA and the reasons offered to be disingenuo us. Mr.
Maltese suggested that the Council consider holding a hearing in January 2005 to determine
whether there is a knowing and willful violation of the Act and all Council members concurred.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the Executive
Director as amended. The motion was made by Ms. Schonyers and seconded by Ms. Hook. The
motion was passed on roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
Mr. Maltese asked Mr. Dice for his report and communications. Mr. Dice noted that there were
no communications. He noted that the current listing of outreach presentations appear on the
GRC website. He informed the Council of an outreach intervention conducted by the GRC staff
with Haddon Township and a complainant as directed by the Council in a case heard at the
October meeting.
Mr. Maltese opened the floor for public comments.
GRC Minutes of Public Session – November 9, 2004
11
Anne Barron of Highland Park addressed the Council regarding the Government Records
Council’s process and her denial of access complaint filed in September 2004. She stated that
she did not respond to the offer of mediation and wanted to know the time frame to have her case
heard by the Council. Mr. Dice explained that the cases are heard as expeditiously as possible
once the investigation of the circumstances surrounding the complaint is completed. Ms. Barron
stated that she has been experiencing difficulty in accessing records in Highland Park and asked if
the GRC staff would do a training presentation in Highland Park. Mr. Dice offered to conduct a
specific OPRA presentation and intervention at Highland Park. Ms. Barron asked the
Council’s opinion on what constitutes a government record, where common law impacts OPRA
and whether the complainant is required to search out the specific legal reference. The
Executive Director and Mr. Maltese explained that the Council is guided by the definition of a
government record under OPRA and the presumption of disclosure unless there is an OPRA
exemption or preemption under other laws, regulations, statutes, or executive orders and bring
forth the issues to the Council for determination. Deputy Attorney General Grundfest noted that
the Council’s jurisdiction did not extend to what may be accessible under common law.
Martin O’Shea of West Milford addressed the Council stating that he was concerned with the
handling of his case through the Office of Administrative Law because the case continues to be
rescheduled. He stated that currently the case is scheduled for a telephone conference in March
and he learned at today’s meeting of other cases being heard by the Council in January on the
same issue. Mr. Dice explained that Mr. O’Shea’s case was referred to OAL at a time before the
decision was made to have the Council conduct such hearings. Mr. Dice offered to review his
case to determine whether it fit the type of case the Council is hearing at this juncture.
Janon Fisher addressed the Council regarding his two cases that the Council decided in today’s
meeting and asked for clarification of the Council’s decision. Mr. Dice clarified the Council’s
decision for Mr. Fisher. Mr. Fisher posed questions regarding several other cases decided in the
meeting. Mr. Dice and GRC Counsel addressed his questions.
Mr. Maltese called for a motion to go into closed session for the in-camera review of documents
submitted earlier in the meeting concerning Thomas Toth v. Ewing Township, GRC Complaint
No. 2004-21.
The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was passed on
roll call:
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese
Nays: None
The Council adjourned into closed session at 1:55 p.m. The Council reconvened in open session
at 2:55 p.m.
Thomas Toth v. Ewing Township (2004-21)
GRC Minutes of Public Session – November 9, 2004
12
Mr. Dice stated that pursuant to the provisions of N.J.S.A. 47: 1A-7(c) the Council conducted an
in camera inspection of the records responsive to the request for a determination on access.
Present during the in camera review were:
Council Members:
Vincent Maltese
Virginia Hook
Diane Schonyers
Government Records Council Staff:
Paul Dice, Executive Director
Gloria Luzzatto, Assistant Executive Director
Case Manager, Kimberly Gardner
Deputy Attorney General:
Andrea Grundfest
After completing the in camera inspection the Council made the following determination on
access pertaining to the requested records:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Document C-1a (Memorandum from Township’s Administrator):
Disclose
document in its entirety with the exception of the last two sentences in the second
paragraph.
Document C-1b (Chart of Employees Sick and Vacation Under ERI 2004 For those
who indicated non-retirement and/or an extension in retirement. For Comparison – if
they were to retire):
Redact the names and disclose all other information in the
document
Document C-1c (Chart of Employees Sick and Vacation Under ERI 2004 For those
who indicated non-retirement and/or an extension in retirement. For Comparison – if
they were to reture):
Redact the names and disclose all other information in the
document
Document C- 1 d (Annualized Impact of Early Reitrements, Nonparticipants, 5 Year
Bond Payout):
Disclose the document’s heading and all category descriptions;
redact all dollar figure information
Document C-1e (Annualized Impact of Early Retirements, Nonparticipants, 7 Year
Bond Payout):
Disclose the document’s heading and all category descriptions;
redact all dollar figure information
Document C- 1 f (Annualized Impact of Early Retirements, Nonparticipants, 10 Year
Bond Payout:
Disclose the document’s heading and all category descriptions;
redact all dollar figure information
Document C-1g (Impact of Early Retirement Program): Disclose entire document
Document C-1h (Impact of Early Retirement 15 Bond Payout): Disclose the
document’s heading and all category descriptions; redact all dollar figure information
Document C-1i (Impact of Early Retirement 15 Bond Payout): Disclose the
document’s heading and all category descriptions; redact all dollar figure information
Mr. Maltese called for a motion to accept the Council’s above conclusions from the in-camera
review. The motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was
passed on roll call:
GRC Minutes of Public Session – November 9, 2004
13
Ayes: Ms. Hook, Ms. Schonyers and Mr. Maltese Nays:
None
The approval of Minutes was rescheduled for the December meeting. Mr. Maltese called for a
motion to adjourn the meeting. The motion was made by Ms. Schonyers and seconded by Ms.
Hook. The meeting was adjourned by consensus at 3:00 p.m.
.
Respectfully submitted,
DeAnna Minus-Vincent, Secretary
Dated: April 19, 2005
GRC Minutes of Public Session – November 9, 2004
14
Government Records Council
December 9, 2004 Public Meeting - Open Session
The meeting was called to order at 9:10 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present:
Absent:
Chairman Vincent Maltese, Secretary Virginia Hook, Diane Schonyers (designee
of Commissioner William Librera, Department of Education), DeAnna MinusVincent (designee of Commissioner Susan Bass Levin, Department of
Community Affairs)
Bernard Spigner due to resignation from the Council
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria Luzzatto, Case
Managers Chris Malloy, Kimberly Gardner, Erin Knoedler, Marion Davies and Colleen
McGann, Deputy Attorney General Debra Allen, Staff Advisor David Zipin
Mr. Maltese read the resolution to convene in closed session to receive legal advice concerning
the complaints to be adjudicated that day. Ms. Hook moved to adopt the resolution that was
seconded by Ms. Schonyers. All members present approved the motion. The Council met in
closed session from 9:10 a.m. to 10:25 a.m.
Mr. Maltese called for a motion to reconvene in open session. The motion was made by Ms.
Hook and seconded by Ms. Minus-Vincent.
The Council reconvened in open session at 10:30 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. Mr. Maltese read the Open Public Meetings Act
statement and attendees recited the Pledge of Allegiance.
Mr. Maltese welcomed DeAnna Minus-Vincent to the Council.
Mr. Maltese asked Mr. Dice if he had any personnel matters to discuss. Mr. Dice read Bernard
Spigner’s resignation into the record. The resignation was effective on the date of receipt,
December 9, 2004.
Mr. Maltese explained that Mr. Spigner now works for the New Jersey Sports and Exposition
Authority as the Director of Communications and External Affairs. Mr. Maltese expressed his
sentiment that the Council was losing a good person and that it would now be up to the Governor
to appoint a replacement for the Council.
Mr. Maltese asked for a motion to accept Mr. Spigner’s resignation. The motion was made by
Ms. Schonyers and seconded by Ms. Minus-Vincent. Ms. Luzzatto called the roll:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Ms. Hook, Mr. Maltese.
GRC Minutes of Public Session – December 9, 2004
1
Nays: None
Mr. Maltese asked Mr. Dice to prepare an appropriate acknowledgement for Mr. Spigner’s work
on the Council. Mr. Dice said he would do so.
Mr. Dice reviewed the following GRC outreach efforts.
 Mr. Maltese and Mr. Dice addressed 275 attendees at the NJ League of Municipality’s
annual convention in November 2004. Mr. Dice and Ms. Luzzatto also worked a
consulting table at the convention center.
 Mr. Dice gave a presentation at the Legal Services of New Jersey’s annual convention in
December.
 Mr. Dice attended a NJ Foundation for Open Government board meeting on December 8,
2004.
 Fran Snyder, GRC mediator, and Mr. Dice gave a presentation to the Somerset County
Clerks Association in December. Mr. Dice stated that the audience received the case
review format quite well.
 Mr. Dice said that the intervention in Highland Park that Ms. Ann Baron had requested
had been canceled. It will be re-scheduled.
 Mr. Dice also said that he had scheduled a joint presentation with the Camden County
Prosecutor’s Office for police departments for January 20, 2005.
Mr. Dice said that the GRC is now tailoring training initiatives to specific audiences. He also
said that to date, the Council has performed 25 outreaches and that the training initiative is going
very well. He said he hopes to increase that number in 2005. Mr. Dice has been invited to give
two presentations to the NJ League of Municipalities in May 2005.
Mr. Dice reviewed the open cases breakdown and noted an increase in the number of cases
utilizing mediation.
Mr. Dice noted that a case referred to the Office of Administrative Law was returned for the
Council to conduct the necessary hearing. The case (O’Shea v. Township of West Milford,
2004-17) will be hearing January 2005. He reviewed the current open case statistics as follows:
Scheduled:
Work in progress:
63
12/9/04: 17
1/13/05:
2/10/05:
15
30
16
Mr. Dice stated that the Work in progress cases are generally the newest cases and require
investigation before they are scheduled for Council adjudication.
Mr. Dice gave the following review of inquiries to the Council’s staff:
October – 70
November – 79
GRC Minutes of Public Session – December 9, 2004
2
He explained that these are inquiries from people seeking guidance on OPRA issues.
Mr. Maltese said the approval for the minutes for August, September and October 2004 would be
deferred to the next meeting. They have been transcribed, but now the Council is awaiting
synopses of the transcript.
Mr. Dice interjected that the tapes of those sessions and the transcripts are available should
anyone care to inspect them while the summary work is in progress.
Mr. Maltese then introduced the fourteen (15) cases scheduled for administrative action:
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
Rory Moore v. Township of Old Bridge, 2004-129—Agreement to Mediation
Rory Moore v. Town of Old Bridge, 2004-137—Agreement to Mediation
Rory Moore v. Town of Old Bridge, 2004-140—Agreement to Mediation
Rory Moore v. Town of Old Bridge, 2004-141—Agreement to Mediation
Rory Moore v. Old Bridge Township, 2004-154—Agreement to Mediation
Rory Moore v. Old Bridge Township, 2004-155—Agreement to Mediation
David Drukaroff v. Lakewood Board of Education, 2004-170—Agreement to Mediation
Rory Moore v. Old Bridge Township, 2004-171—Agreement to Mediation
Rory Moore v. Old Bridge Township, 2004-172—Agreement to Mediation
Rory Moored v. Old Bridge Township, 2004-173—Agreement to Mediation
David Weiner v. Passaic County Board of Social Services, 2004-189—Agreement to
Mediation
12) Amy Searfoss v. City of Rahway Planning Board, 2004-164—Agreement to Mediation
13) Leslie Laffan v. Township of Ocean, 2004-156—Complaint withdrawn
14) Michael Lombardi v. Department of Labor, 2004-168—Complaint withdrawn
15) Drukaroff v. Lakewood Board of Education, 2004-170 – Settled in Mediation
Mr. Maltese asked for a motion to accept the referral to mediation for numbers one to twelve.
The motion was made by Ms. Minus-Vincent and seconded by Diane Schonyers. Ms. Luzzatto
called the roll:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Ms. Hook, Mr. Maltese.
Nays: None
Mr. Maltese then asked for an amendment to the above mentioned vote to include the Council’s
acceptance of numbers 13 and 14 as withdrawn and number 15 as settled in mediation. The
motion for the amendment was made by Ms. Minus-Vincent and seconded by Diane Schonyers.
Ms. Luzzatto called the roll:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Ms. Hook, Mr. Maltese.
Nays: None
GRC Minutes of Public Session – December 9, 2004
3
Mr. Maltese then continued with the cases scheduled for adjudication.
Ms. Debra Allen, Deputy Attorney General recused herself for the following two cases:
Janon Fisher v. Department of Law and Public Safety (2004-55)
Janon Fisher v. Division of Law and Public Safety (2004-82)
Janon Fisher v. Department of Law and Public Safety (2004-55)
Mr. Dice presented to the Council all the facts concerning this case with reference to special
service charges. The Executive Director stated that the Department of Law has met their burden
of proving that this request was “extraordinary.” Mr. Dice respectfully disagreed with the fees
charge by the Department of Law for the services provided citing the Courier Post v. Lenape
Regional High School District where the judge stated that if a clerk could do the work a clerk
should do the work and that there was no need for attorney’s to compile this information
The Executive Director recommended the following:
1. The Division of Law has meet the burden of justifying that the OPRA request is
“extraordinary” pursuant to N.J. S.A. 47:1 a-5(c)
2. The Division of Law has not meet the burden of proof justifying the use of attorneys
for document compilation that comprises the assessed special service charge of
$1877.93
3. The Division of Law should fulfill the subject OPRA request and charge Complainant
in accordance with OPRA’S routine copy charges outlined in N.J.S.A. 47:1A-5(b).
Mr. Maltese called for a motion to adopt the Findings and Recommendations of the Executive
Director. A motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was
passed on roll call
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Janon Fisher v. Department of Law and Public Safety (2004-82)
Ms. Luzzatto stated that the case was on follow up from the November 9, 2004 meeting was
similar to the previous case, that concern a request for records and how the fees were arrived at
and any correspondence related to that. The Council decided at the November 9, 2004 meeting
that the Custodian’s Counsel had not meet the burden of showing that the redacted information
fell within the “intra-agency, inter-agency, advisory, consultative or deliberative material” or
attorney-client privilege exemptions. The Council concluded that the documents should be
disclosed without any redactions unless the Division of Law presented a Vaughn Index
explaining the basis for the asserted privileges. The Executive Director received the Vaughn
Index on November 23, 2004 in response to the interim decision. However the Vaughn Index
was too general in nature and lacked specificity.
The Executive Director respectfully recommended the Council find that:
1. The Vaughn Index lacks specificity in justifying the claimed exemptions.
GRC Minutes of Public Session – December 9, 2004
4
2. The Division of Law has not meet the burden of showing that the requested documents
are privileged thereby exempt from disclosure under N.J.S.A. 47:1A-1,et seq.
3. The documents responsive to the April 12, 2004 OPRA request should be disclosed
without redactions.
Mr. Maltese called for a motion to adopt the Findings and Recommendations of the Executive
Director and asked the council to order the custodian to have the information disclosed
immediately. A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion
was passed on roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers. Nays:
None
Barbara Schwarz v. New Jersey Department of Treasury 2004-59
Mr. Malloy presented the case as set forth in the Findings and Recommendations of the
Executive Director stating that the Custodian found no records responsive to the request.
However the Department of Treasury located a payment history file that indicated there were six
different names similar to the Complainant’s. The Complainant declined these records because
they did not concern her.
The Executive Director respectfully recommended that the Council dismiss the case on the basis
of:
1. The Custodian’s statement that no records were found pertaining to Barbara
Schwarz/Barbara Schwartz, Mark C. Rathbun aka Mark De Rothschild, Scientology or
Church of Scientology, L Ron Hubbard, and former President Dwight D. Eisenhower.
2. Ms. Schwarz’s question to the custodian asking them to explain their records system is
not a request for a government record and therefore is not under the jurisdiction of the
Government Records Council.
Mr. Maltese called for a motion to adopt the Findings and Recommendations of the Executive
Director as written.
A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was passed on
roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers. Nays:
None
Larry Loigman v. Borough of Matawan (2004-98)
Mr. Malloy stated that at the November 9, 2004 public meeting, the Government Records
Council (Council) issued the following Interim Decision:
GRC Minutes of Public Session – December 9, 2004
5
1. The Custodian is in violation of N.J.S.A. 47:1A-5(g) in that they did not treat the
Complainant’s list as a valid OPRA request. Although there was a verbal response to
the request, a written response was necessary. However, under the totality of the
circumstances, it does not rise to the level of a knowing and willful violation.
2. Pursuant to N.J.S.A. 47: 1A-5(e) the information requested does not fall under the
immediate access provision in the Act therefore was not required to be available on
demand.
3. Within ten (10) calendar days from receipt of the Council’s decision, the Custodian
shall provide the Complainant with access to view/inspect and receive a copy of the
documents requested.
On December 2, 2004 the Complainant informed the Government Records Council staff by email
that he had received the records, therefore no further GRC action was required.
The Executive Director respectfully recommended that the Council dismiss the case on the basis
that the complainant acknowledged receipt of the records responsive to his request. Mr. Maltese
called for a motion to adopt the Findings and Recommendations of the Executive Director as
written.
A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was passed on
roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Ross Kushner v. Township of West Milford (2004-111)
Ms. Gardner stated that this case was heard at the November 9, 2004 Council meeting. The
Township was ordered to release the requested digital GIS tax maps directly to the Complainant
pursuant to N.J.S.A. 47:1A-1 et seq. without having the Complainant fill out or execute a
“Request For Access to Township GIS Data” form and/or a “Data Distribution Agreement.”
On December 1, 2004 the Complainant sent an e-mail to the Government Records Council staff
stating that he had received the requested information
The Executive Director respectfully recommended that the Council dismiss the case on the basis
Custodian complied with the Council’s November 9, 2004 Interim Decision and the Complainant
acknowledged receipt of the documents responsive to his OPRA request.
Mr. Maltese called for a motion to adopt the Findings and Recommendations of the Executive
Director as written.
A motion was made by Ms. Hook and seconded by Ms. Schonyers. The motion was passed on
GRC Minutes of Public Session – December 9, 2004
6
roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Larry Loigman v. Township of Middletown (2004-112)
Mr. Dice read a late submission letter faxed from the Custodian, which was received the morning
of the Council meeting, December 9, 2004, that contained a December 6, 2004 letter from the
Complainant who asserted that the redactions made to the requested document did not comply
with the Council’s Interim Decision. Since the Custodian and the Complainant were still not in
agreement concerning the document, Mr. Maltese recommended that the Council hold and incamera review of the document at the January GRC meeting, at which time a decision will be
made as to whether or not the document should be disclosed.
Mr. Maltese called for a motion to hold an in-camera review the requested document at which
time a final decision would be made. A motion was made by Ms. Hook and seconded by Ms.
Schonyers. The motion was taken by roll call:
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
David Frizell v. Division of Alcoholic Beverage Control (2004-1 13)
Ms. Gardner reviewed the Findings and Recommendations of the Executive Director in the
instant case. She stated that the Complainant requested for all complaints, reports, letters,
inquires from any person to or from the Alcohol Beverage Control Board (ABC) concerning the
Raritan Yacht Club, in Perth Amboy, New Jersey in the calendar year 2004. She stated that the
Custodian contended that the requested records were exempt from public access pursuant to
other regulations, specifically, N.J.A.C. 13:2-29.2 and OPRA.
The Executive Director respectfully recommended that the Council dismiss the complaint on the
basis that N.J.A.C. 13:29-2.2 superceded OPRA and therefore access to the requested documents
was not permitted pursuant to N.J.S.A. 27: 1A-9(a).
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as written.
A motion was made by Ms Minus-Vincent and seconded by Ms. Hook. The motion was adopted
by roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
GRC Minutes of Public Session – December 9, 2004
7
William Patterson v. Somerdales School District (2004-127)
Ms. Knoedler reviewed the instant case as set forth in Findings and Recommendations of the
Executive Director. She presented the Executive Director’s recommendations to the Council that
the case should be dismissed on the basis of:
1. The Custodian responded to the Complainant’s July 13, 2004 OPRA request on July 14,
2004 notifying the Complainant that the request was in the process of being compiled.
The Custodian, on August 12, 2004, notified the Complainant, in writing, the debt card
transaction records were in the possession of the Prosecutor’s Office and that they were
trying to obtain the records.
2.
The Custodian provided the Complainant with copies of the Bank Statements from July
of 2000 to July of 2002.
3. The Council has no jurisdiction to compel disclosure of the debit card records because the
sole copy of these records are in the possession of an arm of the judicial branch of
government, i.e. the grand jury, to which OPRA does not apply.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Minus-Vincent and seconded by Ms. Hook. The motion was adopted
by roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Clara Halper v. Township of Piscataway (2004-130)
Ms. Gardner reviewed the instant case as set forth in the Findings and Recommendations of the
Executive. Ms. Gardner reviewed the recommendations of the Executive Director. The Council
suggested an amendment to the recommendations for the GRC staff to counsel the Custodian on
their OPRA obligations and to formally appoint an assistant custodian in those occasions when
the custodian is on vacation. The Council voted unanimously to adopt said findings and
recommendations as amended:
1.
While the Custodian violated N.J.S.A. 47: 1A-5(g), N.J.S.A. 47: 1A-5(i) and N.J.S.A.
47:1A-5(e), it does not rise to a level of a knowing a willful violation of OPRA under the
totality of the circumstance.
2.
The Complainant was provided access to all records responsive to her August 5, 2004
OPRA request.
3. The Government Records Council Staff is to counsel the Records Custodian on
timeliness to access of records (N.J.S.A. 47:1A-5i), immediate access issues (N.J.S.A.
47:1A-5e), and the requirement of a written response (N.J.S.A. 47:1A-5g).
GRC Minutes of Public Session – December 9, 2004
8
4. The Township of Piscataway is to formally appoint an Assistant Records Custodian
within 45 calendar days.
Lillian Foster v. NJ Department of Personnel (2004-135)
Ms. Knoedler reviewed the background information set forth in the Findings and
Recommendations of the instant case. She stated that the Complainant in this case was
requesting various certifications from the Department of Personnel and alleged that the
Custodian denied access to some of the requested records, but acknowledged that the Custodian
responded to a portion of her request. Ms. Knoedler stated further that the Custodian responded
verbally when a written response was required. Mr. Maltese recommended that the Custodian
be placed on the Matrix for responding verbally, rather than providing a written response
pursuant to OPRA. Mr. Maltese called for a motion to accept the Executive Director’s
recommendations as amended and to dismiss the case on the basis of:
1. The Custodian responded verbally to the request W10328 when a written response was
required pursuant to N.J.S.A. 47: 1A-5 (g).
2. The Custodian provided an additional certification to the Complainant after the NJDOP
found that it was not included in the records provided to the Complainant for review on
August 17, 2004.
3. The Custodian did not knowingly and willfully violate N.J.S.A. 47:1A et. seq. under the
totality of the circumstances.
4. The Custodian provided access to all available records responsive to the Complainant’s
requests as originally provided to the Custodian.
A motion was made by Ms. Minus-Vincent and seconded by Ms. Hook. The motion was
adopted by roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers. Nays:
None
Michael Deluca v. Town of Guttenberg (2004-139)
Ms. Knoedler reviewed the background information of case set forth in the Findings and
Recommendations of the Executive Director. Mr. Maltese recommended that the Council
postpone rendering a decision in the case until the next GRC meeting for the GRC staff to
determine whether the Custodian’s Counsel is an employee of the Town or retained by the Town
as Counsel. A motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was
adopted by roll call.
Ayes: Mr. Maltese, Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers. Nays:
None
GRC Minutes of Public Session – December 9, 2004
9
Mr. Maltese recused himself from the following case:
Hugh Sharkey v. Borough of Oceanport (2004-67)
Mr. Malloy reviewed the background information of the case as set forth in the October 12, 2004
Supplemental Findings and Recommendations of the Executive Director. Ms. Hook called for a
motion to accept the Executive Director’s recommendation as written. Ms. Schonyers made a
motion to and seconded by Ms. Minus-Vincent. The Council voted unanimously to adopt said
findings and recommendations and to dismiss the case on the basis that the Custodian complied
with the Council’s October 14, 2004 Interim Decision.
The motion was adopted by roll call.
Ayes: Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Recused: Mr. Maltese.
Jay Kohlman v. East Orange (2004-99)
Ms. Gardner reviewed the background information of the case set forth in the Findings and
Recommendations of the Executive Director. She stated that all records responsive to the
request were provided, however, the Custodian failed to provide a written response to the
Complainant indicating when the documents would be released. The Council recommended that
the GRC staff offer the Custodian guidance in its obligations under OPRA and that the Custodian
be placed on the “Matrix.” Ms. Hook called for a motion to accept the Executive Director’s
recommendations with the suggested amendment.
A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The motion was
adopted by roll call.
Ayes: Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Recused: Mr. Maltese.
Cynthia Gallenthin v. County of Gloucester (2004-106)
Mr. Malloy reviewed the background information of the case set forth in the Findings and
Recommendations of the Executive Director. He noted that the Custodian certified that all
records requested that their office had on file were released to the Complainant and the other
documents which the Complainant sought were held by the Gloucester County Improvement
Authority. Several administrative changes were noted for the record. Ms. Hook called for a
motion to accept the Executive Director’s recommendation as amended to:
1. Dismiss the case on the basis that the Custodian certified they made available all records
GRC Minutes of Public Session – December 9, 2004
10
made, maintained, and kept on file in the office of the County of Gloucester.
2. Recommend that the Complainant, if she so chooses, make an OPRA request to the
Gloucester County Improvement Authority for the records she is still seeking.
A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The motion was
adopted by roll call.
Ayes: Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Recused: Mr. Maltese.
Robert Gorman v. Gloucester City (2004-108)
Mr. Malloy reviewed the background information of the case set forth in the Findings and
Recommendations of the Executive Director. He stated that the request concerns multiple police
documents and information. The Council recommended that the Custodian respond to the
Executive Director’s recommendations within 30 calendar days for item 1. and 10 business days
for items 4. and 5. of said recommendations. A motion was made by Ms. Schonyers and
seconded by Ms. Minus-Vincent. The motion was adopted by roll call.
Ayes: Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Recused: Mr. Maltese.
Tina Renna v. County of Union (2004-110)
Mr. Malloy reviewed the background information of the case set forth in the Findings and
Recommendations of the Executive Director. He stated that the Complainant alleged an
untimely response to the OPRA request for bills and bids. He noted that the issue in the case
involved the failure to provide immediate access to certain requested documents and not
providing a written explanation for the delay. The Council requested that this Custodian be
placed on the Matrix because the Custodian provided verbal communication to the Complainant,
rather than a written response. Ms. Hook called for a motion to accept the Executive Director’s
recommendations to dismiss the case with the Council’s suggested amendment.
A motion was made by Ms. Minus-Vincent and seconded by Ms. Schonyers. The motion was
adopted by roll call.
Ayes: Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Recused: Mr. Maltese
GRC Minutes of Public Session – December 9, 2004
11
Prince Cuba v. Essex County Superior Court (2004-131)
Ms. Knoedler reviewed the case set forth in the Findings and Recommendations of the Executive
Director. She noted that the issue in the case is the Council’s authority since the records sought
were held by the Essex county Superior Court. She presented the Executive Director’s
recommendations to the Council to dismiss the case because the Government Records Council
lacked the jurisdiction in this matter pursuant to OPRA. N.J.S.A. 47: 1A-7(g).
Ms. Hook called for a motion to accept the Executive Director’s recommendations as written. A
motion was made by Ms. Minus-Vincent and seconded by Ms. Schonyers. The motion was
adopted by roll call.
Ayes: Ms. Hook, Ms. Minus-Vincent, Ms. Schonyers.
Nays: None
Recused: Mr. Maltese
Mr. Maltese returned to the meeting and opened the meeting to public comment. There were no
public comments and Mr. Maltese called for a motion to adjourn. The motion was made by Ms.
Schonyers and seconded by Ms. Hook. The meeting was adjourned by consensus at 3:00 p.m.
Respectfully Submitted,
/s/ DeAnna Minus-Vincent
Dated: May 12, 2005
GRC Minutes of Public Session – December 9, 2004
12
OPEN SESSION MEETING MINUTES
GOVERNMENT RECORDS COUNCIL
JANUARY 13, 2005
The meeting was called to order at 9:05 a.m. at the Department of Community Affairs,
Room 235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present: Chairman Vincent Maltese, Secretary Virginia Hook, Diane Schonyers
(designee of Commissioner William Librera, Department of Education)
DeAnna Minus-Vincent (designee of Commissioner Susan Bass Levin,
Department of Community Affairs)
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, Case Managers Chris Malloy, Kimberly Gardner, Erin Knoedler, Marion
Davies and Colleen McGann, Deputy Attorney General Debra Allen, Staff Advisor
David Zipin
Mr. Maltese read the resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Ms. Schonyers. All members present approved the
motion. The Council met in closed session from 9:05 a.m. to 10:45 a.m.
The Council reconvened in open session at 10:55 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Maltese called for a motion to reconvene in Open Session. A motion was made by
Ms. Hook and seconded by Ms. Minus-Vincent. The motion was adopted by roll call.
Ayes: Ms. Hook, Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Mr. Maltese stated that this is the reorganization meeting and called for nominations for
election of officers:
Nominations for Secretary:
Ms. Minus-Vincent nominated Ms. Hook for the position of Secretary, Ms. Schonyers
seconded the nomination there were no other nominations. The motion was adopted by a
unanimous vote of the council.
Open Session Minutes – Government Records Council – January 13, 2005
1
Nominations for Office of the Vice-chair:
Ms. Minus-Vincent nominated Ms. Schonyers for the position of Vice-Chair, Ms. Hook
seconded the nomination there were no other nominations. The motion was adopted by a
unanimous vote of the council.
Nominations for Chair of the Council:
Ms. Schonyers nominated Mr. Maltese for the position of the Chair, Ms. Hook seconded
the nomination there were no other nominations. The motion was adopted by a
unanimous vote of the council.
Mr. Maltese asked Mr. Dice to review personnel matters. There were no personnel
matters to discuss.
There was a unanimous approval by the Council to accept the Open and Closed session
minutes for the following meetings: August 12, 2004 Open and Closed minutes,
September 9, 2004 Open and Closed minutes, October 14, 2004 Open and Closed. Mr.
Dice stated that the minutes would be posted on the Website and available to the public
by January 14, 2005.
Mr. Maltese informed the public of the following Administrative Action; No Vote
Needed.
1) Richard Rivera vs. Fairview Police Department (2004-200) Complaint Withdrawn
2) Thomas Masciocchi vs. Middlesex County Prosecutor’s Office (2004-153)
Complaint Withdrawn
3) Kathleen Fallstick vs. Township of Haddon (2004-157) Complaint Withdrawn
4) Richard Bernstein v. Village of Ridgewood (2004-187) Settled in Mediation
Mr. Maltese stated that there is one in camera review Larry Loigman v. The Township of
Middletown and one plenary hearing Martin O’Shea v. Township of West Milford, the
hearing was postponed until the February 10, 2005 due to the illness regarding the
Custodian’s attorney.
Mr. Maltese reviewed the procedure for the “in camera” review of documents in said case
that would take place in closed session following the discussion of the other cases on the
agenda. Mr. Maltese received the documents in question from the Township of West
Milford’s Custodian Heidi Abs, which were presented to Executive Director Paul Dice in a
sealed envelope. The Township’s Counsel Reilly informed the Council that the
envelope contained a certification from the Custodian as to the documents contained in
the envelope and an index of said documents.
Robert Blau vs. Union County Clerk (2003-75)
Mr. Malloy stated that this case was originally referred to the Office of Administrative
Law. On November 12, 2004 the Complainant sent a letter to the Office of
Administrative Law withdrawing the case.
Open Session Minutes – Government Records Council – January 13, 2005
2
The Executive Director recommended the Council find that the case be dismissed based
on the November 12, 2004 letter.
The Council voted unanimously to accept the Executive Director’s recommendation as
written. The motion was made by Ms. Hook and seconded by Ms Minus-Vincent. This
motion passed on roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Darren Nance v. Scotch Plains Township Police Department (2003-125)
Ms. Gardner reviewed the background information of the case set forth in the Executive
Director’s January 10, 2005 Findings and Recomm endations and all related
documentation submitted by the parties. The Council reviewed said Findings and
Recommendations and amended same to incorporate the Division of Law’s supplemental
advisory opinion and summary memo. The Council, therefore, dismissed the case on the
basis of:
1. The Custodian certified that the Disorderly Persons Complaint and the Arrest Report
were released to the Complainant pursuant to N.J.S.A. 47:1A-1 et seq.
2. The remaining requested records in which access was denied are criminal
investigatory records as defined by N.J.S.A. 47:1-1.1 and are, therefore, exempt from
disclosure.
3. Although the Complainant is correct that the applicable criminal statute, N.J.S.A. 2C:24(b), labels disorderly persons offenses as "petty offenses and not crimes," a more
thorough reading of the statute shows that this statutory designation is limited
for the purposes of ensuring a speedy disposition of the charges without indictment or
trial by jury. Therefore, the distinction set forth under N.J. S.A. 2C:2-4(b) does
not mean that disorderly persons offenses cannot be treated as crimes.
Furthermore, the Code of Criminal Justice defines the term "crime" broadly, to
mean "a crime, a disorderly persons offense or a petty disorderly persons offense
unless a particular section in this code is intended to apply to less than all three."
N.J.S.A. 2C:1-14 (General Definitions). Thus, records pertaining to disorderly
persons offenses, including petty offenses, which are not required by law to be made,
maintained or kept on file that is held by a law enforcement agency involving a
criminal investigation are deemed to be "criminal investigatory records," and
are not disclosable, pursuant to OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. The motion was made by Ms. Schonyers and seconded by Ms Minus-Vincent.
This motion passed on roll call:
Open Session Minutes – Government Records Council – January 13, 2005
3
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Fred Burnett v. Bergen County (2004-6)
Mr. Maltese recused himself.
Mr. Malloy reviewed the background information of the case set forth in the Executive
Director’s January 14, 2005 Findings and Recommendations and all related
documentation submitted by the parties.
Ms. Schonyers called for a motion to a amend the Executive Director’s recommendations
to the following:
1.
Accept the Complainant’s California based counsel’s submissions because a New
Jersey based law firm also represents the Complainant.
2.
Refer the case to the Office of Administrative Law to determine the actual and
reasonable direct cost of copying the information in the medium requested,
pursuant to N.J.S.A. 47: 1A-1 et seq.
The motion was made by Ms. Minus-Vincent and seconded by Hook. The motion passed
on roll call:
Ayes:
Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays:
None
Recusals: Mr. Maltese
O’Shea v. Township of West Milford (2004-17)
The Council moved the expedited hearing to February 10, 2005 because of conflicts with
appearances. No further action was taken.
Fisher v. Department of Law and Public Safety (2004-55)
Mr. Dice reviewed the background as stated in his January 6, 2005 Supplemental
Findings and Recommendation of the Executive Director. The Council unanimously
decided that:
The Division of Law’s request for a Stay to assemble the requested documents
and to apply the special service charges is denied.
2. The Council’s December 9, 2004 Interim Decision is reaffirmed; however, a Stay
of the Council’s decision will be granted should the Division of Law file an
appeal to the Appellate Division of the Superior Court of New Jersey on or before
January 28, 2005 and provide evidence of same to the Executive Director.
1.
Open Session Minutes – Government Records Council – January 13, 2005
4
3. The Stay shall be automatically dissolved should the Division of Law not take
action to file an appeal in the time frame provided and, in which case, the
Council’s December 9, 2004 Interim Decision will remain in effect.
The motion was made by Ms. Hook and seconded by Ms. Schonyers. This motion passed
on roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Josef Wodeslavsky v. Englewood City Hall (2004-70)
Ms. Davies reviewed the background information of the case set forth in the December
28, 2004 Supplemental Findings and Recommendation of the Executive Director with the
recommendation that the Council dismiss the case due to the Complainant’s voluntary
withdrawal. Mr. Maltese called for a motion to accept the Executive Director’s
recommendation.
The motion was made by Ms. Hook and seconded by Ms Minus-Vincent. This motion
passed on roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Fisher v. Department of Law and Public Safety (2004-55)
Mr. Dice reviewed the background as stated in his January 6, 2005 Supplemental
Findings and Recommendation of the Executive Director. The Council unanimously
decided that:
1. The Division of Law’s request for an in camera review is denied.
2. The Council’s December 9, 2004 Interim Decision is reaffirmed; however, a Stay
of the Council’s decision will be granted should the Division of Law file an
appeal to the Appellate Division of the Superior Court of New Jersey on or before
January 28, 2005 and provide evidence of same to the Executive Director.
3. The Stay shall be automatically dissolved should the Division of Law not take
action to file an appeal in the time frame provided and, in which case, the
Council’s December 9, 2004 Interim Decision will remain in effect.
The motion was made by Ms. Schonyers and seconded by Ms Minus-Vincent. This
motion passed on roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Open Session Minutes – Government Records Council – January 13, 2005
5
John Paff v. Division of Consumer Affairs (2004-103)
Ms. Knoedler reviewed the background information set for the in January 7, 2004
Findings and Recommendations of the Executive Director and all related documentation
submitted by the parties. The Council reviewed said Findings and Recommendations,
stated that Executive Order 21 take precedent over OPRA. Mr. Maltese called for motion
to accept the Executive Director’s Findings and recommendations as written.
The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
NJ Libertarian Party v. Division of Youth and Family Services (2004-114)
Mr. Malloy reviewed the background information of the case set forth in January 4, 2005
Findings and Recommendations of the Executive Director and all related documentation
submitted by the parties. The Council reviewed and accepted said findings and
recommendations with the amendment that “including all applicable fees” be added to
item #1 of the Executive Director’s conclusions and recommendations and that the
Custodian’s name be listed on the “Matrix.” Mr. Maltese called for a motion to accept
the amended Findings and Recommendations.
The motion was made by Ms. Hook and seconded by Ms Minus-Vncent. The motion was
adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Tina Renna v. County of Union (2004-134)
Ms. Gardner reviewed the background information of the case set forth in the Executive
Director’s January 3, 2005 Findings and Recommendations and all related documentation
submitted by the parties. The Council considered said findings and recommendations
with the amendment that the special service charge of $2,260.00 is modified to $1035.17
on the basis of utilizing thirty-five (35) hours of Clerical time, five (5) hours of
Photographer’s time and three (3) hours of Supervisory time. Mr. Maltese called for a
motion to accept the Executive Director’s recommendation with amendments.
The motion was made by Ms. Minus-Vincent and seconded by Ms. Hook. The motion
was adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Open Session Minutes – Government Records Council – January 13, 2005
6
Michael DeLuca v. Town of Guttenberg (2004-139)
Ms. Knoedler reviewed the background information of the case set forth in the Executive
Director’s January 4, 2005 Findings and Recommendations and all related documentation
submitted by the parties. The Council unanimously agreed to adopt the entirety of said
findings and recommendations with the amendment that the Custodian’s name be listed
on the “Matrix.” Mr. Maltese called for a motion to accept the Executive Director’ s
Finding and Recommendations with amendments.
The motion was made by Ms. Schonyers and seconded by Ms. Hook. The motion was
adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Falto v. Union County Parking Authority (2004-144)
Ms. McGann reviewed the background of this case as stated in the January 7, 2005
Findings and Recommendations of the Executive Director. The Council unanimously
agreed to adopt the entirety of said findings and recommendations finding that:
1. The Custodian failed to prove that records responsive to “1” and “2” of the
“Records Requested” in the findings and recommendations were released to the
Complainant, therefore, the records should be released in accordance with
N.J.S.A. 47:1A-1 et. seq.
2. While the Custodian did not respond to the Complainant’s request in writing there
was verbal communication and the Custodian’s actions do not rise to the level of a
knowing and willful violation of N.J.S.A. 47:1A-5(i) under the totality of the
circumstances.
3.
The requested record in “3” of the “Records Requested” in the findings and
recommendations has been released to the Complainant and this portion of the
complaint should be dismissed.
4.
The Custodian’s name will be listed on the “Matrix.”
5. The Custodian shall comply with “1” directly above within ten (10) business days
from receipt of the Council’s decision and provide confirmation this to the
Executive Director.
The motion was made by Ms. Hook and seconded by Ms. Minus-Vincent. The motion
was adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Open Session Minutes – Government Records Council – January 13, 2005
7
Barron v. Highland Park (2004-145)
Mr. Malloy reviewed the background of this case as stated in the December 21, 2005
Findings and Recommendations of the Executive Director. The Council, therefore,
dismissed the case on the basis of:
1.
There was no written request pursuant to N.J.S.A. 47: 1A-5(g).
2.
The Council does not have jurisdiction to adjudicate a denial of access complaint
when there is no written OPRA request.
The motion was made by Ms. Hook and seconded by Ms. Minus-Vincent. The motion
was adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
The Council decided at 12:15 p.m. to move into closed session to perform an in camera
inspection on the document in question in the Loigman v. Township of Middletown
(2004-112) case.
The Council reconvened the open session at 1:55 p.m.
Loigman v. Township of Middletown (2004-112)
The Council performed an in camera inspection of the March 25, 2004 letter of
resignation from Chief John Pollinger. After completing the in camera review of the unredacted “letter of resignation from Chief Pollinger,” the Council concluded that the
redacted information contained in said letter is neither “inter-agency or intra-agency
advisory, consultative or deliberative material” or otherwise exempt from disclosure
under the Open Public Records Act. N.J.S.A. 47:1A-1, et seq. The Council, therefore,
voted unanimously that the requested document should be disclosed in its entirety and the
case be dismissed following the Custodian providing the Complainant access to the
requested record.
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Mr. Maltese then opened the floor for public comment.
Mr. Martin O’Shea stated his frustration with the hearing in his case having been
postponed because of conflicts with the availability of West Milford personnel. He said
that he has had similar problems with counsel for West Milford – William DeMarco – in
the past.
Open Session Minutes – Government Records Council – January 13, 2005
8
Ms. Tina Renna, in comments relating to the Council’s decision in her case, stated that
citizens should not have to pay $1,000 for public records. She said that that situation
should be changed.
Mr. John Paff stated that he noticed that the Blau and Wodeslavski cases had been
referred to the Office of Administrative Law (OAL) and then voluntarily withdrawn by
the complainants. He said he wonders what happened to those cases while they were at
the OAL.
The meeting was adjourned at 3:00 p.m. The motion was made by Ms. Hook and
seconded by Ms. Minus-Vincent. The motion was adopted by roll call:
Ayes: Mr. Maltese, Ms. Schonyers, Ms. Hook, and Ms. Minus-Vincent.
Nays: None
Respectfully submitted,
DeAnna Minus-Vincent
Secretary
Dated: July 14, 2005
Open Session Minutes – Government Records Council – January 13, 2005
9
Minutes of the Government Records Council
February 10, 2005 Public Meeting
The meeting was called to order at 9:00 a.m at the Department of Community Affairs,
Room 816, Trenton, New Jersey. The Open Public Meeting Act statement was read.
Ms. Luzzatto called the roll:
Present: Chairman, Vincent Maltese; Secretary, Virginia Hook; DeAnna Minus-Vincent
(Designee of Commissioner Susan Bass Levin, Department of Community Affairs);
DeAnna Minus-Vincent; Independent Council, Elnardo Webster; Staff Advisory, David
Zipin; Deputy Attorney General, Debra Allen; Executive Director, Paul F. Dice;
Assistant Executive Director, Gloria Luzzatto; Case Managers: Christopher Malloy,
Kimberly Gardner, Colleen McGann; Erin Knoedler
Absent: Diane Schonyers
Mr. Maltese read the resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. All members present approved the
motion. The Council met in closed session from 9:15 a.m. to 11:15 a.m.
The Council reconvened in open session at 11:30 a.m. in Room 816 of the Department of
Community Affairs, Trenton, NJ. The Open Public Meetings Act statement was read and
attendees recited the Pledge of Allegiance.
Mr. Maltese read the list of cases appearing on the agenda as “Administrative Action
Taken.” He also noted that two cases on the agenda would not be heard at this meeting:
Jose Falto v. Union City Parking Authority (2004-144) and Fred Burnett v. County of
Bergen (2004-6).
Mr. Maltese opened the hearing in the matter of Martin O’Shea v. Township of West
Milford, GRC Complaint No. 2004-17. He stated that a verbatim record of the entire
proceedings is being taken by a court reporter from Guy Renzi and Associates and by
reference will become part of the minutes of the meeting. The parties in attendance for
the hearing were:
Township of West Milford: William DeMarco
Complainant:
Martin O’Shea
Dale Baranoski v. NJ Department of Law and Public Safety, Division of Criminal
Justice (2003-5)
Ms. Luzzatto reviewed the background information of the case set forth in the Executive
Director’s Findings and Recommendations with the recommendation that the Council
dismiss the case on the basis that:
1. As opposed to the previous indices submitted by the DCJ, a review of the
information provided in the January 18, 2005 Vaughn Index is sufficiently
GRC Minutes of Public Meeting – February 10, 2005
1
detailed for the each of the 16 documents listed to conclude that all the documents
listed would be considered privileged and not subject to disclosure.
2. The Council should conclude that the DCJ has met the burden of proving that all
16 documents were properly withheld from disclosure pursuant to OPRA. An “in
camera” review would not be warranted in this matter since the Vaughn Index
provides sufficient information to explain the basis for the claimed privileges of
all 16 documents. An “in camera” review is not warranted or appropriate in
determining the existence of a record.
3. The DCJ did not unreasonably deny access to government records and, therefore,
the custodian’s actions did not rise to the level of a knowing and willful violation
of OPRA under the totality of the circumstances.
Several administrative changes to the findings and recommendations concerning dates
were noted for the record.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Daniel Meaders v. William Paterson University (2004-49)
Ms. Kimberly Gardner reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations with the recommendation that the
Council dismiss the case on the basis that the Custodian and Custodian’s Counsel
certified that the requested records was not an experiential requirement for those
individuals identified in the records request. Therefore, the requested records were
exempt from disclosure pursuant to N.J.S.A. 47:1A-10.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion was made by Ms. Hook and seconded by Ms. MinusVincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Janon Fisher v. Dept. of Law and Public Safety-Div. Of Law (2004-55)
Mr. Paul Dice reviewed the background information of the case set forth in the Executive
Director’s Findings and Recommendations and stated that the Division of Law fully
complied with the Council’s January 21, 2005 Interim Decision in their Request for a
Stay by filing a January 27, 2005 Notice of Appeal with the Appellate Division of
Superior Court. He stated further that based on this action the Council now does not have
GRC Minutes of Public Meeting – February 10, 2005
2
now have jurisdiction in this complaint and should forego any further action pending the
outcome of the appeal.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion was made by Ms. Hook and seconded by Ms. MinusVincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Janon Fisher v. Dept. of Law and Public Safety-Div. Of Law (2004-82)
Mr. Paul Dice reviewed the background information of the case set forth in the Executive
Director’s Findings and Recommendations and stated that the Division of Law fully
complied with the Council’s January 21, 2005 Interim Decision in their Request for a
Stay by filing a January 27, 2005 Notice of Appeal with the Appellate Division of
Superior Court. He stated further that based on this action the Council now does not now
have jurisdiction in this complaint and should forego any further action pending the
outcome of the appeal.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Barbara Schwarz v. Department of Human Services (2004-60)
Ms. Gloria Luzzatto reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations with the recommendation that the
Council dismiss the case because the Custodian’s certifications met the burden of proving
that pursuant to HIPAA and Executive Order 26, paragraph 4 the Custodian’s denial of
access to the requested records was proper and therefore, cannot be abrogated by the
Open Public Records Act. Additionally, the Custodian certified that the Department of
Human Services has no records responsive to the Complainant’s request of the “Church
of Scientology”.
She stated further that the Council should find that the Department of Human Services’
proposed rule does not fall within the category addressed by Executive Order 21.
Therefore, Executive Order 21 provides no justification for the Department of Human
Services to not consider the Complainant’s e-mail as a valid OPRA request. The
Council’s June 10, 2004 decision should stand as written “that the Custodian violated
NJSA 47: 1A-5(g) by not recognizing the Complaint’s e-mail as an OPRA request.
However, the action of the Custodian did not unreasonably deny access under the totality
of the circumstances.
GRC Minutes of Public Meeting – February 10, 2005
3
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion was made by Ms. Hook and seconded by Ms. MinusVincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Barbara Schwarz v. New Jersey Senate Democratic Office (2004-184)
Ms. Gloria Luzzatto reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Mr. Maltese suggested that the
Council consider dismissing the case upon receipt of a legal certification from the
custodian that it has no records responsive to the request. The Council further adopted
that in subsequent requests from Schwarz or other complainant’s where the custodian has
certified that they have no records responsive to an OPRA request the case will be
dismissed and does not need to be voted by the Council to close it but will be shown on
the agenda and reflected in the minutes.
Mr. Maltese suggested further that the custodian submit a certification confirming that
none of the information sought by the Complainant falls under N.J.S.A. 47:1A-47 that the
legislative records shall not apply to otherwise publicly accessible reports which is
required by law to be submitted to the legislature or its members. Upon receipt of the
certification, the Executive Director is authorized to close the case.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Barbara Schwarz v. NJ Office of Legislative Services (2004-185)
Ms. Gloria Luzzatto reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Mr. Maltese suggested that the
custodian submit a certification confirming that none of the information sought by the
Complainant falls under N.J.S.A. 47: 1A-47 that the legislative records shall not apply to
otherwise publicly accessible reports which is required by law to be submitted to the
legislature or its members. Upon receipt of the certification, the Executive Director is
authorized to close the case.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
GRC Minutes of Public Meeting – February 10, 2005
4
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Barbara Schwarz v. NJ Assembly Republican Office (2004-186)
Ms. Gloria Luzzatto reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Mr. Maltese suggested that the
custodian submit a certification confirming that none of the information sought by the
Complainant falls under N.J.S.A. 47: 1A-47 that the legislative records shall not apply to
otherwise publicly accessible reports which is required by law to be submitted to the
legislature or its members. Upon receipt of the certification, the Executive Director is
authorized to close the case.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Prince Cuba v. Northern State Prison (2004-146)
Ms. Colleen McGann reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations with the recommendations that the
Council dismiss the denial of access complaint 1 on the basis of the November 19, 2004
voluntary withdrawal of the request by the Complainant and dismiss the denial of access
complaint 2 on the basis that the Custodian was proper in withholding the release of the
requested record until receiving payment for the copying fee from the Complainant.
Mr. Maltese agreed with the findings of the Executive Director, however, suggested that
the GRC staff discuss the various procedures as it relates to inmates securing public
documents with the Department of Corrections and to insure there is a process in affect
whereby the prisoners are aware of how to go about asking for and paying for
government documents. It was also noted by Mr. Maltese that a copy of the findings and
recommendations be forwarded to the Commissioner along with a copy of the minutes.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Prince Cuba v. Northern State Prison (2004-161)
GRC Minutes of Public Meeting – February 10, 2005
5
Ms. Kimberly Gardner reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations with the recommendations that the
Council dismiss the case since the Custodian provided the Complainant with an
appropriate response explaining that the requested record was non-existent and therefore
could not be released. Ms. Gardner noted that the Custodian responded in a timely
manner.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion was made by Ms. Hoo k and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Al-Ghanee Kamau v. Department of Corrections (2004-175)
Ms. Erin Knoedler reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations with the recommendations that the
Council dismiss the case on the basis that the records requested are not disclosable under
N.J.S.A. 47: 1A-9 pursuant to Executive Order 26 as they are medical records.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The voted passed by a majority:
Ayes:
Ms. Hook, Ms. Minus-Vincent
Nays:
Mr. Maltese
Michael Shasho v. Borough of Ramsey (2004-57)
Ms. Kimberly Gardner reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. She stated that Mr. Shasho
requested all executive minutes of the Mayor and Council for the past 14 months from
the date of his request. Mr. Shasho was given a written response stating that the minutes
could not be released because the governing body had not approved them and anticipated
the minutes would be approved and released by the end of April. He filed his complaint
on April 13, 2004 and the complainant verbally acknowledged that he received the
requested records, but did not feel that he received all records responsive to his request.
Ms. Gardner stated further that the custodian certified all records responsive to the
request were released to the Complainant. She stated that the Executive Director
respectfully recommended that the Council dismiss this case on the basis that the
Custodian certified that the records responsive to this request were released.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion was made by Ms. Hook and seconded by Ms. MinusVincent. The motion was passed on roll call:
GRC Minutes of Public Meeting – February 10, 2005
6
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Jeannie Smith v. New Jersey Sports and Exposition Authority (2004-142)
Mr. Christopher Malloy reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. He stated that Ms. Smith
requested Public spending information, including both capital and operating
expenditures, for payments made by or on behalf of the Giants Stadium at the
Meadowlands during calendar year 2003 or fiscal year 2003-2004. He stated further that
to date there had been no written response from the Custodian to either the Complainant
or the Government Records Council.
He stated that the Executive Director respectfully recommended that the Council find that
the Custodian should disclose the documents responsive to the request, subject to
appropriate redactions, in the medium requested and with special charges, should they
apply, in accordance with N.J.S.A. 47:1A-1 et seq. Additionally, it was the Executive
Director’s recommendation that the Council conduct a hearing to determine if the
Custodian’s lack of response to the OPRA request constituted a denial of access and a
knowing and willful violation of OPRA under the totality of the circumstances.
Mr. Maltese suggested to the Council that the Custodian disclose the documents within
15 business days and that in addition to sending a copy of the Council’s decision to the
Custodian a copy should also be sent to NJSEA Chief Operations Officer and Chief
Executive Officer.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Frank Culmone v. Longport Police Department (2004-147)
William Hewitt v. Longport Police Department (2004-148)
Ms. Erin Knoedler reviewed the background information of the cases set forth in the
Executive Director’s Findings and Recommendations and stated that the Executive
Director respectfully recommended that the Council dismiss these cases based on the
following:
1. The records requested are not disclosable under N.J.S.A. 47:1A-10 as they are
personnel and pension records and the Complainant is not an “individual in
interest” of the records.
2. Although the Custodian was not aware of the request, the Chief of Police, as an
employee of the public agency, has a statutory obligation to forward the request to
GRC Minutes of Public Meeting – February 10, 2005
7
the Custodian so that she could fulfill the request within the statutory time frame
established by OPRA.
3. The issue of a formal grievance being filed does not need to be addressed because
the records are clearly not disclosable pursuant to N.J.S.A. 47:1A-10 as they are
personnel and pension records.
Mr. Maltese suggested that the municipality be placed on the Matrix because an
employee of the municipality did not forward the request Custodian.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director. The motion failed and Mr. Maltese re-phrased the motion to refer the
case to Counsel for further amplification on the opinion concerning “individual in
interest,” and hold any decision in the case until the March 10, 2005 Council’s public
