This blog will summarize the final decisions rendered each month by the GRC. The summaries below are of the cases decided at the GRC’s recent May 2015 meeting. Note that at each meeting the GRC also issues a number of interim decisions, which will not be included in a summary until they become final. Occasionally, interim decisions will discussed in separate posts, where they deal with an interesting issue (such as here).

Final GRC decisions from May 2015 meeting:

–Carter v. Franklin Fire Dist. Request for all purchase orders, vouchers and warrants held to be an invalid blanket request.

–Scheeler v. Salem Special Services School Dist. Due process petitions are exempt from disclosure as student records. Also, custodian erred in not disclosing redacted “Rice notices.”

–Sorce v. Stafford Twp. Custodian erred in not providing immediate access to requested invoices. Also held that the invoices, which were eventually provided to the requestor, were over-redacted.

-Martinez v. Edison Bd. of Ed. Request for emails held invalid because sender and recipient were not identified. Also, the requested student records were exempt from disclosure.

–Mitchell v. DMAVA Bid proposal held exempt from disclosure prior to award of contract, in accordance with NJ DMAVA regulation.

–Lare v. Lower Twp. Denial of request upheld because no responsive records existed.

–Baker v. Union County Prosecutor A 3d-party’s presentence report held exempt from disclosure.

–Kovacs v. Woodbridge Police Dept. Request for all police reports containing a certain address held to be invalid for not identifying specific record.

–Wares v. West Milford Twp. Complaints filed about police officers and police internal affairs complaints are exempt from disclosure.

–Hayes v. NJ Dept. of Corrections Investigative notes and classification file concerning incident involving an inmate held confidential under exemption for safety and security.

–Williams v. Passaic County Prosecutor Denial of request upheld because responsive record did not exist.

–Graumann v. Newfield Police Dept. The custodian erred by not responding timely and in writing to the request, but the GRC determined that there was no denial of access because the custodian eventually did provide the requested records. Also, no penalty was imposed on the custodian because the GRC found she did not intentionally violate OPRA.

–Garrett v. Dept. of Banking and Ins. Complaint file held exempt from disclosure, in accordance with NJ DOBI regulation.

The next GRC meeting is scheduled for June 30th.

When answering an OPRA request requires agency employees to expend a substantial amount of time and effort, the agency may impose a special service charge. Properly calculating the amount of the charge is critical, both to withstand challenge by the requestor and to ensure that the public body recoups its costs, which may run into many thousands of dollars for extensive requests.

This recent decision by the GRC (Palkowitz v. Hasbrouck Heights) is a good example of the issues faced by a public body in calculating a special service charge. Although the case involves a relatively low special service charge of $210.92, it shows problems that may come up when calculating much larger charges as well.

In this case, the requestor sought a variety of information about a number of different Borough expenses over an 8-month period.The special service charge was based on 4.5 hours, consisting of 2.5 spent by a clerical employee and the assistant to the records custodian in generating the requested reports (billed at hourly pay rates of approximately $21 and $29, respectively), and 2 spent by the Borough administrator in reviewing the records for redaction (billed at $72 per hour).

The Borough stated that six employees had to spend a total of 14.5 hours to accommodate this request. However, it calculated the special service charge based upon only the 4.5 hours spent by the above three employees, which it said was the amount of time beyond that needed for the ordinary retrieval and copying of records.

The GRC agreed that a special service charge was warranted. However, it ruled that the charge was too high, because a lower-paid worker, rather than the Borough’s administrator, could have performed the task of redacting personal information, such as telephone and social security numbers. For this reason, the GRC reduced the fee to $138.74.

This case illustrates two issues with regard to calculating a special service charge. First, custodians should keep in mind that the charge should be based on the hourly rate of the lowest-paid employee who is qualified to perform the work needed to fulfill the request. In some situations, as shown by what occurred in Palkowitz, it may not be clear who is the lowest-paid “qualified” employee.

The answer to this question will depend on the facts of each situation and the type of records involved. The records custodian or a clerical worker may not necessarily be the proper lowest-paid employee for calculation purposes. For example, in a case involving a request for attorneys’ communications, the Appellate Division determined that it was appropriate for supervisory or legal staff to review the records for privileged material, thus warranting the use of the hourly rate of an attorney in calculating the special service charge.

The second issue raised by the GRC decision is that the Borough did not base the special service charge on the total number of hours spent by all employees in fulfilling the request. The statute indicates that the total amount of time expended by the public body is to be used in calculating the charge, and this is confirmed by both case law and the FAQ section of the GRC’s website.

In this matter, although its employees spent a total of 14.5 hours on the request,  the Borough based the charge on 4.5 hours. The reason given by the Borough for using only 4.5 hours–that this was the amount of time spent beyond what was ordinarily needed to retrieve and copy all the records–is not what the law requires in calculating a special service charge.

I’m not suggesting that the Borough was obligated to charge the requestor for all the hours expended by employees on the request. Public bodies have the discretion to set the special service charge at less than the maximum allowed. The point is that the law does permit the special service charge to be based on the total amount of hours spent on a request, so that all of the costs incurred as a result of a massive OPRA request may be recovered.

OPRA requires disclosure of the resumes of government employees and appointees, so that the public can see the qualifications of those serving in government. But as noted in this recent GRC opinion, Rodriguez v. Kean University, before releasing a resume, a records custodian may need to redact some portions of it.

When OPRA was enacted, there was some question as to whether employee resumes should be treated as confidential documents because they are personnel records. In 2002 Governor McGreevey issued Executive Order 26, to deal with the status of various records under OPRA. One section of this Executive Order requires disclosure of the resumes of successful job applicants.

In Rodriguez, the GRC determined, as it has in other cases, that an OPRA request for certain employees’ resumes should be granted based on Executive Order 26. However, the GRC did not require release of the entire resumes; it specifically ordered disclosure of the resumes “with redactions where necessary,” noting as an example that it has previously upheld the redaction of a home address from a resume on privacy grounds.

Resumes usually contain other information that may be protected by a privacy interest, such as a personal email address and home telephone number. In fact, as discussed in this New Jersey OPRA Law Reporter post, the GRC has held that personal email addresses are confidential under the statute’s privacy provision..

In addition, although not mentioned by the GRC, the Supreme Court has ruled that OPRA’s personnel records section permits disclosure of only a narrow category of information concerning an employee’s education and experience:  the records showing that a public employee meets the specific education and experience qualifications that are prerequisites for his job. This suggests that redactions may be necessary where a resume contains information unrelated to the qualifications specifically required for the employee’s position.