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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:



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:



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:



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:



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.


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:



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:



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.


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.


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.


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.


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.


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.


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.


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:


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:


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.


Virginia Hook, Secretary

Minutes of the Government Records CouncilFebruary 13, 2003



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.


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.


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:


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:


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:


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:


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:


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:


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:


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:


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.



Minutes of the Government Records CouncilMarch 13, 2003



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.


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 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.



MINUTES OF THE GOVERNMENT RECORDS COUNCILApril 10, 2003



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.


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 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. 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,


DRAFT MINUTES OF THE GOVERNMENT RECORDS COUNCIL

June 12, 2003



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.



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. 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.


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:


Nays: None


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


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:


Mr. Maltese adjourned the meeting 12:13 p.m.


/s/ Virginia Hook, Secretary

Dated:

MINUTES OF THE GOVERNMENT RECORDS COUNCILPublic Meeting of July 10, 2003



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.



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 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


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:


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:


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:


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:


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

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