Minutes of the Government Records Council
Minutes of the Government Records CouncilJuly 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 ofCommunity 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.
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:
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 FOGs report on OPRA, suggesting
qualifications of, and civil service status for the Councils
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
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
Minutes of the Government Records CouncilOctober 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 Levins
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 Directors 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 Generals 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.
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 Councils 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 Councils 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
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 Generals 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 publics 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.
Gutmans comments.
Mr. Pfeiffer noted that Mr. Gutmans 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
Councils November meeting. Mr. Pfeiffer indicated that it might be
logistically difficult to have items on the Councils 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
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 Councils legal advisor should operate independently from
the Attorney Generals 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
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
Minutes of the Government Records CouncilDecember 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.
Mr. Pfeiffer reported under Old Business, that Richard Gutmans
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 Directors 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
Generals office an opportunity to consider a letter regarding the
Executive Directors 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 Januarys 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 Januarys 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 days incident log or
blotter. The Police Department has reported that the fee
represented $75 for a programmers time and $75 for computer time.
Mr. Pfeiffer stated that the $150 fee does not, in his opinion,
meet OPRAs 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 OPRAs 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 OPRAs
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 Complainants 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
the following additions: 1) the City of Paterson shall refund
complainant Linda Ellen Fisher $150 within 30 days minus OPRAs
per-page copy fees; and 2) the complainants 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 Councils order become
effective five days after execution to allow the Custodian time to
apply for a stay of the Councils 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
Countys 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.
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 meetings 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
Directors 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
Minutes of the Government Records CouncilJanuary 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:
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 Directors 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.
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 Prosecutors 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 Directors 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 Prosecutors 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 Judges 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 Directors 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 Directors
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
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 Directors 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 Directors 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 Directors 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:
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 Clerks
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
Minutes of the Government Records CouncilFebruary 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 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 10:35 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.
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 Directors 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 Prosecutors Office had sought a
stay of the Councils 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 Prosecutors
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 prosecutors 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 Prosecutors 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.
GRC MinutesFebruary 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 Childs 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 complainants original request
as described in the Directors 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. Pfeiffers 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 Childs
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 Directors
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. Pfeiffers 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 3
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 DOTs
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.
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
Minutes of the Government Records CouncilMarch 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 Directors 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.
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 Prosecutors Office requesting a stay
of the Government Records Councils 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
Mr. Pfeiffer recommended that this item be removed from the
agenda pending the submission of a written response to the
Executive Directors Finding and Recommendations from the custodians
attorney.
Mr. Maltese directed the Executive Director to contact the
custodians attorney to request a written submission to the F&R
within the next (10) days. Ms. Hook made a motion to adopt the
Executive Directors recommendation to remove this item from the
agenda including Mr. Malteses 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 custodians attorney provided
the requester access to the invoices with no redactions. Based upon
the custodians 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
on March 28, 2003 substantiating whether the requester is a
prevailing party entitled to reasonable attorneys fees. Ms. Hook
made a motion to adopt the Executive Directors 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 Councils
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
MINUTES OF THE GOVERNMENT RECORDS COUNCILApril 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.
Mr. Pfeiffer read the Executive Directors report, a copy of
which is available for public inspection. Mr. Pfeiffer also stated
that a copy of the Executive Directors 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 Councils 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 Councils decision in Serrano.
Mr. Maltese called for any Unfinished Business.
Mr. Pfeiffer explained that the GRC is awaiting advice from the
Attorney Generals office concerning the circumstances under which
an OPRA requester is a prevailing party eligible to recoup
reasonable attorneys 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 custodians attorney provided a
letter listing the e-mails. A copy of the attorneys 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 custodians 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
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 Directors recommendation.
Catherine Starghill, Staff Associate of the States Privacy Study
Commission delivered a presentation concerning the Commissions
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 Councils
Inquiry and Complaint Policy. A copy of the proposed amendments are
available for public inspection on the GRCs 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
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:Chair Vincent Maltese, Virginia Hook, Bernard Spigner
and Matthew U.Watkins
Absent:Dr. Dwight Pfennig
Also Present: Deputy Attorney General Barbara Conklin, Deputy
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:
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
Directors report, and provided copies for public inspection. Mr.
Pfeiffer stated that a copy of the Executive Directors report will
be posted on the GRC website. Mr. Watkins moved to accept the
Executive Directors 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 Generals 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 attorneys fees under
OPRA unless the Council adjudicates the requestors Complaint and
awards the requestor access to some or all of the records sought.
Additional discussion on the matter appears in the Executive
Directors 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 requestors 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 Directors
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 Directors June 12th 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.
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 custodians 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 Directors 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 requesters 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 Directors 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.
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 custodians 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 Councils July meeting.
Inquiry and Complaint Procedure
Mr. Pfeiffer observed that amendments to the Councils Inquiry
and Complaint Policy had been proposed at the Councils 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 Sheriffs
Department
Mr. Pfeiffer explained that the custodian had only recently,
based upon advice from the Division of Criminal Justice, released a
copy of the Sheriffs daily activity blotter. Mr. Pfeiffer
recommended that the Council reject the requestors 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
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
Directors 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 Surrogates
office are part of the States 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 Divisions
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
Councils special meeting in July.
Mr. Maltese opened the floor to Public Comment.
Albin Wagner, from the States Division of Archives and Records
Management, commented that the Council should consider a censure
process for those custodians that do not comply with the
seven-day response period in OPRA. Mr. Wagner further commented
that OPRA reinforces DARMs 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 COUNCILPublic 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.
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
Directors report, and provided copies for public inspection. Mr.
Pfeiffer stated that a copy of the Executive Directors 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 custodians 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 custodians 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 Sweeneys 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 Directors 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
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 Generals 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 Chairs 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 Generals office
advised to the contrary by that time.
Ms. Hook moved to accept the Executive Directors 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 custodians 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)
Mr. Pfeiffer noted that the Custodian filed a certification and
explanation for the redaction of the legal vouchers and that the
requestors 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 Edisons affordable housing obligation under
the States 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
custodians 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 Edisons
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
reques