meeting. The motion was made by Ms. Hook and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent, Mr. Maltese
Nays:
None
Luis Perez vs. Borough of Glassboro (2004-149)
Ms. Colleen McGann reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Ms. McGann stated that the
Executive Director respectfully recommended that the complaint be dismiss on the basis
of the Custodian’s certification that the requested records are not made, maintained and
kept on file and are therefore, not government records pursuant to OPRA. Administrative
change was noted in the findings and recommendations to change “September 30, 2005”
to “September 30, 2004.” It was also noted that the Executive D irector’s
recommendation should reflect that the Complainant received all documents.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
.
None
Thomas Seibert v. Readington Twp. ,Hunterdon County (2004-150)
Mr. Paul. F. Dice reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Mr. Dice stated that at issue were
all payment vouchers for Parker McCay and Criscuolo for the years 2002, 2003, 2004 to
date. He stated further that the custodian who is relying on township council is not able
to comply with this request according to their submissions because redactions needed to
GRC Minutes of Public Meeting – February 10, 2005
8
be made. Mr. Dice noted that special counsel for Readington Township informed the
GRC that it was not able to get to the project until March 15, because he is engaged
elsewhere in a court case. Counsel sent the 400 vouchers to the GRC and said that the
Council should do an in camera review to determine what is discloseable and what is not.
I advised Counsel unless he submitted an appropriate “Vaughn Index.” In conclusion,
Mr. Dice respectfully recommended that the Council order the custodian and their
Counsel to provide a proper “Vaughn Index” to the Executive Director within 15
business days from receipt of the Council’s decision.
Mr. Maltese moved to order that the Custodian and their Counsel provide to the Council
no later than February 28, 2005 a “Vaughn Index” with respect to the documents
requested and should they not response by February 28, 2005, the matter will be heard at
the March meeting with a decision rendered based on what the Council has before them
as of that date.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Fallstick v. Haddon Township Business Partnership (2004-158)
Ms. Kimberly Gardner reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. She stated that the Executive
Director respectfully recommends that the case be dismissed on the following basis:
1. The Custodian provided the Complainant with access to the requested records.
2. The Custodian did violate N.J.S.A 47:1A-5(i) by not responding in a timely
manner. However, the Custodian’s actions do not rise to a level of knowing and
willful violation of OPRA under the Totality of the circumstances. The
Custodian should also be placed on the Matrix system.
Mr. Maltese suggested that the Executive Director communicate with the Mayor of
Haddon Township expressing the Councils’ concerns.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
GRC Minutes of Public Meeting – February 10, 2005
9
Tina Renna v. County of Union (2004-162)
Mr. Christopher Malloy reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Mr. Malloy stated that the
Executive Director respectfully recommends that the case be dismissed on the basis of
the following:
1. The Statement of Information as well as the certification from Custodian’s
counsel that the requested records do not exist.
2. The Custodian failed to respond within the statutory time period. However, the
Custodian’s actions should not be found to be a knowing and willful violation of
the OPRA under the totality of the circumstances.
Mr. Maltese recommended that the Custodian be placed on the Matrix.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent/DCA. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Loigman v. Township of Middletown (2004-165)
Ms. Colleen McGann reviewed the background information of the case set forth in the
Executive Director’s Findings and Recommendations. Ms. McGann stated that the
Complainant requested all correspondence relating to the resignation of one Rosa Garcia
Crowley as an employee of Middletown Township, including any correspondence from
or to her; all documents relating to a civil action in Superior Court, Garcia v. Parkinson,
including but not limited to, settlement agreements, releases, confidentiality agreements,
invoices, etc., any minutes of a Township Committee reflecting receipt of or action on
said resignation, and discussions regarding said resignation. She stated further that the
Executive Direction respectfully recommends that the Council dismiss the case on the
basis that all documents that were made, maintained or kept on file in the course of the
Township’s official business and responsive to the request were provided to the
Complainant.
Mr. Maltese suggested having a fact-finding hearing on April 14, 2005 should the parties
not reach an agreement on the information sought in above.
Mr. Maltese called for a motion to accept the Findings and Recommendations of the
Executive Director as amended. The motion was made by Ms. Hook and seconded by
Ms. Minus-Vincent. The motion was passed on roll call:
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
GRC Minutes of Public Meeting – February 10, 2005
10
Mr. Dice had no personnel matters at this time.
Mr. Maltese asked for any comments, revisions, and modifications of the October 14,
2004 meeting. Not hearing any Mr. Maltese entertained the motion to accept the minutes
as prepared all members present approved the motion.
The motion was made by Ms. Minus-Vincent and seconded by Mr. Hook.
Ayes:
Ms. Hook, Ms. Minus-Vincent and Mr. Maltese
Nays:
None
Having discussed all cases listed on the agenda, Mr. Maltese opened the meeting to
public comment.
Martin O’Shea
He discussed the responsible authoritative body to monitor the Open Public Meetings
Act.
The meeting was adjourned by consensus at 2:30 p.m.
Respectfully Submitted,
DeAnna Minus-Vincent, Secretary
Dated:
August 11, 2005
GRC Minutes of Public Meeting – February 10, 2005
11
Minutes of the Government Records Council
March 10, 2005 Public Meeting - Open Session
The meeting was called to order at 9:00 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present: Chairman Vincent Maltese, Diane Schonyers (designee of Commissioner
William Librera, Department of Education), Ms. Minus-Vincent (DCA –
Susan Bass)
Absent:
Ms. Hook, Secretary
Also Present: Executive Director Paul Dice, Assistant Executive Director Gloria Luzzatto,
Case Managers Chris Malloy, Kimberly Gardner, Erin Knoedler, and Colleen McGann,
Deputy Attorney General Andrea Grundfest, Staff Advisor David Zipin
Mr. Maltese read the resolution to convene in closed session to receive legal advice
concerning the complaints to be adjudicated that day. Ms. Hook moved to adopt the
resolution that was seconded by Ms. Schonyers. All members present approved the motion.
The Council met in closed session from 9:07 a.m. to 10:40 a.m.
The Council reconvened in open session at 10:45 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Maltese asked Mr. Dice to review personnel matters.
Mr. Dice introduced Ms. Catherine Starghill the new In-House Counsel for the Government
Records Council. He stated that Ms. Starghill serves as the primary legal counsel between the
GRC and the Division of Law. Ms. Debra Allen represents the Division of Law; Mr. Elnardo
Webster is the outside counsel for the GRC.
Mr. Maltese welcomed Ms. Starghill to the GRC and acknowledged her tenure with the
Privacy Commission. Mr. Maltese also asked Ms. Starghill if she would like to make a
statement.
Ms. Starghill stated she is looking forward to working with everyone.
Mr. Dice stated that Ms. Jennifer Arozamena will be joining the Government Records
Council on March 21, 2005. Ms. Arozamena will serve as the GRC Resource Center
Coordinator. GRC Resource Center will be an area that maintains subject reference guides.
Mr. Dice stated that this position has been established for several reasons. One of which is
quality control; so that the case managers have a systematic way of getting information to
them and that they have a systematic way of retrieving that information.
Mr. Maltese: The approvals of minutes will be deferred to the next meeting.
GRC Minutes of Public Session – March 10, 2005
1
Mr. Maltese requested to review Administrative Action.
Ms. Luzzatto stated there are twelve (12) case listed under administrative actions. These
cases involve settlements, agreements for mediation or complaint withdrawals.
Mr. Dice noted that whenever an action is taken on a case to close it because it involves a
settlement by the parties or withdrawal, it would always appear on the agenda as an
administrative action no vote taken. The council in the last meeting gave me authority to
dismiss certain cases. I will do that and I have invoked that on three (3) cases here.
However, it will always be put on the agenda and read into the record at the meeting.
The three (3) cases in question are:
1. Barbara Schwarz v. NJ Senate Democratic Office (2004-184)
2. Barbara Schwarz v. NJ Office of Legislative Services (2004-185)
3. Barbara Schwarz v. NJ Assembly Republic in Office (2004-186)
Mr. Dice stated that there was a question as to whether or not these were public agencies as
defined under the Open Public Record. Based on the research that I was directed to do by the
Council, I completed that, I am satisfied that these agencies are part of the legislature and are
not independent agencies. The Assembly Republic in Office and NJ Senate Democratic
Office exist to serve elected officials. I respectfully request that the Council reconsider the
decisions and now dismiss the cases on the basis the GRC lacks jurisdiction in this matter,
which was the original recommendation.
Mr. Maltese called a motion to accept the findings and recommendations. The motion was
made by Ms. Schonyers and second by Ms. Minus-Vincent. The Motion was passed on roll
call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Mr. Maltese stated that the following cases listed on the agenda would not be heard at this
meeting:
1.
2.
3.
4.
Martin O’Shea v. Township of West Milford (2004-17)
Kenneth Serrano v. New Brunswick Police Dept. (2004-15 1)
Howard Avin v. Borough of Oakland (2004-180)
Tina Renna v. County of Union (2004-191)
Warren Cundiff v. Dept of Law & Public Safety (2003-34)
Mr. Dice: The Division of Law & Public Safety’s defense is that everything falls under
attorney work product. On page 7 you’ll find the first of two (2) lists. In the first list, we
find that the documents are attorney work product and should not be considered disclose
able. In the second list of documents, we find the documents are not covered by attorney
GRC Minutes of Public Session – March 10, 2005
2
work product privilege and should be disclosed. Mr. Dice read from his recommendations as
follows:
1.
2.
3.
4.
The Department of Law & Public Safety has proven why it’s lack of engagement in
pre litigations discovery. They is a lawful reason for denying the subject OPRA
request.
The plaintiff council’s January 13th written request for records was a valid OPRA
request and should have been accepted as such by the Division of Law & Public
Safety.
The Division of Law & Public Safety has borne its burden of proving that documents
1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 18, 20, 23 and 27 are privileged as attorney work
product. Therefore, are not discloseable.
The Division of Law & Public Safety has not born its burden that documents 6, 13,
14, 15, 16, 17, 19, 21, 22, 24, 25, 26 and 28 are privileged as attorney work product
and therefore, should be disclosed.
Council should order the Division of Law & Public Safety to disclose the documents listed in
number 4 above within Five (5) business days from the receipt of Council’s decision.
Mr. Maltese: The only thing I would add is to have Mr. Dice or staff take a look at the
number of days that elapsed between the request and the response and if it exceeded the
statutory time period the custodian should be placed on the matrix.
Mr. Maltese called a motion to accept the findings and recommendations. The motion was
made by Ms. Schonyers and second by Ms. Minus-Vincent. The Motion was passed on roll
call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Christopher White v. William Paterson University (2003-80
Ms. Gardner: Mr. White submitted a request for a tape recording of a May 8, 2003 residence
disciplinary hearing. He made the request on May 8, 2003 and sent it through regular mail
with a delivery conformation, which did not require a signature for conformation. The
custodian maintains that they did not receive it until June 30, 2003 when they received the
actual denial of access complaint from the GRC. This case was heard previously by the GRC
when it was referred to mediation. It has since been returned to the GRC for adjudication
because the parties could not reach an agreement in mediation.
The Complainant contends that the Custodian failed to provide access within the statutory
time period under OPRA, that they failed to provide a complete government record. He also
states that they had an unlawful refusal to provide a marker denoting:
1. That a redaction was made.
2. Where the redaction was made on the government record.
3. Unlawful denial of access to government records by demanding that requestor utilize
GRC Minutes of Public Session – March 10, 2005
3
the custodian record request form.
In a February 20, 2005 letter to the GRC the complainant defended his position that he
should obtain the requested record through OPRA and that the utilization of FERPA and the
provisions of FERPA were misapplied to his case. Ms. Gardner reviewed the Custodian’s
response to the complaint set forth in the submissions to the GRC and reflected in the
Findings and Recommendations of the Executive Director. She noted in the analysis of the
case that the GRC came to the conclusion that the Custodian did violate the issue of
timeliness; however, the actions did not rise to the level knowing and willful violation under
the totality of the circumstances. She stated further that the Custodian did appropriately
redact the statement pursuant to 1.1 of OPRA in that the redactions were identifying
information of a specific students name. They identified the redactions on the tape and in
writing. Mr. Dice: could you explain a marker? Ms. Gardner explained that when they
submitted a marker at the redaction; instead of it going silent, they put in an indication of
where that redaction took place.
She stated that the Executive Director respectfully recommends that the Council find that:
1.
The record does not support university personnel signed for a receipt of the May 8,
2003 OPRA request.
2. The custodian did violate NJSA 47:1a-5i by not responding to the June 30, 2003
OPRA request until July14, 2003. However the custodian delay in providing access
does not rise to a level of knowing under the totality of the circumstances giving the
issues surrounding the seat of OPRA request and the technical difficulties in making
the necessary redactions of the tape.
3. The custodian acted properly and in accordance with NJSA 47:1 a- 1.1 in making and
explain the redactions of the tape.
4. The custodian alleged imposition of the use of OPRA request forms did not hinder the
complaintiff access to the requested documentation.
5. The custodian did provide the record under the OPRA request however FERPA is a
valid preemption to the records request.
The Council is in discussion on lack of receipt. Ms. Schonyers: Just to be consistent because
there was a delay in the response is it appropriate to add the custodian to the matrix because
it may tighten up their internal procedures?
Mr. Maltese: to be consistent I think that this custodian names should go on the matrix and
there could be a footnote to show that there may be mitigating circumstances that we would
consider if in fact this custodian is brought before us again.
Mr. Maltese called a motion to accept the Executive Directors findings and
recommendations. The motion was made by Ms. Schonyers and seconded by Ms. MinusVincent. The Motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
GRC Minutes of Public Session – March 10, 2005
4
T.S. v. Division of Criminal Justice (2003-102)
Ms. Luzzatto: This case was originally decided in February 27, 2004. The Council
dismissed the case finding that they had accepted the custodian’s certification that there was
no record information based on legal parameters under an expungement statue. The
complainant appealed the Council’s decision to the Appellate Division of Superior Court
January 2005 and we just received a decision from the Appellate Division on March 2,2005,
which remanded the case to the GRC consistent with their findings. On that same day we
received an e-mail from the complainant that he wished to withdraw on his OPRA request
and that he was not waiving any rights under the expungement statue. There is no further
action required by the Council and we respectfully request that the case be closed.
Mr. Maltese called a motion to accept the Executive Directors findings and recommendations
as written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent.
The Motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
NJ Libertarian Party v. Division of Youth and Family Services (2004-114)
Chris Malloy: The Council heard this case at the January 13, 2005 public meeting. He stated
that the Executive Director recommends that the council dismiss the case on the bases that
the custodian has complied with the Council’s January 13, 2005 decision.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. The motion was made by Ms. Minus-Vincent and seconded by
Ms. Schonyers. The Motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Barbara Schwarz v. NJ State Library (2004-123)
Chris Malloy reviewed the positions of the parties in this case and the GRC staff analysis set
forth in the Findings and Recommendations of Executive Director. He stated that the
Executive Director respectfully recommends that the Council find that the Library inventory
should not be considered part of the body of administrative records and that there are no
records found to be responsive to the request.
Mr. Dice: We are not saying that the administrative records of the library are not subject to
OPRA; we are limiting this to the Library inventory.
Mr. Maltese: Are the books and what we find on the shelves government record? Your
position is that they are not; however, such things as purchase orders or other records the
library keeps for purposes of operating library would be government records.
GRC Minutes of Public Session – March 10, 2005
5
Mr. Dice: Based on what we are able to find in Title 18, which is the statue that makes the
differentiation of what is a library record, we do not find, for the purposes of OPRA, that the
records in circulation in the library should be considered government record. We have come
to conclusion that it is outside of the scope of OPRA.
Mr. Maltese: What weight did you put on the issue about duty to research in this case?
Mr. Dice: We would find that if there were a government record responsive, the individual
would have to disclose them pursuant to OPRA. I believe the custodian has the duty to
determine whether they have a government responsive to the document.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. The motion was made by Ms. Schonyers and seconded by Ms.
Minus-Vincent. The Motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Chanka Kawanzaa v. NJ Department of Corrections (204-167)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. She
presented the recommendations of the Executive Director to dismiss the case on the basis of:
1.
The requested records have been disclosed and pursuant to N.J.S.A. 47:1A-7(b)
the Council does not have jurisdiction over the accuracy of the documents
content.
2.
While the Custodian did violate N.J.S.A. 47:1A-5(g) by not promptly complying
with the records request, the Custodian’s actions does not rise to a level of a
knowing and willful violation of OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Minus-Vincent and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Pablo Caban v. Department of Corrections (2004-174)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. She
presented the recommendations of the Executive Director to dismiss the case on the basis of:
GRC Minutes of Public Session – March 10, 2005
6
1.
The Custodian provided the Complainant with the information necessary to obtain the
requested records.
2.
The requested records are exempt from disclosure because N.J.S.A. 47: 1A-9(a) states
that an Executive Order preempts disclosure and Executive Order #26 sec. 4 (b) 1
states that medical records are exempt from disclosure.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Minus-Vincent and seconded by Ms. Schonyers. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Barbara Schwartz v. Rutgers University (2004-183)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. She
presented the recommendations of the Executive Director to dismiss the case on the basis of:
1.
The library inventory is not considered part of the body of administrative records
and therefore, is not within the scope of the Open Public Records Act.
2.
The Custodian certified that no government records responsive to the request
were found pursuant to the Open Public Records Act.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Robert Blau v. Somerset County (2003-86)
Ms. Gardner stated that on February 18, 2005 the case was returned to Government Records
Council from the Office of Administrative Law because the complaint was withdrawn
pursuant to a February 9, 2005 letter from the Complainant. She reviewed the Executive
Director’s recommendation to close this case based on the Complainant’s withdrawal of his
complaint.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
GRC Minutes of Public Session – March 10, 2005
7
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Mr. Dice: Ladies and Gentleman of the public if you are wondering why certain withdrawals
are listed as administrative action and certain withdrawals are not. If we have a case that the
council has already acted on, as is the Blau case where the council referred the case to the
Office of Administrative Law, it is necessary for the Council to close the case.
Larry Loigman v. Township of Middletown (2004-138)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. She
presented the recommendations of the Executive Director to dismiss the case on the basis of:
1.
The Custodian did not violate N.J.S.A. 47: 1A-5(i) in requesting an extension
of time to produce the requested records.
2.
The Complainant has not been denied access to government records since the
records have been offered after receipt of payment of a special service charge.
3.
The $182.00 special service charge is lawful pursuant to N.J.S.A. 47:1A-1, et.
seq. Records should be disclosed upon payment of the special service charge
and statutory copying costs set forth in N.J.S.A. 47:1A-5(b).
4.
The GRC does not have jurisdiction to regulate how a Custodian utilizes its
counsel in its response to records requests.
The Council noted a correction to the findings and recommendations in the heading. The
heading should be amended to read “Township of Middletown.”
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Frank Culmone v. Longport Police Department (2004-147)
William Hewitt v. Longport Police Department (2004-148)
Ms. Knoedler noted that these cases are combined. She reviewed the parties’ respective
positions and the GRC’s analysis and issues in the case as set forth in Findings and
Recommendations of the Executive Director. She presented the recommendations of the
Executive Director to dismiss the case on the basis of:
GRC Minutes of Public Session – March 10, 2005
8
1.
The records requested are not disclosable under N.J.S.A. 47:1A-10 as they are
personnel and pension records and the Complainant is not an “individual in
interest” of the records.
2. Although the Custodian was not aware of the requests, the Chief of Police, as
an employee of the public agency, has a statutory obligation to forward the
request to the Custodian so that she may fulfill the request within the statutory
time frame established by OPRA.
3. The issue of a formal grievance being filed does not need to be addressed
because the records are clearly not disclosable pursuant to N.J.S.A. 47:1A-10
as they are personnel and pension records.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written in both cases. The motion was made by Ms. Minus-Vincent and seconded by Ms.
Schonyers. The motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Larry Loigman v. Township of Middletown (2004-165)
Ms. McGann reviewed the Executive Director’s Findings and Recommendations with the
recommendation that the Council conduct a fact-finding hearing at the April 14, 2005
meeting as set forth in the February 10, 2005 interim decision of the GRC.
Mr. Maltese: You received no response from either party Mr. Dice?
Mr. Dice: No, we have not.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Howard Avin v. Borough Clerk of Oradell (2005-1 75)
Howard Avin v. Borough of Ridgewood (2004-178)
Howard Avin v. Borough of Waldwick (2004-179)
Howard Avin v. Borough of Ramsey (2004-181)
Howard Avin v. Borough of Franklin Lakes (2004-182)
Ms. McGann reviewed the background information of the cases set forth in the Executive
Director’s Finding and Recommendations with the recommendation that the requested
records not be disclosed.
GRC Minutes of Public Session – March 10, 2005
9
Council’s discussed the privacy issues presented in these cases and concurred with the
Executive Director’s decision.
Mr. Maltese commented that he wants to make it clear that in rendering our decision in these
cases, assuming we decide that the information was properly withheld, we understand it is
based on the specific facts that are set forth in these cases.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Tina Renna v. County of Union (2004-191)
Ms. McGann reviewed the background information of the cases set forth in the Executive
Director’s Finding and Recommendations with the recommendation that the Council find
that:
The Complainant received the requested records and the Complainant’s confirmation of
same.
2. The Custodian responded to the request in writing but did not explain that more time
was needed to provide the requested documents.
3. The actions of the Custodian do not rise to a level of knowing and willful pursuant to
N.J. S.A. 47:1 A-1 et. seq. under the totality of the circumstances.
1.
Mr. Maltese noted that on page one (1) of the findings and recommendations it reflects that
the request was made on October 27, 2004 and the response made on October 28, 2004. He
suggested that this should be amended to indicate the October 28, 2005 date was an
acknowledgment of receipt of OPRA request only and add November 17, 2004 and
December 1, 2004 as the dates when meaningful responses were submitted. So, accordingly
this would again place the Custodian on the matrix.
Mr. Maltese suggested that the Council adopt 1 & 2 of the Executive Director’s
recommendations and hold a decision on 3 pending a review the factual information of the
case by the Executive Director.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
amended. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent.
The motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
GRC Minutes of Public Session – March 10, 2005
10
Rory Moore v. Old Bridge Township (2004-209)BIU
Ms. McGann reviewed the background information of the cases set forth in the Executive
Director’s Finding and Recommendations with the recommendation that the Council find
the:
1. The Custodian shall release a copy of the Township’s Ethics Code in its current
form pursuant to N.J.S.A. 47:1A-1 et seq.
2.
The Custodian shall release records, if in existence, regarding the response Ms.
Ward made on establishing a quorum pursuant to N.J.S.A. 47: 1A-1 et seq.
3.
Notification of the completion of items #1 and #2 shall be sent to the Executive
Director within five (5) business days.
4.
Upon completion of items #1 - #3 to the satisfaction of the Executive Director, the
case will be summarily dismissed.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, and Mr. Maltese
Nays: None
Mr. Maltese asked the Executive Director if he had any personnel matters to report at this
time? Mr. Dice stated that he nothing to report.
Having discussed all cases listed on the agenda with the exception of the cases that will be
rescheduled for the next meeting, Mr. Maltese opened the meeting to public comment.
Public comment by: Joe Renna
His comments were:
Union County denies or delays access to requested records waiting until the 7th day to
respond; they are not using OPRA right under the law.
2. The request goes to a part time employee and is then sent to a County counsel person
who does not work on Fridays.
3. The delays or being misinformed causes the need for the document to pass.
4. Requests that the GRC define the Matrix
5. If information is wrong or suspect, “what recourse does the public have?”
1.
Mr. Maltese called for a motion to adjoin the meeting. Ms. Minus-Vincent made the motion
to adjourn the meeting and Ms. Schonyers seconded the motion. By a consensus of the
members the meeting was adjourned at 1:00 p.m.
GRC Minutes of Public Session – March 10, 2005
11
Respectfully submitted,
DeAnna Minus-Vincent
Secretary
Dated: August 11, 2005
GRC Minutes of Public Session – March 10, 2005
12
Minutes of the Government Records Council
April 14, 2005 Public Meeting - Open Session
The meeting was called to order at 9:00 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call:
Present: Chairman Vincent Maltese, DeAnna Minus-Vincent (designee of Commissioner
Susan Bass Levin, Department of Community of Affairs), Diane Schonyers
(designee of Commissioner Librera, Department of Education), Robin Tabakin,
Executive Director Paul Dice, Assistant Executive Director Gloria Luzzatto, InHouse Counsel Catherine Starghill, Deputy Attorney General Debra Allen, GRC
Staff: Chris Malloy, Kimberly Gardner, Erin Knoedler, Jennifer Arozamena and
Colleen McGann;
Mr. Maltese welcomes newest member Robin Tabakin to the Council.
The Council met in closed session from 9:10 a.m. to 10:30 a.m.
The Council reconvened in open session at 10:55 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was
read and attendees recited the Pledge of Allegiance.
Mr. Maltese asked Mr. Dice to review personnel matters.
Mr. Dice presented the new staff member - Ms. Jennifer Arozamena assisting with the GRC
Resource Center.
The Council voted unanimously to appoint Ms. DeAnna Minus-Vincent as secretary of the
Council.
Approval of Open & Closed session minutes for November-2004 and December 2004.
Mr. Maltese called for a roll call vote to accept the minutes.
Roll Call: Ms. Schonyers, Ms. Minus- Vincent, Mrs. Tabakin, Mr. Maltese.
Administrative Action Taken by Executive Director:
1. Ronald Miles vs. Township of Barnegat (2004-211)
2. Ronald Miles vs. Township of Barnegat (2004-2 13)
3. Kathleen Fallstick vs. Haddon Township Business Partnership (2004-218)
4. Kathleen Fallstick vs. Haddon Township Business Partnership (2004-2 1)
5. Maryann Cottrell vs. Borough of Glassboro (2005-27)
6. Joan McGee vs. Township of East Amwell (2004-89)
7. Cundiff vs. NJ Dept. of Law & Public Safety (2003-34)
8. Gary Whyte vs. Mountainside School District (2004-203)
9. Courtlist Marketing vs. NJ Division of State Police (2004-204)
10. Jeannie Smith vs. NJSEA (2004-142)
11. David Weiner vs. Passaic County Board of Social Services (2004-189)
GRC Minutes of Public Session – April 14, 2005
1
12.
13.
14.
15.
16.
17.
18.
19.
Rich Bernstein vs. Borough of Woodridge (2004-220)
John Paff vs. Borough of Woodcliff Lake (2005-3)
Mark Green vs. West NY Housing Authority (2005-11)
Greg Volpe vs. Barnegat Township School District (2005-23)
John Paff vs. Somerset County Prosecutor’s Office (2005-40)
John Paff vs. Borough of Milltown (2005-51)
Ronald Miles vs. Township of Barnegat (2004-36)
Bernstein vs. Borough of North Vale (2005-41)
Mr. Maltese requests a motion to accept the recommendations of the Executive Director as
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Martin O’Shea vs. Township of West Milford (2004-17)
This case is a continuation from the February meeting. Including Staff and Council the
following people in attendance were:
1.
2.
3.
4.
Martin O’Shea – Complainant
Kevin Burns – Township Clerk West Milford
Ms. Tonia Cubby – Township Clerk West Milford
William J. DeMarco – Attorney for Mr. Burns
Since this was a hearing questions occurred between the following people:
Mr. O’Shea questions Ms. Cubby and Mr. Burns.
Mr. DeMarco questions Mr. Burns.
After hearing closing arguments by Mr. DeMarco and Mr. O’Shea the Council will render a
decision by the next Council Meeting.
*Details of this case can be heard on the cassette recording.
Howard Avin vs. Borough of Fairlawn (2004-177)
Howard Avin vs. Borough of Oakland (2004-180)
Ms. McGann stated that in these case Mr. Avin requested a list of homeowners who applied
for a home alarm or fire alarm in the past three years. This information contains name and
address of residents that could jeopardize the security for those who applied for such permits.
The release of the requested name and address information has the potential for harm to both
those citizens who have applied for a burglar or fire alarms in the past three years as well as
those who have not. Permitting access to such records allows any recipient of the record to
ascertain which homes are and are not secured with these devices.
The Executive Director respectfully recommended that the council find that the requested
record should not be disclosed.
GRC Minutes of Pub lic Session – April 14, 2005
2
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Schonyers and second by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
John Pusterhofer vs. Shrewsbury Borough Board of Education (2004-188)
Ms. Luzzatto stated that the Complainant was seeking the “written criteria” for the Gifted
and Talented program. The Complainant was given “policy” instead of “criteria”. However,
the Custodian has certified in a supplemental correspondence to the GRC staff, that “at the
times in question...no specific written criteria existed.” While the Custodian did respond to
the request, they did not give records responsive to the request. The Custodian should have
notified the Complainant that the records requested did not exist when the request was made.
Mr. Maltese requests a motion to go into close session to discuss legal matters pertaining to
this case. The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent.
The motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Returning from closed session the Council continued with this case and the Executive
Director’s recommendation for the case.
The Executive Director respectfully recommended that the Council dismiss this case on the
basis that:
1.
Pursuant to N.J.S.A. 47: 1A-1 .1 the Custodian did release government records.
However, they were not responsive to the request and the Custodian has certified that
the specific records requested do not exist.
2.
Pursuant to N.J.S.A. 47: 1A-7(b) the Council does not have jurisdiction to determine
what constitutes a violation of FERPA.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Tina Renna vs. County of Union (2004-191)
GRC Minutes of Public Session – April 14, 2005
3
Ms. McGann stated that this case involved a request for all bills and or invoices, payments
from the firm of Garrubbo, Romankow, Rinaldo & Capece, of Westfield, New Jersey, in
regards to the numerous legal battles that involve the County of Union and former Employee
Joseph A. Renna.
The custodian verbally informed the Complainant that the records were either in storage or
archived and they would be released as soon as possible. The Custodian released the all
documents responsive to the request as they became available.
The Executive Director respectfully recommended that the Council dismiss the case on the
basis that:
1. The Complainant received the requested records and the Complainant’s confirmation
of the same.
2. The Custodian responded to the request in writing but did not explain that additional
time needed to provide the requested documents.
3. The Custodian has violated N.J.S.A. 47:1A-5(g) by not notifying the Complainant of
the delay in access and reason therefore in writing and should be placed on the
“Matrix” for a second time.
4. The actions of the Custodian do not rise to a level of knowing and willful pursuant to
OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Catherine Urbanski vs. West Amwell Township (2004-205)
Mr. Malloy stated that the Complainant’s Denial of Access Complaint to the Government
Records Council was accompanied by a letter stating that she made the request on November
4, 2004 and received a November 19, 2004 phone call from the Custodian stating that the
tapes were ready but would cost $38.40. It is also stated that a large part of the 10/19/04
meeting was missing, specifically “tape labeled #2 was blank.” According to the
Complainant, there are “seven tapes with some audible discourse, lots of noise, and one
missing tape.”
The Custodian has certified that the requested audiotapes do not exist.
Pursuant to the definition of a “government record”, specifically that it “...has been made.
Maintained or kept on file...” the denial was lawful.
The Executive Director respectfully recommends that the Council dismiss the case on the
basis that the Custodian has certified that she has released all records responsive that are
made, maintained, and kept on file.
Mr. Maltese called for a motion to accept the Executive Director recommendations as
GRC Minutes of Public Session – April 14, 2005
4
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Ronald Miles vs. Township of Barnegat (2004-208)
Ms. Luzzatto stated that the Complainant requested tax records from 1952-2004 on block 92
lot 9.01, 9.02, 9.03, 9.04, 9.05 and 9.06. Complainant states that records supplied were
incomplete and font was too small to read.
Custodian has certified that all records that were available and in existence were copied and
provided to Ronald Miles
The Executive Director respectfully recommended that the Council dismiss the case that the
Custodian has certified that all records responsive to the request have been released to the
complainant.
Mr. Maltese requests a motion to accept the recommendations. A motion was made by Ms.
Schonyers and seconded by Ms. Minus-Vincent. The motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Ronald Miles vs. Township of Barnegat (2004-212)
Ms. Luzzatto stated that the Complainant stated in his Denial Of Access Complaint that the
records received were not complete. However the Custodian has certified that, ”all records
that were available and in existence were copied and provided to Ronald Miles.” Since the
Custodian has certified that all records responsive were given to the Complainant, he (the
Complainant) was not denied access to the requested records pursuant to N.J.S.A. 47: 1A-1 .1
The Executive Director respectfully recommended that the Council dismiss this case on the
bases that the Custodian provided to Complainant with all documents available.
Mr. Maltese requests a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Ronald Miles vs. Township of Barnegat (2004-214)
Ms. Luzzatto stated that the Complainant is asking a question of the Custodian, therefore the
Complainant is not requesting a government record pursuant to N.J.S.A. 47: 1A-1 et. seq.
GRC Minutes of Public Session – April 14, 2005
5
Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC
does not have jurisdiction over requests for information.
The Complainant states that the Custodian never provided access to the public records.
Barnegat Township does not maintain records of individual well permits.
The Executive Director respectfully recommended that the Council dismiss this case based
on:
1.
2.
The Complainant’s request is not for a government record pursuant to N.J.S.A. 47:1a1et.
seq
The GRC lacks jurisdiction to adjudicate in matters not involving request for
government records. N.J.S.A. 47:1 a-1 (b).
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
Joseph Sooy vs. Department of Corrections (2004-215)
Ms. McGann stated that the Complainant requested emails from Gail Reed (DOC) to Natalie
Jaroni (DOC). Between 11/01-04 to 11/1 8-04
The custodian asserts that the email was not release to the Complainant because the content
was consultative and deliverable in nature and does not fit the definition of a Public record.
The Executive Director respectfully recommended that the Council find that the requested
document be released to the Complainant with redaction of materials that are consultative
and deliverable in content.
Mr. Maltese call for a motion to adopt said findings and recommendations, however,
amended same that the requested document is released with appropriate redactions within ten
(10) calendar days from receipt of the Council’s decision unless the Custodian declares that
the entire document contains advisory, consultative or deliberative material; in which case,
the document is to be presented to the Council in a sealed envelope at the May 12, 2005
meeting for an “in-camera” review.
The motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The motions
was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: None
GRC Minutes of Public Session – April 14, 2005
6
Rich Bernstein vs. Borough of Wallington (2005-1)
Ms. Luzzatto stated that the Complainant requested a list of names and address of dog license
owners.
The Custodian stating that the request cannot be fulfilled. Specifically the letter stated, “The
copying of information from records in the health department for the purpose of providing a
list of names and addresses having an immediate or foreseeable commercial use, thereby
invading the privacy of individuals, or families named on such record is prohibited and
protected under the New Jersey Department of Health and Senior Services Inspection of
Public Records...”
The Executive Director respectfully recommends that the Council dismiss this case on the
basis that pursuant to N.J.S.A. 47:1A-1 the records should not be disclosed.
Mr. Maltese: It is my view that the member of the public have a right to know that pet in
their community have been properly registered and inoculated as required by law. The
information contained in a dog license application is a permissible and not unwarranted
invasion of privacy.
Mr. Maltese calls for a motion to either “accept” the Executives Director’s recommendation
or “reject” the Executive Directors. Ms. Minus-Vincent enters a motion to “reject” the
Executives Director’s recommendation this motion was seconded by Mrs. Tabakin. The
motions was passed on roll call:
Ayes: Ms. Minus-Vincent, Mrs. Tabakin, Mr. Maltese
Nays: Ms. Schonyers
Mr. Maltese rescued himself from the remaining cases.
Fred Burnett vs. Camden County (2004-6)
Mr. Malloy stated that based on submissions from Complainant’s counsel, it is not
clear whether the Custodian acted reasonably and in a timely and responsible manner
in responding to the OPRA request. This matter should be referred to the OAL to
determine if the Custodian knowingly and willfully violated N.J.S.A. 47: 1A-5(i).
The Executive Director respectfully recommends that the Council refer the case to the Office
of Administrative Law to determine if the Custodian knowingly and willfully violated
N.J.S.A. 47:1a-5(I).
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations as
written. The motion was made by Ms. Minus-Vincent and seconded by Mrs. Tabakin. The
motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
GRC Minutes of Public Session – April 14, 2005
7
Richard Rivera vs., Town of West New York (2004-201)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. She
presented the following recommendations.
1. That the Custodian has not proven any exemption to disclosure for Records
Requested in “1” of the Complainant’s request. Thus, documents responsive to said
request should be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the
Custodian can explain in a certification why the release of the documents requested is
inimical to the public interest.
2. That the Custodian has not proven any exemption to disclosure for documents
responsive to Records Requested “2” and “3” and has not certified as to the existence
of the requested documents. Therefore, the documents responsive to said request
should be released in accordance with N.J.S.A. 47: 1A-1 et. seq. unless the Custodian
submits a legal certification relative to the existence of said documents or can explain
how their release is inimical to the public interest.
3. The Custodian should provide a response to the Executive Director in “1” and “2”
above within ten (10) business days from receipt of the Council’s decision.
The Council voted unanimously to adopt said findings and recommendations with the
amendment that the requested documents are to be released within ten (10) calendar days
from receipt of the Council’s decision.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations with
amendments. A motion was made by Mrs. Tabakin and seconded by Ms. Minus-Vincent.
The motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Albert Poreda vs. Hudson County (2004-14)
Ms. Luzzatto stated that in the Council's April 8, 2004 Interim Decision, the Council
found that the Custodian's lack of response was considered a denial of access and
ordered disclosure of all requested information pursuant to the Open Public Records
Act ("OPRA"). Once the Custodian complied with the Council's orders in the interim
decision on access, the Council issued a Final Decision to dismiss the case, albeit to
close the case. Therefore, the Council should find that the Complainant was a
prevailing party in this case based on the Council's April 8, 2004 Interim Decision in
this case pursuant to N.J. S.A. 47: 1A-7(f) and N.J. S.A. 47: 1A-6.
There is no dispute on the fee sought by the Complainant’s counsel as stated in the
March 4, 2005 letter to the GRC staff that he [Mark Morchel] felt the "amount being sought
was "Reasonable," and that if ordered to pay attorney's fees by the Council, the amount
would not be challenged." Therefore, the Council does not need to address whether the
$1618.42 attorney’s fee is reasonable.
GRC Minutes of Public Session – April 14, 2005
8
The Executive Director respectfully recommended that the Council find that:
1.
2.
3.
4.
The Complainant was a prevailing party in this case based on the
Council's April 8, 2004 Interim Decision ordering the disclosure of
documents and pursuant to N.J.S.A. 47:1A-7(f) and N.J.S.A. 47:1A-6.
Since the attorney’s fee of $1618.42 is not at issue in the case, the County of
Hudson should pay the same.
The County of Hudson should pay Olender Feldman LLP the amount in
#2 above within five (5) business days after receipt of the Council's
decision and inform the Executive Director when payment is completed.
Upon completion of #2 and #3 above the case will be summarily
closed.
Ms. Schonyers requests a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Minus-Vincent and seconded by Mrs. Tabakin. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Jose Falto vs. Union City Parking Authority (2004-144)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. Ms.
McGann presented the following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss the case on the
basis that the Custodian has complied with the Council’s January 13, 2005 decision.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Minus-Vincent and seconded by Mrs. Tabakin. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Kenneth Serrano vs. New Brunswick Police Department (2004-151)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. She
presented the following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss the Complaint on
the basis that the requested records are exempt from disclosure as criminal investigatory
records pursuant to N.J.S.A. 47:1A-1.1.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations as
GRC Minutes of Public Session – April 14, 2005
9
written. A motion was made by Mrs. Tabakin and seconded by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Beth Burns vs. Borough of Collingswood (2004-190)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director. He
presented the following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss the case because
the Custodian has certified that she has released all records responsive that are made,
maintained, and kept on file.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Mrs. Tabakin and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Beth Burns vs. Borough of Collingswood (2004-2 17)
Ms. Knoedler stated that the Complainant requested hard copies and electronic copies of
Ordinances 1357, 1358 and 1359.
The Custodian did provide the Complainant with hard copies of the ordinances as requested;
however, it appears that no attempt was made to reach an agreement on another meaningful
medium.
The Executive Director respectfully recommended that:
The Custodian should have responded to the Complainant’s request in writing
pursuant to N.J.S.A. 47:1A-5(g).
2. The Custodian should disclose the records responsive to the request in the format
requested in accordance with N.J.S.A. 47:1-5(d) subject to fees, if any, that may be
directly associated to converting the documents to the medium requested. The
Custodian should inform the Complainant of the costs involved in converting the
documents to the requested medium prior to fulfilling the request.
3. The Custodian should notify the Executive Director within 10 business days of the
completion of item #2, at which time, the Executive Director would summarily
dismiss the case.
1.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Mrs. Tabakin and seconded by Ms. Minus-Vincent. The
motion was passed on roll call:
GRC Minutes of Public Session – April 14, 2005
10
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Michael Halpern vs. Borough of Collingswood (2004-221)
Ms. Luzzatto stated the Complainant requested any and all solicited and unsolicited
proposals to the Borough development or redevelopment of Peter Lumber lot. These are
records that are from a Public Town Meeting.
Custodian’s letter to the Complainant stating that the requested records do not ex ist. The
Mayor who spoke at the meeting states and certifies what was discussed in that meet was not
a result of and record.
We recommend that the council dismiss the case on the bases there are no records.
Ms. Schonyers requests a motion to accept the recommendations. The motion was made by
Ms. Starghill and second by Ms. Minus-Vincent. The motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mrs. Tabakin
Nays: None
Communications: None
New Business: None
Open the floor to the public comment:
John Pusterhofer addressing the Council:
1.
2.
I would like to put on record there are no inadvertent disclosures by the GRC.
Conflicting statement by the Custodian.
a. December 3rd, statement information where she certifies that the policies that
were presented – were the Gifted and Talented education criteria
b. February 22nd, statement from the Custodian. Now she saying we don’t have
those documents, they don’t exist.
How does that write up come about?
We don’t have anything to say go to file cabinet A and pull and pull this out. They are
saying they don’t have the records.
The Council continued it discussion with Mr. Pusterhofer.
Ms. Schonyers called for a motion to adjourn. A motion was made by Ms. Minus-Vincent
and seconded by Mrs. Tabakin. The Council voted unanimously to adjourn.
GRC Minutes of Public Session – April 14, 2005
11
Meeting adjourned 3:30PM.
Respectfully submitted:
De Anna Minus-Vincent
Secretary
Dated: August 11, 2005
GRC Minutes of Public Sessio n – April 14, 2005
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Minutes of the Government Records Council
May 12, 2005 Public Meeting - Open Session
The meeting was called to order at 9:00 a.m. at the Department of Community Affairs, Room
235A, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call:
Present: Chairman Vincent Maltese, DeAnna Minus-Vincent (designee of Commissioner Susan
Bass Levin, Department of Community of Affairs), Diane Schonyers (designee of
Commissioner Librera, Department of Education), Robin Berg Tabakin, Executive
Director Paul Dice, Assistant Executive Director Gloria Luzzatto, In-House Counsel
Catherine Starghill, Deputy Attorney General Debra Allen, GRC Staff: Chris Malloy,
Kimberly Gardner, Erin Knoedler, Jennifer Arozamena, Colleen McGann and Marion
Davies.
Mr. Maltese read the resolution to convene in closed session to receive legal advice concerning the
complaints to be adjudicated that day. Ms. Schonyers moved to adopt the resolution that was
seconded by Mrs. Tabakin. All members present approved the motion. The Council met in closed
session from 9:15 a.m. to 10:45 a.m.
The Council reconvened in open session at 11:00 a.m. in Room 129 of the Department of
Community Affairs, Trenton, New Jersey. The Open Public Meetings Act statement was read and
attendees recited the Pledge of Allegiance.
Mr. Dice: No Personnel Matters
Mr. Maltese called for a motion to accept the minutes of December 9, 2004 open and closed
session. A motion was made by Ms. Minus-Vincent and second by Ms. Schonyers. The motion
was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Administrative Action taken by Executive Director:
1) Robert Blau vs. Essex County Register (2003-97)
Settled in mediation April 28th.
2) Richard Giuditta vs. Township of West Orange (2004-88)
Withdrawal by Complainant April 20, 2005.
3) Rory Moore vs. Township of Old Bridge (2004-129)
No records responsive to the request.
4) Luis Perez vs. Borough of Glassboro (2005-8)
No records responsive to the request.
5) Margie Semler vs. City of Passaic (2005-10)
No records responsive to the request.
6) R o r y M o o r e v s . O l d B r i d g e T o w n s h i p ( 2 0 0 5 - 1 4 )
All records responsive to the request released to Complainant.
7) Richard Holland vs. Gloucester County Prosecutors Office (2005-18)
No records responsive to the request.
GRC Minutes of Public Session – May 12, 2005
1
8) Richard Holland vs. Gloucester County Prosecutors Office (2005-2 8)
Complainant seeks information not a government record.
9) Kathleen Fallstick vs. Haddon Township (2005-25)
Complainant seeks information not a government record.
10) Kathleen Fallstick vs. Haddon Township (2005-26)
Complainant seeks information not a government record.
1 1) Virginia Jeffries vs. East Orange Board of Education (2005-34)
Currently in Mediation.
12) Frank D’Amore, Sr. vs. Borough of North Plainfield (2005-3 5)
Complainant seeks information not a government record.
13) Dennis Ricci vs. Atlantic City Housing Authority (2005-42)
Withdrawal by Complainant March 16, 2005.
14) Arthur Mourad vs. Borough of Bogota (2005-53)
No records responsive to the request.
15) Michael Jester vs. Atlantic City Housing Authority (2005-5 6)
Agreed to mediation.
16) Louis Toscano vs. NJ Dept of Personnel (2005-60)
Agreed to mediation
17) Michael Deluca vs. Department of Community Affairs (2005-61)
Agreed to mediation.
18) Scott Mooney, Esq. Vs. Bergen County Board of Chosen Freeholders (2005-62)
Withdrawal by Complainant April 27, 2005.
19) Beth Burns vs. Borough of Collingswood (2005-67)
Withdrawal by the Complainant May 5, 2005.
20) Frank Scarafile vs. City of Union (2005-72)
Agreed to mediation.
21) Arthur Mourad vs. Cliffside Park (2005-77)
Withdrawal by the Complainant April 28, 2005.
22) Latonia Moore vs. NJ State Police (2005-160)
Case settled - April 30, 2005.
23) Gayle Reedy vs. Borough of Collingswood (2004-222)
Withdrawal by the Complainant May 4, 2005.
Cynthia Teeters vs. NJ Division of Youth & Family Services (2002-6) & (2002-15)
Ms. Luzzatto stated that these cases were referred to the Office of Administrative Law (OAL)
September 11, 2003 because the Council was unable to determine what records had been provided,
what had not been provided and why in response to the Complainant’s OPRA requests. The OAL
or the Government Records Council rendered no final determination on access; rather, the parties
reached a settlement on all issues of access on January 29, 2005. The Complainant’s Counsel now
seeks a determination from the Council on whether he is entitled to “a reasonable attorney’s fee.
The Executive Director respectfully recommended that the Council dismiss this case on the basis
that the Complainant was not a “prevailing party” and the Complainant’s Counsel is not entitled to
attorney’s fees pursuant to OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Schonyers and second by Mrs. Tabakin. The motion was passed on roll
call:
GRC Minutes of Public Session – May 12, 2005
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Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Martin O’Shea vs. Township of West Milford (2004-17)
Ms. Luzzato read the Final Decision of this case into the record verbatim.
The Council CONCLUDED that the Custodian did not commit a knowing and willful violation of
OPRA under the totality of the circumstances in its handling of Martin O'Shea's January 12, 2004
and January 29, 2004 requests. Therefore, the imposition of a civil penalty against the Custodian
is not warranted. It is ORDERED that Case No. 2004-17 be dismissed with prejudice.
In accordance with the Rules Governing the Superior Court of New Jersey, there is a period of 45
days from the date of this final decision to file an appeal with the Superior Court, Appellate
Division.
Mr. Maltese called for a motion to accept the Final Decision as written. A motion was made by
Ms. Minus-Vincent and seconded by Mrs. Tabakin. The motion passed by roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Larry Loigman vs. Township of Middletown (2004-165)
Ms. Mc Gann reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. She presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find:
1. That Dominick Carmagnola, Esq., Francis J. Vernioa, Esq. and Diamond State Insurance
Company do not fall under the definition of a public agency, therefore their records do not
fit the definition of a government records pursuant to N.J.S.A. 47:1A-1.1.
2. All documents that are made, maintained or kept on file in the course of the Township’s
official business and responsive to the request were provided to the Complainant.
3. The GRC does not have jurisdiction to regulate how a Custodian utilizes its counsel in its
response to records requests.
4. Council no longer needs to hold a hearing on this matter and the case should be closed.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as w ritten.
The motion was made by Ms. Schonyers and second by Ms. Minus-Vincent. The motions was
passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin and Mr. Maltese
Nays: None
GRC Minutes of Public Session – May 12, 2005
3
Mrs. Tabakin rescued herself from the following case.
Martin O’Shea vs. Township vs. West Milford (2004-207) & (2005-31)
Ms. Knoedler reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. She presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that:
1. The Council should find that the Custodian did not violate N.J.S.A. 47:1A-5(e) as
the vouchers and bills could not be disclosed immediately as no personnel were
available to comply with the request and further legal review was required by the
Planning Board and Township Attorneys.
2. The Council should find that the Custodian did not violate the statutory seven business day deadline as he clearly responded to the Complainant’s November 16,
2005 OPRA request in writing on November 22, 2005 pursuant to N.J.S.A. 47:1A5(i).
3. The Council should find that the Custodian violated N.J.S.A. 47:1A-5(i) by not
providing a time frame, in writing, in which items one (1) and four (4) should be
available to the Complainant.
4. The Council should find that the Custodian violated N.J.S.A. 47:1A-5(g) by not
providing the Complainant with the specific reasons for the redactions of the
invoice and the OPRA or other provision allowing for the exemption. It should be
noted, however, that the Complainant was informed of the reasons for the
redactions and the OPRA provision allowing the exemption in a letter provided to
him.
5. The Council should find that the Custodian was warranted in redacting the
information contained in the invoice due to attorney-client privilege pursuant to
N.J.S.A. 47:1A-1.1.
6. The Council should find that the Custodian did not meet his burden of proving the
denial of access is warranted by not providing a written response to the
Complainant as to when items one (1) and four (4) should be available to him. If
additional responsive records exist, the Custodian should provide the remaining
records responsive to items one (1) and four (4) within 10 business da ys or the
reason for the records exemption pursuant to OPRA.
7. The Council should find that the Custodian did not knowingly and willfully violate
OPRA under the totality of the circumstances.
Mr. Maltese suggested that the Council order an in-house hearing on the Invoice in unredacted
form to see if the information that was redacted was properly redacted after which will revisit the
case and render a decision.
Mr. Maltese called for a motion to defer this case at this time. A motion was made by Ms. MinusVincent seconded by Ms. Schonyers. The motion passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mr. Maltese
Nays: None
GRC Minutes of Public Session – May 12, 2005
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Recused: Mrs. Tabakin
Rich Bernstein vs. Borough of Woodcliff Lake (2005-2)
Rich Bernstein vs. Borough of Ho Ho Kus (2005-13)
Rich Bernstein vs. Borough of Harrington Park (2005-6)
Ms. Knoedler reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director for all three cases.
Ms. Knoedler stated that the Borough of Harrington Park released names only. She presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this case on the basis
that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed.
Mr. Maltese suggested that a decision on all three (3) cases be deferred until there is a response
from the DOL with regard to the balancing test. This response should be available by the next
meeting.
Mr. Maltese called for a motion to defer these cases until there is a decision from the Division of
Law and the results of a Balancing Test. The motion was made by Mrs. Tabakin and seconded by
Ms. Schonyers. The motions was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Joseph Petrucelli vs. Edison Township ( 2004-210)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. He presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council refer the case to the Office of
Administrative Law for a hearing to determine:
1. Whether the Bank Reconciliation for March 2002, December 2003, and October 2004
for all Township accounts exist, and whether they have been provided to the
Complainant? If the records exist but have not been provided, what is the statutory
basis for the denial of access?
2. Whether Cash Disbursement details and Cash Deposit details reports for March 2002,
December 2003, and October 2004 exist, and whether they have been provided to the
Complainant. If the records exist but have not been provided, what is the statutory basis
for the denial of access?
3. Whether the work paper on supporting detail for sheet 19 of the Financial Statement
detailing surplus regeneration in 2003 exist, and whether they have been provided to
the Complainant? If the records exist but have not been provided, what is the statutory
basis for the denial of access?
GRC Minutes of Public Session – May 12, 2005
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4. For all records responsive to the request that are to be released, what charges would be incurred
in preparing them for release to the Complainant?
Mr. Maltese called for a motion to defer the entire case to OAL. The motion was made by Ms.
Schonyers and second by Mrs. Tabakin. The motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin and Mr.
Maltese Nays: None
Mr. Maltese rescued himself from the following case.
Jeffery Sauter vs. Township of Colts Neck (2004-68)
Ms. Mc Gann reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. She presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find that:
1. The Custodian did violate N.J.S.A. 47: 1A-5(e) by not providing the Complainant
immediate access to the requested bills.
2. The Custodian did not release those documents responsive to the request within the
statutorily required seven business days. Therefore, the Custodian di d violate N.J.S.A.
47: 1A-5(i).
3. The Custodian violated N.J.S.A. 47:1A-5(g) in not promptly notifying the Complainant in
writing of the reasons for the denial.
4. The Custodian must certify to the reasons for the delay in access to bills and lack of timely
response to the Complainant’s request for records.
5. It is the responsibility of the municipal clerk, pursuant to N.J. S.A. 47:1 A- 1.1, to respond to
the request and obtain any records responsive held by the Fire Department necessary to
fulfill the records request and release such documents in accordance with OPRA unless
there is a claimed exemption.
6. The Custodian is to provide an itemized list of all documents for which the Township is
claiming an exemption, including any documents maintained by the Colts Neck Fire
Department with a general nature description of each document, identification of the
asserted privilege for each individual document, and the basis for same.
7. The Custodian should provide a response to the Executive Director in “4” through “6” above
within ten (10) business days from receipt of the Council’s decision
Ms. Schonyers recommended we issue an in-term order requesting the information be provided as
outlined in 4, 5 and 6 within 10 business days.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendations as
amended. The motion was made by Ms. Minus-Vincent and second by Mrs. Tabakin. The motion
was passed on roll call:
GRC Minutes of Public Session – May 12, 2005
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Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin
Nays: None
Tina Renna vs. County of Union (2004-5)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. She presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this case on the basis
that:
1.
2.
The Custodian has certified that all records responsive to the request have been released
the Complainant.
The Custodian did violate N.J.S.A. 47:1a-5(i) by not responding to the records request in a
timely manner. However, the violation does not rise to a level of a knowing and willful
violation of OPRA under the totality of the circumstances.
Mr. Maltese requested that the Custodian be place on the matrix in this case.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written.
The motion was made by Ms. Schonyers and second by Ms. Minus-Vincent. The motion passed
on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin and Mr. Maltese
Nays: None
Yocheved Reiss vs. Rutgers University (2005-19
Ms. Mc Gann reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. She presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommends that the Council find:
1.
The Complainant agreed to payment of the special service charge after being given the
opportunity to review and object, pursuant to N.J.S.A. 47: 1A-5(c); therefore this
portion of the complaint should be dismissed.
2.
The Complainant received all documents responsive to the request in a timely manner;
therefore, the actions of the Custodian do not rise to a level of knowing and willful
pursuant to OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept Executive Director’s recommendation as written. The
motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The motion was passed
on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
GRC Minutes of Public Session – May 12, 2005
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Nays: None
Kathleen Fallsick vs. Township oh Hadden (2005-22)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. He presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss the case on the basis
that:
1. The Complainant stated that the information she requested was received from the Township
Clerk’s office.
2. The Government Records Council does not have jurisdiction over whether Commissioner
Kathleen Hogan should pay back the tax payers of Haddon Township $102.00 for a book that
was sent to her house, as well as the $5.00 postage.
Mr. Maltese called for a motion to accept Executive Director’s recommendations as written. The
motion was made by Ms. Schonyers and second by Ms. Minus-Vincent. The motions was passed
on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Reports: None
The Council had discussion on the Government Record Council website.
New Business: Draft Regulations ... There are four (4) sub-chapters:
1.
2.
3.
4.
General Provisions
Complaint Process
Inquiries
Advisory Opinion
Mr. Maltese called for a motion from the council to get the necessary approval to continue with the
Draft Regulations. The motion was made by Ms. Schonyers and second by Ms. Minus-Vincent.
The motion was passed on roll call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Public Comment:
A discussion took place between the following individuals and the Council members.
Martin O’Shea expressed his concerns to the Council about the process of the Knowing and
GRC Minutes of Public Session – May 12, 2005
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Willfully.
John Paff expressed his concern about the law not defining what is a Public Official, Officer,
Employee or Custodian?
Fran Brooks wanted to know what constitutes an ex-ordinary request?
Mr. Maltese called for a motion to adjourn. The motion was made by Ms. Schonyers and second
by Ms. Minus-Vincent. The motion passed unanimously.
Meeting adjourned at 12:50PM.
Respectfully submitted,
De Anna Minus-Vincent,
Secretary
Dated: September 8, 2005
GRC Minutes of Public Session – May 12, 2005
9
Minutes of the Government Records Council
June 9, 2005 Public Meeting - Open Session
The meeting was called to order at 9:00 a.m. at the Department of Community Affairs, Room 129,
Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call:
Present: Chairman Vincent Maltese, DeAnna Minus-Vincent (designee of Commissioner Susan
Bass Levin, Department of Community of Affairs), Executive Director Paul Dice,
Assistant Executive Director Gloria Luzzatto, Mr. Mitchell Fishman, In-House Counsel
Catherine Starghill, Deputy Attorney General Debra Allen, GRC Staff: Chris Malloy,
Kimberly Gardner, Erin Knoedler, Jennifer Arozamena, Colleen McGann and Marion
Davies;
Absent: Mrs. Robin Berg Tabakin and Ms. Diane Schonyers
The Council met in closed session from 9:15 a.m. to 10:30 a.m.
Open Session reconvened at 10:35am.
Personnel Matters: Mr. Dice:
1. Marion Davies is the new Administrative Coordinator
2. Erin Knoedler is leaving the Council effective Jul y.
3. Mr. Mitchell Fishman joins the Council as a Council member.
Administrative Case Closure List: Ms. Luzzatto
1. Marie Bailey v. NJ Department of Agriculture (2003-116) Case Closed
2. Rory Moore v. Township of Old Bridge (2004-137) Case Closed
3. Rory Moore v. Township of Old Bridge (2004-140) Case Closed
4. Rory Moore v. Township of Old Bridge (2004-154) Case Closed
5. Rory Moore v. Township of Old Bridge (2004-155) Case Closed
6. Rory Moore v. Township of Old Bridge (2004-171) Case Closed
7. Rory Moore v. Township of Old Bridge (2004-172) Case Closed
8. Rory Moore v. Township of Old Bridge (2004-173) Case Closed
9. Susan Repko v. NJ Economic Development (2005-2 1) Settled in Mediation
10. Greg Volpe v. Barnegat Township School District (2005-23) Settled in Mediation
11. Dudley Burdge v. NJ Department of Personnel (2005-32) Case Closed
12. Steven Russo v. NJ State Parole Board (2005-3 8) Case Closed
13. John Paff v. Somerset County Prosecutor’s Office (2005-40) Settled in Mediation
14. Dr. Kathleen Henderson v. Kean University (2005-44) Forwarded to Mediation
15. Dr. Kathleen Henderson v. Kean University (2005-45) Forwarded to Mediation
16. Dr. Kathleen Henderson v. Kean University (2005-46) Forwarded to Mediation
17. John Paff v. Borough of Milltown (2005-5 1) Settled in Mediation
18. Joy DeSanctis v. City of Paterson (2005-63) Case Closed
19. James Maynard v. Asbury Park Board of Education (2005-65) Case Closed
20. Elaine S. Chu v. Little Ferry Borough (2005-100) Agreed to Mediation
21. Rich Bernstein v. Borough of Northvale (2005-41) Case Closed
GRC Minutes o f Pub lic Sessio n – J une 9, 2005
1
Christopher White v. William Paterson University (2003-113)
Mr. Dice reviewed the parties’ respective positions and the GRC’s analysis and issues in the case
as set forth in Findings and Recommendations of the Executive Director. The Executive Director
presented the following recommendations to the Council.
The Council re-affirm their November 9, 2004 Final Decision in its entirety and without
amendment or qualification. 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.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
Robert Gorman vs. Gloucester County (2004-108)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. Malloy
presented the following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council refer the case to the Office of
Administrative Law for a hearing to determine:
Whether the “copy of the videotape from the patrol vehicle assigned to Officer William
Johnson on 1/24/03,” is disclosable in whole or in part, pursuant to N.J.S.A. 47:1A-1
and N.J.S.A. 47: 1A-5(g)?
2. Whether the special service charge of $48,000.00 relating to the request for “all no tag
light tickets issued by the Gloucester City Police Department for violations of Local
Ordinance 73-15 and for non-operational tag lights,” is reasonable pursuant to N.J.S.A.
47: 1A-5(c)? If not, what charges would be incurred in preparing them for release to the
Complainant?
3. Whether the handwritten notes redacted from the CJP schedule are disclosable pursuant
to N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1, and N.J.S.A. 47:1A-3?
4. For all records responsive to the request that are to be released, what charges would be
incurred, pursuant to the OPRA, in preparing them for release to the Complainant?
1.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent. The
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
GRC Minutes o f Pub lic Sessio n – J une 9, 2005
2
Joseph Rena vs. County of Union (2004-136)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. Malloy
presented the following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council refer the case to the Office of
Administrative Law to determine if the Custodian’s failure to provide the Complainant with the
records in the medium requested constitutes a knowing and willful violation of the OPRA under
the totality of the circumstances.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
Jeffery Smith vs. Department of Corrections (2004-163)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. Malloy
presented the following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council dismiss this case on the basis
that:
1. The Custodian should not release the itemized telephone numbers contained in the
cellular telephone billing records pursuant to the common law standards that provide
for a balanced consideration of the public need for the numbers called and the need for
confidentiality pursuant to North Jersey Newspapers Company v. Passaic County Board
of Chosen Freeholders, 127 N.J. 9 (1992).
2. A balanced consideration of the public need for the numbers called and the need for
confidentiality and privacy issues implicated pursuant to North New Jersey, Doe v.
Portiz, 142 N.J. 1 (1995) and N.J.S.A. 47:1A-9(b) reveals that the need for
confidentiality and the privacy issues implicated weigh heavier than the public’s
interest in access to sufficient information to enable the public to understand and
evaluate the reasonableness of a public official’s actions.
3. The impracticality of OPRA’s requirement that prior to allowing access to any
government record, all custodians must redact from a record any information which
discloses the unlisted telephone numbers of any person pursuant to N.J.S.A. 47: 1A5(a).
4.
Therefore, records responsive to the Complainant’s request have been provided.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent. The
GRC Minutes o f Pub lic Sessio n – J une 9, 2005
3
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
Sean DiSomma vs. Borough of Paramus (2004-192)
Mr. Knoedler reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. Knoedler
presented the following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that:
1.
The Council should find that the Committee is not a public agency pursuant to N.J.S.A.
47:1 A- 1.1.
2. The Council should find that the Committee’s records are not government records pursuant
to N.J.S.A. 47:1A-1.1. However, at the time that the Committee gave its records (already
redacted) to the Custodian, those records became “government records” because they were
then “... kept on file ...” pursuant to OPRA.
3. The Council should find that the Custodian should have responded to the Complainant’s
request in writing, however, this does not rise to the level of a knowing and willful
violation of OPRA under the totality of the circumstances.
4. The Council should find that OPRA does not have jurisdiction over the redactions of the
government record disclosed because the redactions were made prior to the document
becoming a government record pursuant to OPRA.
5. The Council should dismiss the case based on items one (1) through (4).
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
The following cases have been rescheduled for July Council Meeting.
1. Rick Engler vs. NJ Dept. of Environmental Protection (2005-4)
2. John Paff vs. Township of Plainsboro (2005-29)
3. Dorothy Argyros vs. Township of Neptune (2005-37)
Gregory Slate vs. Woodbridge Municipal Police Department (2004-198)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. Gardner
presented the following recommendations of the Executive Director to the Council.
GRC Minutes o f Pub lic Sessio n – J une 9, 2005
4
The Executive Director respectfully recommended that the Council refer the case to the Office of
Administrative Law for a hearing to determine:
1. Whether the $60,007.08 special service charge is reasonable and based upon the actual cost
of providing redacted copies of the records at issue in the Denial of Access Complaint
pursuant to N.J.S.A. 47: 1A-5(c)?
2. The basis for changing the original fee of $216.75 to the special service charge of
$60,007.08? Were any of the four records at issue in the Denial of Access Complaint
provided and included in the $216.75 fee?
3.
Whether the radio transmissions and telephone records need to be completely transcribed in
order to fulfill the request?
4.
Whether there was a lawful explanation for appropriate redactions or non-disclosure of
records at issue in the Denial of Access Complaint pursuant to N.J.S.A. 47:1A-5(g) and
N.J.S.A. 47:1A-6?
5. Whether supplying the requested records at issue in the Denial of Access Complaint is
considered a substantial disruption of operations?
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Mr. Fishman and seconded Ms. Minus-Vincent by. The
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
Joseph Sooy vs. Department of Corrections (2004-215)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. McGann
presented the following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council conduct an in camera
inspection of the “November 18, 2004 e-mail from Gail Reed to Natalie Jaroni” to determine what,
if any, factual information contained in the requested document remains to be released.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
written. The motion was made by Mr. Fishman and seconded Ms. Minus-Vincent by. The
motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
GRC Minutes o f Pub lic Sessio n – J une 9, 2005
5
Thomas Caggiano vs. Sussex County Prosecutor’s Office (2004-216)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the
case as set forth in Findings and Recommendations of the Executive Director. Mr. Gardner
presented the following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council dismiss this case on the basis
that the Custodian has certified that the records responsive to the request are “criminal
investigatory records” and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.
Mr. Maltese called for a motion to accept the recommendations of the Executive Director as
amended by the dates. The motion was made by Mr. Fishman and seconded Ms. Minus-Vincent
by. The motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
Reports:
There are changes to the search mechanism on the website.
Ms. Arozamena discusses the changes to the website with the council.
Communications:
Mr. Dice received a letter from Mr. Martin O’Shea and read the letter in its entirety into the record
as written.
Mr. O’Shea asked the Council about the following cases
2004-111 – The Council stated that no agenda date has been set so far for the case.
2004-87 - Mr. Dice will follow up Mr. O’Shea and present the findings to the Council.
Public Comment:
Dorothy Argyros addresses the Council and read a letter into the record.
Tina Renna addressed the Council and made eight complaints. Mr. Maltese addressed Ms.
Renna’s complaint. Ms. Starghill made several comments relating to Knowing and Willful.
Mr. Paff asked the Council to describe what criteria is established that sends cases to the Office of
Administrative Law.
Mr. Maltese called for a motion to adjourn. The motion was made by Mr. Fishman and seconded
Ms. Minus-Vincent by. The motions was passed on roll call:
Ayes: Mr. Fishman, Ms. Minus-Vincent, Mr. Maltese
Nays: None
GRC Minutes o f Pub lic Sessio n – J une 9, 2005
6
Meeting adjourned at 12:00PM.
Respectfully submitted,
De Anna Minus-Vincent
Secretary
Dated:_September 8, 2005
GRC Minutes o f Pub lic Sessio n – J une 9, 200 5
7
Draft Minutes of the Government Records Council
July 14, 2005 Public Meeting - Open Session
The meeting was called to order at 9:15a.m. at the Department of Community Affairs, Room 129,
Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call for attendance:
Ayes: Ms. Schonyers, Ms. Minus-Vincent; Ms. Tabakin; Mr. Fishman; Mr. Maltese
Nays: None
Abstain: None
Present: Chairman Vincent Maltese, Secretary DeAnna Minus-Vincent, Diane Schonyers (designee of
Commissioner William Librera, Department of Education), DeAnna Minus-Vincent, (designee
of Acting Commissioner Charles A. Richman, Department of Community Affairs) Executive
Director Paul Dice, Assistant Executive Director Gloria Luzzatto, Case Managers Chris
Malloy, Kimberly Gardner, and Colleen McGann, In-House Counsel, Catherine Starghill,
Deputy Attorney General Debra Allen.
The Council met in closed session from 9:25 a.m. to 10:30 a.m.
The Council reconvened in Open Session at 10:35am.
Ms. Luzzatto called roll call for attendance in Open Session:
Ayes: Ms. Schonyers, Ms. Minus-Vincent; Ms. Tabakin; Mr. Fishman; Mr. Maltese
Nays: None
Abstain: None
Mr. Maltese called for everyone to recite the Pledge of Allegiance.
Mr. Maltese presented to former Council Members Ms. Virginia Hook and Mr. Bernard Spigner,
tokens of appreciation for their outstanding service to the Council and the people of New Jersey.
Mr. Spigner and Ms. Hook made comments on their tenure as Council Members.
Approval of Minutes:
Mr. Dice presented the January 12, 2005 Closed and Open Session Minutes for approval of the Council.
Mr. Maltese called for a motion to accept the Closed and Open Session Minutes for January 12, 2005.
A motion was made by Mr. Fishman and seconded by Ms. Schonyers. The motion was adopted by roll
call:
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mr. Fishman, Mr. Maltese.
GRC Minutes of Public Session – July 14, 2005
1
Nays: None
Abstain: Ms. Tabakin
Ms. Luzzatto presented the following cases for Administrative Disposition:
1.
2.
3.
4.
5.
6.
2005-60 Louis Toscano v. Department of Personnel - settled in mediation.
2005-56 Michael Jester v. Atlantic City Housing Authority – settled in mediation.
2005-72 Frank Scarafile v. City of Union – settled in mediation.
2005-75 Thomas Neff/Republican Office of the General Assembly – withdrawn.
2005-96 Scott Wolman v. New Jersey Department of Treasury – withdrawn.
2005-102, 103, 104 - John M. McCormack v. New Jersey Department of Treasury – entered
mediation.
7. 2005-106 Donald Meyers v. Borough of Fairlawn – agreed to mediation
8. 2005-111 Kathleen Fazzari v. Plainfield Board of Education – agreed to mediation.
9. 2005-116 Gary Lipsius v. Governor’s Office – complaint withdrawn.
10. 2005-122 Daniel Newman v. Brick Municipal Utilities Authority – agreed to mediation.
Christopher White v. William Paterson University 2003-109
Mr. Dice reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as set
forth in Findings and Recommendations of the Executive Director. Mr. Dice presented the following
recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council re-affirm its November 9, 2004 Final
Decision in its entirety and without amendment or qualification.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Schonyers and seconded by Ms. Tabakin. The motion was adopted by roll
call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
Cynthia Colella-Gallenthin v. Borough of Merchantville 2004-95
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Luzzatto presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council refer the case to the Office of
Administrative Law to determine whether the failure to provide immediate access to the requested
contract documents pursuant to N.J.S.A. 47:1A-5(e) constitutes a knowing and willful violation of the
OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
GRC Minutes of Public Session – July 14, 2005
2
motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent. The motion was adopted by
roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
William Osterman v. City of Trenton 2004-96
William Osterman v. Trenton Police Department 2004-107
Ms. Gardner reviewed the parties’ respective positions on both cases and the GRC’s analysis and issues
in the cases as set forth in Findings and Recommendations of the Executive Director. Ms.Gardner
presented the following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council refer the cases to the Office of
Administrative Law to determine the following:
1. The basis for the denial of access and whether a knowing and willful violation of OPRA
exists due to the lack of response regarding the below listed requested records:
a) Statistical Data
b) Personnel Tranfers
c) Case #2004-107 in its entirety
2. Whether a knowing and willful violation exists pursuant to OPRA under the totality of the
circumstance for the Custodian’s failure to comply with the November 9, 2004 order of the
Government Records Council that stated the following:
The Custodian is to obtain the cost of providing copies of the requested purchase
orders to the Complainant pursuant to N.J.S.A. 47: 1A-5, and inform the
Complainant of said costs. The Custodian is to provide the information to the
Complainant and the Executive Director within five (5) business days after receipt
of the Council’s decision. The Complainant is to inform the Custodian within
five (5) business days after receipt of the cost information whether or not he still
wishes to receive the requested documents.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as written. A
motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was adopted by
roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
GRC Minutes of Public Session – July 14, 2005
3
Barbara Schwarz v. Department of Commerce 2004-124
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Luzzatto presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this case on the basis that
there were no records found in response to the request and the delay in providing the written response to
the OPRA request does not rise to the level of a knowing and willful violation of OPRA under the
totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Mr. Fishman and seconded by Ms. Schonyers. The motion was adopted by roll
call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
Rory Moore v. Town of Oldbridge 2004-141
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Luzzatto presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommends that the Council dismiss this case on the basis that:
1.
2.
The Custodian certified that there were no records responsive to the questions presented in
the Complainant’s OPRA request.
While the Custodian failed to provide a timely written response pursuant to N.J.S.A. 47:1A5(e) and 5(g), her actions should not be considered as rising to the level of a knowing and
willful violation of OPRA under the totality of the circumstance.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as amended to
include that the Custodian be placed on the matrix. A motion was made by Ms. Schonyers and seconded
by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
GRC Minutes of Public Session – July 14, 2005
4
Lauren Pass/Westfield Leader v. New Jersey State Police 2004-152
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss the case on the basis that the
requested records are exempt from disclosure under N.J.S.A. 47:1A-9(a) pursuant to N.J.A.C. 13:5-1.1.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The motion was adopted by
roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
Richard Bernstein v. Borough of Ho Ho Kus 2005-13
Richard Bernstein v. Borough of Allendale 2004-195
Richard Bernstein v. Borough of Woodcliff Lake 2005-2
Richard Bernstein v. Borough of Park Ridge 2005-99
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases as
set forth in Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this cases on the basis that
pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed because of the
unsolicited contact, intrusion or potential harm that may result.
Mr. Fishman reviewed his opinion on way he will be voting against the Findings and Recommendations
of the Executive Director discussing the Balancing Test. Ms. Tabakin voiced her concerns, stressing the
need for privacy in certain circumstances and her concern on security issues.
Mr. Maltese read into the record his opinions from a prepared written statement referencing the above
cases and the Balancing Test. In this statement Mr. Maltese referenced the Balancing Test Doe v. Poritz
142 1.1. 1995 and the advice received from the Department of Law to the effect the that the Council
may for the purpose of meeting the criteria established by Doe v. Poritz asked the requestor for his/her
need for access to the records. His statement continued with his reasons why this request was denied.
Primarily citing the section of OPRA dealing with privacy and security issues
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms Minus-Vincent and seconded by Ms. Schonyers. The motion was adopted by
roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese.
GRC Minutes of Public Session – July 14, 2005
5
Nays: Mr. Fishman
Abstain: None
Martin O’Shea v. Township of West Milford 2004-207 & 2004-31
The Council conducted and in camera review in closed session. After completing the in camera review
of the un-redacted invoice in closed session, the Council concluded by a unanimous vote that the
Custodian had not met the burden of proof for the redactions made to said invoice pursuant to N.J.S.A.
47: 1A-6 and that the Custodian shall disclose the requested document in its entirety within five (5)
business days from receipt of the Council’s decision. The Custodian is to confirm to Executive Director
Paul Dice that said document was released to the Complainant within the specified time period.
Mr. Maltese called for a motion to accept the Councils conclusions. A motion was made by Ms. MinusVincent and seconded by Mr. Fishman. The motion was adopted by roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
Recused: Ms. Tabakin
Jesse Rosenblum v. Borough of Closter 2005-16
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases as
set forth in Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council order that the Custodian, within 10
business days of receipt of their decision, provide the Executive Director, the specific provisions of law
under which they are claiming exemptions from disclosure of the DD214.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was adopted by
roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
GRC Minutes of Public Session – July 14, 2005
6
John Paff v. Township of Plainsboro 2005-29
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases
as set forth in Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find:
1. The Custodian should redact the exempt information contained in the requested executive
session minutes, providing a detailed and lawful basis for each redacted part thereof and
provide access to those redacted minutes that have not already been released.
2. The Custodian violated N.J.S.A. 47: 1A-5(g) by not providing a written reason for the
denial of access to the requested executive session minutes.
3. The Custodian provided a timely response to the OPRA request, h owever the response
was not sufficient concerning the response to the request for executive session minutes.
4. The Custodian shall comply with “1” directly above within ten (10) business days from
receipt of the Council’s decision and provide confirmation to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as amended placing
the Custodian on the matrix. A motion was made by Ms. Schonyers and seconded by Mr. Fishman. The
motion was adopted by roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
Dorothy Argyros v. Township of Neptune 2005-37
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases
as set forth in Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this case on the basis that:
1. The Custodian’s original denial of access to the requested record was lawful
since the record was exempt under attorney-client privilege.
2. The Custodian lawfully denied access to the request for records in a timely
manner and did not violate N.J.S.A. 47:1A-5(i).
3. Pursuant to N.J.S.A. 47:1A-7(b) the GRC does not have jurisdiction to regulate
how a Township notifies its residents of its meetings or the accuracy of
information being released.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent. The motion was adopted by
roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese. Nays:
None
GRC Minutes of Public Session – July 14, 2005
7
Abstain: None
John Pusterhofer v. NJ Department of Education 2005-48
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases as
set forth in Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this case on the basis that:
1.
There was an unlawful denial of access, however the Custodian has certified that the records
responsive to the request have been released.
2.
The Custodian’s violation of N.J.S.A. 47: 1A-5(i) does not rise to the level of a knowing and
willful violation of OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as amended placing
the Custodian on the Matrix. A motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent.
The motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
Abstain: None
Recused: Ms. Schonyers
John Pusterhofer v. NJ Department of Education 2005-49
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases as
set forth in Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss this case on the basis that:
1 .The Custodian has certified that the records responsive to the request do not exist, therefore there
was no unlawful denial of access.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) does not rise to a level of a knowing and willful
violation of OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as amended placing
the Custodian on the Matrix. A motion was made by Mr. Fishman and seconded by Ms. Tabakin. The
motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese.
Nays: None
GRC Minutes of Public Session – July 14, 2005
8
Abstain: None
Recused: Ms. Schonyers
Peter Runfolo v. Township of Scotch Plains 2005-64
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases
as set forth in Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council:
1. Refer the case to the Office of Administrative Law to determine the following:
a. Whether there was a denial of access to government records pursuant to N.J.S.A.
47:1A-1 et. seq.
b. Whether the Custodian provided immediate access to invoices pursuant to
N.J.S.A. 47:1A-5(e).
c. Whether the Custodian violated N.J.S.A. 47: 1A-5(i) and N.J.S.A. 47: 1A-5(g) in
their response to the OPRA request.
d. Whether the Custodian’s delay in access constitutes a knowing and willful
violation of OPRA under the totality of the circumstances.
Find pursuant to N.J.S.A. 47: 1A-7(b), which delineates the Council’s powers and duties, the GRC does
not have jurisdiction over the use of Senior Focus Initiative Funds or the content of the records provide
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as written. A
motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The motion was adopted by
roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Ms. Schonyers, Mr. Maltese.
Nays: None
Abstain: None
Recused: Mr. Fishman
Jeffrey Sauter v. Township of Colts Neck 2004-68
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases
as set forth in Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council:
1.
Conduct an in camera inspection of the requested disciplinary records for which the Custodian
claims an exemption at the Council’s August 11, 2005 meeting.
2. Order the Custodian to provide a certification regarding the existence of documents responsive to
the request in the possession of the Fire Department.
3. Refer the case to the Office of Administrative Law for a hearing to determine if the actions of the
Custodian rise to the level of a “knowing and willful” violation of the law.
GRC Minutes of Public Session – July 14, 2005
9
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as amended. A
motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The motion was adopted by
roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Ms. Schonyers, Mr. Fishman
Nays: None
Abstain: None
Recused: Mr. Maltese.
Richard Bernstein v. Borough of Harrington Park 2005-6
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and issues in the cases as
set forth in Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council dismiss the case on the basis of:
1. The Custodian should have notified the Complainant of the reasons redactions were made
pursuant to N.J.S.A. 47:1A-5(g).
2. The requested records should not be disclosed pursuant to N.J.S.A. 47:1A-1 and Executive Order
21 because of the unsolicited contact, intrusion or potential harm that may result.
3. The Council does not have jurisdiction over the disclosure of the names of dog license owners
pursuant to N.J.S.A. 47:1A-7(b).
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as written.
A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was adopted by
roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Ms. Schonyers, Mr. Fishman
Nays: None
Abstain: None
Recused: Mr. Maltese.
Mr. Maltese called for:
Reports - None
Communications - None
New Business - None.
Public Statements:
Ms. Tina Renna - Cranford, New Jersey.
Ms. Renna decided to formally withdraw her complaint 2004-136 which had been sent to the Office of
Administrative Law. Ms. Renna continued with several comments about the Office of Administrative
GRC Minutes of Public Session – July 14, 2005
10
Law and her concerns.
Mr. John Paff – Somerset, New Jersey
Mr. Paff made reference to several cases listed on the agenda.
Mr. Martin O’Shea – West Milford, New Jersey
Mr. O’Shea made several comments on the cases listed on the agenda.
Mr. Maltese called for a motion to adjourn. A motion was made by Ms. Minus-Vincent and seconded by
Mr. Fishman. Moved by consensus
Meeting adjourned 12:25pm
Respectfully submitted,
DeAnna Minus-Vincent,
Secretary
Dated:
October 28, 2005
GRC Minutes of Public Session – July 14, 2005
11
Draft Minutes of the Government Records Council
August 11, 2005 Public Meeting - Open Session
The meeting was called to order at 9:10 a.m. at the Department of Community Affairs, Room 129,
Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call for attendance:
Ayes: Ms. Schonyers, Ms. Tabakin; Mr. Fishman; Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Minus-Vincent
Present: Chairman Vincent Maltese, Secretary DeAnna Minus-Vincent, Diane Schonyers (designee of
Commissioner William Librera, Department of Education), DeAnna Minus-Vincent, (designee
of Acting Commissioner Charles A. Richman, Department of Community Affairs) Executive
Director Paul Dice, Assistant Executive Director Gloria Luzzatto, Office Manager Marion
Davies Case Managers Chris Malloy, Kimberly Gardner, and Colleen McGann, Resource
Coordinator Jennifer Arozamena, In-House Counsel, Catherine Starghill, Deputy Attorney
General Debra Allen.
The Council met in closed session from 9:15 a.m. to 11:00 a.m.
The Council reconvened in Open Session at 11:00am.
Ms. Luzzatto called roll call for attendance in Open Session:
Ayes: Ms. Schonyers, Ms. Minus-Vincent; Ms. Tabakin; Mr. Fishman; Mr. Maltese
Nays: None
Abstain: None
The Pledge of Allegiance was recited.
Personnel Matter:
Mr. Dice stated that we have extended an offer of employment to Ms. Dara Lownie who will be
replacing Ms. Erin Knoedler. Ms. Knoedler will be working with Local Government Services.
Outreaches:
Mr. Dice stated that we 22 outreaches posted for 2004, and 22 for 2005 with a possibility of having
reached a goal of 25 for 2005. He continued his discussion on the Outreach program.
GRC Minutes o f Pub lic Sessio n – August 11, 2005
1
Minutes:
Mr. Maltese called for a motion to accept both the Open and Closed Session Minutes for February 2005,
March 2005 and April 2005.
A motion was made by Ms Tabakin and seconded by Mr. Fishman. The motion was adopted by roll
call:
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Ms. Luzzatto presented the following cases for Administrative Disposition:
Dan Grant v. Montville Township Board of Education (2004-97) – settled in mediation.
Joseph Renna v. County of Union (2004-136) – withdrawn.
Gerald Jones v. Bergen County (2005-24) – settled in mediation.
Frederick Schneider v. Atlantic City Board of Health (2005-73)- no records responsive to the
request.
5. Rory Moore v. Old Bridge Township (2005-74) - no records responsive to the request.
6. Rory Moore v. Old Bridge Township (2005-79) – all information responsive to the request was
made available and sent to the Complainant.
7. Rory Moore v. Old Bridge Township (2005-8 1) – no records responsive to the request.
8. Rory Moore v. Old Bridge Township (2005-82) – the Council does not have jurisdiction.
9. Rory Moore v. Old Bridge Township (2005-83) – records responsive to the request were
provided.
10. Mark Competello v. City of Hoboken (2005-107) – complaint withdrawn.
11. David Herron v. Montclair Community Pre-K Center (2005-130) – agreement to mediation.
12. Daniel Meaders v. William Paterson University (2005-13 1) – agreement to mediation.
13. John Painter v. Readington Public Schools (2005-134) – agreement to mediation.
14. Rich Engler v. NJ Department of Environmental Protection (2005-4) – complaint withdrawn.
1.
2.
3.
4.
Gerald Weimer v. Middletown Township (2004-22)
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. S targhill presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council close this case without any further
action because:
1.
The Custodian has supplied the Complainant with all of the documents as required in the
Council’s Interim Decision dated May 13, 2004;
2. All issues in controversy have been fully settled; and
3. The settlement is consistent with the law.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation as written. A
motion was made by Mr. Fishman and seconded by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
GRC Minutes o f Pub lic Sessio n – August 11, 2005
2
Nays: None
John Paff v. Division of Consumer Affairs 2004-103
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council reaffirm its January 13, 2005 Final
Decision on the alternative basis mentioned but not addressed in the January 13, 2004 Findings and
Recommendations, and not relied upon in the final decision, regarding the requested government records
being exempt from disclosure pursuant to N.J.S.A. 47: 1A-3(a) because they pertain to investigations in
progress and their disclosure would be inimical to public interest.
Mr. Maltese called for a motion to accept the Executive Director’s Supplemental Recommendation as
written. A motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The motion was
adopted by roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Louise Andreaci v. Port Republic School 2004-202
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council refer this case to the Office of
Administrative Law for a hearing to determine the following:
1.
What records were requested?
2.
Are the records being sought “government records” as defined under N.J.S.A. 47:1A-1.1?
3. When was the records request made?
4. What response was provided to the requestor?
5. When was the response provided?
6. Whether there is a knowing and willful violation of OPRA under the totality of the
circumstances with regard to timeliness pursuant to N.J. S.A. 47:1 a-5(i)?
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation as written. A
motion was made by Mr. Fishman and seconded by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
GRC Minutes o f Pub lic Sessio n – August 11, 2005
3
Nays: None
John Paff v. Borough of Far Hills 2005-30
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommends that the Council request the unredacted copy of the
August 9, 2004 Executive Session minutes be presented at the September 8, 2005 Government Council
Meeting for an in camera inspection to determine if the requested information contained in the
Executive Session minutes are disclosable in whole, in part, or non-disclosable pursuant to OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation as written. A
motion was made by Ms. Schonyers and seconded by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Rory Moore v. Old Bridge Township 2005-39
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Luzzatto presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find:
1.
The Custodian has met the burden of proving that there was no unlawful denial of access and
that the Complainant was provided access to all records responsive to his request.
2.
The Custodian provided a written response to the November 18, 2004 OPRA request on
November 24, 2004 informing the Complainant that the requested records were available.
The Complainant acknowledges receipt of the response. Therefore, Custodian’s response
was timely and in conformity with the provisions of OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendation as written. A
motion was made by Mr. Fishman and seconded by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
John Paff v. Borough of Somerville 2005-55
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find that:
GRC Minutes o f Pub lic Sessio n – August 11, 2005
4
1.
While the Custodian has certified as to the reasons for the documents being withheld, the
information provided is insufficient to determine whether the requested documents fall under
the exemptions claimed.
2. An in camera inspection of the Executive Session minutes for which the Custodian claims an
exemption should be conducted.
3. Pursuant to N.J.S.A. 47:1A-5(i), the Custodian should have responded to the Complaint, as
soon as possible, but not later than seven business days. While the Custodian did violate
N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g), the violation does not rise to a level of
knowing and willful violation of OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendations as amended. A
motion was made by Ms. Schonyers and seconded by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Daryle Pitts v. NJ Department of Health and Senior Services 2005-70
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find that:
1.
The Custodian’s violation of N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g) does not rise to a
level of a knowing and willful violation of OPRA under the totality of the circumstances.
2.
The Custodian has certified that the records responsive to the request do not exist; therefore
there was no unlawful denial of access.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendations as amended. A
motion was made by Ms. Schonyers and seconded by Mr. Fishman. The motion was adopted by roll
call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Mr. Maltese stated that the following cases would be carried until the September meeting.
Martin O’Shea v. Township of West Milford (2004-207)
Martin O’Shea v. Township of West Milford (2005-3 1)
Beth Burns v. Borough of Collingswood (2005-68)
Michael DeLuca v. Town of Guttenberg 2005-76
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Mr. Malloy presented the
GRC Minutes o f Pub lic Sessio n – August 11, 2005
5
following recommendations of the Executive Director to the Council.
The Executive Director respectfully recommended that the Council find:
1. The Custodian certified that all documents responsive to the request have been
provided (aside from the document that she certifies was “not in the control of the Town
of Guttenberg as it was lost.”)
2. Pursuant to N.J.S.A. 47:1A-7 the GRC does not have jurisdiction to perform an audit
of records under the control of Records Custodians.
Mr. Maltese suggested that DARM be notified about this Custodian and how they retain records.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendations as written. A
motion was made by Ms. Schonyers and seconded by Ms. Minus-Vincent. The motion was adopted by
roll call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
David Mann v. Bergen County Planning & Economic Development 2005-78
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommended that the Council find:
1.
The Custodian has certified that the records responsive to the request were released.
2.
The Custodian’s violation of N.J.S.A. 47: 1A-5(i) and N.J.S.A. 47: 1A-5(g) does not rise to the
level of a knowing and willful violation of OPRA under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendations as amended. A
motion was made by Mr. Fishman and seconded by Ms. Schonyers. The motion was adopted by roll
call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Rory Moore v. Township of Old Bridge 2005-80
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and issues in the case as
set forth in Findings and Recommendations of the Executive Director. Ms. Luzzatto presented the
following recommendations of the Executive Director to the Council:
The Executive Director respectfully recommends that the Council find:
1. The Custodian met the burden of proving that the denial of access was proper under OPRA
since she provided the Complainant with specific reasons for her inability to fulfill the request
and the Complainant provided no clarification.
GRC Minutes o f P ub lic Sessio n – August 11, 2005
6
2. The Custodian provided a written response to the April 21, 2005 OPRA request on April 26,
2005. The Custodian’s response was timely and in conformity with the provisions of OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s Recommendations as amended. A
motion was made by Mr. Fishman and seconded by Ms. Schonyers. The motion was adopted by roll
call.
Ayes: Mr. Maltese, Mr. Fishman, Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: None
Joseph Sooy V. Department of Corrections 2004-2 15
The Council after completing the in camera review of the un-redacted “November 18, 2004 e-mail in
Closed Session, the Council concluded that the redacted information contained in the requested record
was neither “inter-agency or intra-agency advisory, consultative, or deliberative material” or otherwise
exempt from disclosure under the Open Public Records Act. N.J.S.A. 47:1A-1 et seq. The Council,
therefore, voted unanimously that the requested document be disclosed in its entirety without redactions
within ten (10) business days from receipt of the Council’s decision. The Custodian is to confirm to
Executive Director Paul Dice that said document was released to the Complainant within the specified
time period.
Mr. Maltese recused himself from the following case:
Jeffrey Sauter v. Township of Colts Neck 2004-68
The Government Records Council (Council) conducted an in camera inspection of the following unredacted documents for a determination on access in the Complainant’s OPRA request:
1. May 22, 2001grievance filed by a member of the Fire Company against former Fire Chief
Piotrowski
2. June 4, 2001 memo from the Township counsel to Executive Fire Council members
regarding the May 22, 2001 Grievance
3. June 18, 2001 letter from the Township attorney to the attorney for former Fire Chief
Piotrowski
4. June 22, 2001 letter from the Township attorney to the attorney for former Fire Chief
Piotrowski.
After completing the in camera review of the un-redacted documents listed directly above in Closed
Session, the Council concluded by a majority vote that Documents 1, 3 and 4 above are disclosable with
the redaction of all information except the name, title and position of the police chief pursuant to
N.J.S.A. 47:1A-10 and Executive Order 11, and Document 2 is not disclosable pursuant to N.J.S.A.
47:1A-1.1 under the exemption for attorney-client privilege. The Custodian shall disclose the requested
documents 1, 3 and 4 above with appropriate redactions within ten (10) business days from receipt of the
Council’s decision. The Custodian is to confirm to Executive Director Paul Dice that said document
was released to the Complainant within the specified time period.
Mr. Fishman stated that he felt no documents should be disclosed.
Ms. Schonyers called for a motion to accept the Council’s Decision to release documents 1, 3 and 4
GRC Minutes o f Pub lic Sessio n – August 11, 2005
7
should be released and document 2 should not be released. A motion was made by
Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was adopted by roll call.
Ayes: Ms. Tabakin, Ms. Minus-Vincent, Ms. Schonyers
Nays: Mr. Fishman,
Recused: Mr. Maltese
The Council also considered the July 28, 2005 Certification of the Custodian that stated there are no
further documents in the possession of the Colts Neck Fire Department responsive to the request. The
Council voted unanimously to accept the certification of the Custodian and finds that there was no
unlawful denial of access under the Open Public Records Act.
Reports - None
Communications - None
New Business - None.
Public Statements:
Mr. Martin O’Shea – West Milford, NJ
Mr. O’Shea discussed his concern on his case and the Township of West Milford.
Mr. John Paff - Somerset, NJ
Mr. Paff wanted to clarify if the Custodian of Somerville was being placed on the Matrix. He also asked
about the regulations that are being prepared are on the New Jersey Register. Ms. Starghill responded
that these are DRAFT regulations and they are still a work in progress.
Ms. Schonyers called for a motion to adjourn. A motion was made by Ms. Minus-Vincent and seconded
by Ms. Tabakin. Meeting adjourned by consensus.
Respectfully submitted,
DeAnna Minus-Vincent,
Secretary
Dated:
October 28, 2005
GRC Minutes o f Pub lic Sessio n – August 11, 2005
8
Minutes of the Government Records Council
September 8, 2005 Public Meeting - Open Session
The meeting was called to order at 9:00 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call:
Present: Chairman Vincent Maltese, DeAnna Minus-Vincent (designee of Commissioner
Susan Bass Levin, Department of Community of Affairs), Executive Director
Paul Dice, Assistant Executive Director Gloria Luzzatto, Mr. Mitchell Fishman,
In-House Counsel Catherine Starghill, Deputy Attorney General Debra Allen,
GRC Staff: Chris Malloy, Kimberly Gardner, Erin Knoedler, Jennifer
Arozamena, Colleen McGann and Marion Davies. Ms. Tabakin arrived at
9:30AM.
The Council met in closed session from 9:25AM to 10:50AM. Ms. Tabakin arrived at
9:30AM.
Open Session reconvened at 11:00AM.
Personnel Matters:
Mr. Dice stated that Ms. Dara Lownie would be joining the GRC staff starting September
19, 2005 filing the position vacated by Ms. Knoedler’s position.
Minutes:
Mr. Maltese call for a motion to accept the May 12, 2005 Open and Closed Sessions
Minutes as amended. A motion was made by Ms. Minus-Vincent and seconded by Ms.
Tabakin. The motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Maltese
Nays: None
Abstain: Mr. Fishman
Not In Attendance: Ms. Schonyers
Mr. Maltese call for a motion to accept the June 9, 2005 Open and Closed Sessions
Minutes as amended. A motion was made by Ms. Minus-Vincent and seconded by Ms.
Tabakin. The motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: Ms. Tabakin
Open Public Meeting – GRC – September 8, 2005
1
Not In Attendance: Ms. Schonyers
Administrative Closures
Ms. Luzzatto presented the following Administrative Closures:
Christian Fernandez v. NJ State Parole Board 2005-114 – withdrawn.
Scott Mooney, Esq. v. Bergen County Prosecutors Office 2005-105 –withdrawn.
Doanl Meyers v. Borough of Fairlawn 2005-106 – settled in mediation.
Frank Weeden v. City of Trenton 2005-113 – withdrawn.
Tucker Kelley v. Township of Rockaway 2005-139 – agreed to mediation.
Stephen Biss v. City of Patterson 2005-156 – agreed to mediation.
John Paff v. Borough of Jamesburg 2005-120 – agreed to mediation.
Gerard J. Morey v. Central Regional School District 2005-124 – agreed to mediation.
Janet Renshaw v. City of Hoboken 2005-128 – withdrawn.
Scott McKnight v. Atlantic County 2005-141 – no records responsive to the request.
Nick Sunday v. NJ State Council on the Arts 2005-155 – agreed to mediation.
Joseph Petrucelli v. Township of Edison 2004 -210 – withdrawn.
Pat Smith v. NJ Department of Health 2005 -85 – withdrawn.
Larry Kohn v. Township of Livingston 2004 -12 - settled in mediation.
Larry Kohn v. Township of Livingston 2004- 43 -settled in mediation.
Mr. Dice stated the Richard Rivera v. Township of West New York moved to the
October Agenda.
John Paff v. Department of Labor 2003-128
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
In accordance with the August 2, 2005 Superior Court of New Jersey - Appellate
Division decision, the Council will conduct an in camera inspection of the requested
documents in this case at its October 13, 2005 meeting.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Schonyers
Open Public Meeting – GRC – September 8, 2005
2
Anne Rademacher v. Borough of Eastontown 2004-18
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
In accordance with the August 2, 2005 Superior Court of New Jersey - Appellate
Division decision, the Council will conduct an in camera inspection of the requested
documents in this case at its October 13, 2005 meeting.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Schonyers
Jeffrey Sauter v. Township of Colts Neck 2004-68
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations of the Executive Director to the
Council:
The Executive Director respectfully recommended that the Council find that the
Custodian has complied with the August 11, 2005 Interim Decision by providing the
Complainant with the redacted records within ten (10) days of receipt of the decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman
Nays: None
Abstain: Mr. Maltese
Not In Attendance: Ms. Schonyers
Open Public Meeting – GRC – September 8, 2005
3
Beth Burns v. Borough of Collingswood 2004-169
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations of the Executive Director to the
Council:
The Executive Director respectfully recommended that the Council request that unredacted copies of all the marketing studies as requested be presented at the October 13,
2005 Council meeting for an in camera inspection to determine whether the documents
are exempt from disclosure, in whole or in part, because the document is “advisory,
consultative, or deliberative material” and “information which, if disclosed, would give
an advantage to competitors or bidders” pursuant to N.J.S.A. 47:1A-1.1.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Mr. Fishman and seconded by Ms. Minus-Vincent. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman
Nays: None
Abstain: Mr. Maltese
Not In Attendance: Ms. Schonyers
Jill Glasser v. Richard Stockton College 2004-194
Mr. Dice reviewed the parties’ respective positions and the GRC’s analysis and issues in
the case as set forth in Findings and Recommendations of the Executive Director.
Mr. Dice presented the following recommendations of the Executive Director to the
Council:
The Executive Director respectfully recommended that the Council order an in camera
inspection of the consultant’s report sought in the OPRA request for the October 13, 2005
meeting.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Tabakin and seconded by Mr. Fishman The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Open Public Meeting – GRC – September 8, 2005
4
Not In Attendance: Ms. Schonyers
Joseph Sooy v. NJ Department of Corrections 2004-215
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations of the Executive
Director to the Council:
The Executive Director respectfully recommended that the Council close the case with no
further action because the Custodian has complied with the August 11, 2005 Interim
Decision by providing the Complainant with the unredacted records within ten (10) days
of receipt of the Council’s decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Schonyers
John Paff v. Township of Plainsboro 2005-29
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations of the Executive
Director to the Council:
The Executive Director respectfully recommended that the Council conduct an in camera
review of the unredacted October 27, 2004 minutes of the Township Committee’s
executive sessions for the October 13, 2005.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Open Public Meeting – GRC – September 8, 2005
5
Not In Attendance: Ms. Schonyers
Mr. Maltese asked Mr. Dice to be very specific when requesting documents for
in-camera inspections.
Esti Mosee v. Atlantic City Police Department 2005-33
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations of the Executive
Director to the Council:
The Executive Director respectfully recommended that the Council find:
1. The Complainant has a Superior Court case pending which also addresses
the subject matter of this denial of access complaint.
2. The Council lacks jurisdiction to make a determination in this Complaint
pursuant to N.J.S.A. 47: 1A-6 and N.J.S.A. 47: 1A-7(g).
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Schonyers
Eugene Mulero v. Morristown Business Administrator 2005-57
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director. Ms.
Gardner presented the following recommendations of the Executive Director to the
Council:
The Executive Director respectfully recommended that the Council find that the
requested record is not disclosable, because it is attorney-client privilege and is exempt
from disclosure pursuant to N.J.S.A. 47: 1A-1 .1.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was
adopted by roll call.
Open Public Meeting – GRC – September 8, 2005
6
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Schonyers
Louis Toscano v. NJ Department of Labor 2005-59
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations of the Executive Director to the
Council:
The Executive Director respectfully recommended that the Council find that:
1.
The Custodian has met the burden of proving that there was no unlawful denial of
access and that the Complainant was provided access to all records responsive to
the request.
2. The Custodian did not respond in a timely manner pursuant to N.J.S.A. 47:1A5(i), the Custodian should have responded to the Complaint, as soon as possible,
but not later than seven business days. Also, pursuant to N.J.S.A. 47: 1A-5(g) the
Custodian should have provided a written response to the Complainant when
he/she is unable to comply with the request.
3. Pursuant to N.J.S.A. 47:1A-7(b), the GRC does not have the authority over the
condition of records sent by the Custodian of Records.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation. A
motion was made by Ms Minus-Vincent and seconded by Ms. Tabakin. The motion was
adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Not In Attendance: Ms. Schonyers
Beth Burns v. Borough of Collingswood 2005-68
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Open Public Meeting – GRC – September 8, 2005
7
Director. Ms. McGann presented the following recommendations of the Executive
Director to the Council:
The Executive Director respectfully recommended that the Council find:
1. The Custodian has born the burden of proving that the Complainant was in
receipt of all contracts and agreements responsive to the request.
Therefore, there was no unlawful denial of access.
2. The Custodian has violated N.J.S.A. 47: 1A-5(e) in not providing
immediate access to the requested contracts and has violated N.J.S.A.
47: 1A-5(g) in not providing the Complainant a written response to the
request.
3. In view of the fact that the records were released to the Complainant and
the Complainant was given a reason for the delay, the Custodian’s actions
do not rise to the level of a knowing and willful violation of N.J.S.A.
47:1 A-1, et. seq. under the totality of the circumstances.
Ms. Minus-Vincent called for a motion to accept the Executive Director’s
recommendation. A motion was made by Ms. Tabakin and seconded by Mr. Fishman.
The motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Ms. Tabakin, Mr. Fishman
Nays: None
Abstain: None
Recused: Mr. Maltese
Not In Attendance: Ms. Schonyers
Martin O’Shea v. Township of West Milford 2004-207 & 2005-31
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms.Luzzatto presented the following recommendations of the
Executive Director to the Council:
The Executive Director respectfully recommended that the Council find that:
1.
The Custodian provided a copy of the un-redacted invoice to the Complainant on
August 9, 2005 and has complied with the Council’s July 14, 2005 Interim
Decision in this matter.
2.
The Council should reaffirm its May 12, 2005 decision and find that the delay in
providing access to the un-redacted copy of the invoice pursuant to the Council’s
Open Public Meeting – GRC – September 8, 2005
8
July 14, 2005 Interim Decision did not knowingly and willfully violate OPRA
under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The
motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Recused: Ms. Tabakin
Not In Attendance: Ms. Schonyers
Martin O’Shea v. West Milford 2004-87
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendations of the
Executive Director to the Council:
The Executive Director respectfully recommended that the Council:
Reaffirm the analysis of the Executive Director’s Findings and Recommendation
of October 7, 2004 that was unanimously accepted by the Council in October 14,
2004 final decision.
2. After reconsidering the facts of this case and the legal standard for knowing and
willful, the Council should find that the Custodian’s actions do not rise to the
level of a knowing and willful violation of the OPRA under the totality of the
circumstances.
1.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Mr. Fishman. The
motion was adopted by roll call.
Ayes: Ms. Minus-Vincent, Mr. Fishman, Mr. Maltese
Nays: None
Abstain: None
Recused: Ms. Tabakin
Open Public Meeting – GRC – September 8, 2005
9
Not In Attendance: Ms. Schonyers
John Paff v. Borough of Far Hills 2005-30
Mr. Dice stated that at its September 8, 2005 public meeting, the Government Records
Council (Council) conducted an in camera inspection of the following unredacted
document for a determination on access in the Complainant’s OPRA request:
• August
9, 2004 Executive Session Meeting Minute’s
After completing the in camera review of the unredacted August 9, 2004 Executive
Session Meeting Minutes in Closed Session, the Council concluded by a unanimous vote
that the Open Public Meetings Act provisions N.J.S.A. 10:4-12(b)7 and N.J.S.A. 10:4-7
12(b)8 are applicable exemptions to the information contained in the three paragraphs of
the requested August 9, 2004 Executive Session Meeting Minutes and therefore, not
disclosable pursuant to N.J.S.A. 47:1A-9.
John Paff v. Borough of Somerville 2005-55
Mr. Dice stated that at the September 8, 2005 public meeting, the Government Records
Council (“Council”) was to conduct an in camera inspection of Executive Session
minutes sought in the OPRA request and the subject of the Denial of Access Complaint
pursuant the Council’s August 11, 2005 Interim Decision. The Custodian provided only
the unredacted December 20, 2004 Executive Session Workshop minutes and did not
provide the March 1, 2004 and June 7, 2004 Executive Session Workshop minutes which
were also subject of the OPRA and request and the Denial of Access Complaint. The
Council, therefore, voted unanimously that the Custodian present the March 1, 2004 and
June 7, 2004 Executive Session Workshop minutes to the Council for the in camera
inspection at the October 13, 2005 meeting.
Public Members:
Martin O’Shea – West Milford, NJ
Mr. O’Shea stated that he had a problem with the reconsideration of 2004-87. Mr.
O’Shea read from the Executive Director’s recommendation dismissing the complaint.
Mr. O’Shea objected to the dismissal of the complaint and would like to see this rectified.
Mr. O’Shea continued on with his discussion of this case.
Mr. O’Shea also discussed the following cases O’Shea v. Township of West Milford
2004-207 & 2005-3 1 and Martin O’Shea v. Township of West Milford 2004-207 &
2005-3 1.
Mr. Maltese called for a motion to adjourn. A motion was made by Ms. Minus-Vincent
and seconded by Ms. Tabakin. The motion was adopted by consensus.
Open Public Meeting – GRC – September 8, 2005
10
Meeting Adjourned 11:50AM.
Respectfully submitted,
DeAnna Minus-Vincent, Secretary
Dated: November 10, 2005
Open Public Meeting – GRC – September 8, 2005
11
Minutes of the Government Records Council
October 13, 2005 Public Meeting - Open Session
The meeting was called to order at 9:20AM at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called roll call:
Present: Mr. Maltese, Ms. Minus-Vincent, Ms. Schonyers.
Not In Attendance: Ms. Tabakin, Mr. Fishman
Present: Chairman Vincent Maltese, DeAnna Minus-Vincent (designee of Commissioner
Susan Bass Levin, Department of Community of Affairs), Ms. Diane Schonyers
(designee of Commissioner Lucille Davy, Department of Education) Executive
Director Paul Dice, Assistant Executive Director Gloria Luzzatto, In-House
Counsel Catherine Starghill, Deputy Attorney General Daniel Reynolds, GRC
Staff: Chris Malloy, Kimberly Gardner, Erin Knoedler, Jennifer Arozamena,
Colleen McGann and Marion Davies.
The Council met in closed session from 9:20AM to 1:30PM.
Open Session reconvened at 1:30PM.
Ms. Luzzatto presented the decision for the following in-camera review:
John Paff v. NJ Department of Labor 2003-128
Ms.Luzzatto stated that at the October 13, 2005 public meeting, the Government Records
Council (Council) conducted an in camera inspection of documents not disclosed to the
Complainant in response to his OPRA request for “any documents relating to the
following Certificate of Debt: Docket # MER-DJ-492454-97 Department of Labor
Docket #ND-103920-97 Department of Labor v. Gladys Garbin SS# ________________
Certificate of Debt filed 10/30/97 for #1,764.72 open and still due.”
After completing the in camera review in Closed Session of the six (6) unredacted
documents certified by the Custodian in the document index to be all the documents
responsive to the OPRA request, the Council concluded by a unanimous vote that
access is to be provided, in part, as specified in the Final Decision.
The Custodian shall provide the Complainant access to the requested documents within
ten (10) business days from receipt of the decision on the basis of the Council’s above
determination and provide confirmation to the Executive Director that the Custodian has
complied with the Council’s decision.
Open Pub lic Meeting – GRC – October 13, 2005
1
Mr. Dice presented the decision for the following in-camera review:
Martin O’Shea v. Township of West Milford 2004-93
Mr. Dice stated that at the October 13, 2005 public meeting, the Government Records
Council (Council) conducted an in camera inspection of the document not disclosed to
the Complainant in response to his OPRA request for the “Board Secretary’s handwritten
notes of the June 22, 2004 closed session.”
The Council conducted said review pursuant to the order for remand to the Council by
the Superior Court of New Jersey-Appellate Division dated September 12, 2005.
After conducting the in camera review in Closed Session of the requested handwritten
notes and seeking legal advice, the Council concluded by a unanimous vote that:
1.
The Executive Director through assistance of legal counsel shall seek a 30-day
extension of the remand from the Superior Court of New Jersey-Appellate
Division for the Council to have an opportunity to review the complete record.
2. The Custodian shall provide the Executive Director with a certified copy of
the June 22, 2004 draft Executive Session minutes made available to the
Complainant on July 12, 2004 within five (5) business days from receipt of
this decision.
John Paff v. Borough of Somerville 2005-55
Mr. Dice presented at the October 13, 2005 public meeting, the Government Records
Council (Council) conducted an in camera inspection of the redacted portions of the
March 1, June 7, and December 20, 2004 Executive Session Workshop minutes sought in
the Complainant’s OPRA request.
After completing the in camera review of the unredacted March 1, June 7, and December
20, 2004 Executive Session Workshop minutes certified by the Custodian in the
document index are the complete unredacted documents responsive to the OPRA request,
the Council voted unanimously that the Custodian is to provide access to the requested
information contained in the March 1, June 7 and December 20, 2004 Executive Session
Workshop minutes as specified in the Final Decision.
The Custodian shall provide the Complainant access to the requested documents within
ten (10) business days from receipt of this decision on the basis of the Council’s above
determination and provide confirmation to the Executive Director that the Custodian has
complied with the Council’s decision.
Open Pub lic Meeting – GRC – October 13, 2005
2
Administrative Closures:
Ms. Luzzatto presented the following Administrative Closures:
Edward Buttimore v. NJ Division of Criminal Justice 2005-9 1 – no records responsive to
the request.
Edward Bogert v. Mahwah Township Public Schools- 2005-94 – no records responsive to
the request.
Daniel Newman v. Brick Township 2005-122 - settled in mediation.
John Paff v. Township of Union 2005-138 - complaint withdrawn.
Carl Varriale v. Borough of Montvale 2005-144 – no records responsive to the request.
Anthony Bussie v. NJ Department of Corrections 2005-147 – no records responsive to
the request.
Esti Mosee v. Family Division of Superior Court 2005-154 – judicial or legislative
jurisdiction not within the scope of OPRA.
Stephen Biss v. Passaic county Sheriff’s Department 2005-157 – agreed to mediation.
Anthony Amelio v. Morris County Prosecutor’s Office 2005-162 – complaint withdrawn.
Ducan Warner v. Monmouth Beach Borough 2005 -177 – agreed to mediation.
John Bart v. City of Paterson 2005-186 – settled between the parties.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations of
the Administrative Closures. Amotion was made by Ms. Minus-Vincent and seconded by
Ms. Schonyers. The Motion was adopted by roll call.
Ayes: Ms. Schonyers, Ms. Minus-Vincent, Mr.
Maltese Nays: None
Not in Attendance: Mr. Fishman, Ms.
Tabakin Meeting adjourned by unanimous vote at
1:45PM.
Respectfully submitted,
DeAnna Minus-Vincent, Secretary
Dated: November 10, 2005
Open Pub lic Meeting – GRC – October 13, 2005
3
Minutes of the Government Records Council
October 28, 2005 Public Meeting - Open Session
The meeting was called to order at 10:05 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
The pledge of allegiance was recited.
Ms. Davies called the roll:
Present: Ms. DeAnna Minus-Vincent (designee of Acting Commissioner Charles A.
Richman in, Department of Community of Affairs), Ms. Diane Schonyers
(designee of Acting Commissioner Lucille Davy, Department of Education)
Ms. Robin Berg-Tabakin, Executive Director Paul Dice, Assistant Executive
Director Gloria Luzzatto, In-House Counsel Catherine Starghill, Deputy
Attorney General Debra Allen, GRC Staff: Chris Malloy, Kimberly Gardner,
Dara Lownie, Jennifer Arozamena, Colleen McGann and
Marion Davies.
Not In Attendance: Mr. Vincent Maltese, Mr. Mitchell Fishman.
Ms. Schonyers called for a motion to go into closed session. A motion was made by
Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion was adopted by a
unanimous vote.
The Council met in closed session from 10:13a.m.to 10:35a.m.
Open Session reconvened at 10:35a.m.
Ms. Davies called the roll:
Present Council Members: Ms. Schonyers, Ms. Minus-Vincent, Ms.Tabakin.
Not In Attendance: Mr. Maltese, Mr. Fishman.
Minutes: Ms. Schonyers called for a motion to approve the July & August, 2005 Open
and Closed Session minutes. A motion was made by Ms. Tabakin and seconded by
Ms. Minus-Vincent to approve the minutes as amended.
The motion passed unanimously.
Administrative Closures
Mr. Dice presented the following Administrative Closures:
1. Michael Bent v. Stafford Township Police Department (2004-78)
2. Virginia Jeffries v. East Orange Board of Education (2005-34)
3. James Donato v. Oradell Police Department (2005-108)
Open Public Meeting Minutes - GRC – October 28, 2005
1
4.
5.
6.
7.
8.
9.
Carl Varriale v. Borough of Montvale (2005-118)
John Painter v. Readington Public Schools (2005-134)
Steven Kossup v. New Jersey Department of Corrections (2005-173)
Robert Shinn v. Department of Environmental Protection (2005-183)
Dr. Charles Bonanno v. Garfield Board of Education (2005-184)
George Goros v. Township of Hillside (2005-190)
Ms. Schonyers called for a motion to accept the Executive Director’s Administrative
Case Dispositons and Case Closures. A motion was made by Ms. Minus-Vincent and
seconded by Ms. Tabakin. The motion passed unanimously.
Richard Rivera v. Town of West New York 2004-201
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. Starghill presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that:
1. Based on the assertion by the Custodian and the Complainant that the records
were immediately accessible to the Complainant for review and copies were
made available within two days of the receipt of the request, there is no denial
of access pursuant to the OPRA.
2. The Custodian has acted in accordance with the OPRA by providing copies of
the requested Tax Book pages within the statutorily required seven business
day period pursuant to N.J.S.A. 47: 1A-5.i.
3. Based on the forgoing conclusions this case should be closed with no further
action by the Council.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
Jesse Rosenblum v. Borough of Closter 2005-16
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that:
1.
2.
The Custodian unlawfully denied access to the Form DD2 14 at the time of
the request.
The Custodian has not born her burden of proving that the Form DD214
was lawfully exempt from disclosure.
Open Public Meeting Minutes - GRC – October 28, 2005
2
John Paff v. Borough of Montvale 2005-54
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find:
1.
2.
3.
4.
5.
6.
7.
The Custodian violated N.J.S.A. 47: 1A-6 for failing to prove that the
denial of access to Closed Session minutes was authorized by law.
The Custodian should redact the exempt information contained in the
requested Closed Session minutes, providing a detailed and lawful basis
for each redacted part thereof and provide access to those redacted
minutes that have not already been released, specifically minutes from the
Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and
September 28, 2004 Closed Sessions.
The Custodian violated OPRA in not releasing the Closed Session minutes
to the Complainant within the seven (7) business day time period as
prescribed in N.J.S.A. 47: 1A-5.i.
The Borough violated N.J.S.A. 47: 1A-5.h. by not forwarding the OPRA
request to the Custodian.
The Borough’s OPRA request form is currently in compliance with
N.J.S.A 47: 1A-5.f. and does not require an amendment.
Dictating office policies to Custodians is not within the Council’s
authority pursuant to N.J.S.A. 47:1A-7.b.
That while the Custodian did not fully comply with OPRA statutes, her
actions do not meet the legal standard required to determine a knowing
and willful violation of OPRA under the totality of circumstances pursuant
to N.J.S.A. 47:1A-7.e.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent.
Motion passed unanimously.
Tina Renna v. County of Union 2005-89
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find:
Open Public Meeting Minutes - GRC – October 28, 2005
5
On the basis of the Custodian’s certification, there is no denial of access to
government records pursuant to N.J.S.A. 47:1A-1.1 because the requested
documents do not exist.
2. The Custodian’s actions do not rise to the level of a knowing and willful
violation of OPRA under the totality of the circumstances on the basis that the
Complainant was not unlawfully denied access to a government record, was
provided a response to her OPRA request within the statutory seven business
days and has not provided evidence that the Custodian’s actions in this case
meet the standard for a knowing and willful violation of the OPRA under the
totality of the circumstances.
3. Based on the forgoing conclusions this case should be closed with no further
action by the Council.
1.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
Martin O’Shea v. Township of West Milford 2005-93
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find:
1.
The Custodian is in violation of N.J.S.A. 47: 1A-6 for failing to bear their
burden of proving that the denial of access was lawful.
2. The Custodian is in violation of N.J.S.A. 47: 1A-5.i. for not providing the
Complainant with the requested documents within the statutorily required
seven (7) business days.
3. The Custodian’s actions do not rise to a knowing and willful violation of
OPRA and unreasonable denial of access under the totality of circumstances
pursuant to N.J.S.A. 47:1A-7.e.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent.
Motion passed unanimously.
Richard Rivera v. Town of Weehawken 2005-95
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
Open Public Meeting Minutes - GRC – October 28, 2005
6
1. Based on the assertion by the Custodian and the Complainant that the records
were immediately accessible to the Complainant for review and copies were
made available within two days of the receipt of the request, there is no denial
of access pursuant to the OPRA.
2. The Custodian has acted in accordance with the OPRA by providing copies of
the requested Tax Book pages within the statutorily required seven business
day period pursuant to N.J.S.A. 47: 1A-5.i.
3. Based on the forgoing conclusions this case should be closed with no further
action by the Council.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
Vesselin Dittrich v. City of Hoboken 2005-97
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in Findings and Recommendations of the Executive Director. Mr.
Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that because there are
issues in this case that are unclear and in dispute, the case should be referred to the Office
of Administrative Law for a hearing to determine:
1.
What records does the Custodian maintain that are responsive to the April
25, 2005 OPRA request?
2. Of the records maintained by the Custodian that are responsive to the
April 25, 2005 OPRA request what was provided to the Complainant on
May 5, 2005? What was provided to the Complainant on May 10, 2005?
3. Of the records provided on May 5, 2005 and May 10, 2005 what records
did the Complainant receive?
4. Were any records responsive to the April 25, 2005 request not provided by
the Custodian? If so, what is the statutory basis for the denial of access?
5. Does the Custodian maintain the letter written by Housing Inspector Joe
Farina? If the record exists but has not been provided, what is the statutory
basis for the denial of access?
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent.
Motion passed unanimously.
Thomas Neff/Republican General Assembly v.
Department of Law & Public Safety 2005-101
Open Public Meeting Minutes - GRC – October 28, 2005
7
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. Luzzattto presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that:
1. There are contested facts in this case regarding access to records sought in the
February 22, 2005 OPRA request. Thus, this case should be referred to the
Office of Administrative Law for a hearing to determine:
a.
b.
c.
d.
e.
f.
What records are being sought in the February 22, 2005 OPRA
request?
What records are made, maintained or kept on file, or received by the
L&PS and are under the responsibility of the Custodian?
Whether the request was too broad in scope that it required
clarification pursuant to Mag Entertainment, LLC v. Division of
Alcoholic Beverage Control, 375 N.J. Super. 534 (March 2005). If the
request was sufficiently clarified by the Complainant for the Custodian
to fulfill the request and were the requested records provided based on
the clarified request?
What records were provided to the Complainant in response to the
OPRA request and of the records provided were all records responsive
to the OPRA request and under the responsibility of the L&PS
Custodian?
What fees, if any, should be assessed for records still outstanding and
not already provided in response to the request pursuant to N.J.S.A.
47:1A-5?
If all requested records were not provided, what is the basis for not
providing access pursuant to OPRA or any other law?
2. There is no written verification substantiating that an agreed to extension was
made between the parties based on the submissions from the Complainant and
the Custodian in this case. Thus, the Custodian violated N.J.S.A. 47:1A-5.e,
N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i in not providing the Complainant
a written response to the request within the statutorily required time period
3. This case should be referred to the Office of Administrative Law to determine
whether the Custodian’s actions regarding the February 22, 2005 OPRA
request was an unreasonable denial of access and rise to the level of a
knowing and willful violation of OPRA under the totality of the
circumstances.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
Open Public Meeting Minutes - GRC – October 28, 2005
8
Eric Wiggins v. Atlantic County Justice Facility 2005-142
This case was moved to the November 10, 2005 agenda.
Ms. Schonyers called for a motion to go into closed session to discuss the following cases
for in-camera review:
Anne Rademacher v. Borough of Eatontown (2004-18)
Martin O’Shea v. West Milford Township Board of Education (2004-93)
Thomas Seibert v. Readington Township (2004-150)
Beth Burns v. Borough of Collingswood (2004-169)
Jill Glasser v. Richard Stockton College of New Jersey (2004-194)
John Paff v. Township of Plainsboro (2005-29)
The Government Records Council will disclose to the public the matters discussed or
determined as soon as possible after Final Decisions have be issued in the above cases.
A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The motion
passed unanimously.
Closed session reconvened at 11:15a.m.
The Council reconvened in open session at 12:10pm. Ms. Davies called the roll.
Present Council Members: Ms. Schonyers, Ms. Minus-Vincent, Ms.Tabakin.
Not In Attendance: Mr. Maltese, Mr. Fishman.
Ms. Schonyers stated there would be a change in procedure at which time she asked Mr.
Dice to give the specific information on the following cases:
Thomas Seibert v. Readington Township (2004-150)
Beth Burns v. Borough of Collingswood (2004-169)
Jill Glasser v. Richard Stockton College of New Jersey (2004-194)
Anne Rademacher v. Borough of Eatontown (2004-18)
The Executive Director respectfully requested that the Council direct the Executive
Director to prepare in-camera Findings and Recommendations of the Executive Director
and submit same with the source documentation for adjucation.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation on
the above referenced cases. A motion was made by Ms. Minus-Vincent and seconded by
Ms. Tabakin. The motion passed unanimously.
Martin O’Shea v. West Milford Township Board of Education (2004-93)
Open Public Meeting Minutes - GRC – October 28, 2005
9
Ms. Schonyers stated that based on the review of the unredacted documents, the Council
concluded that the Board Secretary’s handwritten notes taken during the June 22, 2004
executive session meeting are exempt from disclosure under the “inter-agency, intraagency
advisory, consultative, or deliberative” privilege pursuant to N.J.S.A. 47: 1A-1 .1.
The Council voted unanimously to accept this decision.
John Paff v. Township of Plainsboro (2005-29)
Ms. Schonyers stated that after completing the in camera review of the unredacted
October 27, 2004 executive session minutes in Closed Session, the Council determined
that the Custodian had not borne the burden of proving that the redacted portions of the
October 27, 2004 executive session minutes were exempt from disclosure, as asserted,
pursuant to N.J.S.A. 47:1A-3 and 10. However, the Council concluded that while the
Custodian has not presented the correct lawful basis for non-disclosure, the Council has
an obligation and duty to apply the provisions of the OPRA. The Council determined
that the provisions of N.J.S.A. 10:4-12.b. (8) of the Open Public Meetings Act and
N.J.S.A. 47: 1A-9 were applicable in this case.
Therefore by a unanimous vote, the Council finds that pursuant to N.J.S.A. 10:4-12.b.(8)
of the Open Public Meetings Act and N.J.S.A. 47: 1A-9 there was a lawful basis for the
denial of access to the redacted information contained in the requested document.
Executive Director Report and New Business:
Mr. Dice clarified the employment of Catherine Starghill. Ms. Starghill does not work
and did not work for the Attorney General; she is employed only by the Government
Records Council.
Mr. Dice discussed an OPRA request and the waving of Attorney Client Privilege. The
Council unanimously agreed not waive the right to Attorney Client Privilege in this
matter.
Public Comment :
Mr. Martin O’Shea – West Milford, New Jersey
Mr. O’Shea had several comments on the meeting. Mr. O’Shea also discussed several
cases of concern to him.
Mr. Michael J. Rizzo – Fairfield, New Jersey
Mr. Rizzo discussed his concern on the phasing out of title searching and eminent
domain.
Mr. John Paff - Somerset, New Jersey
Open Public Meeting Minutes - GRC – October 28, 2005
10
Mr. Paff discussed having communication and correspondence on file that might relate to
other cases that might relate to him or other complainants. He also discussed his letter
sent to the Government Records Council on the Open Public Meetings Act.
Ms. Schonyers called for a motion to adjourn. A motion was made by Ms. Minus-Vincent
and seconded by Ms. Tabakin. The motion was adopted by consensus.
Meeting Adjourned @ 12:55pm
Respectfully submitted,
DeAnna Minus-Vincent, Secretary
Dated: December 8, 2005
Open Public Meeting Minutes - GRC – October 28, 2005
11
Minutes of the Government Records Council
November 10, 2005 Public Meeting - Open Session
The meeting was called to order at 9:12 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Davies called the roll:
Present: Mr. Maltese, Ms. DeAnna Minus-Vincent (designee of Acting Commissioner
Charles Richman, Department of Community of Affairs), Ms. Robin BergTabakin, Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, In-House Counsel Catherine Starghill, Deputy Attorney General
Debra Allen, GRC Staff: Chris Malloy, Kimberly Gardner, Dara Lownie,
Jennifer Arozamena, Colleen McGann and Marion Davies.
Not In Attendance: Ms. Schonyers (designee of Acting Commissioner, Lucille Davy,
Department of Education)
Mr. Maltese called for a motion to go into closed session to discuss in camera decisions
and other legal advise. A motion was made by Ms. Minus-Vincent and seconded by
Ms. Tabakin. The motion was adopted by a unanimous vote.
The Council met in closed session from 9:16 a.m. to 10:45 a.m.
Open Session reconvened at 10:50a.m.
The pledge of allegiance was recited.
Ms. Luzzatto called the roll:
Present Council Members: Mr. Maltese, Ms. Minus-Vincent, Ms.Tabakin.
Not In Attendance: Ms Schonyers
Executive Director’s Report:
Mr. Dice stated that the GRC will be attending the New Jersey League of Municipalities
Convention in Atlantic City. The OPRA outreaches for custodians have begun to be
scheduled for 2006 and we will close 2005 with a total of 28 outreaches.
Mr. Dice discussed correspondence regarding closed session minutes which are now
posted for the public’s consumption on our website.
Minutes:
Mr. Maltese called for a motion to accept the Open and Closed session minutes for
September and October 2005. A motion was made by Ms. Tabakin and seconded by Ms.
Open Public Meeting Minutes - GRC – November 10, 2005
1
Minus-Vincent. The motion passed unanimously.
Administrative Dispositions – Council Consent:
Mr. Maltese presented the following Administrative Case Dispositions:
1. Claudine Scozzari v. NJ Department of Transportation 2005-152 Israel
Rodriques v. NJ State Parole Board - 2005-153
2. Nick Sunday v. NJ Council on Arts - 2005-155
3. Steven Biss v. Passaic County Sheriff’s Office 2005-157
4. Martin O’Shea v. Township of West Milford 2005-187
5. Paul Graupe v. City of Clifton - 2005-189
6. Joy DeSanctis v. Township of Ocean – 2005-194
7. John Paff v. Borough of Metuchen 2005-201
Mr. Maltese called for a motion to accept the Executive Director’s Administrative Case
Dispositions. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
The motion passed unanimously.
Mr. Dice stated that the Council will be re-opening the Libertarian Party v. the Division
of Youth and Family Services 2004-114 for reconsideration.
Mr. Maltese discussed the in camera cases that would be heard at the meeting. He stated
that the process time is consuming however, each case requires proper consideration. Mr.
Dice stated that a new in camera process is being considered which would expedite the
in camera process.
John Paff v. Borough of Somerville 2005-55
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director at
the October 13, 2005 meeting.
At the November 10, 2005 public meeting, the Government Records Council (“Council”)
considered the November 4, 2005 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 October 13,
2005 decision.
Open Public Meeting Minutes - GRC – November 10, 2005
2
James Colby v. Pittsgrove Township (Board of Fire Commissioners) 2005-88
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Pursuant to the fact that the record requested did not exist at the time of
the request, there would not have been an unlawful denial of access except
that the Custodian’s delay in responding to the Complainant’s request
resulted in a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.i.
2. The Custodian’s actions do not rise to the level of a knowing and willful
violation of OPRA and an unreasonable denial of access under the totality
of the circumstances on the basis that the Custodian responded to the
request on the eighth business day, one day later than the OPRA allows.
3. The Council has ruled that a form is not necessary to make a request for
records. Therefore, a lack of form did not create a Denial of Access to
other records, giving the Government Records Council the authority to act.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
John McCormack v. NJ Department of Treasury 2005-102
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Based on the fact that, while Custodian’s reasons for denying access to the
requested monthly reports are compelling there is insufficient evidence to
determine if the documents are exempt from access. Therefore, the Council
should perform an in camera inspection of the requested reports.
2. In view of the facts that the Custodian in this case did inform the Complainant as
to the reasons for the Denial of Access and there is no evidence that the
Custodian’s actions “had a positive element of conscious wrongdoing” or were,
“intentional and deliberate, with knowledge of their wrongfulness, and not merely
negligent, heedless or unintentional” it is concluded that the Custodian’s actions
do not rise to the level of a knowing and willful violation of the OPRA and
unreasonable denial of access under the totality of the circumstances.
Open Public Meeting Minutes - GRC – November 10, 2005
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Ms. Starghill added an amendment to the findings and recommendations stating that the
issue of knowing and willful should read an unreasonable denial of access according to
the statutory language of OPRA not unlawful, which is a different legal standard.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent.
Motion passed unanimously.
John Brennan v. Monmouth County Prosecutor 2005-119
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that:
Based on the Custodian’s certification, as well as Janeczko there was no unlawful denial
of access to the June 27, 2003 letter from Robert Linton to Prosecutor Kaye as the
Custodian has met their burden of proving that the letter is a “criminal investigatory
record” and therefore not required to be made, maintained or kept on file pursuant to the
OPRA.
A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin not to adopt
the Executive Director’s Findings and Recommendations, but instead concluded that the
requested letter from Mr. Linton be disclosed with necessary redactions pursuant to the
Open Public Records Act (“OPRA”) because the letter preceded the investigation and
was determined not to be part of the investigation. Therefore, the Custodian is to disclose
the requested letter with necessary redactions pursuant to the OPRA and simultaneously
provide written notice to the Executive Director of compliance. The motion passed
unanimously.
Eric Wiggins v. Atlantic County Justice Facility 2005-142
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find:
Pursuant to N.J.S.A. 47:1A-5.g., an unlawful denial of access cannot be substantiated
without proof of the OPRA request that is subject in this complaint therefore this case
should be dismissed.
Open Public Meeting Minutes - GRC – November 10, 2005
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Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent.
Motion passed unanimously.
Brian McCrone v. Burlington County Prosecutor’s Office 2005-146
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that:
The Custodian has borne the burden of proving that the denial of access was authorized
by law due to the criminal investigatory records exemption pursuant to N.J.S.A. 47:1A1.1 and released all other records responsive to the request.
Mr Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
The Motion passed unanimously.
Tina Renna v. County of Union 2005-178 and 2005-180
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1.
2.
3.
4.
The Custodian has born the burden of proving that the denial of access was lawful
pursuant to N.J.S.A. 47:1A-6.
The Custodian has provided immediate access to bills as prescribed under
N.J.S.A. 47:1A-5.e.
The Custodian has properly responded to the September 6, 2005 and September
20, 2005 requests within the statutorily required seven (7) business days pursuant
to N.J.S.A. 47:1A-5.i.
The Custodian’s actions to not rise to a knowing and willful violation of OPRA
and unreasonable denial of access under the totality of circumstances pursuant to
N.J.S.A. 47:1A-7.e.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
Open Public Meeting Minutes - GRC – November 10, 2005
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Gilda Gill v. Salem County Clerk’s Office 2005-185
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that:
In accordance with N.J.S.A. 47:1A-1 et seq., the Custodian should disclose the
document(s) responsive to the request, with appropriate redactions and a legal
justification for same, or submit a legal certification stating that the document does not
exist to the Executive Director within ten (10) calendar days of receipt of the Council’s
decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms.Tabakin and seconded by Ms. Minus-Vincent.
Motion passed unanimously.
Robert Ross v. Atlantic County Prosecutors Office 2005-191
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
1.
2.
The Complainant has a Superior Court case pending which also addresses the
subject matter of this Denial of Access Complaint.
The Council does not have jurisdiction to make a determination in this Complaint
pursuant to Mosee v. Atlantic City Police Department, GRC Complaint No. 200533 as well as N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7(g).
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
Mr. Dice stated that at the next meeting the Council will have for its review and vote an
Advisory Opinion on Prevailing Party and Subsequent Attorneys Fee. Mr. Dice also
stated that he would also give the Council a report on a similar Advisory Opinion on
Knowing and Willful violations.
Mr. Dice also addressed the discontinuing of the use of the Matrix.
Open Public Meeting Minutes - GRC – November 10, 2005
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Anne Rademacher v. Borough of Eatontown – 2004-18
During the Closed Session, the Council conducted the in camera inspection of the
unredacted report prepared for the Borough of Eatontown by the New Jersey Professional
Management Company sought in the OPRA request.
A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin to order that
the Custodian disclose the requested Management Study for the Borough of Eatontown –
Task I Organizational Structure, except the information as specifically set forth below
which is exempt from disclosure as “inter-agency or intra-agency advisory, consultative
or deliberative material” pursuant to N.J.S.A. 47:1A-1.1.
The motion passed unanimously.
Management Study For the Borough of Eatontown (Study) – Task I Organizational
Structure:
The Study, Task I consists of twenty-seven (27) total pages: 4 pages include the cover
page, table of contents and Task II table of contents, the written report with numbered
pages 1 through 16, and 7 pages identified as Appendix A through Appendix G.
1.
Page 2: Redact all sentences after the first sentence in paragraph one, the third
sentence in paragraph two, the second and third sentences in paragraph three.
2.
Page 3: Redact the third and fourth sentences in paragraph one and all of
paragraph three.
3.
Page 4: Redact paragraph one, the first, second and fourth sentences in
paragraph two, and paragraph five.
4.
Page 5: Redact paragraph two, the third and fourth sentences in paragraph
three, the second sentence in paragraph five, and the second sentence in
paragraph six.
5.
Page 6: Redact the last sentence in paragraph one after “ADP” and the last
sentence in paragraph four.
6.
Page 7: Redact paragraph one, the fifth sentence in paragraph two and the
second sentence in paragraph three.
7.
Page 8: Redact the second, fifth, sixth, seventh and eighth sentences in
paragraph two, the second sentence after “such” and the first four words in the
fourth sentence in paragraph three.
8.
Page 9: Redact the paragraph on this page.
9. Page 10: Redact paragraph five and the first sentence in paragraph six.
Open Public Meeting Minutes - GRC – November 10, 2005
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10. Page 11 and 12: Redact the third sentence in paragraph one, the second
sentence in paragraph three, all of paragraph four, the sixth sentence in
paragraph five on page 11 and ending on page 12.
11. Page 13: Redact paragraph three.
12. Page 14: Redact the two paragraphs on this page.
13. Page 15: Redact the second sentence in paragraph two, the second sentence
in paragraph three and the last sentence in paragraph four.
14. Page 16: Redact the last sentence in paragraph two.
15. Appendices A through G: The Council concluded that it was unclear which
charts are proposed or current tables of the organization referenced in Task I
and therefore, the Custodian is to provide access to the current tables of the
organization contained in Appendices A through G with redactions of
proposed organization changes.
Public Comments:
Michael Rizzo – Fairfield, NJ.
Mr. Rizzo – Title Search Industry. Discussed his concerns with OPRA and the title
seacrch industry.
Martin O’Shea – West Milford, NJ.
Mr. O’Shea distributed eight (8) copies of two (2) letters referencing his denial of access
complaints.
John Paff – Somerville, NJ
Mr. Paff discussed the custodian consequence policy. Mr. Paff also spoke on a letter from
Senator Martin to the Government Records Council.
Mr. Maltese called for motion to go into closed session for the purpose of discussing two
in camera cases. A motion was made by Ms. Minus-Vincent and seconded by Ms.
Tabakin. Motion passed unanimously.
The Council met in closed session from 12:00 noon until 12:55.
Mr. Maltese called for a motion to go back into open session. A motion was made by
Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion passed unanimously.
Open Public Meeting Minutes - GRC – November 10, 2005
8
Resume Open Session 1:05 pm
Mr. Maltese stated that there would be discussion on the following cases:
1. John Paff v. Department of Labor 2003-128
2. Ann Glasser v. Stockton College 2004-194
Ann Glasser v. Stockton College 2004-194
During closed session the Council conducted the in camera inspection of the unredacted
consultant’s report performed by Victor Augestia on July 20 and 21, 2004 pertaining to
the media center at the Richard Stockton College of New Jersey October 27, 2004 sought
in the OPRA request.
After completing the in camera review of the unredacted record in closed session, the
Council concluded that, all the redacted information in the document was properly
withheld pursuant to N.J.S.A. 47:1A-10 as the information related to employee
evaluations, managerial recommendations for disciplinary action and terminations with
the exception of the redaction on Page 1 of the report in the upper right hand corner for
which there was no lawful basis for not disclosing same. The Council noted further that
the redacted document was stamped “confidential” on each page of said report however;
the unredacted document did not contain a “confidential” stamp on all pages.
A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent to accept the
Council’s in camera conclusions.
Therefore by a unanimous vote, the Council finds that pursuant to N.J.S.A. 47:1A-10
there was a lawful basis for the denial of access to all the redacted information contained
in the requested document with the exception of the information appearing in the upper
right hand corner of Page 1 of said document and that the Custodian is to provide the
Executive Director with an explanation of why the redacted document was stamped
“confidential” on each page of said report, but the unredacted document did not contain a
“confidential” stamp on all pages.
John Paff v. Department of Labor 2003-128
During the closed session the Council conducted the in camera inspection of the two
unredacted records dated August 17, 2000 and September 1, 1999.
After completing the in camera review of the unredacted records in closed session, the
Council concluded the following:
1. Document - Letter Dated August 17, 2000: Disclose the name and address, to
which the letter is written, the date of the letter, and the salutation including the
sender’s name pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other information
Open Public Meeting Minutes - GRC – November 10, 2005
9
in the document is exempt from disclosure pursuant to N.J.S.A. 43:21-1 1.g. and N.J.A.C.
12:15-2.1 thru 2.4.
2. Document – Letter Dated September 1, 1999: Disclose the name and address in the
letterhead, the date, the method of delivery, and the signature including the sender’s
name under the signature pursuant to N.J.A.C. 12:15-2.1 and 2.2(a) 3; all other
information in the document is exempt from disclosure pursuant to N.J.S.A. 43:21-1
1.g. and N.J.A.C. 12:15-2.1 thru 2.4.
The Custodian is to provide the Complainant access to the requested records as set forth
herein within ten (10) business days from receipt of the decision and provide
confirmation to the Executive Director that the Custodian has complied with the
Council’s decision.
Mr. Maltese called for a motion to accept the Councils conclusion from the in camera
inspection. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin
the motion passed unanimously.
Mr. Maltese called for a motion to adjourn. Motion passed unanimously.
Meeting adjourned 1:15 pm
Respectfully submitted,
Deanna Minus-Vincent, Secretary
Dated Approved: April 11, 2006
Open Public Meeting Minutes - GRC – November 10, 2005
10
Open Public Meeting Minutes - GRC – November 10, 2005
11
Minutes of the Government Records Council
December 8, 2005 Public Meeting – Open Session
The meeting was called to order at 9:35a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Davies called the roll:
Present: Ms. Diane Schonyers (designee of Acting Commissioner Lucille Davy
Department of Education), Ms. DeAnna Minus-Vincent (designee of Acting
Commissioner Charles Richman, Department of Community of Affairs), Ms. Robin
Berg-Tabakin, Executive Director Paul Dice, Assistant Executive Director Gloria
Luzzatto, In-House Counsel Catherine Starghill, Deputy Attorney General Debra
Allen, GRC Staff: Chris Malloy, Kimberly Gardner, Dara Lownie, Jennifer
Arozamena, Colleen McGann and Marion Davies.
Not In Attendance: Mr. Maltese, Chairman
Ms. Schonyers called for a motion to go into closed session to discuss in camera
decisions and other legal advice. A motion was made by Ms. Minus-Vincent and
seconded by Ms. Tabakin. The motion was adopted by a unanimous vote.
The Council met in closed session from 9:40 a.m. to 9:55 a.m.
Open Session reconvened at 10:00 a.m.
The pledge of allegiance was recited.
Ms. Davies called the roll:
Present: Ms. Schonyers, Ms. Minus-Vincent, Ms.Tabakin.
Not In Attendance: Mr. Maltese
Minutes – October 13, 2005
Ms. Schonyers reviewed the minutes of the October 13, 2005 Open and Closed Sessions
meeting. Ms. Schonyers called for a motion to accept the Open and Closed Session
minutes as amended.
A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent to adopt the
minutes with the amendments. The motion passed by a unanimous vote.
Open Public Meeting Minutes – GRC – December 8, 2006
1
Louise Andreaci v. Port Republic School (2004-202)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendation to the
Council:
The Executive Director respectfully recommended that the Council accept the Initial
Decision Settlement of the Office of Administrative Law and close this case without
further action.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
Motion passed unanimously.
James Cody v. Middletown Township Public School (2005-98)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. In the case of the records that needed clarification, there is no denial of access to
records because the Custodian did properly respond to those requests in writing
within the statutorily required seven (7) business days, indicating to the
Complainant that clarification was necessary but did not receive a response in
return from the Complainant.
2. The Custodian did violate N.J.S.A. 47:1A-5.i. and -5.g. and N.J.S.A. 47:1A-6 by
not providing a specific lawful basis for the denial of access to Records Requested
“9,” “29,” “31,” “34,” and “36”within the statutorily prescribed seven (7) business
days
3. The Custodian violated N.J.S.A. 47:1A-5.e. and N.J.S.A. 47:1A-5.g. in not
providing immediate access or an immediate response to the request for contracts
and bills.
4. Pursuant to N.J.S.A. 47:A-5.c. and given that the Complainant was allowed time
to review and object to the special service charge, but instead agreed to and paid
the full amount of the charge, this portion of the Complaint should be dismissed.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent.
The motion passed unanimously.
Open Public Meeting Minutes – GRC – December 8, 2006
2
John McCormack v. NJ Department of Treasury (2005-103)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that an in camera
inspection of the requested records is necessary to determine if they are disclosable
because there is insufficient evidence to conclude whether the documents are exempt
from access because of the advisory, consultative or deliberative exemption under OPRA.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin.
The motion passed unanimously.
John McCormack v. NJ Department of Treasury (2005-104)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1.
The two (2) memoranda from April 15, 2005 should be released to the
Complainant as the “individual in interest” of the personnel record pursuant to
N.J.S.A. 47:1A-10.
2. The Council should conduct and in camera review of the requested handwritten
notes to determine if the ACD exemption set forth in N.J.S.A. 47: 1A-1 .1
applies.
3. In view of the facts that the Custodian in this case did inform the Complainant
as to the reason for the Denial of Access in a timely manner and there is no
evidence that the Custodian’s actions “had a positive element of conscious
wrongdoing” or were, “intentional and deliberate, with knowledge of their
wrongfulness, and not merely negligent, heedless or unintentional” it is
concluded that the Custodian’s actions do not rise to the level of a knowing and
willful violation of the OPRA and unreasonable denial of access under the
totality of the circumstances.
4. The Custodian shall comply with “1” within ten (10) business days from receipt of
this decision on the basis of the Council’s above determination and provide
confirmation to the Executive Director that the Custodian has complied with the
Council’s decision.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation
with amendments. A motion was made by Ms. Minus-Vincent and seconded by
Ms. Tabakin. The motion passed unanimously.
Open Public Meeting Minutes – GRC – December 8, 2006
3
John Fox v. Township of Parsippany (2005-109)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that:
Pursuant to N.J.S.A. 47: 1A-9.a. and HIPAA, and further supported by the decision of the
Superior Court of NJ in Michelson v. Wyatt and City of Plainfield, the Custodian
lawfully denied access to the requested cost of healthcare benefits supplied to each
individual Council member.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The
motion passed unanimously.
Donal Meyers v. Borough of Fair Lawn (2005-127)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
1.
The Custodian may have unlawfully denied access to a government records.
2.
The Custodian has not borne her burden of proving that the records responsive to
the request are not government records.
3. The Custodian should obtain the government records that are responsive to the
request and release them pursuant to the OPRA within ten (10) business days of
receipt of the decision and inform the Executive Director of same.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The
motion passed unanimously.
Tina Renna v. County of Union (2005-137)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendations to the Council:
Open Public Meeting Minutes – GRC – December 8, 2006
4
The Executive Director respectfully recommended that the Council find:
1. The Custodian has certified that all records responsive to the request have been
disclosed to the Complainant.
2. The Council’s authority includes decision on access, not on the content of the
records released pursuant to N.J.S.A. 47: 1A-7.b.
3. The Custodian did lawfully respond to the records request. The Custodian did
release records in a timely manner and has not violated N.J.S.A. 47: 1A-5.i.
4. The Custodian did not knowingly and willfully violate the OPRA and
unreasonably deny access under the totality of the circumstances.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The
motion passed unanimously.
Jean Varga v. Township Middletown (2005-140)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find the requested
records are criminal investigatory and not disclosable pursuant to N.J.S.A.47:1A-1.1
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation
with amendments. A motion was made by Ms. Tabakin and seconded by
Ms. Minus-Vincent. The motion passed unanimously.
Tina Renna v. County of Union (2005-172)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find:
1. The Custodian violated N.J.S.A. 47:1A-5.i. by not properly responding to the
August 25, 2005 request within the statutorily required seven (7) business days,
therefore causing an unlawful denial of access.
2. The Custodian’s actions to not rise to a knowing and willful violation of OPRA
and unreasonable denial of access under the totality of circumstances pursuant to
N.J.S.A. 47:1A-7.e.
Open Public Meeting Minutes – GRC – December 8, 2006
5
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The
motion passed unanimously.
John Windish v. Mount Arlington Board of Education (2005-176)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendations to the
Council:
The Executive Director respectfully recommended that the Council find:
1. The Complainant has provided written correspondence to GRC staff that confirms
that he was able to view the records. Therefore, access is no longer at issue in this
Complaint and that portion of the Complaint requires no further action of the
Council.
2. The Custodian did violate N.J.S.A. 47:1A-5.e. Contracts are considered
immediate access records and the Custodian did delay the release of those
records.
3. The Custodian did supply a written response to the Complainant within seven
business days; therefore the Custodian did not violate N.J.S.A. 47:1A-5.i.
4. The Custodian did violate N.J.S.A. 47:1A-6 by not providing a lawful basis for the
delay in access, however the Custodian’s actions do not rise to the level of a knowing
and willful violation of the OPRA under the totality of the circumstances.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The
motion passed unanimously.
Mr. Dice stated that a request for stay was submitted to the GRC in GRC case No. 2005119. Ms. Schonyers stated that the Council will be seeking advice from counsel on
litigation strategy.
Administrative Case Disposition – Council Consent:
1. Virginia Jeffries v. East Orange Board of Education (2005-112)
2. Marcia Ibrahim v. Department of Law & Public Safety, Div. of Consumer Affairs
(2005-117)
3. John Paff v. Borough of Jamesburg (2005-120)
4. Tucker Kelley v. Rockaway Township (2005-139)
5. David Mann v. Legal Services of NJ (2005-143)
6. Stephen Biss v. City of Paterson (2005-156)
7. David Mann v. Bergen County Family Division (2005-195)
8. Leroy T. Moore v. Department of Corrections (2005-199)
Open Public Meeting Minutes – GRC – December 8, 2006
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9. John Paff v. Borough of Metuchen (2005-201)
10. Philip Stephen Fuoco v. Camden County (2005-223)
Ms. Schonyers called for a motion to accept the Executive Director’s administrative case
dispositions as written. A motion was made by Ms. Tabakin and seconded by Ms.
Minus-Vincent. The motion passed unanimously.
Cases Referred to Mediation (Agreements to Mediate)
1. John Paff v. Elizabeth Board of Education (2005-210)
2. Nick Sunday v. Paterson Free Public Library (2005-206)
3. Vesselin Dittrich v. City of Hoboken (2005-218)
4. Vesselin Dittrich v. City of Hoboken (2005-222)
No vote needed on above cases this is for information purposes only.
Executive Director Report and New Business:
Mr. Dice discussed with the Council the letters received from Mr. Paff and letters in
response sent to Mr. Paff from the Government Records Council. Mr. Paff’s letters
reference GRC case No. 2005-197.
Mr. Dice presented Mr. Mitchell Fishman’s letter of resignation from the Council.
Ms. Schonyers called for a motion to accept Mr. Fishman’s resignation as Council
member. A motion was made by Ms. Tabakin and seconded by Ms. Minus-Vincent. The
motion was adopted unanimously.
Mr. Dice discussed the outreach at the League of Municipalities conference. He also
stated that he met with NJFOG and ACLU and discussed the outreach in Boston on
OPRA and the Freedom of Information Law. He also discussed the outreaches that are
planned for 2006.
Public Comment:
Mr. John Paff – Somerville, NJ
Martin O’Shea – West Milford, NJ
Mr. O’Shea distributed letters to the Council for their consideration.
Elizabeth Mason – NJFOG
John McCormack – Trenton, NJ
Hearing no other discussion, Ms. Schonyers called for a motion to adjourn.
A motion was made by Ms. Minus-Vincent and seconded by Ms. Tabakin. The motion
passed unanimously.
Open Public Meeting Minutes – GRC – December 8, 2006
7
Meeting adjourned 11:30 am.
Respectfully submitted,
Deanna Minus-Vincent, Secretary
Dated Approved: April 11, 2006
Open Public Meeting Minutes – GRC – December 8, 2006
8
Minutes of the Government Records Council
January 27, 2006 Public Meeting – Open Session
The meeting was called to order at 9:40 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Davies called the roll:
Present: Ms Diane Schonyers (designee of Acting Commissioner Lucille Davy
Department of Education), Charles Richman (designee of Commissioner Susan Bass
Levin, Department of Community of Affairs), Ms. Robin Berg-Tabakin, Executive
Director Paul Dice, Assistant Executive Director Gloria Luzzatto, In-House Counsel
Catherine Starghill, Deputy Attorney General Debra Allen, GRC Staff: Chris Malloy,
Kimberly Gardner, Dara Lownie, Jennifer Arozamena, Colleen McGann and Marion
Davies.
Not in Attendance: Mr. Maltese - Chairman
Ms. Schonyers called for a motion to go into closed session for legal advice. A motion
was made by Ms. Tabakin and seconded by Mr. Richman. The motion was adopted by a
unanimous vote.
The Council met in closed session from 9:45 a.m. to 10:05 a.m.
Open Session reconvened at 10:10 a.m.
Ms. Schonyers called for a motion to go into open session. A motion was made by Ms.
Tabakin and seconded by Mr. Richman. The motion was adopted by a unanimous vote.
Ms. Davies called the roll:
In attendance:
Ms. Schonyers, Ms. Tabakin, Mr. Richman
Not In Attendance:
Mr. Maltese
The pledge of allegiance was recited.
Ms. Schonyers stated that the Government Records Council needs to appoint a secretary.
Ms. Tabakin volunteered for the position of secretary.
Ms. Schonyers and Ms. Tabakin made changes to the closed session minutes of October
28, 2005. These minutes were not adopted at this meeting.
Robert Tombs v. Brick Township Municipal Authorities (2003-123)
Mr. Dice stated that there were two (2) documents not listed in the Supplemental
Findings and Recommendations:
1. December 23, 2005 exceptions from Mr. Tombs which had been distributed and
discussed with the Council.
2. January 4, 2006 late submission from the Custodian.
Open Public Meeting Minutes – GRC – January 27, 2006
1
Mr. Dice stated that since all submissions have not been reviewed by the Council he
suggested that this case be postponed until the next meeting so that all information could
be considered.
Mr. Richman made a motion to postpone the decision on Robert Tombs v. Brick
Township Municipal Authorities to request a 45-day extension of time from the Office of
Administrative Law for issuing the final decision in order to give thorough and complete
consideration to the parties’ submissions (exceptions and replies) subsequent to the
issuing of the initial decision. Ms. Tabakin seconded the motion. The motion passed
unanimously.
William Osterman v. City of Trenton/Trenton Police Department (2004-96) and
(2004-107)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Second Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council adopt the Initial
Decision of the Office of Administrative Law and conclude that the Custodian did not
knowingly and willfully violate OPRA and unreasonably deny access under the totality of
the circumstances.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation
with the administrative changes as amended. A motion was made by Ms. Tabakin and
seconded by Mr. Richman. Motion passed unanimously.
Bert Wailoo v. Kean University of New Jersey (2004-196)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that because the
document requested was not made, maintained or kept on file...or received at the time of
the request, as well as the ruling in Mag, the Custodian did not unlawfully deny access to
the records requested.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Tabakin. Motion
passed unanimously.
Frances O’Loughlin v. Ocean Gate Board of Education (2005-43)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
Open Public Meeting Minutes – GRC – January 27, 2006
2
The Executive Director respectfully recommended that the Council find:
1. The Custodian should redact the exempt information contained in the October 20,
2004 BOE meeting minutes, providing a detailed and lawful basis for each
redacted part thereof and provide access to those redacted minutes within ten (10)
business days from receipt of the Council’s decision and provide confirmation to
the Executive Director.
2. The Custodian has not borne the burden of proving that the denial of access to
Board minutes was authorized by law pursuant to N.J.S.A. 47: 1A-6.
3. The Custodian is in violation of N.J.S.A. 47: 1A-5.i. for failing to respond to the
December 16, 2004, January 7, 2005, January 20, 2005, and January 30, 2005
OPRA requests within the statutorily mandated seven (7) business days.
4. The Custodian is in violation of N.J.S.A. 47: 1A-5.g. for failing to provide a
written response to the January 7, 2005 and January 20, 2005 OPRA requests as
well as failing to provide a specific and lawful basis for the denial of access in the
January 21, 2005 and March 8, 2005 responses.
5. The Custodian is in violation of N.J.S.A. 47:1A-5.e. for failing to provide
immediate access to bills.
6. 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
circumstances due to her certification that any delay in access was caused by the
high turnover in office, and the fact that the Complainant has been provided with
all requested records except the October 20, 2004 meeting minutes.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Tabakin. Motion
passed unanimously.
Akbar Na’im v. Union County Prosecutor’s Office (2005-66)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that there was no
unlawful denial of access as the requested records are criminal investigatory records
pursuant to N.J.S.A. 47:1A-1.1 and are exempt from disclosure.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended to include citation. A motion was made by Ms. Tabakin and seconded by Mr.
Richman. Motion passed unanimously.
Open Public Meeting Minutes – GRC – January 27, 2006
3
Michael DeLuca v. Town of Guttenberg (2005-76)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that based on the fact
that the Custodian has certified that all documents in question have either been provided,
or do not exist, she has borne her burden of proving that there was no unlawful denial of
access to any of the records requested on April 15, 2005.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
John McCormack v. New Jersey Department of Treasury (2005-104)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the In Camera Findings and Recommendations of the
Executive Director. Ms. McGann presented the following recommendations to the
Council:
The Executive Director respectfully recommended the Council find that:
1. The Custodian has complied with the Council’s December 8, 2005 Interim
Decision in providing access to the requested memoranda and supplying the
Council with the requested “handwritten notes taken of meeting between Edward
Scheingold, John McCormack and Linda B. Hickey; notes taken by Linda
Hickey” within ten (10) business days of receiving the Council’s decision.
2. The Custodian should disclose the requested “handwritten notes taken of meeting
between Edward Scheingold, John McCormack and Linda B. Hickey; notes taken
by Linda Hickey,” except Section 2, Portion "D" and "E" as indicated by the GRC
staff, which are exempt from disclosure as “personnel” pursuant to N.J.S.A.
47:1 A- 10 and should be redacted.
3. The Custodian shall comply with “2” of the Conclusions and Recommendations
within ten (10) business days from receipt of this decision on the basis of the
Council’s above determination and provide confirmation to the Executive
Director that the Custodian has complied with the Council’s decision.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Open Public Meeting Minutes – GRC – January 27, 2006
4
John Brennan v. Monmouth County Prosecutor (2005-119)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Mr. Malloy presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council vote to approve the
Monmouth County Prosecutors Office’s request for a stay.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Tabakin. Motion
passed unanimously.
David Allen v. New Jersey Department of Corrections (2005-126)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that while
Custodian’s reasons for denying access to the requested protective custody documents are
compelling there is insufficient evidence to determine if the documents are exempt from
access and so the Council should perform an in camera inspection of the requested
documents.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
David Mann v. New Jersey Department of Environmental Protection (2005-129)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that pursuant to
N.J.S.A. 47: 1A-9.a and based on N.J.A. C. 7: 1D-3.4 and the unpublished decision in
Newark Morning Ledger Co., Publisher of the Star-Ledger the proposed rule disallowing
facsimile transmittal of OPRA requests does apply. Therefore, the facsimile request for
records submitted by the Complainant is not a valid OPRA request and there is no denial
of access.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Open Public Meeting Minutes – GRC – January 27, 2006
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Akil Hayward v. ARC – Union County (2005-136)
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. Luzzatto presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that in considering
the meaning of a public agency as explained by the court in the Lafayette Yard cases and
all the document submissions of the Custodian, the ARC-Union is not a public agency
pursuant to N.J.S.A. 47: 1A-1 .1. Therefore, ARC-Union is not subject to the provisions
of OPRA and is not required to respond to OPRA requests for records.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
John Paff v. Cumberland County Sheriff’s Office (2005-159)
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. While the Custodian did ultimately grant access to all records requested, the
response to the request came after the seven (7) business days allowed for a
response pursuant to the OPRA; violating N.J.S.A. 47:1A-5.i., and resulting in
an unlawful denial of access.
2. Based on the fact that the Complainant was ultimately given access to the
records requested, and there is no evidence that the Custodian’s actions were
consistent with the legal standards established for knowing and willful conduct
by the New Jersey judiciary, 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 pursuant to N.J.S.A. 47:1A-1 1.a.
3. The Custodian should not be placed on the time matrix based on the Council’s
decision in Renna, as well as the fact that the time matrix is now defunct.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Asjylyn Loder v. County of Passaic (2005-161)
Open Public Meeting Minutes – GRC – January 27, 2006
6
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that while a
reasonable special service charge of $799.32 is warranted pursuant to OPRA and Lenape,
the Custodian may only charge the $400.00 special service charge that the Complainant
agreed to pay in August 2004 because the Custodian violated N.J.S.A. 47:1A-5.c. by not
providing the Complainant the opportunity to review and object to the charge prior to it
being incurred.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
William Hart, Jr. v. Hillside Township Tax Assessor (2005-168)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find the Council does
not have jurisdiction to make a determination in this complaint pursuant to Mosee v.
Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) as well as
N.J.S.A. 47: 1A-6 and N.J.S.A. 47:1A-7.g.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously
Louis Toscano v. New Jersey Department of Law & Public Safety, Division on Civil
Rights (2005-188)
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. Luzzatto presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that:
1. No records responsive to the request exist except for the computer screens that
were provided to the Complaint on September 9, 2005 as certified by the
Custodian. Therefore, there is no unlawful denial of access.
2. Pursuant to N.J.S.A. 47: 1A-7.b. the Council does not have the authority to
determine whether the Complainant withdrew a complaint filed with the
Division.
Open Public Meeting Minutes – GRC – January 27, 2006
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Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
John Paff v. Office of the Governor (2005-197)
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. Luzzatto presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that:
1.
The Custodian certifies there are no records responsive to the request and
the Complainant does not dispute same.
2. While the Custodian provided a written response to the OPRA request
stating that there were no records responsive to the request, the response
was not provided within the statutorily required time period. Pursuant to
N.J.S.A. 47: 1A-5.i. a failure to respond to a request within the seven
business days, whether or not there are records responsive to the request,
is a “deemed” denial of access. Therefore, the Custodian violated
N.J.S.A. 47: 1A-5.i. by not responding to the request within the statutorily
required time period.
3. Since the Complainant has retracted the portion of his complaint regarding the
“Matrix,” there is no action required by the Council.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Danielle DeMaio v. Township of Jackson (2005-204)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find:
1. Pursuant to the fact that the plans requested did not exist at the time of the
request, there would not have been an unlawful denial of access except that the
Custodian’s delay in properly responding to the Complainant’s request resulted in a
“deemed” denial of access pursuant to N.J.S.A. 47: 1A-5.g. and N.J.S.A. 47: 1A5 .i.
2. 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.
Open Public Meeting Minutes – GRC – January 27, 2006
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Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Aaron Back v. Township of River Vale (2005-209)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find:
1.
The Custodian has borne the burden of proving that the denial of access was
lawful pursuant to N.J.S.A. 47: 1A-6 by certifying to the best of her knowledge
that the documents not provided do not exist.
2. The Custodian has provided immediate access to contracts pursuant to N.J.S.A.
47: 1A-5.e. as she made the requested contract available the day it was discovered.
3. The Council does not have jurisdiction over the accuracy of the documents
pursuant to N.J.S.A. 47:1A-7.b.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Thomas Caggiano v. Borough of Stanhope (2005-211, 2005-226, 2005-227, 2005-228,
2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235, 2005-250
and 2005-252)
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. Luzzatto presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
1. The Custodian’s response that the records were previously provided to the
Complainant on several occasions is not a lawful basis to deny access to the
November 1, 2005, November 14, 2005 and December 8, 2005 records requests
pursuant to N.J.S.A. 47:1A-6.
2. The November 1, 2005, November 14, 2005, December 8, 2005 and December 9,
2005 records requests were broad and unclear requests for information that sought
“any” and “all” documents without identifying the record or records with
sufficient specificity and which would necessitate some form of research or
searching on the part of the Custodian. Therefore, on the basis of Mag and the
Open Public Meeting Minutes – GRC – January 27, 2006
9
GRC decision and the Court ruling in Bent, there was no unlawful denial of access
pursuant to OPRA.
Ms. Schonyers called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Administrative Adjudication:
1. Jeffrey Sauter v. Township of Colts Neck (2004-6 8)
2. Kathleen Fazzari v. Plainfield Board of Education (2005-111)
3. David Gerkens v. Borough of Riverside (2005-12 1)
4. Maria Fornaro v. Morristown Police (2005-15 1)
5. Duncan Warner v. Monmouth Beach (2005-177)
6. George Goros v. Hillside Township (2005-190)
7. DeSanctis v. Township of Ocean (2005-194)
8. John Paff v. Elizabeth Board of Education (2005-2 10)
9. John Paff v. Westfield Police Department (2005-22 1)
10. Askia Nash v. Essex County Courts (2005-224)
11. Elise Young v. New Jersey Department of Health & Senior Services (2005-236)
12. John Paff v. New Jersey Department of Treasury (2005-239)
13. Beverly Warde v. New Jersey Department of Corrections (2005-245)
14. Beverly Warde v. New Jersey Department of Corrections (2005246) 15. Janet Piszar v. Millburn Township (2005-253)
Ms. Schonyers called for a motion to accept the Executive Director’s administrative case
dispositions. A motion was made by Mr. Richman and seconded by Ms. Tabakin.
Motion passed unanimously.
Executive Director Report and New Business:
None
Public Comment:
Mr. Robert Tombs – Point Pleasant, NJ
Elizabeth Mason – President for the NJFOG
Mr. Bernard Lufgas – Barnegat, NJ
Bruce Solomon – Department of Law and Public Safety.
Ms. Schonyers called for a motion to go into closed session at 12:05 p.m. to discuss legal
issues. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Open Public Meeting Minutes – GRC – January 27, 2006
10
The Council returned from closed session at 12:10 p.m.
Ms. Schonyers called for a motion to adjourn. There was a unanimous vote to adjourn.
The meeting adjourned at 12:15 p.m.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved: April 11, 2006
Open Public Meeting Minutes – GRC – January 27, 2006
11
Minutes of the Government Records Council
February 17, 2006 Public Meeting – Open Session
The meeting was called to order at 9:50 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Davies called the roll:
Present: Mr. Maltese, Charles Richman (designee of Commissioner Susan Bass
Levin, Department of Community of Affairs), Ms. Robin Berg-Tabakin, Executive
Director Paul Dice, Assistant Executive Director Gloria Luzzatto, In-House Counsel
Catherine Starghill, Deputy Attorney General Debra Allen, GRC Staff: Chris Malloy,
Kimberly Gardner, Dara Lownie, Jennifer Arozamena, Colleen McGann and Marion
Davies.
Not in Attendance: Ms. Schonyers (designee of Commissioner Lucille Davy, Department
of Education)
Mr. Maltese called for a motion to go into closed session for legal advice. A motion was
made by Mr. Richman and seconded by Ms. Tabakin. The motion was adopted by a
unanimous vote.
The Council met in closed session from 9:55 a.m. to 10:50 a.m.
Open Session reconvened at 10:50 a.m.
Mr. Maltese called for a motion to go into open session. A motion was made by Ms.
Tabakin and seconded by Mr. Richman. The motion was adopted by a unanimous vote.
Ms. Davies called the roll:
In attendance:
Mr. Maltese, Ms. Tabakin, Mr. Richman
Not In Attendance:
Ms. Schonyers
The pledge of allegiance was recited.
Mr. Dice stated that the following cases would not be heard at this meeting:
Jeffrey Sauter v. Township of Colts Neck 2005-7
John Paff v. Bergen County 2005-115
Cathy Cardillo v. City of Hoboken 2005-185
Robert Tombs v. Brick Township Municipal Authorities 2003-123
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
February 17, 2006 – GRC Open Public Meeting Minutes
1
The Executive Director respectfully recommended that the Council modify Judge
Masin’s initial decision only to include references to the applicable provisions of OPRA
(N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-9.a.) and find that the Council
should not order the disclosure of the requested records.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Tabakin. The motion
passed unanimously.
John Brennan v. Monmouth County Prosecutors Office 2005-119
Ms. Starghill stated that the Council previously decided and issued a Final Decision in
the matter ordering disclosure of the requested record. Upon legal advice and Council
discussion the Council would like to have an opportunity to review the requested record
in camera to solidify its decision or have an opportunity to reverse it’s decision if
necessary.
Mr. Maltese made a motion to motion the Court to remand the case to the Council to
consider an in camera inspection to review the document in question. The motion was
seconded by Mr. Richman. The motion passed unanimously.
Phillip Boggia v. Borough of Oakland 2005-36
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the In Camera Findings and Recommendations of the Executive
Director. Mr. Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
1. The Custodian should disclose the requested “Oakland Reports” prepared by
Morris Land Conservancy regarding the status of negotiations between Morris
Land and the third party property owners, except; Page 1 Section 2, Page 1
Section 4 second sentence, Page 2 sections two (2) through four (4), and Page
three (3) sections two (2) and three (3).
2. The Custodian shall comply with “1” within ten (10) business days from receipt
of this order on the basis of the Council’s above determination and provide
confirmation to the Executive Director that the Custodian has complied with the
Council’s order.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
February 17, 2006 – GRC Open Public Meeting Minutes
2
John Paff v. Borough of Montvale 2005-54
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that the Custodian
has complied with the Council’s Interim Decision by releasing the Borough’s Closed
Session minutes dated March 9, 2004, April 27, 2004, July 13, 2004, and September 28,
2004, however she failed to do so within the ten (10) business days prescribed by the
Council’s October 28, 2005 decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Peter Runfolo v. Township of Summit (2005-87)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that the
Custodian did not unlawfully deny access because under OPRA agencies are required
to disclose only "identifiable" government records not otherwise exempt pursuant to
Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super
534 (March 2005) and Bent v. Stafford Police Department, 381 N.J. Super. 30
(October 2005).
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Henry Fisher III v. New Jersey Department of Correction (2005-171)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that the records
contain building security information and are exempt from disclosure pursuant to
N.J.S.A. 47:1A1.1.
February 17, 2006 – GRC Open Public Meeting Minutes
3
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Gilda Gill v. Salem County 2005-185
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Lownie presented the following recommendations to the
Council:
The Executive Director respectfully recommended that the Council find:
1. The Custodian has complied with the November 10, 2005 Interim Decision by
providing the Complainant with the requested records and certifying that the records
not provided currently do not exist.
2. Although the Custodian certifies that some of the requested information was stored in
a database at the time of the request, she did not unlawfully deny access to the
requested payroll list as the specific document requested does not exist and OPRA
does not require Custodians to create documents in response to requests.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Mr. Richman and seconded by Ms. Tabakin. Motion
passed unanimously.
Amy Vasques v. Burlington County 2005-193
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that pursuant to
Executive Order 21, paragraph 1.a., the requested record is exempt from disclosure
because the release of the Emergency Management Plan would create a risk to the
security of the State against acts of sabotage or terrorism, hence the Custodian did not
unlawfully deny access to the requested record.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Tabakin. Motion
passed unanimously.
David Lyons v. Irvington Board of Education 2005-196
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Mr. Malloy presented the following recommendation to the Council:
February 17, 2006 – GRC Open Public Meeting Minutes
4
The Executive Director respectfully recommends that in accordance with OPRA, the
Council should order the Custodian to disclose the records responsive to the request, or
submit a legal certification with a legal justification as to why the records should not be
disclosed to the Executive Director within ten (10) business days of receipt of the
Council’s decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Mr. Richman and seconded by Ms. Tabakin. Motion
passed unanimously.
Brian Pincus (Joy DeSanctis) v. Newark Police Department 2005-219
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Pursuant to N.J.S.A. 47: 1A-6, the Custodian has not borne his burden of proving
that the denial of access to the requested photographs is authorized by law. The
Custodian should have outsourced the duplication of the requested records and
charged the Complainant the actual cost associated with doing so pursuant to
N.J.S.A. 47:1A-5.d. and N.J.S.A. 47:1A-5.b. Therefore, the Custodian
unlawfully denied access to the requested records by not appropriately responding
within the statutorily mandated seven (7) business day timeframe pursuant to
N.J.S.A. 47:1A-5.i.
2. The Custodian should disclose the requested photographs, subject to the actual
cost that may be involved in converting the medium pursuant to N.J.S.A. 47: 1A5.d. and N.J.S.A. 47:1A-5.b. The Custodian shall comply with this determination
within fifteen (15) calendar days after receipt of the Council’s decision providing
confirmation to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
amended. A motion was made by Ms. Tabakin and seconded by Mr. Richman. Motion
passed unanimously.
Administrative – Case Dispositions:
Hing Lum v. Mount Olive Township (2005-52)
Carl Varriale v. Borough of Montvale (2005-148)
Carl Varriale v. Borough of Montvale (2005-149)
Carl Varriale v. Borough of Montvale (2005-150)
Walter Vella v. Bayshore Regional Sewerage Authority (2005-174)
Margie Semler v. City of Passaic (2005-198)
Reinaldo Aviles v. Perth Amboy Urban Enterprise Zone (2005-214)
Askiaa Nash v. Middlesex County (2005-2 17)
February 17, 2006 – GRC Open Public Meeting Minutes
5
Vesslin Dittrich v. City of Hoboken (2005-222)
Daniel Gudauskas v. City of Somers Point (2006-5)
Herman Gomez v. Carlestadt-East Rutherford-Regional Board of Education (2006-8)
Herman Gomez v. South Bergen Jointure Commission (2006-9)
Askia Nash v. Essex County Courts (2006-16)
Mr. Maltese called for a motion to accept the Executive Director’s administrative case
dispositions as written. A motion was made by Ms. Tabakin and seconded by Mr.
Richman. Motion passed unanimously.
Executive Director’s Report
None
New Business
Mr. Dice stated that the GRC Proposed New Rules have a tentative publication date in
the New Jersey Register of March 9, 2006. There will also be a link on the GRC website
for the public’s convenience.
Election of Officers - 2006
Mr. Maltese called for nominations for Chairperson. Mr. Richman nominated Mr.
Maltese as Chairperson for 2006 year. Ms. Tabakin seconded the nomination. The
nomination passed unanimously.
Mr. Maltese nominated Ms. Tabakin for Vice-Chair and Mr. Richman seconded the
nomination. The nomination passed unanimously.
Mr. Maltese nominated Ms. Tabakin for Secretary and Mr. Richman seconded the
nomination. The nomination passed unanimously.
Advisory Opinion:
Mr. Dice presented the GRC’s Advisory Opinion 2006-0 1 to the Council. Mr. Maltese
asked Ms. Starghill to explain the Advisory Opinion to the Council.
Mr. Maltese called for a motion to adopt Advisory Opinion 2006-0 1 as amended. A
motion was made by Mr. Richman and seconded Ms. Tabakin. The motion passed
unanimously.
Mr. Dice tendered his resignation to the Council effective February 17, 2006. Mr. Dice
thanked the Council and staff for all of their hard work.
Mr. Maltese called for a motion to accept Mr. Dices resignation. A motion was made by
Ms.Tabakin and seconded by Mr. Richman. The motion passed unanimously.
February 17, 2006 – GRC Open Public Meeting Minutes
6
Mr. Maltese called for a motion to accept Catherine Starghill in the position of
Executive Director of the Government Records Council. A motion was made by
Ms.Tabakin and seconded by Mr. Richman. The motion passed unanimously.
Ms. Starghill presented the meeting dates for 2006 to the Council and also stated the
meeting date for April will be changed.
Public Comment:
Elizabeth Mason – President – New Jersey Foundation for Open Government (NJFOG)
Mr. Maltese called for a motion to adjourn. A motion was made by Ms. Tabakin and
seconded by Mr. Richman. The motion passed unanimously.
Meeting adjourned at 12:47pm.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved: April 11, 2006
February 17, 2006 – GRC Open Public Meeting Minutes
7
February 17, 2006 – GRC Open Public Meeting Minutes
8
Minutes of the Government Records Council
March 9, 2006 Public Meeting – Open Session
The meeting was called to order at 9:40 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Davies called the roll:
Present: Mr. Maltese, Ms. Michelle Richardson (designee of Commissioner Susan
Bass Levin, Department of Community of Affairs), Ms. Kathryn Forsyth (Designee
of Commissioner Lucille Davy, Department of Education) Ms. Robin Berg-Tabakin,
GRC Staff: Executive Director Catherine Starghill, Operations Manager, Gloria
Luzzatto, Deputy Attorney General Debra Allen, Chris Malloy, Kimberly Gardner,
Dara Lownie, Jennifer Arozamena, Colleen McGann and Marion Davies.
Mr. Maltese called for a motion to go into closed session for legal advice to discuss the
following cases:
1.
2.
3.
4.
5.
Paff v. Township of Plainsboro 2005-29
Meyers v. Borough of Fairlawn 2005-127
Paff v. Bergen County2005-1 15
Allen v. NJ Department of Corrections (2005-126)
Buttimore v. NJ Department of Law & Public Safety, Division of Criminal Justice
2005-90 and 2005-92
6. Sauter v. Township of Colts Neck (2005-7)
7. McCormack v. NJ Department of Treasury (2005-103)
A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion was
adopted by a unanimous vote.
The Council met in closed session from 9:45 a.m. to 11:10 a.m.
Mr. Maltese called for a motion to go into open session. A motion was made by Ms.
Tabakin and seconded by Ms. Forsyth. The motion was adopted by a unanimous vote.
Open Session reconvened at 11:20 a.m. Ms. Davies called the roll:
In attendance:
Mr. Maltese, Ms. Tabakin, Ms. Richardson, Ms. Forsyth.
The pledge of allegiance was recited.
Mr. Maltese introduced the two new members on the Council: Ms. Michelle Richardson,
(Designee of Commissioner Susan Bass Levin, Department of Community Affairs and
Ms. Kathryn Forsyth (Designee of Commissioner Lucille Davy, D epartment of
Education).
Mr. Maltese and Ms. Richardson recused themselves from the following case:
Cathy C. Cardillo v. City of Hoboken Zoning Office, 2005-158. Mr. Richman, also a
designee of Commissioner Levin, sat in for the discussion and vote in this matter. The
Vice Chair, Ms. Tabakin, conducted the meeting in this case.
Cathy C. Cardillo v. City of Hoboken Zoning Office 2005-158
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
1
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that an in camera
inspection of the requested records should be conducted to determine if the records are
exempt from disclosure because they contain “security information or procedures for any
buildings or facility which, if disclosed, would jeopardize security of the building or
facility or persons therein” pursuant to N.J.S.A. 47:1A-1.1.
Ms. Tabakin, called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Mr. Richman and seconded by Ms. Forsyth. The motion
passed unanimously.
Mr. Maltese recused himself from the following three (3) cases:
Sauter v. Township of Colts Neck, 2005-07
Paff v. Bergen County, 2005-115
Dittrich v. City of Hoboken, 2006-10 and 11
The Vice Chair, Ms. Tabakin, conducted the meeting in these three cases.
Jeffrey Sauter v. Township of Colts Neck 2005-7
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Based on the Fire Company’s funding and organizational structure, and the
judicial precedent of Lafayette Yard defining public agency under OPRA, the
Colts Neck Fire Department is a “Public Agency” as defined in N.J.S.A. 47: 1A1.1 and is, therefore, subject to OPRA.
2. It is the responsibility of the municipal clerk, pursuant to N.J.S.A. 47:1A-1.1 to
respond to the request and obtain any records responsive held by the Fire
Department necessary to fulfill the records request.
3. The Custodian’s response to the request for vouchers was inadequate and as
such, it is found that the Custodian has not provided a written reason explaining
why the documents were not immediately available, in violation of N.J.S.A.
47:1A-5.g. That being said, the Custodian has violated N.J.S.A. 47:1A-5.e in
not granting immediate access to the requested vouchers.
4. The Custodian violated N.J.S.A. 47:1A-5.i and N.J.S.A. 47:1A-5.g in failing to
provide access to the requested record or a specific reason for a denial or delay
in access within the statutorily mandated seven-business days.
5. Based on the fact that the Custodian believed that the response was timely and
was acting under the notion that he was not responsible for the records of the
Fire Department the Custodian’s actions do not meet the legal standard for a
knowing and willful violation pursuant to N.J.S.A. 47:1A-1 1.a or unreasonable
denial of access under the totality of the circumstances in this case. However,
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
2
the Custodian’s actions do appear to be at least negligent regarding his
knowledge of OPRA.
Ms. Tabakin called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
John Paff v. Bergen County 2005-115
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Because government records responsive to the request, pursuant to N.J.S.A.
47:1A-1.1 did not exist the Custodian would not have unlawfully denied access to
the requested records as he certifies that the records do not exist. However, the
Custodian violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. by failing to
provide the Complainant with a written response within the statutorily mandated
seven (7) business days therefore creating a “deemed” denial.
2. While seeking legal advice on how to appropriately respond to a records request
is reasonable, it is not a lawful reason for delaying a response to an OPRA records
request because the Custodian should have obtained a written agreement from the
Complainant extending the time period to respond. Therefore, the Custodian
violated N.J.S.A. 47:1A-6 by not providing a lawful basis for the denial of access
to the request. However, 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.
3. The Custodian should not be placed on the matrix based on the Council’s decision
in Renna v. County of Union, GRC Case No. 2005-89 (October, 2005), as well as
the fact that the time matrix is now obsolete.
Ms. Tabakin called for a motion to accept the Executive Director’s as written. A motion
was made by Ms. Richardson and seconded by Ms. Forsyth. The motion passed
unanimously.
Vesselin Dittrich v. City of Hoboken 2006-10 and 11
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that based on the fact
that the Complainant affirmatively asserted on the Denial of Access Complaint form that
he instituted a Superior Court case regarding access to the records that are the subject of
this denial of access complaint and the Council’s decision in Mosee v. Atlantic City
Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily
precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
3
Ms. Tabakin called for a motion to accept the Executive Director’s as written. A motion
was made by Ms. Forsyth and seconded by Ms. Richardson. The motion passed
unanimously.
Ms. Forsyth recused herself from the following case:
Johnson v. Department of Education Essex County 2006-17
Mildred Johnson v. Department of Education 2006-17
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that based on the
fact that the Complainant affirmatively asserted on the Denial of Access Complaint form
that she instituted a Superior Court case regarding access to the records that are the
subject of this denial of access complaint and the Council’s decision in Mosee v. Atlantic
City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is
statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson.
New Administrative Category:
Ms. Starghill presented the following recommendation to the Council:
The Council would give the Executive Director the power of authority to administratively
handle cases in two additional categories:
1. Jurisdiction: When it is clear on its face that complainant affirmatively asserted
on the Denial of Access Complaint form that action was instituted in Superior
Court case regarding access to the records that are the subject of the denial of
access complaint and there are no other issues.
2. Valid OPRA records request – use of form: When it is clear that the only issue is
the failure to use the OPRA records request form and the custodian has not
attempted to fulfill the request.
Mr. Maltese called for a motion to accept the Executive Directors recommendations on
the new administrative categories. A motion was made by Ms. Richardson and seconded
by Ms. Tabakin. The motion passed unanimously.
John Paff v. Township of Plainsboro 2005-29
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendation to the Council:
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
4
The Executive Director respectfully recommended that the Council agree with the
Complainant’s Motion to Settle the Record.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
written. A motion was made by Ms. Richardson and seconded by Ms. Forsyth. The
motion passed unanimously.
Frances O’Loughlin v. Ocean Gate Board of Education 2005-43
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Lownie presented the following recommendations to the
Council:
The Executive Director respectfully recommended the Council find that:
1. The Custodian has complied with the Council’s January 27, 2006 Interim Order
by releasing the Board of Education’s October 20, 2004 meeting minutes to the
Complainant within ten (10) business days of receiving said Order and has
included a Certified Mail receipt indicating same.
2. Pursuant to N.J.S.A. 47: 1A-7.b., the Council does not have authority over the
content of records.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
written. A motion was made by Ms. Richardson and seconded by Ms. Tabakin. The
motion passed unanimously.
Edward Buttimore v. Department of Law & Public Safety 2005-90
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that pursuant to
N.J.S.A. 47:1A-9.a, N.J.A.C. 13:1E-3.2(a)1 and the unpublished decision in Newark
Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the
New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law
Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005) the
proposed rule exempting the EEO records from being disclosed pursuant to OPRA does
apply and the requested EEO records are exempt from disclosure and the Custodian did
not unlawfully deny access to the requested records.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
written. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
Edward Buttimore v. Department of Law & Public Safety 2005-92
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
5
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that pursuant to
N.J.S.A. 47:1A-9.a, N.J.A.C. 13:1E-3.2(a)5 and the unpublished decision in Newark
Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the
New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law
Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005), the
proposed rule exempting the interview recommendation reports from being disclosed
pursuant to OPRA does apply. Therefore, the requested interview recommendation
reports are confidential and exempt from disclosure and the Custodian did not unlawfully
deny access to the requested records.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
written. A motion was made by Ms. Richardson and seconded by Ms. Forsyth. The
motion passed unanimously.
John Mc Cormack v. NJ Department of Treasury 2005-103
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the in camera Findings and Recommendations of the
Executive Director. Ms. McGann presented the following recommendations to the
Council:
The Executive Director respectfully recommended that the Council find that:
1.
Document 1: February 25 Memo is exempt from disclosure as “advisory,
consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1.
2.
Document 2: New Unit Scope for Taxation Taxpayer Services is exempt from
disclosure as “advisory, consultative and deliberative material” pursuant to
N.J.S.A. 47:1A-1.1.
3.
Document 3: February 24, 2005 Department of Treasury Pending Promotional
Announcements is disclosable.
4.
Document 4: Active Promotional Lists is exempt from disclosure as
“advisory, consultative and deliberative material” pursuant to N.J.S.A. 47: 1A1.1 and “personnel information” pursuant to N.J.S.A. 47:1A-10.
5.
Document 5: NJ Division of Taxation Organizational Charts, Page 1: “NJ
Division of Taxation Organizational Chart Before New Unit Scope” is
disclosable.
6.
Document 5: NJ Division of Taxation Organizational Charts, Page 2 is exempt
from disclosure as “advisory, consultative and deliberative material” pursuant
to N.J.S.A. 47:1A-1.1.
7. Document 5: NJ Division of Taxation Organizational Charts, Page 3 “TPS
Field Operations Current” is disclosable.
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
6
8. Document 5: NJ Division of Taxation Organizational Charts, Page 4 is exempt
from disclosure as “advisory, consultative and deliberative material” pursuant
to N.J.S.A. 47:1A-1.1.
9. Document 6: Employee Status Listing is exempt from disclosure as “advisory,
consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1.
10. The Custodian shall comply with these Conclusions and Recommendations
and provide confirmation to the Executive Director that the Custodian has so
complied with the Council’s decision within ten (10) business days from
receipt of this decision.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
John McCormack v. NJ Department of Treasury 2005-104
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Second Supplemental Findings and
Recommendations of the Executive Director. Ms. McGann presented the following
recommendation to the Council:
The Executive Director respectfully recommended the Council find that based on the
February 7, 2006 response to the Council’s Interim Order, the Custodian has complied
with the Council’s January 27, 2006 decision in disclosing the requested “handwritten
notes taken of meeting between Edward Scheingold, John McCormack and Linda B.
Hickey; notes taken by Linda Hickey,” except Section 2, Portion "D" and "E" as
indicated in the January 19, 2006 In Camera Findings and Recommendations and has
done so within (10) business days from receipt of the Council’s decision.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Richardson and seconded by Ms. Forsyth. The
motion passed unanimously.
Donal Meyers v. Borough of Fairlawn 2005-127
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council vote to approve the
Borough of Fair Lawn’s request for a stay.
Ms. Tabakin made a motion to go into closed session for legal advice regarding the
request for a stay in this case. The motion was seconded by Ms. Richardson. The motion
passed unanimously.
The Council met in closed session from 12:15 p.m. to 12:45 p.m.
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
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The Council reconvened in open session at 12:50 p.m. Mr. Maltese called for a motion.
Ms. Richardson made a motion to table the Council’s decision in this case for further
discussion and the Council would reconsider the request for a stay at the next meeting.
The motion was seconded by Ms. Forsyth. The motion passed unanimously.
Isaac Fajerman v. Monmouth County Clerk’s Office 2005-167
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that based on the
fact that the Complainant affirmatively asserted on the Denial of Access Complaint form
that he instituted a Superior Court case regarding access to the records that are the subject
of this denial of access complaint and the Council’s decision in Mosee v. Atlantic City
Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily
precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Richardson and seconded by Ms. Tabakin. The
motion passed unanimously.
Matthias L. DiMattia v. NJ Dept. of Environmental Protection (DEP) 2005-200
Mr. Malloy reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Mr. Malloy presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that the
Complainant’s records request was not a valid OPRA request and as such the Custodian’s
refusal to fulfill the records request does not amount to an unlawful denial of access
pursuant to the provisions of OPRA.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Richardson and seconded by Ms. Forsyth. The
motion passed unanimously.
John Paff v. Borough of Audubon 2006-1
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find:
1. The Complainant’s records request was not a valid OPRA request and as such the
Custodian’s refusal to fulfill the records request does not amount to an unlawful
denial of access pursuant to the provisions of OPRA.
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
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The Custodian was not obligated to fulfill the Complainant’s request, however she
chose to do so and certifies that she notified the Complainant of such on January
9, 2006 and is awaiting payment of $2.25.
3. The Council does not have authority over a municipality’s ordinances or
regulations pursuant to N.J.S.A. 47:1A-7.b.
4. The Custodian’s actions do not rise to the level of a knowing a willful violation of
OPRA and unreasonable denial of access under the totality of the circumstances.
2.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Richardson and seconded by Ms. Tabakin. The
motion passed unanimously.
Mildred Johnson v. NJ Dept. of Human Services – Division of Youth and Family
Services 2006-18
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that based on the
fact that the Complainant affirmatively asserted on the Denial of Access Complaint form
that she instituted a Superior Court case regarding access to the records that are the
subject of this denial of access complaint and the Council’s decision in Mosee v. Atlantic
City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is
statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
Mildred Johnson v. Office of the Child Advocate 2006-20
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that based on the
fact that the Complainant affirmatively asserted on the Denial of Access Complaint form
that she instituted a Superior Court case regarding access to the records that ar e the
subject of this denial of access complaint and the Council’s decision in Mosee v. Atlantic
City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is
statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
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Joseph A. Elcavage v. West Milford Township 2006-46
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that based on the
fact that the Complainant affirmatively asserted on the Denial of Access Complaint form
that he instituted a Superior Court case regarding access to the records that are the subject
of this denial of access complaint and the Council’s decision in Mosee v. Atlantic City
Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily
precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Administrative – Adjudication:
Shinn v. NJ Department of Environmental Protection (2005-183)
Graupe v. City of Clifton (2005-189)
Sunday v. City of Paterson Free Public Library (2005-206)
Caggiano v. Sussex Count y SCD (2005 -2 15)
C aggi ano v. S ussex C ount y S C D (2005 - 225)
Solarski v. North Hanover Township (2005 -23 8)
Caggiano v. Sussex Count y SCD (2005-241)
Fronczkiewicz v. Township of Washington (2006-7)
Johnson v. Superior Court of NJ – Essex Vicinage (2006-19)
Johnson v. Bergen County Surrogate’s Court (2006-2 1)
Otto v. Office of Legislative Services Ethical Standards (2006-2 6)
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
David Allen v. Department of Corrections 2005-126
At its March 9, 2006 public meeting during closed session, the Council conducted the in
camera inspection of the unredacted December 17, 2004 Special Investigations Division
(“SID”) investigation and the November 8, 2004 letter and envelope relevant to the
complaint.
After completing the in camera inspection of the unredacted documents in closed session,
Mr. Maltese called for a motion which concluded that the requested records relevant to
the complaint were exempt from disclosure in their entirety pursuant to N.J.S.A. 47:1A1.1 and also N.J.S.A. 47:1A-3.a. A motion was made by Ms. Richardson and seconded
by Ms. Tabakin. The motion passed unanimously.
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
10
Advisory Opinion 2006-01
Ms. Starghill presented the Council with the following amendment to the Advisory
Opinion 2006-01, which was approved by the Council at the February 9, 2006 meeting:
When an agency has not adopted its own official OPRA records request form, requestors
may submit their records request on the Model Request Form located on the Government
Records Council website (www.nj.gov/grc/).
Executive Directors Report:
Ms. Starghill informed the Council that the Government Records Council Proposed
Regulations have been published in the March 6, 2006 edition of the New Jersey
Register.
Ms. Starghill also discussed the open and closed session minutes from previous meetings
with the Council and the approval of same by the new Council members. Ms. Allen
stated that she would review the requirements of the Open Public Meetings Act and
provide advice to the Council at the next meeting.
Public Comment:
Matthias L. DiMattia – Bordentown, NJ
Elizabeth Mason – President Foundation for Open Government
Bruce Solomon – Custodian for the Department of Law and Public Safety
Mr. Maltese called for a motion to adjourn. A motion was made by Ms. Tabakin and
seconded by Ms. Richardson. The motion passed unanimously.
Meeting adjourned at 1:55 p.m.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved: April 11, 2006
Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
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Government Records Council Meeting March 9, 2006 Open Public Meeting Minutes.
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Minutes of the Government Records Council
April 6, 2006 Public Meeting
Pursuant to the Open Public Meetings Act, N.J.S.A. 10:4-9, no notice was given for this
emergency closed session of the Government Records Council commencing at 2:45 p.m.,
Thursday, April 6, 2006 via telephone conference call at which formal action was taken.
Gloria Luzzatto called the roll:
In attendance were: Mr. Maltese, Ms. Michelle Richardson (designee of
Commissioner Susan Bass Levin, Department of Community of Affairs), Ms.
Kathryn Forsyth (Designee of Commissioner Lucille Davy, Department of Education)
Ms. Robin Berg-Tabakin, GRC Staff: Executive Director Catherine Starghill and
Operations Manager Gloria Luzzatto, and Deputy Attorney General Debra Allen.
Mr. Maltese read the Resolution for Closed Session, Resolution Number 2006-04-06 and
called for a motion to go into closed session for legal advice regarding:
•
Tina Renna v. County of Union – Complaint instituted with Superior Court
concerning the Open Public Records Act
A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion was
adopted by a unanimous vote.
Ms. Allen read N.J.S.A. 10:4-9.b.(1)-(4) into the record and explained the reasons for the
emergency closed session meeting without notice pursuant to the Statute. She stated that
the discussions in closed session would be limited to the item listed in the Resolution for
Closed Session, that the Council was unaware of said issue at the March 9, 2006 meeting
and a decision of the Council was required before the next GRC meeting on April 11,
2006, that notice to the public will be sent immediately following the April 6, 2006
meeting.
The Council met in closed session from 2:48 p.m. to 3:10 p.m.
Government Records Council Meeting April 6, 2006
1
Mr. Maltese called for a motion to adjourn the meeting. A motion was made by Ms.
Tabakin and seconded by Ms. Forsyth. The motion was adopted by a unanimous vote.
Meeting adjourned at 3:10 p.m.
Respectfully submitted,
Robin Berg Tabakin
Dated Approved: May 11, 2006
Government Records Council Meeting April 6, 2006
2
Minutes of the Government Records Council
April 11, 2006 Public Meeting – Open Session
The meeting was called to order at 9:55 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present: Mr. Maltese, Ms. Michelle Richardson (designee of Commissioner Susan
Bass Levin, Department of Community of Affairs), Ms. Kathryn Forsyth (Designee
of Commissioner Lucille Davy, Department of Education) Ms. Robin Berg Tabakin,
GRC Staff: Executive Director Catherine Starghill, Operations Manager, Gloria
Luzzatto, Deputy Attorney General Debra Allen, Kimberly Gardner, Dara Lownie,
Jennifer Arozamena, Colleen McGann and Marion Davies.
Mr. Maltese read the Resolution for Closed Session, Resolution Number 2006-04-11 and
called for a motion to go into closed session for legal advice and anticipated and pending
litigation regarding:
1.
Teeters v. NJ Department of Human Services, Division of Youth & Family
Services (2002-6 and 2002-15)
2. Fisher v. Department of Law & Public Safety, Division of Law (2004-55 and
2004-82)
3. Slate v. Woodbridge Police Department (2004-198)
4. Renna v. County of Union – Complaint instituted with Superior Court concerning
OPRA
5. O’Shea v. West Milford Board of Education (2004-93)
A motion was made by Ms. Tabakin and seconded by Ms. Forsyth to go into closed
session. The motion was adopted by a unanimous vote.
The Council met in closed session from 10:00 a.m. to 10:25 a.m.
Open Session reconvened at 10:25 a.m. Ms. Luzzatto called the roll:
In attendance:
Mr. Maltese, Ms. Tabakin, Ms. Richardson, Ms. Forsyth.
The pledge of allegiance was recited.
Mr. Maltese called for a motion to approve the closed session minutes of October 28,
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
1
2005, the open and closed session minutes of November 10, 2005, December 8, 2005,
January 27, 2006, February 17, 2006 and March 9, 2006.
The motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The minutes were
approved by a unanimous vote.
NJ Libertarian Party v. NJDHS, Division of youth & Family Services (2004-114)
Ms. Starghill reviewed the parties’ respective positions and GRC’s analysis and issues in
the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director – Case Reconsideration. Ms. Starghill presented the following
recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
1. Given the plain language of OPRA, the Custodian is under no obligation
to convert the CD-ROM to "some other meaningful medium" since the
agency does maintain the record in the medium requested. However, the
Administrator of the Policy Development Unit for Division of Youth and
Family Services (“DYFS”) has certified that the Policy Unit can
technically export the Field Operations Manual from Folio Views 3.1 to
MS WORD. Therefore, the Complainant may purchase a copy of the Field
Manual in MS WORD from DYFS.
2.
The Custodian is permitted to charge $20.87 for analyzing, testing and
preparing to export the manual and only $1.00 for the cost of the CDROM.
3. The Custodian has offered the Complainant the record requested in the
medium requested. The Custodian has also offered to convert the record
into MS WORD. Thus, the Custodian’s actions have gone beyond the
requirements of OPRA. Given the facts in this case, the Custodian has not
knowingly and willfully violated OPRA and unreasonably denied access
under the totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
Tina Renna v. County of Union (2004-134)
Ms. Gardner reviewed the parties’ respective positions and GRC’s analysis and issues in
the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendation to the
Council:
The Executive Director respectfully recommended the Council find that since the
Complainant did advise the Executive Director that she did not want to purchase the
requested records, this case is closed without further action.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
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Gregory Slate v. Woodbridge Police Department (2004-198)
Ms. Gardner reviewed the parties’ respective positions and GRC’s analysis and issues in
the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Gardner presented the following recommendation to the
Council:
The Executive Director respectfully recommended the Council find that the Complainant
has not submitted any correspondence to the Council regarding his failure to appear for
his proceeding at the Office of Administrative Law. Therefore, the case is closed without
further action.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
Philip Boggia v. Borough of Oakland (2005-36)
Ms. Starghill reviewed the parties’ respective positions and GRC’s analysis and issues in
the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Starghill presented the following recommendation to the
Council:
The Executive Director respectfully recommended the Council find that based on the
February 27, 2006 response to the Council’s Interim Order, the Custodian has released
the government records in accordance with the Council’s February 17, 2006 Interim
Order and has appropriately done so within (10) business days from receipt of the
Council’s Order.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
Ms. Richardson recused herself from Deborah Glenn v. NJ Department of Community
Affairs, Division of Housing, GRC Complaint No. 2005-47 and Michael Deluca v. NJ
Department of Community Affairs, Codes and Standards, GRC Complaint No. 2005-61.
Deborah Glenn v. NJ Department of Community Affairs, Divison of Housing (200547)
Ms. McGann reviewed the parties’ respective positions and GRC’s analysis and issues in
the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. McGann presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that pursuant to
N.J.S.A. 47:1A-5.f. and N.J.S.A. 47:1A-5.g., the Complainant’s records request was not
a valid OPRA request and as such the Custodian’s failure to recognize and respond to the
records request in a timely manner does not amount to an unlawful denial of access
pursuant to the provisions of OPRA.
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
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Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Michael Deluca v. NJ Department of Community Affairs, Codes and Standards
(2005-61)
Ms. Gardner reviewed the parties’ respective positions and GRC’s analysis and issues in
the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that pursuant to
N.J.S.A. 47: 1A-9.a, N.J.A. C. 5:3-3.2.a. and the unpublished decision in Newark Morning
Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New
Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law
Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005), the
proposed rule exempting the plans from being disclosed pursuant to OPRA does apply
and the requested plans are exempt from disclosure and the Custodian did not unlawfully
deny access to the requested records.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
John McCormack v. NJ Department of Treasury (2005-58)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that an in camera
inspection of the documents responsive to the Complainant’s February 23, 2005 OPRA
request shall be conducted by the Council to determine what information, if any, is
disclosable.
The Council members discussed the scheduling of the in camera proceedings. Mr.
Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Daryle Pitts v. NJ Department of Corrections (2005-71)
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. Starghill presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Based on the fact that the Custodian has raised a viable defense for denying
access to the records under Executive Order #26, as well as responded within
the time period allotted under OPRA, the Council should find that the
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
4
Custodian did not unlawfully deny access to the records requested pursuant to
OPRA.
2. Because the Custodian has certified that she responded to the original request
within the time period allotted by OPRA as well as asked for further
clarification of the request, there is no evidence that the Custodian’s actions
were consistent with the legal standards established for knowing and willful
conduct by the New Jersey courts. 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 pursuant to N.J.S.A. 47:1A-1 1.a.
3. The courts of the state have determined that the State’s fee-shifting statutes
are intended to compensate an attorney hired to represent a plaintiff not the
plaintiff representing himself. Therefore, the Complainant is not entitled to
reasonable attorney’s fees pursuant to OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
John McCormack v. NJ Department of Treasury (2005-103)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. McGann presented the following recommendation to the
Council:
The Executive Director respectfully recommended the Council find that based on the
March 20, 2006 response to the Council’s Interim Order, the Custodian has released
government records in accordance with the Council’s March 9, 2006 Interim Order and
has appropriately done so within ten (10) business days from receipt of the Council’s
Order.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Maryann Allacci v. NJ Division on Civil Rights MDRR (2005-110)
Ms. Gardner reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Gardner presented the following recommendations to the Council:
The Executive Director respectfully recommended that the Council find that:
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
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1. While having a heavy workload is understandable, it is not a lawful reason for
delaying a response to an OPRA records request. The Custodian should have
obtained a written agreement from the Complainant extending the time period
to respond. Thus, the Custodian violated N.J.S.A. 47:1A-5.i. and N.J.S.A.
47: 1A-5.g. by failing to provide the Complainant with a written response
within the statutorily mandated seven (7) business days, therefore, creating a
“deemed” denial.
2. The Complainant’s records request was not a valid OPRA request and as such
the Custodian’s refusal to fulfill the records request does not amount to an
unlawful denial of access pursuant to the provisions of OPRA. Moreover, the
Custodian was not obligated to fulfill the Complainant’s request, however
they chose to do so and has certified that all records responsive to the request
have been released.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
John Paff v. Township of Old Bridge (2005-123)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Based on the fact that the Custodian has not provided a lawful basis for
denying access to the executive session minutes pursuant to N.J.S.A. 47: 1A-6,
the Custodian shall disclose the requested December 1, 2003 and March 1,
2004 executive session minutes with appropriate redactions pursuant to the
Open Public Records Act (“OPRA”), providing a detailed and lawful basis for
each redaction.
2. The Custodian violated N.J.S.A. 47: 1A-5.g. in not providing a specific basis
for the denial of access to the requested executive session minutes.
3.
Based on N.J.S.A. 47:1A-5.f. and N.J.S.A. 47:1A-5.g. the Custodian acted
properly in requiring the Complainant to complete the agency’s adopted
OPRA request form.
4.
In light of the insufficiencies in the form adopted by the Custodian in this case
the Custodian violated N.J.S.A. 47: 1A-5.f and the Custodian shall amend their
OPRA request form to ensure full compliance with OPRA.
Mr. Maltese inquired if the recommendation in 1. of this case was consistent with the
Council’s prior decisions on this issue. The Council was advised that the
recommendation in this case was consistent with Council’s prior decisions.
The Council members discussed amending 1. of said recommendations to include
language that states “the disclosure with appropriate redactions pursuant to the Open
Public Records Act (“OPRA”) and providing a detailed and lawful basis for each
redaction.”
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
6
Mr. Maltese called for a motion to accept the Executive Director’s recommendations with
the amendment. A motion was made by Ms. Tabakin and seconded by Ms. Richardson.
Lawrence Simons v. Lakewood NJ Board of Education (2005-179)
Ms. McGann reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. McGann presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1.
Given the facts of this case and pursuant to the decision in Mag Entertainment,
LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March
2005), there was no unlawful denial of access to records in this case.
2. The Custodian did properly respond to the Complainant’s request within the
statutorily required seven (7) business day time frame pursuant to N.J.S.A. 47:1A5.i indicating that the only document relating to the settlement with Dr. Cannava
is the Settlement Agreement, and such document was made available for the
Complainant’s inspection at that time.
3.
Per the Custodian’s March 22, 2006 certification, no other documents exist that
are responsive to the Complainant’s September 6, 2005 OPRA request.
4.
This complaint is closed with no further action.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Larry Angel v. Township of Mullica (2005-207)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. The Custodian unlawfully denied access to the requested 2005 executive
session minutes due to a heavy workload and awaiting attorney review are not
lawful reasons for a denial of access pursuant to N.J.S.A. 47: 1A-6. The
Custodian should have obtained a written agreement from the Complainant
extending the seven (7)-business day time frame required under the Open
Public Records Act (“OPRA”) to respond to the records request.
2. The Custodian shall redact the exempt information contained in the 2005
executive session minutes, providing a detailed and lawful basis for each
redaction and disclose to the Complainant the redacted minutes within ten
(10) business days from receipt of the Council’s Interim Order and
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7
simultaneously provide certified confirmation of compliance to the Executive
Director.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Leonard Lucente v. City of Union (2005-213)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended that:
1. As the Complainant’s request for W-2 forms pertains to tax return
information, and such information is exempt from public access pursuant to
N.J.S.A. 47:1A-9.a. and 26 U.S.C. § 6103 (2004), the Custodian has met his
burden of proving that he did not unlawfully deny access to the requested
records pursuant to N.J.S.A. 47: 1A-6.
2.
The Custodian has unlawfully denied access to the requested medical
application information pursuant to N.J.S.A. 47:1A-1 and Michelson v. Wyatt
379 N.J. Super 611 (App. Div. August, 2005).
3. The Custodian shall disclose to the Complainant the requested medical
application information with the appropriate redactions pursuant to OPRA and
Michelson v. Wyatt 379 N.J. Super 611 (App. Div. August, 2005), providing a
detailed and lawful basis for each redaction within ten (10) business days from
receipt of the Council’s Interim Order and simultaneously provide certified
confirmation of compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Mr. Maltese recused himself from Windish v. Mount Arlington Public Schools, GRC
Complaint No. 2005-2 16 and Maryann Cottrell v. Rowan University, GRC Complaint
No. 2006-4. Ms. Tabakin chaired the meeting for these two cases.
John Windish v. Mount Arlington Public Schools (2005-2 16)
Ms. Starghill reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Findings and Recommendations of the Executive
Director. Ms. Starghill presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. Pursuant to the fact that the Complainant made an official OPRA request on
October 20, 2005 asking for “a breakdown of actual copying costs for paper
copies of government records as per N.J.S.A. 47:1A-5.b.” the Custodian
should have given the Complainant a copy of the Board of Education’s OPRA
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
8
request form instead of just informing him where he could find that
information. Based on the above, the Custodian is in violation of N.J.S.A.
47:1A-1. However, the Complainant’s October 26, 2005 letter should be
viewed as a clarification of the original request, and not an entirely new
request, the Custodian should not be held to the time required standards under
N.J.S.A. 47: 1A-5.i., and therefore, is not in violation of same.
2. Although the Custodian should have responded to the Complainant’s original
request with a copy of the Board of Education’s OPRA request form (a
specific government record responsive to the request), and the fact that the
Custodian did respond within one (1) business day as well as tried to direct the
Complainant to the information the Custodian thought he was seeking, 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.
3. Based on the fact that the Custodian has certified that in the case at hand the
fees are not in excess of those prescribed under OPRA, the costs charged are
not excessive and are not in violation of OPRA.
Ms. Tabakin called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
Maryann Cottrell v. Rowan University (2006-4)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that the Custodian
would not have unlawfully denied access to the requested records as he certifies that he
provided the Complainant with records responsive to item #2 of her request, provided the
Complainant with information responsive to item #3 and item #5, and that no documents
currently exist in response to item #1, item #4, and item #6, except that his failure to
respond within the statutorily mandated seven (7) business days resulted in a “deemed”
denial pursuant to N.J.S.A. 47:1A-5.i..
Ms. Tabakin called for a motion to accept the Executive Directors recommendation as
written. A motion was made by Ms. Richardson and seconded by Ms. Forsyth. The
motion passed unanimously.
Brian Pincus (Joy DeSanctis) v. Newark Police Department (2005-219)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Lownie presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that based on the
Custodian’s March 17, 2006 certification, the Custodian has complied with the Council’s
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
9
February 17, 2006 Interim Order by releasing the requested photographs to the
Complainant on March 13, 2006; however, he failed to do so within the fifteen (15)
calendar days ordered by the Council.
The Council members discussed the Council’s enforcement powers when the Custodian
fails to comply with the Council’s order with the prescribed time period. The Council
requested legal advice on this issue.
Mr. Maltese called for a motion to accept the Executive Directors recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Maryann Cottrell v. Borough of Glassboro (2005-247)
Ms. Lownie reviewed the parties’ respective positions and the GRC’s analysis and issues
in the case as set forth in the Findings and Recommendations of the Executive Director.
Ms. Lownie presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. The Custodian violated N.J.S.A. 47:1A-5.g. by not providing the Complainant
with a written response to her request within the statutorily mandated time
frame prescribed under OPRA as well as failing to obtain a written agreement
from the Complainant extending the time frame required to respond.
2. Based on the Custodian’s certifications of February 17, 2006 and March 15,
2006 that she provided the Complainant with records responsive to her request
and that no other records responsive exist pursuant to N.J.S.A. 47:1A-1.1, the
Custodian would not have unlawfully denied access to the requested records.
However, the Custodian’s failure to respond to the Complainant’s request
within the statutorily mandated seven (7) business days pursuant to N.J.S.A.
47: 1A-5.i., as well as her failure to obtain a written agreement from the
Complainant extending the seven (7) business day time frame resulted in a
“deemed” denial of the request.
3. Additionally, as awaiting legal advice is not a lawful reason for a delay in
access, the Custodian has not borne the burden of providing a lawful reason
for the denial of access to the Complainant’s request pursuant to N.J.S.A.
47:1A-6.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Richardson and seconded by Ms. Tabakin. The
motion passed unanimously.
Mary Pawar v. Sossex County Soil Conservation District (2005-256, 2005-257 and
2005-258
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the cases as set forth in the Findings and Recommendations of the Executive
Director. Ms. Luzzatto presented the following recommendations to the Council:
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
10
The Executive Director respectfully recommended the Council find that:
1. The Custodian provided the Complainant access to the entire file on October
13, 2005, which contained the requested records. Additionally, since the
records were in storage at an off site location and required retrieval, the
Custodian appropriately requested that the Complainant schedule a time to
review the records, however, the Custodian did not receive a response from
the Complainant. Therefore, it should be concluded that there was not an
unlawful denial of access pursuant to N.J.S.A. 47:1A-1, and N.J.S.A. 47:1A5
.g.
2. While the Custodian counsel’s comments may be viewed as inappropriate, the
Complainant was provided access to the file containing those records in
existence and responsive to the request and the Council’s authority under
OPRA may only “... adjudicate a complaint ... concerning a denial of access
to a government record by a records custodian.” (Emphasis added.) N.J.S.A.
47: 1A-7.b. However, as the Council stated in Mary Ann Cottrell v. Borough
of Glassboro, GRC Case No. 2003-28M (July 2003), the Governing Body, as
employer, may elect to review inappropriate conduct of its employees.
Mr. Maltese suggested amending the findings and recommendations on page 5 and 6
from “the Council found” to “the Council stated” in reference to the Mary Ann Cottrell v.
Borough of Glassboro, GRC Case No. 2003-28M (July 2003). The Council noted that it
did not have authority under OPRA to take any action concerning 2. of the Executive
Director’s recommendations.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
amended. A motion was made by Ms. Forsyth and seconded by Ms. Richardson. The
motion passed unanimously.
Martin O’Shea v. West Milford Board of Education (2004-93)
Ms. Luzzatto reviewed the parties’ respective positions and the GRC’s analysis and
issues in the case as set forth in the Supplemental Findings and Recommendations of the
Executive Director. Ms. Luzzatto presented the following recommendation to the
Council:
The Executive Director respectfully recommended the Council not oppose the
Complainant’s Motion to Settle the Record.
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written. A motion was made by Ms. Richardson and seconded by Ms. Tabakin. The
motion passed unanimously.
Administrative – Adjudication:
1) Gerard Morey v. Central Regional High School (2005-124)
2) Esti Mosee v. Atlantic City Police Department (2005-175)
3) Martin O’Shea v. Township of West Milford (2005-187)
4) Sherry Norman v. Township of Rockaway (2005 -237)
5) Thomas Caggiano v. NJ Department of Agriculture (2005-242)
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
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6) Manuel Bermudez v. Ocean County Freeholders (2005-244)
7) Diane Galuppo v. Township of Little Egg Harbor (2006-6)
8) Darnell Hardwick v. NJ Department of Transportation (2006-14)
9) John Paff v. Township of Maplewood (2006-15)
10) Christopher Vaz v. Board of Fire Commissioners, Jackson Township (2006-61)
11) Vesselin Dittrich v. County of Hudson (2006-65)
Mr. Maltese called for a motion to accept the Executive Directors recommendations as
written in all of the above Administrative Case Dispositions. A motion was made by Ms.
Tabakin and seconded by Ms. Richardson. The motion passed unanimously.
Executive Directors Report:
Ms. Starghill asked whether the Council had any comments regarding the GRC’s
Proposed Rules; the Council indicated that they had no comments. Ms. Starghill stated
that the public comment period to respond to the GRC’s Proposed Rules concludes May
6, 2006.
Ms. Starghill noted that the GRC received the following correspondence:
1. Richard Gutman, letter dated March 7, 2006 with his comments concerning the
GRC’s Proposed Rules
2. John Paff, letter dated March 10, 2006 with his comments concerning the GRC’s
Advisory Opinion 2006-01.
3. Thomas Cafferty and Nomi Lowy of Scarinci & Hollenbeck, letter dated March
27, 2006 with their comments concerning the GRC’s Advisory Opinion 2006-01.
The Council requested legal advice regarding the comments from John Paff and Thomas
Cafferty regarding the GRC’s Advisory Opinion 2006-01. The Council discussed
presenting proposed advisory opinions and providing a 30-day period for the Council to
review comments before final approval.
The Council discussed that OPRA does not provide the Council with the authority to
determine how a public agency maintains its records. The Council also discussed
charging for the conversion a record to a requested medium pursuant to N.J.S.A. 47: 1A5.d. and prior decisions.
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
12
Public Comment:
There were no public comments.
Meeting adjourned at 12:20 p.m.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved: May 11, 2006
Government Records Council Meeting April 11, 2006 Open Public Meeting Minutes.
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DRAFT
Minutes of the Government Records Council
May 11, 2006 Public Meeting – Open Session
The meeting was called to order at 9:50 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Luzzatto called the roll:
Present: Chairman Vincent Maltese, Kathryn Forsyth (Designee of Acting
Commissioner Lucille Davy, Department of Education) Secretary Robin Berg
Tabakin, GRC Staff: Executive Director Catherine Starghill, Operations Manager
Gloria Luzzatto, Kimberly Gardner, Dara Lownie, Christopher Malloy, Jennifer
Arozamena, Colleen McGann, Marion Davies and Deputy Attorney General Debra
Allen.
Also present: Sergeant Robert Wilkins
Absent: Michelle Richardson (Designee of Commissioner Susan Bass Levin,
Department of Community of Affairs).
The Council accepted delivery of an in camera document in a sealed envelope from a
representative of the Monmouth County Prosecutor’s Office for the case John Brennan v.
Monmouth County Prosecutor’s Office (2005-119).
Mr. Maltese read the Resolution for Closed Session, Resolution Number 2006-05-11 and
called for a motion to go into closed session to conduct an in camera inspection in John
Brennan v. Monmouth County Prosecutor’s Office, GRC Case No. 2005-119, and to
discuss attorney-client privileged matters and anticipated and pending litigation in the
following cases:
1.
Robert Gorman v. Gloucester City (2004-108)
2.
John McCormack v. NJ Department of Treasury (2005-58)
3.
David Herron v. Montclair Community Pre-K Center (2005-130)
4.
John Windish v. Mount Arlington Public Schools (2005-2 16)
A motion was made by Ms. Forsyth and seconded by Ms. Tabakin to go into closed
session. The motion was adopted by a unanimous vote.
The Council met in closed session from 9:55 a.m. to 10:50 a.m.
Open Session reconvened at 10:55 a.m. Ms. Luzzatto called the roll:
In attendance:
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
1
Mr. Maltese, Ms. Tabakin and Ms. Forsyth.
The pledge of allegiance was recited.
Mr. Maltese called for a motion to approve the open and closed session minutes of April
6, 2006 and April 11, 2006.
The motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The minutes were
approved by a unanimous vote.
Mr. Maltese stated that he was recusing himself from the following cases.

Robert Gorman v. Gloucester City (2004-108)

Leonard Lucente v. City of Union City (2005-2 13)

John Windish v. Mount Arlington Public Schools (2005-2 16)

John Paff v. City of Plainfield (2006-54)
Therefore, the aforementioned cases were not heard because there was not a quorum.
Ms. Starghill informed the Council that the following cases would also not be heard due
to procedural issues:


Amelia Spaulding v. Passaic County (2004-199)
Cynthia McBride v. Township of Hamilton (2005 -86)
John McCormack v. New Jersey Department of Treasury (2005-58)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the In
Camera Findings and Recommendations of the Executive Director. Ms. McGann
presented the following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. The Treasury Human Resources Transmittal dated 12/10/2004 with attached
justification memo, Page 1, “Treasury Human Resources Transmittal”: The
entire document is exempt from disclosure as “advisory, consultative and
deliberative material” pursuant to N.J.S.A. 47: 1A-1 .1 and “personnel
information” pursuant to N.J.S.A. 47:1A-10.
2. The Treasury Human Resources Transmittal dated 12/10/2004 with attached
justification memo, Page 2, Justification memo from Karen Wood to Mark
Wintermute entitled “Temporary Upgrade for Matthew Suto”: The entire
document is exempt from disclosure as “advisory, consultative and deliberative
material” pursuant to N.J.S.A. 47:1A-1.1 and “personnel information” pursuant to
N.J.S.A. 47:1A-10.
3. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley
entitled “FYI” dated 12/27/2004 with attachments, Page 1, e-mail: This document
is disclosable because the record does not fall within the exemption for
“personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.
4. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley
entitled “FYI” dated 12/27/2004 with attachments, Page 2, attachment: The
entire document is exempt from disclosure as a “personnel record” pursuant to
N.J.S.A. 47:1A-10 and as “information generated by or on behalf of... public
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
2
employees in connection... with any grievance filed by or against an individual”
pursuant to N.J.S.A. 47:1A-1.1.
5. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley
entitled “FYI” dated 12/27/2004 with attachments, Page 3, attachment
(continued): The entire document is exempt from disclosure as a “personnel
record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on
behalf of... public employees in connection... with any grievance filed by or
against an individual” pursuant to N.J.S.A. 47:1A-1.1.
6. The e-mail from Keith Vansickle to the Complainant and Kathleen Crawley
entitled “FYI” dated 12/27/2004 with attachments, Page 4 attachment
(continued): The entire document is exempt from disclosure as a “personnel
record” pursuant to N.J.S.A. 47:1A-10 and as “information generated by or on
behalf of... public employees in connection... with any grievance filed by or
against an individual” pursuant to N.J.S.A. 47:1A-1.1.
7. The letter from D. Ianni to M. Suto dated 12/27/2004, Page 1: This document is
disclosable with the redaction of the letterhead, address of the employee,
paragraphs 2 and 3 and the signature line which are exempt from disclosure as
“personnel information” pursuant to N.J.S.A. 47:1A-10.
8. The letter from the DOP to D. Ianni dated 1/14/2005, Page 1: The entire
document is exempt from disclosure as a “personnel record” pursuant to N.J.S.A.
47:1 A- 10 and as “information generated by or on behalf of... public employees in
connection... with any grievance filed by or against an individual” pursuant to
N.J.S.A. 47:1A-1.1.
9. The fax from D. Ianni to DOP dated 1/28/2005, Page 1, Fax transmittal: This
document is disclosable because the record does not fall within the exemption for
“personnel” pursuant to N.J.S.A. 47:1A-10 as asserted by the Custodian.
10. The fax from D. Ianni to DOP dated 1/28/2005, Page 2, “Application for
Promotional Examination”: The entire document is exempt from disclosure as a
“personnel record” pursuant to N.J.S.A. 47:1A-10.
11. The fax from D. Ianni to DOP dated 1/28/2005, Page 3, “Application for
Promotional Examination (continued)”: The entire document is exempt from
disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
12. The fax from D. Ianni to DOP dated 1/28/2005, Page 4, “Application for
Promotional Examination (continued)”: The entire document is exempt from
disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
13. The fax from D. Ianni to DOP dated 1/28/2005, Page 5, “Application for
Promotional Examination (continued)”: The entire document is exempt from
disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10.
14. The fax from D. Ianni to DOP dated 1/28/2005, Page 6, Resume: This document
is disclosable per Executive Order 26.
15. The fax from D. Ianni to DOP dated 1/28/2005, Page 7, Resume (continued) is
disclosable per Executive Order 26.
16. The fax from D. Ianni to DOP dated 1/28/2005, Page 8, Resume (continued) is
disclosable per Executive Order 26.
17. The memorandum from DOP to J. Bando entitled “Request for Evaluation” dated
1/31/2005, Page 1, memorandum from DOP to J. Bando: The entire document
is exempt from disclosure as a “personnel record” pursuant to N.J.S.A. 47:1A-10
and as “information generated by or on behalf of... public employees in
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
3
connection... with any grievance filed by or against an individual” pursuant to
N.J.S.A. 47:1A-1.1.
18. The DOP letter entitled “Matthew Suto’s eligibility for temporary appointment”
dated 2/14/2005, Page 1: The entire document is exempt from disclosure as a
“personnel record” pursuant to N.J.S.A. 47:1A-10 and as “information generated
by or on behalf of... public employees in connection... with any grievance filed
by or against an individual” pursuant to N.J.S.A. 47:1A-1.1.
19. The e-mail from D. Ianni to DOP entitled “Your letter dated 2/14/2005...” dated
2/23/2005, Page 1: The entire document is exempt from disclosure as a
“personnel record” pursuant to N.J.S.A. 47:1A-10, as “information generated by
or on behalf of... public employees in connection... with any grievance filed by
or against an individual” pursuant to N.J.S.A. 47:1A-1.1. and as “advisory,
consultative and deliberative material” pursuant to N.J.S.A. 47:1A-1.1.
20. The Custodian shall comply with these Conclusions and Recommendations within
ten (10) business days from receipt of the Council’s Interim Order and
simultaneously provide certified confirmation of compliance to the Executive
Director.
Mr. Maltese called for a motion to accept the Executive Director’s in camera findings
and recommendations as written. A motion was made by Ms. Tabakin and seconded by
Ms. Forsyth. The motion passed unanimously.
Donal Meyers v. Borough of Fair Lawn (2005-127)
Ms. Gardner reviewed the GRC’s analysis and issues in the case as set forth in the
Supplemental Findings and Recommendations of the Executive Director. Ms. Gardner
presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that the case has been
settled in the Appellate Division of the Superior Court of New Jersey and therefore, the
case is closed without further action.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
David Herron v. Montclair Community Pre-K Center (2005-130)
Ms. Gardner reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. The Council took no action
on this case and sought additional legal advice.
John Bart v. City of Paterson Housing Authority (2005-145)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
The Executive director respectfully recommended that Council find that:
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
4
1. Regardless of whether the Complainant was already in possession of the cover
letter or that the Complainant had seen the sign and knew it “verbatim,” the
requested sign and cover letter that requests that individuals to please bring their
own interpreter should have been provided to the Complainant in response to his
request provided there was no lawful exemption to same because there is no
provision under OPRA that states a requestor may not reque st copies of
documents already in their possession.
2. Although the Custodian responded in writing within the statutory time period
under OPRA, the Custodian’s response to the request for the Spanish language
sign that references the PHA’s desire for Spanish-speaking tenants to bring their
own interpreter was so vague that it could not be determined if the requested sign
did not exist, or if it was being denied. Therefore, the request is deemed denied
and the Custodian has violated N.J.S.A. 47: 1A-5.i.
3. The cover letter that requests that individuals to please bring their own interpreter
does, in fact, reference the PHA’s requirement or preference that individuals bring
an interpreter, which would include those that speak Spanish. Therefore, this
document is responsive to the Complainant’s request.
4. The Custodian has not provided a lawful basis for denying access to the cover
letter that requests individuals to please bring their own interpreter pursuant to
N.J.S.A. 47: 1A-5.g. Therefore, the Custodian shall disclose the cover letter with
appropriate redactions as necessary. The legal basis for any redactions must be
explained pursuant to N.J.S.A. 47: 1A-5.g.
5. Due to the contested facts surrounding this case, the case shall be referred to the
Office of Administrative Law for determination of a knowing and willful
violation of the Act and unreasonable denial of access under the totality of the
circumstances.
6.
The Custodian shall comply with "4." above within ten (10) business days from
receipt of this Interim Order and simultaneously provide confirmation of
compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
Henry A. Fischer v. New Jersey Department of Corrections (2005-170)
Ms. Gardner reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendation to the Council:
The Executive Director respectfully recommended the Council find that the Custodian
has not unlawfully denied access to the requested records because the requested record is
a grievance decision and exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
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Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Larry Angel v. Township of Mullica (2005-207)
Ms. Lownie reviewed the GRC’s analysis and issues in the case as set forth in the
Supplemental Findings and Recommendations of the Executive Director. Ms. Lownie
presented the following recommendation to the Council:
The Executive Director respectfully recommended the Council find that based on the
Custodian’s submissions to the GRC dated April 14, 2006 and April 24, 2006, the
Custodian provided the Complainant with the requested 2005 executive session minutes
on December 20, 2005. Therefore, the Custodian had already released the requested
records before the Council’s April 11, 2006 Interim Order. The Custodian’s actions were
consistent with the Council’s April 11, 2006 Interim Order. The Council should close
this case with no further action.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Maryann Cottrell v. Township of Washington (2005-248)
Ms. Lownie reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Lownie presented the
following recommendation to the Council:
The Executive Director respectfully recommended the Council find that as the Custodian
certifies that no records responsive to the Complainant’s November 4, 2005 request exist,
the Custodian would not have unlawfully denied access to the requested records pursuant
to N.J.S.A. 47:1A-1.1, except that the Custodian’s failure to provide the Complainant
with a written response to each individual request within the statutorily mandated seven
(7) business days resulted in a “deemed” denial, thus violating N.J.S.A. 47:1A-5.g. and
N.J.S.A. 47:1A-5.i.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Virginia Ellen Jeffries v. East Orange Board of Education (2005-259)
Mr. Malloy reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendation to the Council:
The Executive Director respectfully recommended the Council find that in accordance
with OPRA, the Council should order the Custodian to disclose the records responsive to
the request, or submit a legal certification with a legal justification explaining why the
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
6
records should not be disclosed to the Complainant and Executive Director within ten
(10) business days of receipt of the Council’s decision.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written and added that the Council will address the matter of timeliness in the case upon
receipt of the Custodian’s response to the Interim Order. A motion was made by Ms.
Tabakin and seconded by Ms. Forsyth. The motion passed unanimously.
A.J. Nash v. Children’s Hospital of New Jersey (2006-13)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendation to the Council:
The Executive Director respectfully recommended the Council find that considering the
meaning of a public agency as explained by the court in the The Times of Trenton
Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J. Super. 425,
846 A.2d 659 (April 2004) and all the document submissions of the Custodian, the
Hospital, owned and operated by NBI, is not a public agency pursuant to N.J.S.A. 47:1A1.1. Therefore, the Hospital is not subject to the provisions of OPRA and is not required
to respond to OPRA requests for records.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Brian D. Asarnow v. Department of Labor and Workforce Development (2006-24)
Mr. Malloy reviewed the GRC’s analysis and issues in the case as set f orth in the
Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendation to the Council:
The Executive Director respectfully recommended that the Council find that the
Custodian provided a lawful reason for the denial of access of three of the records
requested pursuant to the Custodian’s burden of proof obligation established and
mandated under N.J.S.A. 47:1A-6., and released the one document that was not legally
exempt from disclosure within the time frame mandated under OPRA. Thus, there was
no unlawful denial of access to the requested records pursuant to the provisions of
OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s recommendation as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Michael Deluca v. Town of Guttenberg (2006-25)
Ms. Lownie reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
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The Executive Director respectfully recommended the Council find that:
1. As the Custodian certifies that no records responsive to the Complainant’s request
exist, there would not have been an unlawful denial of access. However the
Custodian violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. by failing to
provide the Complainant with a written response to his November 28, 2005
request within the statutorily mandated seven (7) business days therefore creating
a “deemed” denial.
2. The Custodian’s response that the Complainant had already been advised that the
requested documents do not exist is not a lawful reason for a denial of access
pursuant to the Custodian’s burden of proof obligation established and mandated
under N.J.S.A. 47:1A-6.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The motion
passed unanimously.
Thomas Caggiano v. Borough of Stanhope (2006-27, 2006-28, 2006-29, 2006-30,
2006-31, 2006-32, 2006-33, 2006-34, 2006-35, 2006-36, 2006-37, 2006-38, 2006-39,
2006-40, 2006-41, 2006-42, 2006-43, and 2006-47)
Ms. Luzzatto reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Luzzatto presented the
following recommendations to the Council:
The Executive Director respectfully recommended the Council find that:
1. The Custodian has not borne the burden of proving that there was a lawful basis
to deny the Complainant access to inspect the requested records in the February
14, 2006 response to the Complainant’s OPRA requests and therefore, the
Custodian unlawfully denied the Complainant access to inspect the requested
records pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-6.
2. It was reasonable for the Custodian to require a scheduled appointment for the
Complainant to inspect records pursuant to N.J.S.A. 47: 1A-5.a., to avoid
interfering with the Custodian’s daily operations.
3. The Custodian did make copies available to the Complainant in a timely manner
pursuant to the Custodian’s February 14, 2006 written response. Therefore, the
Custodian did not unlawfully deny the Complainant access to the records for
which he sought copies.
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written. A motion was made by Ms. Forsyth and seconded by Ms. Tabakin. The motion
passed unanimously.
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
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Dina Parave-Fogg v. Lower Alloways Creek Township (2006-51)
Ms. Lownie reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. The Council took no action
on this case and sought additional legal advice regarding unapproved meeting minutes.
John Brennan v. Monmouth County Prosecutor’s Office (2005-119)
Mr. Malloy reviewed the procedural history of the case noting that the Council issued a
Final Decision in the matter and that the case was on appeal. He stated further that upon
legal advice and Council discussion of the matter, the Council voted to motion the court
to remand the case to the Council to conduct an in camera inspection of the requested
record. On May 1, 2006, the court ordered a remand of the case for an in camera
inspection.
During closed session, the Council conducted the in camera inspection of the unredacted
June 27, 2003 letter from Robert Linton to the Monmouth County Prosecutor’s Office
sought in the OPRA request. After completing the in camera inspection of Robert
Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office, the Council
voted unanimously to revise its Final Decision finding that the requested record was a
“criminal investigatory record” and exempt from disclosure pursuant to N.J.S.A. 47: 1A1.1.
Administrative – Adjudication:
1.
2.
3.
4.
5.
6.
7.
8.
Fred Burnett v. Bergen County (2004-6)
David Mann v. Borough of Montvale (2005-135)
Vesselin Dittrich v. City of Hoboken (2005-218)
James Donato v. Township of Union - Department of Public Safety (2006-3)
Joseph Truland v. Town of Dover (2006-68)
Porete Avenue Property Association (Michael DiCicco) v. Borough of North
Arlington (2006-7 1)
Janet Piszar v. Millburn Township (2006-74)
John J. D’Anton v. Dover Township, Municipal Court (2006-78)
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written in all of the above Administrative Case Dispositions. A motion was made by Ms.
Tabakin and seconded by Ms. Forsyth. The motion passed unanimously.
Executive Directors Report:
Ms. Starghill stated that the public comment period to respond to the GRC’s Proposed
Rules concluded May 6, 2006. She stated that the GRC received four letters regarding
the GRC’s Proposed Rules and these letters are currently under legal review.
Ms. Starghill noted that the GRC received the following correspondence:
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
9
•
John Paff letter dated April 27, 2006 concerning the GRC’s guidelines for
certification.
Ms. Starghill informed the Council that the GRC will conform with the certification
requirements of the N.J. Court Rules, 1969 R. 1 :4-4 (2005).
Ms. Starghill announced the resignation of the GRC staff member, Jennifer Arozamena.
Public Comment:
Mr. Maltese opened the public comment period stating that comments would be limited
to five minutes for each speaker. Further, he stated that the Council and its Chairperson
has the discretion under the Open Public Meetings Act in permitting, regulating or
prohibiting public comment at a meeting and that in its discretion was permitting public
comment to five minutes for each speaker at this meeting.
Thomas Caggiano – Stanhope, NJ
Mr. Caggiano discussed the conduct of the GRC’s public meeting and his cases. He
submitted several documents.
There were no other public comments and Mr. Maltese called for a motion to adjourn the
meeting. The motion was made by Ms. Tabakin and seconded by Ms. Forsyth. The
Council voted unanimously to adjourn the meeting.
Meeting adjourned at 12:05 p.m.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved:
Government Records Council Meeting May 11, 2006 Open Public Meeting Minutes.
10
DRAFT
Minutes of the Government Records Council
July 13, 2006 Public Meeting – Open Session
The meeting was called to order at 10:10 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Hairston called the roll:
Present: Chairman Vincent Maltese, Secretary Robin Berg Tabakin, Michelle
Richardson, and Charles Richmond
GRC Staff: Executive Director Catherine Starghill, Brigitte Hairston, Kimberly
Gardner, Christopher Malloy, Colleen McGann, Marion Davies and Deputy Attorney
General Debra Allen.
Absent: Kathryn Forsyth (Designee of Acting Commissioner Lucille Davy
Department of Education).
Mr. Maltese read the Resolution for Closed Session, Resolution Number 2006-05-11 to
discuss attorney-client privileged matters and anticipated and pending litigation in the
following complaints:
1.
Cathy Cardillo v. City of Hoboken, Zoning Office (2005-158) – In Camera
Inspection by Staff
2.
Denial of Access Complaint filed with the Government Records Council –
Thomas Caggiano v. Government Records Council
3.
Thomas Caggiano v. Borough of Stanhope (2006-27, et seq.) – Request for
reconsideration
4.
Janon Fisher v. NJ Dept. of Law & Public Safety, Division of Law (2004-55 and
2004-82) – Remanded for NJ Superior Court, Appellate Division for further GRC
proceedings
A motion was made by Ms. Tabakin seconded by Ms. Richardson to go into closed
session. The motion was adopted by a unanimous vote.
The Council met in closed session from 10:10 a.m. to 11:05 a.m.
Open Session reconvened at 11:15 a.m. and Ms. Hairston called the roll:
In attendance:
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
1
Mr. Maltese, Ms. Tabakin, Ms. Forsyth (arrived after closed session began), Ms.
Richardson and Mr. Richman.
The pledge of allegiance was recited.
Mr. Maltese called for a motion to approve the open and closed session minut es of
May11, 2006. A motion was made by Ms. Richardson and seconded by Ms. Tabakin.
The motion passed unanimously.
Mr. Maltese stated that he was recusing himself from the following complaints:

Robert Gorman v. Gloucester City (2004-108)

Amelia Spaulding v. Passaic County (2004-199)

D.T. v. Rockaway Board of Education (2005-203)

Leonard Lucente v. City of Union City (2005-2 13)

Maryann Cottrell v. Rowan University (2005-255)

John Paff v. City of Plainfield (2006-54)
Therefore, these complaints will be heard after all the complaints for which Mr. Maltese
may participate in the vote are heard by the Council.
Ms. Starghill informed the Council that the following complaints would not be heard
today:
 Janon Fisher v. NJ Department of Law & Public Safety (2004-55)
 Janon Fisher v. NJ Department of Law & Public Safety (2004 -82)
The following complaints were presented to the Council for individual adjudication:
Michael D’Antonio v. Borough of Allendale (2005-20)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1. The Custodian’s response that the Complainant had already been provided with
the records requested is not a lawful reason for a denial of access pursuant to
Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq. (January,
2006) as well as N.J.S.A. 47: 1A-6. As such, the Custodian has unlawfully denied
access to the following records requested on January 21, 2005:
 copies of former complaints filed by D’Antonio against Mr. Chorba
 a copy of Attorney’s report or letter to Borough as to outcome of lawsuit
 a copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as
witnesses
 a copy of Mr. Corriston’s legal papers to attain above decision..
2. The Custodian should release the requested documents listed in (1) above to the
Complainant within ten (10) business days of receipt of the Council’s Interim
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
2
3.
4.
5.
6.
Order and simultaneously provide certified confirmation of compliance to the
Executive Director.
Pursuant to Russomano v. Township of Edison, GRC Case No. 2002-86 (July
2003), the Custodian properly responded to the Complainant’s January 14, 2005
request for information by providing a written response within the statutorily
mandated seven (7) business day pursuant to N.J.S.A. 47: 1A-5.i. and denying the
request on the basis that it is not a request for “identifiable government records”
pursuant to Mag Entertainment, LLC v. Division of Alcoholic Beverage Control,
375 N.J. Super 534, 546 (March 2005).
The Complainant’s January 31, 2005 records request was not a valid OPRA
request and as such the Custodian’s refusal to fulfill the records request does not
amount to an unlawful denial of access pursuant to the provisions of OPRA.
As the Custodian asserts that she provided the Complainant with written
responses to his January 14, 2005 and January 21, 2005 OPRA requests, and did
not respond to the Complainant’s January 31, 2005 request as it was not a valid
OPRA request, it is concluded that the Custodian believed she was acting in good
faith and therefore her actions were merely negligent, heedless, or unintentional.
Therefore, 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 does not have authority over the alleged record theft pursuant to
N.J.S.A. 47: 1A-7.b., therefore, this portion of the complaint should be dismissed
with no further action.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Peter Runfolo v. Township of Scotch Plains (2005-64)
Ms. Colleen McGann reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Ms.
McGann presented the following recommendations to the Council:
The Executive Director respectfully recommends that the Council adopt the Initial
Decision of the ALJ and find that the parties in this case voluntarily agreed to settle this
matter. Therefore, no further action is required on the part of Council.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Tabakin. The motion passed unanimously.
John Paff v. Township of Old Bridge (2005-123)
Ms. Colleen McGann reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Ms.
McGann presented the following recommendations to the Council:
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
3
The Executive Director respectfully recommends the Council find that:
1. Given that the Custodian did not provide a detailed and lawful basis for each
individual redaction and did not provide confirmation that the agency’s request
form had been amended, within the time period ordered by the Council, it may be
determined that the Custodian did not comply with the Council’s Interim Order.
2. The December 1, 2003 executive session minutes relate to the status of labor
negotiations which are exempt from access pursuant to N.J.S.A. 47:1A-1.1.
Therefore, the Custodian’s claimed exemption to this record is lawful.
3. The potential reasons for denying access to the March 1, 2004 executive session
minutes regarding the Woodland Trails matter claimed by the Custodian are
compelling but, it cannot be determined whether the facts of this complaint
support the denial of access to the redacted portions of the requested record.
Therefore, an in camera review of the unredacted record is necessary to determine
what information, if any, is exempt from disclosure.
4. The Custodian has provided a sufficient explanation of the denial to the portion of
the March 1, 2004 executive session minutes relating to the litigation settlement
terms for the Somers v. Old Bridge matter to justify the applicability of the
attorney-client privilege pursuant to N.J.S.A. 47:1A-1.1.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Thomas Allegretta v. Borough of Fairview
Ms. Colleen McGann reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. McGann presented
the following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that:
1. With regard to 10/16/2001 R01-264, pursuant to N.J.S.A. 47:1A-5.i. and
N.J.S.A. 47: 1A-5.g. the Custodian’s failure to properly notify the
Complainant of a lawful basis for denial of access and the delay in access
to these records constitutes a deemed unlawful denial of access.
2. The potential reasons for denying access to 12/3/2002 R-02-318 and
12/3/2002 R-02-3 19 claimed by the Custodian are compelling but, it
cannot be determined whether the facts of this complaint support the
denial of access to the redacted portions of the requested records.
Therefore, an in camera review of these unredacted requested records is
necessary to determine what information, if any, is exempt from
disclosure.
3. The document 05/17/2005 R-05131 was not made, maintained or kept on
file at the time of the Complainant’s May 17, 2005 OPRA request
therefore, there is no denial of access to this document.
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
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4. With regard to 12/17/2002 R-02-335, pursuant to N.J.S.A. 47:1A-5.i. and
N.J.S.A. 47: 1A-5.g. the Custodian’s failure to properly notify the
Complainant of a lawful basis for denial of access and the delay in access
to these records constitutes a deemed unlawful denial of access.
5. With regard to the closed session minutes indicated in the Custodian’s
index as 12/30/97 pursuant to N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g.,
the Custodian’s failure to properly notify the Complainant of a lawful
basis for denial of access or delay in access to these records constitutes a
deemed unlawful denial of access.
6. The Custodian has acted improperly in not redacting the requested
documents according to GRC guidelines.
7. Based on N.J.S.A. 47:1A-7.b., the GRC does not have authority adjudicate
whether a Custodian has complied with OPMA or any statute other than
OPRA.
8. In light of the legal standards set forth above and the fact that the
Custodian has ultimately released those documents for which no specific
exemption might exist, the Custodian’s actions do not meet the legal
standard for a knowing and willful violation pursuant to OPRA or
unreasonable denial of access under the totality of the circumstances in
this case. However, the Custodian’s actions do appear to be at least
negligent regarding his knowledge of OPRA.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Tabakin. The motion passed unanimously.
John Bart v. City of Paterson Housing Authority (2005-145)
Ms. Colleen McGann reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Ms.
McGann presented the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1. Based on the Custodian counsel’s June 1, 2006 submission to GRC staff,
the Custodian has complied with the Council’s Interim Order by providing
the Complainant with an unredacted copy of the cover letter that requests
individuals to please bring their own interpreter within ten (10) business
days from receipt of the Council’s order.
2. Due to the contested facts surrounding this case, the case shall be referred
to the Office of Administrative Law for determination of a knowing and
willful violation of the Act and unreasonable denial of access under the
totality of the circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Tabakin. The motion passed unanimously.
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
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John McCormack v. New Jersey Department of Treasury (2005-160)
Ms. Colleen McGann reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. McGann presented
the following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that:]
1.
The resumes responsive to the request are disclosable pursuant to N.J.S.A. 47: 1A10
and Executive Order 26.
2. The letters expressing interest in provisional appointment are personnel records,
exempt from access pursuant to N.J.S.A. 47:1A-10 and should not be disclosed.
3. Based on the Custodian’s denial of access to government records, misstatements
regarding the existence of requirements for the positions relating to this request
and other contested facts in this case 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 case should be referred
to the Office of Administrative Law for determination of a knowing and willful
violation of the Act under the totality of the circumstances.
4. The Custodian shall comply with "1." above within ten (10) business days from
receipt of this Interim Order and simultaneously provide certified confirmation of
compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
John McCormack v. New Jersey Department of Treasury (2005-164)
Ms. Colleen McGann reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. McGann presented
the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1. Given that the records requested by the Complainant fall squarely within the
definition of a government record subject to disclosure pursuant to N.J.S.A.
47:1 A- 10 and that the Custodian does not have to do research to fulfill the
request, the Custodian has unlawfully denied access to the requested personnel
records. Therefore, the Custodian should disclose the requested records pursuant
to OPRA.
2. Based on the explicit wording of the request, which mirrors the language found in
N.J.S.A. 47: 1A-10, the existence of databases that contain information responsive
to the request and the Custodian’s denial of access to the requested records, it is
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
6
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 case should be referred to the Office of Administrative
Law for determination of a knowing and willful violation of the Act under the
totality of the circumstances.
3. The Custodian shall comply with "1." above within ten (10) business days from
receipt of this Interim Order and simultaneously provide certified confirmation of
compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Richardson. The motion passed unanimously.
Bruce Mitzak v. Manalapan-Englishtown Regional Schools (2005-205)
Mr. Christopher Malloy reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Mr. Malloy
presented the following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that:
1. Based upon the fact that approvals for administrative vacation days are not clearly
defined as being part of a payroll record, pursuant to the GRC’s decision in
Jackson, as well as not being defined as being a government record under
N.J.S.A. 47:1A-10, there was no unlawful denial of access to said records in the
immediate case.
2. The Custodian violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. by failing to
provide the Complainant with a written response to his August 26, 2005 request
within the statutorily mandated seven (7) business days therefore creating a
“deemed” denial.
3. In view of the fact that the Custodian attempted to release at least part of the
records to the Complainant, as well as the fact that the Custodian attempted to
give a reason (although not lawful pursuant to OPRA), the Custodian’s actions do
not rise to the level of a knowing and willful violation of OPRA under the totality of
the circumstances.
4. In light of the fact that the form adopted by the Custodian in this case is in
compliance with the standards required under OPRA, the Council should find that
the Custodian is not in violation of N.J.S.A. 47: 1A-5.f.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Tabakin. The motion passed unanimously.
Renee Averbach v. Millburn School District (2005-220)
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
7
Mr. Christopher Malloy reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Mr. Malloy
presented the following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that due to the
inconsistencies in the submissions of the parties, GRC staff is unable to make a
recommendation as to whether the Custodian acknowledged the Complainant’s records
request as an OPRA request. If it is determined that the Custodian acknowledged the
Complainant’s request (whether it was on the form or not) as an OPRA request, than the
Custodian was responsible (and still is) for responding properly pursuant to OPRA. As
such, this complaint should be referred to the Office of Administrative Law (OAL) for
fact finding and a legal conclusion as to whether the Custodian acknowledged the
Complainant’s records request as an OPRA request.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
Tina Renna v. County of Union (2006-22)
Ms. Marion Davies reviewed the GRC’s analysis and issues in the case as set forth in the
Supplemental Findings and Recommendations of the Executive Director. Ms. Davies
presented the following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that an in camera
inspection is required to resolve this matter.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Richardson. The motion passed unanimously.
Thomas Caggiano v. Borough of Stanhope (2006-22, 2006-27 through 2006-43 and
2006-47)
Ms. Catherine Starghill reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Ms.
Starghill presented the following recommendations to the Council:
The Executive Director respectfully recommends that the Council reconsider these
complaints and refer them to the Office of Administrative Law to determine whether the
custodian knowing and willful violated OPRA under the totality of the circumstances
with consideration of the unlawful denial of access to inspect the records specifically
requested for inspection only and the legality of the Borough’s October 9, 2003 letter
barring the Complainant entry to the municipal building “for any reason”.
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
8
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
Dina Parave-Fogg v. Lower ALloways Creek Township (2006-63)
Ms. Catherine Starghill reviewed the GRC’s analysis and issues in the case as set forth in
the Supplemental Findings and Recommendations of the Executive Director. Ms.
Starghill presented the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that as the Custodian
certifies that no records responsive to the Complainant’s March 6, 2006 request exist, the
Custodian would not have unlawfully denied access to the requested records pursuant to
N.J.S.A. 47:1A-1.1, except that the Custodian’s failure to provide the Complainant with a
written response to her request within the statutorily mandated seven (7) business days
resulted in a “deemed” denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.
Additionally, the Custodian should have obtained a written agreement from the
Complainant extending the seven (7) business day time frame required under OPRA to
respond to the records request as she was aware that she was awaiting a written response
from the Chief of Police.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabkin and seconded by Ms.
Forsyth. The motion passed unanimously.
Robert Gorman v. Gloucester City (2004-108)
Mr. Christopher Malloy reviewed the GRC’s analysis and issues in the case as set forth
in the Supplemental Findings and Recommendations of the Executive Director. Mr.
Malloy presented the following recommendations to the Council:
The Executive Director respectfully recommends that the Council remand the ALJ’s
initial decision for additional fact finding, which shall include, but need not be limited to,
an in camera review of the MVR tape.
Ms. Tabkin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Richardson. The motion passed unanimously.
Amelia Spaulding v. Passaic County (2004-199)
Ms. Catherine Starghill reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. Starghill presented
the following recommendations to the Council:
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
9
The Executive Director respectfully recommends the Council find that:
1.
2.
3.
4.
5.
6.
7.
8.
9.
The Custodian unlawfully denied access to the requested records.
There is no restriction against commercial use under OPRA and it is not the
province of the GRC to rule on this public policy aspect.
Based on court precedent, the requested records are government records and are
not exempt from disclosure under common law.
The fees prescribed under N.J.S.A. 22A:4-12 are provided for “a search of all
records ...” Since the substance of this complaint refers to an OPRA records
request and not a “search” of County recorded records, N.J.S.A. 22A:4-12 does
not apply.
When the county clerk makes a copy, the fee in N.J.S.A. 22A:2-29 applies.
However, in the instant complaint now before the GRC, the records have been
requested in electronic or microfilm format instead of paper format and as such
N.J.S.A. 22A:2-29 does not apply. For the same reason, N.J.S.A. 47:1A-5.b.
(enumerating the OPRA rates for paper copies) does not apply.
The parties should meet and agree on cost or if they are unable to so agree, they
should each submit a brief to the GRC on the cost issue only and the GRC will
refer such matter to the Office of Administrative Law. The parties shall so
comply within ten (10) business days from receipt of the Council’s Interim Order
and simultaneously provide certified confirmation of compliance to the Executive
Director.
The Custodian has not borne her burden of proving that redactions of the publicly
recorded real estate records are necessary. Since redactions are not warranted, it
is not likely the special service charge to which the Custodian attributed in large
part to making redaction is warranted pursuant to N.J.S.A. 47:1A-5.c.
The Custodian should arrange to make the filing books available to the
Complainant to make copies of the records requested using the public photocopy
machine. The Custodian shall so comply within ten (10) business days from
receipt of the Council’s Interim Order and simultaneously provide certified
confirmation of compliance to the Executive Director.
The Complainant’s Counsel is required to submit to the GRC a written application
for attorney’s fees supported by an attorney affidavit of service pursuant to New
Jersey Court Rule 4:42-9(b). The Complainant shall so comply within ten (10)
business days from receipt of the Council’s Interim Order and simultaneously
provide certified confirmation of compliance to the Executive Director. The GRC
reserves the right to make the determination on the issue of prevailing party
attorney’s fees.
Ms. Tabkin called for a motion to accept the Executive Director’s findings and
recommendations as amended (#6). A motion was made by Ms. Forsyth and seconded by
Ms. Richardson. The motion passed unanimously.
Leonard Lucente v. City of Union City (2005-213)
Ms. Catherine Starghill reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. Starghill presented
the following recommendations to the Council:
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
10
The Executive Director respectfully recommends the Council find that based on the
Custodian counsel’s April 24, 2006 submission to GRC staff, the Custodian has complied
with the Council’s Interim Order by attempting to provide the Complainant with a copy
of the requested medical application within ten (10) business days from receipt of the
Council’s order. However, in a letter dated April 20, 2006, the Complainant agreed to
dismiss the case as he was no longer seeking the medical application still at issue.
Ms. Tabkin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
Maryann Cottrell v. Rowan University (2005-255)
Ms. Catherine Starghill reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. Starghill presented
the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that the Custodian was
not obligated to comply with the Complainant’s November 4, 2005 request pursuant to
OPRA as said request is not a valid OPRA request as it is a request for records per
discovery. The Council should close this case with no further action.
Ms. Tabkin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Richardson. The motion passed unanimously.
John Paff v. City of Plainfield (2006-54)
Ms. Catherine Starghill reviewed the GRC’s analysis and issues in the case as set forth in
the Findings and Recommendations of the Executive Director. Ms. Starghill presented
the following recommendations to the Council:
The Executive Director respectfully recommends the Council find:
1. As the Custodian is awaiting payment for the duplication cost of the
requested records, she is not required to release said records until payment is
received pursuant to N.J.S.A. 47: 1A-5.b., Santos v. New Jersey State Parole
Board, GRC Case No. 2004-74 (August, 2004), and Cuba v. Northern State
Prison, GRC Case No. 2004-146 (February, 2005). Therefore, the
Custodian has not unlawfully denied access to the records requested on
February 6, 2005 (the Complainant’s resubmission of his December 26,
2005 request.)
2. As the Custodian failed to respond to the Complainant’s December 26, 2005
request (the Complainant’s original OPRA request), she violated N.J.S.A.
47:1A-5.g. and N.J.S.A. 47:1A-5.i. which resulted in a “deemed” denial of
the request.
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
11
Ms. Tabkin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
Administrative Council Adjudication:
GRC Complaint Case and Number
1. Anthony Russomanno v. Township
of Edison (2004-197)
2. Dr. Kathleen Henderson v. Kean
University (2005-44, 45, & 46)
3. John Kocubinski v. North Hanover
Township (2005-163)
4. Hassan A. Shakur v. Essex County
Prosecutor’s Office (2005-2 12)
5. Thomas Kosinski v. Wall
Township Police Department
(2005-240)
6. Virginia Jefferies v. East Orange
Board of Education (2005-259)
7. Robert Comandini v. Township of
Tewksbury (2006-12)
8. Jason Belmont v. Township of
Washington (2006-5 3)
9. Arthur Marino v. Haledon Borough
(2006-66)
10. John Paff v. Borough of Ringwood (200667)
11. Anthony Amelio v. Town of
Morristown (2006-77)
12. John Paff v. Township of Vernon
(2006-86)
13. Jackie Mosley v. Salem City
Housing Authority (2006-90)
14. Lynn Spawn v. Middlesex County
Planning Board (2006-92)
15. Lynne Mandel v. Bergen County
Community College (2006-94)
16. Gabriel Iannacone v. NJ State
Parole Board (2006-101)
Disposition
Complaint withdrawn
Settlement in mediation.
No records responsive to the request
Complaint withdrawn
No records responsive to the request
Complaint withdrawn
Settlement in mediation
No records responsive to the request
Settlement in mediation
Complaint withdrawn
Complaint withdrawn
Settlement in mediation
Complaint withdrawn
Complaint withdrawn
Complaint withdrawn
Records requested provided
Ms. Tabkin called for a motion to accept the Executive Director’s recommendations as
written in all of the above Administrative Case Dispositions. A motion was made by Ms.
Richardson and seconded by Ms. Forsyth. The motion passed unanimously.
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
12
Executive Directors Report:
Ms. Starghill informed the Council that a denial of access complaint had been filed
against the Government Records Council. She asked that the Council consider referring
the complaint to the Office of Administrative Law to avoid the appearance of a conflict
of interest because while OPRA does not specifically address how such a situation, it
would prudent to allow another agency to adjudicate such a complaint. Ms. Tabkin
called for a motion to refer the denial of access complaint filed against the Government
Records Council to the Office of Administrative Law for adjudication. A motion was
made by Ms. Richardson and seconded by Ms. Forsyth. The motion passed unanimously.
Ms. Starghill also informed the Council that the GRC will conform with the certification
requirements of the N.J. Court Rules, 1969 R. 1 :4-4 (2005).
Finally, Ms. Starghill announced the retirement of the GRC staff member, Gloria
Luzzatto.
Public Comment:
No public comments were made.
Meeting adjourned at 12:55 p.m.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved:
Government Records Council Meeting July 13, 2006 Open Public Meeting Minutes.
13
DRAFT
Minutes of the Government Records Council
August 10, 2006 Public Meeting – Open Session
The meeting was called to order at 9:41 a.m. at the Department of Community Affairs,
Room 129, Trenton, New Jersey. The Open Public Meetings Act statement was read.
Ms. Hairston called the roll:
Present: Chairman Vincent Maltese, Secretary Robin Berg Tabakin, Michelle
Richardson and Kathryn Forsyth.
GRC Staff: Executive Director Catherine Starghill, Brigitte Hairston, Kimberly
Gardner, Christopher Malloy, Colleen McGann, Barry Roy, Designated Outside
Counsel and Deputy Attorney General Debra Allen.
Mr. Maltese read the Resolution for Closed Session, Resolution Number 2006-08-10 to
conduct an in camera inspection and receive legal advice in the following complaints:
1.
Janon Fisher v. Department of Law & Public Safety, Division of Law (2004-5 5 &
2004-82) – In Camera Inspection
2.
Cathy Cardillo v. City of Hoboken, Zoning Office (2005-158) – In Camera
Inspection – NO QUORUM/NOT DISCUSSED
3.
Tina Renna v. County of Union (2006-22) – In Camera Inspection
4.
Dina Parave-Fogg v. Lower Alloways Creek Township (2006-5 1)
A motion was made by Ms. Tabakin seconded by Ms. Forsyth to go into closed session.
The motion was adopted by a unanimous vote. A motion was then made to re-open the
open session so Mr. Maltese could read the Resolution as amended above at 9:45 am.
Mr. Maltese read the Resolution. A motion was made by to return to closed s ession by
Ms. Tabakin and seconded by Ms. Forsyth. The motion was adopted by a unanimous
vote.
The Council met in closed session from 9:48 a.m.until 10:29 a.m.
Open Session reconvened at 10:45 a.m. and Ms. Hairston called the roll:
In attendance:
Mr. Maltese, Ms. Tabakin, Ms. Forsyth, and Ms. Richardson.
The pledge of allegiance was recited.
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
1
Mr. Maltese called for a motion to approve the open and closed session minutes of July
13, 2006. A motion was made by Ms. Tabakin and seconded by Ms. Richardson. The
motion passed unanimously.
Mr. Maltese stated that he was recusing himself from the following complaints:








George Burdick, Jr. v. Franklin Township (2005-133)
Cathy Cardillo v. City of Hoboken (2005-158)
John McCormack v. NJ Department of Treasury (2005-58)
John McCormack v. NJ Department of Treasury (2005-160)
John McCormack v. NJ Department of Treasury (2005-164)
Janet Hascup v. Waldwick Board of Education (2005-192)
John Windish v. Mount Arlington Public Schools (2005-2 16)
Irvin Beaver v. Township of Mid dletown (2005-243)
Ms. Tabakin stated that she was recusing herself from the following complaints:

Richard Barber, Sr. v. UMDNJ University of Medicine & Dentistry (2006-105)

D.T. v. Rockaway Township Board of Education (2005-203)
Ms. Starghill informed the Council that the following complaints would not be heard
today:
 Cathy Cardillo v. City of Hoboken, Zoning Office (2005-158)
 Janet Hascup v. Waldwick Board of Education (2005-192)
 Jane Cowley v. The Township of Kingwood (2006-45)
Council Adjudication:
The following complaints were presented to the Council for summary administrative
adjudication:
GRC Complaint Case and Number
1
.
Jared
P. DuVoisin v. City of
Newark Department of
Engineering (2006-83
2
.
Mary
Steinhauer-Kula v. Millville
Board of Education (2006-85
3. A.J. Nash v. Passaic County
Freeholder
Disposition
Complaint withdrawn
Complaint withdrawn
Unsubstantiated Written Request
N.J.S.A. 47: 1A-5.g
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
2
4
5
6
7
.
Rory
Moore v. Old Bridge
Township (2006-107)
.
Rory
Moore v. Old Bridge
Townshhip (2006-109)
.
Narinder
Gautam v. New Jersey
Department of Banking &
Insurance (2006-109)
.
Troy
Delaine v. Riverfront State
Prison, Department of Corrections
(2006-13 1)
Not a request for government records
N.J.S.A. 47: 1A- 1.1.
No records responsive to the request
N.J.S.A. 47: 1A- 1.1.
No records responsive to the request
N.J. S.A. 47:1 A- 1.1.
N.J.S.A. 47: 1A-6 Pending action in
Superior Court
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written in all of the above Administrative Case Dispositions. A motion was made by Ms.
Tabakin and seconded by Ms. Forsyth. The motion passed unanimously.
The following complaints were presented to the Council for individual adjudication:
Michael D’Antonio v. Borough of Allendale (2005-20)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that the
Custodian has complied with the Council’s Interim Order of July 13, 2006.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Thomas Neff v. New Jersey Department of Law & Public Safety (2005-101)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council accept the initial decision
of the OAL which finds that the Custodian acted in accordance with OPRA when he
provided the Complainant with the records made, maintained, kept or received by OAG,
but directed him to the designated records custodians for the several divisions within
L&PS for the records sought that were made, kept and maintained by the individual
divisions. Further, each of these divisions was by statute authorized and by regulation
required to have its own designated custodian of records and nothing in OPRA required
that there be one, central custodian with total responsibility for all of the records made,
kept and maintained throughout the entire principal department of L&PS.
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
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Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Tabakin. The motion passed unanimously.
David Herron v. Montclair Community Pre-k (2005-130)
Ms. Gardner reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1. In consideration of all of these characteristics of the Pre-K taken together, the
Pre-K is a public agency as provided for under OPRA and is obligated under
the provisions of OPRA, including the provision which requires public
agencies to create an official OPRA records request form (N.J.S.A. 47: 1A5.f.).
2. Since the Pre-K is a public agency under OPRA, the Custodian has
unlawfully denied access to government records pursuant to OPRA. Thus, the
Custodian should release the requested salaries of employees to the
Complainant. The Custodian shall so comply within ten (10) business days
from receipt of the Council’s Interim Order and simultaneously provide
certified confirmation of compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
David Lyons v. Irvington Board of Education (2005-196)
Mr. Malloy reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Mr. Malloy presented the
recommendations to the Council which were amended as follows:
The Executive Director respectfully recommends that the Council find that:
1. The Custodian must provide the Executive Director a copy of the
engagement letter detailing the Custodian’s contractual relationship with
its attorney(s).
2. If the engagement letter mentioned above does not require the attorney(s)
to provide periodic billing information, then the Custodian must obtain a
legal certification that the attorney(s) does not provide any such periodic
billing information to the Custodian (even if not so required according to
the terms of the engagement letter).
3. The Custodian must provide the Executive Director a legal certification
indicating whether the attorney(s) representing the Board of Education
receive pension benefits or other benefits from the school district or are
entitled to receive same.
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
4
4.
The Custodian must comply with items #1., 2., and 3. above within ten
(10) business days from receipt of this Interim Order.
5. The original Custodian, as well as the current Custodian, violated N.J.S.A.
47: 1A-5.g. and N.J.S.A. 47: 1A-5.i. by failing to provide the Complainant
with written responses to any of the requests within the statutorily
mandated seven (7) business days therefore creating a “deemed” denial.
6. Although neither the original Custodian nor the current Custodian
responded in a timely manner, which resulted in a “deemed” denial, both
Custodians’ did respond (on separate occasions) to the Complainant;
seemingly attempting to answer the Complainant to the best of their
knowledge. In view of the above, as well as the fact that the Custodian has
certified that no records responsive to the requests exist, there is no
evidence that either Custodian’s actions were consistent with the legal
standards established for knowing and willful conduct by the New Jersey
courts. Therefore, the Custodians’ 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 pursuant to N.J.S.A. 47:1A-1 1.a.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as amended (adding #1-4). A motion was made by Ms. Tabakin and
seconded by Ms. Forsyth. The motion passed unanimously.
Tina Renna v. County of Union (2005-208)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that based on
the contested facts in this case, this matter should be referred to the Office of
Administrative Law to determine:
1.
2.
Whether there was a denial of access to government records pursuant to
N.J.S.A. 47:1A-1 et. seq.?
Whether there is a knowing and willful violation of OPRA under the
totality of the circumstances?
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Tina Renna v. County of Union (2006-22)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that:
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
5
1.
2.
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.
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.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Narinder Gautam v. Department of Banking & Insurance (2006-49)
Mr. Malloy reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Mr. Malloy presented the
recommendations to the Council which were amended as follows:
The Executive Director respectfully recommends that the Council find that:
1. Based on the Council’s rulings in 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), 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.
2. 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, including maybe the one paragraph that the
Custodian has deemed non-disclosable. Based upon the Council’s decision
in Hewitt, the Custodian unlawfully denied access to this record. It should,
however, 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.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as amended (in camera inspection added to #1). A motion was made
by Ms. Forsyth and seconded by Ms. Tabakin. The motion passed unanimously.
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
6
Dina Parave-Fogg v. Lower Alloways Creek Township (2006-51)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1. The Custodian has not unlawfully denied access to the requested meeting minutes as
the Custodian certifies that at the time of the request said minutes had not been
approved by the governing body and as such, they constitute inter-agency, intraagency advisory, consultative, or deliberative material and are exempt from
disclosure pursuant to N.J.S.A. 47:1A-1.1. However, the Custodian certifies
providing the Complainant with the requested minutes on March 14, 2006 (eleven
business days after receiving the records request).
2. The Custodian has not unlawfully denied access to the Complainant’s request for
incorrect test answers as she certifies that there are no records responsive since no
testing materials are maintained by the Custodian and have been destroyed by the
testing company as per a security agreement with the testing company.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Tina Renna v. Union County Alliance (2006-73)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that:
1. In considering the meaning of a public agency as explained by the court in The
Times of Trenton Publishing Corp. v. Lafayette Yard Community Development
Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 2004), the GRC decision in
Fallstick v. Haddon Township Business Partnership, GRC Case No. 2004-73
(October 2004) and the characteristics of the Alliance’s organizational structure,
the Alliance is a public agency pursuant to N.J.S.A. 47: 1A-1 .1. Therefore, the
Alliance is subject to the provisions of OPRA and is required to respond to OPRA
requests for records.
2. The Custodian should respond to the OPRA request subject of this complaint
pursuant to N.J.S.A. 47: 1A-1 .1 et. seq., either granting access or denying access
to the requested records. In the event of a denial of access, the legal basis for any
denial must be explained pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-6.
3. The Custodian shall comply with "2." above within seven (7) business days from
receipt of this Interim Order and simultaneously provide certified confirmation of
compliance to the Executive Director.
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
7
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Tabakin and seconded by Ms.
Forsyth. The motion passed unanimously.
Jeffrey Mourning v. New Jersey Department of Corrections (2006-75)
Mr. Malloy reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendations to the Council:
The Executive Director respectfully recommends that the Council find that:
1. Based upon the Council’s decision in Cuba v. NJ Department of Corrections,
GRC Case No. 2004-146 (February 2005), and the fact that the Custodian’s
reason for withholding the records in that case mirrors the Custodian’s reason
for withholding the records in this case, there was no unlawful denial of
access to said records.
2. Pursuant to the fact that the Custodian certified that she did not receive the
Complainant’s OPRA request until January 20, 2006 and consequently
responded in a timely manner on January 24, 2006, she is not in violation of
N.J.S.A. 47: 1A-5.i. or N.J.S.A. 47: 1A-5.g.
3. Pursuant to the fact that the employee who received the request did not advise
the Complainant properly, thereby preventing the Complainant’s request from
reaching the Custodian, that employee in the Ombudsman’s office (Bruce
Tarin) is in violation N.J.S.A. 47: 1A-5.h.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
Richard Barber, Sr. v. University of Medicine & Dentistry (2006-105)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1.
The Custodian has not unlawfully denied access to the record of complaint
disposition filed by the Complainant against James A. Archibald as it is
confidential information generated by or on behalf of public employers or public
employees in connection with any grievance filed by or against an individual
pursuant to N.J.S.A. 47:1A-1.1.
2.
Based on the wording of the Complainant’s request, Mag Entertainment, LLC v.
Division of Alcoholic Beverage Control, 375 N.J.Super 534 (March 2005),
Gannett New Jersey Partners, LP v. County of Middlesex, 379 N.J. Super. 205
(App. Div. 2004), Bent v. Stafford Police Department, 381 N.J. Super 30
(October 2005), and Runfolo v. City of Summit, GRC Complaint No. 2005-87
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
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(February 2006), the Custodian did not unlawfully deny access since the request for
e-mails, letters, memos, and Central Administration and Purchasing Services files
for various named individuals for specific periods of time did not list “identifiable”
government records.
3. Since the Custodian legally certified that she cannot find the resolution and
disposition record of the Sheldon Boyarsky’s legal complaint filed in 1993 against
UMDNJ, she did not unlawfully denied access to the requested record. However,
the Custodian is required to disclose such record when it is located.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Richardson. The motion passed unanimously.
D.T. v. Rockaway Board of Education (2005-203)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that given the
inconsistencies in the submissions by the parties, this complaint should be referred to the
Office of Administrative Law for fact finding and legal conclusions consistent with the
law outlined in this Findings and Recommendations on the following issues:
1. Whether the Custodian unlawfully denied access to the records requested on
October 13, 2005?
2. Whether the Custodian properly responded to the Complainant’s October 13,
2005 request in a timely manner?
3. Whether the Custodian’s actions rise to the level of a knowing and willful
violation of OPRA and unreasonable denial of access under the totality of the
circumstances.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
John McCormack v. New Jersey Department of Treasury (2005-58)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
recommendations to the Council which was amended as follows:
The Executive Director respectfully recommends the Council find that
1. Based on the Custodian’s redactions made to the resume of Mr. Suto,
which are contrary to the language of Executive Order 26, and the
Custodian’s failure to provide certified confirmation of compliance
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
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pursuant to the Council’s May 11, 2006 Interim Order, the Custodian has
failed to comply with the Council’s May 11, 2006 Interim Order.
2. In light of the legal standards set forth and the specific facts of this case,
the Custodian’s actions do not meet the legal standard for a knowing and
willful violation of OPRA and unreasonable denial of access under the
totality of the circumstances. However, the Custodian’s actions do appear
to be at least heedless regarding his knowledge of OPRA.
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as amended (one word change). A motion was made by Ms.
Richardson and seconded by Ms. Forsyth. The motion passed unanimously. Mr. Maltese
recused himself from voting in this matter and left the room.
George Burdick, Jr. v. Franklin Township (2005-133)
Ms. Gardner reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Gardner presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find:
1.
The Custodian has not borne her burden of proving that the Hartmann Report is
lawfully exempt from disclosure pursuant to N.J.S.A. 47:1A-6.
2. The Custodian’s claim that the Hartmann Report is attorney-client privilege as
defined in N.J.S.A. 47:1A-1.1 is unsubstantiated because the report was not
prepared by an attorney for the Township.
3. The Custodian should release the requested Hartmann Report to the Complainant.
In the event that redactions are made, the legal basis for any such redactions must
be explained pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-6. The
Custodian shall so comply within ten (10) business days from receipt of the
Council’s Interim Order and simultaneously provide certified confirmation of
compliance to the Executive Director.
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously. Mr. Maltese recused himself from voting
in this matter and left the room.
John McCormack v. New Jersey Department of Treasury (2005-160)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1.
2.
The Custodian did not comply with the Council’s July 13, 2006 Interim
Order.
Without further legal explanation for redactions, the Custodian should
release the requested resumes, in whole, pursuant to Executive Order 26.
Therefore, the Custodian shall disclose the resumes within five (5)
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
10
calendar days and simultaneously provide certified confirmation of
compliance to the Executive Director.
3. The Custodian’s failure to comply with the Council’s July 13, 2006
Interim Order is further evidence to be considered by the OAL in its
hearing on the issue of whether the Custodian has knowingly and willfully
violated OPRA and unreasonably denied access under the totality of the
circumstances pursuant to N.J.S.A. 47:1A-1 1.
4. The Council should proceed with the referral of this matter to OAL for a
determination of a knowing and willful violation of OPRA and
unreasonable denial of access under the totality of the circumstances.
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously. Mr. Maltese recused himself from voting
in this matter and left the room.
John McCormack v. New Jersey Department of Treasury (2005-164)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
The Custodian did not comply with the Council’s July 13, 2006 Interim
Order.
2. The Custodian’s failure to comply with the Council’s July 13, 2006
Interim Order is further evidence to be considered by the OAL in its
hearing on the issue of whether the Custodian has knowingly and willfully
violated OPRA and unreasonably denied access under the totality of the
circumstances pursuant to N.J.S.A. 47:1A-1 1.
3. The Council should proceed with the referral of this matter to OAL for a
determination of a knowing and willful violation of OPRA pursuant to the
Council’s July 13, 2006 Interim Order.
1.
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Forsyth and seconded by Ms.
Richardson. The motion passed unanimously. Mr. Maltese recused himself from voting
in this matter and left the room.
John Windish v. Mount Arlington Public Schools (2005-2 16)
Mr. Malloy reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Mr. Malloy presented the
following recommendations to the Council:
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
11
The Executive Director respectfully recommends that the Council uphold its Final
Decision of April 11, 2006 because it is unreasonable to assume that every records
custodian, especially those in small municipalities with limited photocopy equipment and
other resources, are able to adequately or accurately determine the actual copying cost of
government records when doing so requires an estimate of the number of government
records which will be requested annually divided by an estimated annual actual cost of
photocopy paper and ink.
Therefore, it is more likely, and consistent with the “golden rule of statutory
interpretation” adopted by the Supreme Court of New Jersey in Dickinson, supra., that
the unreasonableness of a particular result arising from the selection of one among
several possible alternative interpretations strongly militates in favor of the adoption of
an interpretation that embraces a reasonable result. And, adopting the interpretation of
the copying cost provision in OPRA which allows records custodians to charge the
enumerated rates for copies of government records is the reasonable result.
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously. Mr. Maltese recused himself from voting
in this matter and left the room.
Irvin Beaver v. Township of Middletown (2005-243)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1.
2.
As the Custodian did properly provide the Complainant with a written response to
his September 13, 2005 request for information pursuant to N.J.S.A. 47:1A-5.g.
and denied said request on the basis that it is not a request for identifiable
government records, the Custodian has not unlawfully denied access to the
Complainant’s request pursuant to Mag Entertainment, LLC v. Division of
Alcoholic Beverage Control, 375 N.J. Super 534 (March, 2005) and Russomano
v. Township of Edison, GRC Case No. 2002-86 (July, 2003).
Since the Complainant's September 23, 2005 and October 7, 2005 requests do not
fit within the permitted or required uses and disclosure of protected health
information under HIPAA, the Custodian is proscribed from disclosing the
"individual" records to the Complainant pursuant to HIPAA and N.J.S.A. 47:1A9.
And while the requested information may be partially disclosable under common
law (pursuant to Michelson v. Wyatt 379 N.J. Super 611 (App. Div.)), the GRC
is statutorily precluded from making a determination on access to government
records under common law pursuant to N.J.S.A. 47:1A-8. Therefore, the Custodian
has not unlawfully denied access under OPRA.
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
12
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously. Mr. Maltese recused himself from voting
in this matter and left the room.
Executive Directors Report:
Ms. Starghill announced that Ms. Kimberly Gardner (Case Manager) accepted another
position with the Federal Government and that Marion Davies (Case Manager)
transferred to another state department.
Ms. Starghill also presented to the Council a Motion for Reconsideration of the Council’s
July 13, 2006 Interim Order in the matter of Gorman v. City of Gloucester City, GRC
Complaint No. 2004-108. That motion was duly considered, discussed and unanimously
denied.
Public Comment:
1)
Tina Renna: Made comments on the following GRC Complaint Nos.: 2006-22,
2005-208 and 2006-73.
2)
Beth Mason: Made comments regarding the following things: impressed with
the Council’s hiring and the overview of GRC; issue on bringing own copiers
(glad the counsel is addressing the issue); would like to set up a meeting with
Executive Director to discuss accommodating NJ Foundation for Open
Government (“FOG”) regarding its report of success and failures of the GRC and
OPRA; gave a partial report to the council members authored by FOG; addressed
special service charges under OPRA; issue of finding financial disclosure forms
filed by municipal officials.
3)
Goerge Burdick: Made comments on the following things: GRC Complaint
No.: 2005-133; audio tapes and minutes; the way custodian’s backdate request
that should have been filled immediately; and should attorney’s be held
accountable.
Meeting adjourned at 12:4 1 p.m.
Respectfully submitted,
Robin Berg Tabakin, Secretary
Dated Approved:
Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
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Government Records Council Meeting August 10, 2006 Open Public Meeting Minutes.
14
Minutes of the Government Records Council
September 21, 2006 Public Meeting – Open Session
The meeting was called to order at 9:56 a.m. at the Department of Community Affairs,
Conference Room 816, Trenton, New Jersey. The Open Public Meetings Act statement
was read.
Ms. Hairston called the roll:
Present: Chairman Vincent Maltese, Secretary Robin Berg Tabakin, and Kathryn
Forsyth.
GRC Staff: Executive Director Catherine Starghill, Brigitte Hairston, Jyothi, Tiffany
Mayers, Colleen McGann, Designated Outside Counsel Barry Roy, and Deputy
Attorney General Debra Allen.
Mr. Maltese read the Resolution for Closed Session (Resolution Number 2006-09-2 1) to
conduct an in camera inspection and receive legal advice in the following complaint:
Narinder Gautam v. Department of Banking & Insurance (2006-49)
A motion was made by Ms. Tabakin seconded by Ms. Forsyth to go into closed session.
The motion was adopted by a unanimous vote. A motion was then made to re-open the
open session so Mr. Maltese could read the Resolution as amended above at 9:45 am.
Mr. Maltese read the Resolution. A motion was made to return to closed session by Ms.
Tabakin and seconded by Ms. Forsyth. The motion was adopted by a unanimous vote.
The Council met in closed session from 10:05 a.m. until 10:09 a.m.
Open Session reconvened at 10:22 a.m. and Ms. Hairston called the roll:
In attendance:
Mr. Maltese, Ms. Tabakin, and Ms. Forsyth. Ms. Richardson arrived at 11:00 am..
The pledge of allegiance was recited.
Mr. Maltese called for a motion to approve the open and closed session minutes of
August 10, 2006 with amendments. A motion was made by Ms. Tabakin and seconded
by Ms. Forsyth. The motion passed unanimously.
Mr. Maltese stated that he was recusing himself from the following complaints:


Richard Rivera v. Township of West New York (2006-48)
Narinder Gautam v. Department of Banking & Insurance (2006-49)
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
1
Ms. Tabakin informed the body that she was recusing herself from the following
complaint:

D.T. v. Rockaway Township Board of Education (2005-203)
Ms. Starghill informed the Council that the following complaint would not be heard
today:
 Cathy Cardillo v. City of Hoboken, Zoning Office (2005-158)
Council Adjudication:
The following complaints were presented to the Council for summary administrative
adjudication:
GRC Complaint Case and Number
1. Vesselin Dittrich v. City of
Hoboken (2005-97)
2. Steven Kossup v. Essex County
Correctional Facility (2005-202)
3. Richard D. DeLa Roche v.
Township of Mt. Olive (2006-5 8)
4. Barbara Stoltz v. Cape May
County Board of Health (2006-76)
5. John Paff v. Kean University
(2006-80)
6. John Paff v. Township of Chester
(2006-82)
7. Joanne Ingemi v. Town of
Hammonton (2006-87)
8. Martin O’Shea v. Pooled Insurance
Program of NJ (2006-89)
9. A.J. Nash v. Passaic,
Superintendent of Schools (200697)
10. John Paff v. Union Township
Board of Education (2006-104)
11.
A.J. Nash v. State of NJ
, Department of Law & Public
Safety, Division of Consumer
Affairs (2006-114)
12. Paula Baldwin v. Township of
Readington (2006-115)
13. Luis M. Perez v. Borough of
Glassboro (2006-117)
14. Ann Bernice Segal v. Moorestown
Public Schools (2006-120)
Disposition
Complaint withdrawn
Complaint withdrawn
Settled in Mediation
No records responsive to the request
Settled in Mediation
Settled in Mediation
Settled in Mediation
Settled in Mediation
No records responsive to the request
Settled in Mediation
Not a valid OPRA request
Settled in Mediation
Complaint withdrawn
Settled in Mediation
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
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15. Joseph Tetelman v. NJ State Police
(2006-129)
16. John Paff v. Borough of Hampton
(2006-134)
17. Thomas Caggiano v. NJ
Government Records Council
(2006-142)
18. Joe Truland v. Engishtown
Borough Police Department (2006146)
Complaint withdrawn
Settled in Mediation
Complaint withdrawn
Complaint withdrawn
Mr. Maltese called for a motion to accept the Executive Director’s recommendations as
written in all of the above Administrative Case Dispositions. A motion was made by Ms.
Tabakin and seconded by Ms. Forsyth. The motion passed unanimously.
The following complaints were presented to the Council for individual adjudication:
Amelia Spaulding v. County of Passaic
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Supplemental Findings and Recommendations of the Executive Director. Ms. Starghill
presented the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that the parties have
complied with the Council’s July 13, 2006 Interim Order. Specifically, the Complainant
e-mailed a jointed certification signed by both parties that indicates:
(1)
(2)
(3)
(4)
the parties have met and mutually agreed on the cost issue (negating the need
to refer the complaint to the Office of Administrative Law),
the parties have mutually agreed on an arrangement for the copying of filing
books,
the parties have mutually agreed on a resolution concerning attorneys’ fees
(negating Complainant Counsel’s need to submit an application for same to
the GRC), and
the parties agreed on all other matters in dispute.
Mr. Maltese called for a motion to accept the Executive Director’s supplemental findings
and recommendations as written. A motion was made by Ms. Forsyth and seconded by
Ms. Tabakin. The motion passed unanimously.
Cynthia McBride v. Township of Hamilton (2005-86)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
recommendations to the Council which were amended as follows:
The Executive Director respectfully recommends the Council find that:
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
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1.
The denial of access on the ninth business day after receiving the request is a
violation of OPRA. Therefore, the Custodian has unlawfully denied access to
the requested records in electronic format pursuant to N.J.S.A. 47:1A-5.i.
2.
Since the Custodian has admitted to maintaining the requested record in the
medium requested, it is clear that the Custodian is required to provide a copy
of the requested record in such medium pursuant to N.J.S.A. 47: 1A-5.d. As
such, the Custodian has violated OPRA by refusing to give the Complainant
the requested electronic file copy which the Custodian does maintain pursuant
to N.J.S.A. 47: 1A-5.d. The Custodian’s offer of providing the Complainant
the requested records in paper format in lien of the requested electronic file
maintained by the Custodian is not acceptable under OPRA.
3.
The Custodian’s assertion that exempt information must be redacted is correct
however the Custodian unlawfully denied access to the requested records
when those records were not made available to the Complainant with the
appropriate redactions pursuant to N.J.S.A. 47:1A-5.g.
4.
If there is any information in the requested records requiring redaction due to
the exemption from disclosure for advisory, consultative or deliberative
material pursuant to N.J.S.A. 47:1A-1.1., then such redactions should be made
before providing the records to the Complainant. The Custodian should make
the redactions in accordance with the legal standard set forth in OPRA and by
the Courts.
The Custodian shall disclose such records within a reasonable time given
the volume of the records requested not to exceed twenty (20) business
days from receipt of the Council’s Interim Order and simultaneously
provide certified confirmation of such disclosure to the Executive
Director. [This Order will become effective after the GRC approves the
special service charge assessed by the Custodian in #6 below.]
5.
The Custodian’s assertions that disclosing the requested record in electronic
format results in discriminatory information sharing in violation of a formal
opinion written by the New Jersey Tax Collectors Association and that the
value of the records to the Complainant (in terms of the revenue the
Complainant may receive by selling the records to its commercial costumers)
requires the Custodian to auction the records to the highest bidder to ensure
that the municipality receives fair compensation for its assets pursuant to
N.J.S.A. 40A:1 1-36 are misplaced in reference to the Custodian’s legal
obligations under OPRA.
6.
Pursuant to N.J.S.A. 47:1A-5.c. and Courier Post v. Lenape Regional High
School District, 360 N.J. Super. 191, 204 (Law Div. 2002), the Custodian
must borne the burden of proving that a special service charge is warranted in
this case. However, the special service charge should only reflect the hours
spent reviewing the records for exempt information and the hourly rate (minus
the fringe benefits) of appropriate personnel utilized.
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
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The Custodian shall within ten (15) business days from receipt of the
Council’s Interim Order:
(a) provide the GRC with the amount of the special service charge
assessed and answers to the fourteen (14) questions the GRC uses to
evaluate a special service charge as established in Janon Fisher v.
Division of Law & Public Safety, GRC Complaint No. 2004-55
(December 2004);
(b) offer the Complainant the opportunity to review and object to the
charge prior to it being incurred pursuant to N.J.S.A. 47:1A-5.c.; and
(c) release the requested records with the appropriate redactions made if
the Complainant agrees to the special service charge assessed.
7.
The Custodian should provide the requested electronic file to the Complainant for
the cost it originally determined as the duplication fee for the requested
electronic record.
Please note that this cost is separate from the reasonable special service charge
that may be charged by the Custodian for the extraordinary time and effort
that may be determined as warranted for the review of the records contained
in the electronic file to ensure that redactions are made for information
exemption from disclosure as advisory, consultative or deliberative material
pursuant to N.J.S.A. 47:1A-1.1.
8.
Given the contested facts regarding this issue, 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 case should be referred to the Office of Administrative Law for
determination of a knowing and willful violation of the Act under the totality
of the circumstances.
9. The Complainant’s Counsel is required to submit to the GRC a written
application for attorney’s fees supported by an attorney affidavit of service
pursuant to New Jersey Court Rule 4:42-9(b). The Complainant shall so
comply within ten (10) business days from receipt of the Council’s Interim
Order and simultaneously provide certified confirmation of compliance to the
Executive Director. The GRC reserves the right to make the determination on
the issue of prevailing party attorney’s fees after all other issues are resolved.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as amended. A motion was made by Ms. Tabakin and seconded by
Ms. Forsyth. The motion passed unanimously.
David Herron v. Montclair Community Pre-k (2005-130)
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
5
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Supplemental Findings and Recommendations of the Executive Director. Ms. Starghill
presented the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that the Custodian has
complied with the Council’s August 10, 2006 Interim Order.
Mr. Maltese called for a motion to accept the Executive Director’s supplemental findings
and recommendations as written. A motion was made by Ms. Forsyth and seconded by
Ms. Tabakin. The motion passed unanimously.
D.T. v. Rockaway Township Board of Education 2005-203)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Supplemental Findings and Recommendations of the Executive Director. Ms. Starghill
presented the following recommendations to the Council:
The Executive Director respectfully recommends the Council find that this
complaint is no longer ripe for adjudication since the Complainant voluntarily withdrew
the complaint pursuant to a letter to the Council dated August 18, 2006.
Mr. Maltese called for a motion to accept the Executive Director’s supplemental findings
and recommendations. A motion was made by Ms. Michelle Richardson and seconded
by Ms. Forsyth. The motion passed unanimously.
Jane Cowley v. Township of Kinwood (2006-45)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
recommendations to the Council which were amended as follows:
The Executive Director respectfully recommends the Council find that:
1. The unapproved draft meeting minutes and the Custodian’s handwritten
notes of the Township Committee meetings constitute inter-agency, intraagency advisory, consultative, or deliberative material and are exempt
from disclosure pursuant to N.J.S.A. 47:1A-1.1, as well as O’Shea v. West
Milford Board of Education, GRC Case No. 2004-93 (April, 2006). As
such, the Custodian has born her burden of proving a lawful denial of
access pursuant to N.J.S.A. 47:1A-6 as she certifies that the requested
minutes which have not already been provided have not yet been approved
by the governing body.
2. However, the Custodian has unlawfully denied access to the audio tapes of
the Township Committee meetings because these tapes do not constitute
inter-agency or intra-agency advisory, consultative, or deliberative
material. The audio tapes are not pre-decisional as they are the recording
of the actual statements made by the attendees of the meetings. These
tapes may require redaction of information discussed which is otherwise
exempt from disclosure to the public under OPRA, but in general the
inter-agency or intra-agency advisory, consultative, or deliberative
material exemption does not apply. As such, the audio tapes (if any exist)
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
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should be released to the Complainant with any redactions which may be
lawfully justified pursuant to N.J.S.A. 47:1A-6.
3. Since the Custodian certifies granting the Complainant access to the
requested records within the statutorily mandated time frame pursuant to
N.J.S.A. 47: 1A-5.i. by allowing the Complainant to view the records
during regular business hours pursuant to N.J.S.A. 47: 1A-5.a. and the
Complainant’s request to inspect the requested records, the Custodian has
properly responded to the Complainant’s request and has not unlawfully
denied access to the requested records.
4. The Custodian shall comply with "2." above within five (5) business
days from receipt of this Interim Order and simultaneously provide
certified confirmation of compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as amended. A motion was made by Ms. Forsyth and seconded by Ms.
Richardson. The motion passed unanimously.
Richard Rivera v. Township of West New York (2006-48)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find that:
1. The Custodian has passed on the actual cost for production of the
requested check registries on a CD-ROM in Excel spread sheet format
to the Complainant pursuant to N.J.S.A. 47:1A-5.d., and in accordance
with the GRC decision in Burns v. Borough of Collingswood, GRC
Case No. 2004-2 17 (April 2005). Therefore, the Custodian has
properly charged the Complainant for the requested check registries on
a CD-ROM in Excel spread sheet format.
2. While the Custodian’s argument regarding the timeliness of this
complaint is compelling, the GRC proposed rules, N.J.A.C. 5:105-2.2
have not yet been adopted and there is no statute of limitation on the
filing of a denial of access complaint.
Ms. Tabakin called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Forsyth. The motion passed unanimously.
Narinder Gautam v. NJ Department of Baking & Insurance (2006-49)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the In
Camera Findings and Recommendations of the Executive Director. Ms. Starghill
presented the recommendations to the Council which were amended as follows:
The Executive Director respectfully recommends 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
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
7
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.
Mr. Maltese called for a motion to accept the Executive Director’s in camera findings
and recommendations as written. A motion was made by Ms. Tabakin and seconded by
Ms. Forsyth. The motion passed unanimously.
Vesselin Dittrich v. NJ Department of Community Affairs, Division of Codes &
Standards (Bureau of Homeowner Protection) (2006-50)
Ms. McGann reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. McGann presented the
following recommendations to the Council:
The Executive Director respectfully recommends the Council find:
1. Based on the legal standard set forth by the Courts and the certified statements of
the Custodian, the Custodian properly denied access to the requested e-mail as it
is advisory, consultative and deliberative in content and therefore, not a
government record pursuant to N.J. S.A. 47:1 A- 1.1.
2. The Custodian’s failure to provide to the Complainant a lawful basis for a denial
of access to the e-mail within the statutorily mandated seven (7) business days
resulted in a “deemed” denial pursuant to N.J.S.A. 47: 1A-5.i.
3. The Custodian’s failure to provide a written response indicating a lawful denial to
the e-mail at issue is a violation of N.J.S.A. 47:1A-5.g.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as written. A motion was made by Ms. Richardson and seconded by
Ms. Tabakin. The motion passed unanimously.
Norman Berger v. Kean University (2006-56)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
recommendations to the Council which were amended as follows:
The Executive Director respectfully recommends the Council find:
1. Additional information is required as follows:
(a) Were RPFs issued for the construction of a road through the
Liberty Hall Museum property located at 103 Morris Avenue,
Union, NJ 07083?
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2.
3.
4.
5.
(b) Were contracts entered for the same stated in (a) above? If so,
please provide the contracts to the Council for review.
(c) What entity/organization is paying for the construction of same
stated in (a) above (Kean University or some other organization)?
(d) Whose property is the road in question being constructed through
(Kean University or Liberty Hall Museum) or is this property
jointly owned and if so, by whom?
While the Custodian has provided facts in support of the legal conclusions
asserted in support of withholding the records the Custodian asserts are
exempt from disclosure, the Council must determine whether the legal
conclusions asserted by the Custodian (that the information which, if
disclosed, would give an advantage to competitors or bidders as well as
whether the documents include inter-agency or intra-agency advisory,
consultative, or deliberative material) are properly applied to the records
withheld from the Complainant. Therefore, based on Council decisions in
Boggia v. Borough of Oakland, GRC Case No. 2005-36 (April, 2006) and
Burns v. Borough of Collingswood, GRC Case No. 2004-169 (September
2005), the Council must conduct an in camera inspection of the records the
Custodian deems is exempt from disclosure.
Pursuant to Glenn v. NJ Department of Community Affairs, Division of
Housing GRC Case No. 2005-47 (April, 2006) as well as the fact that the
Custodian certified that she didn’t receive a proper OPRA request until
February 22, 2006 (the first correspondence came via letter on February 14,
2006 to which the Custodian responded by faxing the Complainant the proper
OPRA request form) and consequently responded that same day, she is not in
violation of N.J. S.A. 47: 1A-5.i. or N.J.S.A. 5.g.
Pursuant to the fact that the Custodian seemingly did research to find any and
all records that might have been responsive to the OPRA request (and gave a
thorough albeit inconclusive response to the records that are being denied), as
well as the fact that the Custodian responded to the Complainant within the
statutorily required seven (7) business days required by OPRA, there is no
evidence that the Custodian’s actions were consistent with the legal standards
established for knowing and willful conduct by the New Jersey courts.
Therefore, 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 pursuant to N.J.S.A. 47:1A-1 1.a.
The Custodian shall comply with "1." And “2.” above within five (5)
business days from receipt of this Interim Order and simultaneously
provide certified confirmation of compliance to the Executive Director.
Mr. Maltese called for a motion to accept the Executive Director’s findings and
recommendations as amended. A motion was made by Ms. Tabakin and seconde d by
Ms. Richardson. The motion passed unanimously.
Richard Kasper v. Washington Township School Board (2006-57)
Ms. Starghill reviewed the GRC’s analysis and issues in the case as set forth in the
Findings and Recommendations of the Executive Director. Ms. Starghill presented the
following recommendations to the Council:
Government Records Council Meeting September 21, 2006 Open Public Meeting Minutes.
109
The Executive Director respectfully recommends the Council find:
1. A record (the contract requested) should have been provided to the
Complainant immediately pursuant to N.J.S.A. 47:1A-5.e., unless such record
was not immediately available because it was in storage or archived. The
Custodian never asserted that the requested contract was in storage or
archived. Therefore, the Custodian unlawfully denied immediate access to the
RFP or contract used to secure telephone equipment in the high school and the
middle school verbally over the telephone pursuant to N.J.S.A. 47:1A-5.e.
2. Although both the Complainant and the Custodian agree that they engaged in
verbal communication regarding the Complainant’s OPRA request within the
statutorily mandated seven (7) business day time frame, the Custodian’s
failure to provide a written response to said request is a violation of N.J.S.A.
47:1A-5.g.
3. While the Custodian provided facts that support the legal basis for the denial
of access to the construction reports (that the information, which, if disclosed,
would give an advantage to competitors or bidders), the Council should
conduct an in camera review of the requested 39 page document prepared by
Bovis Lend Lease, Inc. to determine if said report, or portions therein are
exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 and Boggia v.
Borough of Oakland, GRC Complaint No. 2005-36 (April 2006).
4. While the Custodian’s actions were negligent, heedless or unintentional, the
Custodian has not knowingly and willfully violated OPRA and unreasonably
denied access under the totality of the circumstances pursuant to N.J.S.A.
47:1A-1 1.a. and the legal standard established for same by New Jersey Courts.
5. The Custodian must deliver to the Council in a sealed envelop six copies of
the requested unredacted d