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State of New New Jersey Jersey State of

C HRIS C HRISTIE CHRIS CHRISTIE

O FFICE OF OF THE THE ATTORNEY ATTORNEY G ENERAL OFFICE GENERAL D EPARTMENT OF AW AND UBLIC S AFETY DEPARTMENT OF L LAW AND P PUBLIC SAFETY D IVISION OF OF L AW DIVISION LAW

Governor Governor

K IM GUADAGNO GUADAGNO KIM

25 25MARKET MARKET STREET STREET PO Box 112 PO Box 112 T RENTON, NJ TRENTON, NJ08625-0112 08625-0112

Lt. Governor Lt. Governor

C HRISTOPHER S. PORRINO CHRISTOPHER S. PORRINO Attorney General General Attorney

MICHELLE L. MILLER MICHELLE L. MILLER Acting Director Director Acting

October 2, 2017 Hon. Mary C. Jacobson, A.J.S.C. New Criminal Courthouse 400 S. Warran Street, 4th Floor Trenton, NJ 08650 Libertarians for for Transparent Transparent Government Government v. Re: Libertarians Division of State Police and David Robbins. Docket No. MER-L-1055-17 Order to Show Cause Return Date: October 26, 2017 Dear Judge Jacobson, Please accept this letter letter brief brief and and accompanying accompanying Please accept this certifications New Jersey Jersey State State Police Police and and certifications on on behalf behalf of of the the New David Robbins ("State (“State Defendants") Defendants”) in opposition to Plaintiff's, Plaintiff’s, Libertarians Transparent Government, Government, Verified Verified Complaint Complaint and Libertarians for for Transparent Order to Show Show Cause. Cause. Order

As discussed discussed more more fully fully below, below, State State As

Defendants Plaintiff’s records records request request Defendants properly properly responded responded to to Plaintiff's under both the Open Public Records Act ("OPRA"), (“OPRA”), N.J.S.A. 47:1A1, et seq, and the common law right of access. PRELIMINARY STATEMENT Plaintiff, Libertarians for Plaintiff, Libertarians for Transparent Transparent Government Government (hereinafter “Plaintiff”), "Plaintiff"), brings brings this this Verified (hereinafter Verified Complaint Complaint and Order to Show Cause Cause against against the Division Division of State State Police Police and and Order to Show

H UGHES JJUSTICE USTICE COMPLEX • •TTELEPHONE: ELEPHONE: (609) 633-7786 •• FFAx: AX: (609) HUGHES COMPLEX (609) 633-7786 (609)777-3607 777-3607 New An Equal Opportunity Employer Employer ••Printed Printedon onRecycled Recycled Paper Paper and and Recyclable Recyclable New Jersey Jersey Is Is An Equal Opportunity

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October 2, 2017 Page 2 David Robbins alleging December 21, David Robbins alleging the the unlawful unlawful denial denial of of its December 2016, request seeking seeking payroll payroll records, records, including including overtime overtime 2016, OPRA request information, of The Custodian Custodian information, of four four named named State State Police Police Troopers. Troopers. The for the the State State Police, Police, Detective Detective Sergeant Sergeant First First Class Class David David for Robbins (hereinafter (hereinafter “DSFC Robbins” or or "Custodian"), “Custodian”), provided provided Robbins "DSFC Robbins" various Plaintiff related related to the the Troopers' Troopers’ payroll payroll various records records to to Plaintiff records, redacting overtime overtime information information contained contained therein therein records, redacting pursuant N.J.A.C. 13:1E-3.2. 13:1E-3.2. pursuant to N.J.A.C.

Plaintiff’s contends Plaintiff's contends that that the

redacted information was improperly withheld withheld because because overtime overtime redacted information was improperly 1 information is not confidential. confidential.'

This not the the first first time time this this Court Court has has litigated litigated this this This is not precise issue. The Hon. Linda R. Feinberg, A.J.S.C. (ret.), in a 2005 case, upheld the State State Police's Police’s denial of overtime overtime records records finding that name of each each officer officer and the the finding that “the "the release release of of the the name corresponding corresponding detailed detailed overtime overtime information information may may reveal reveal or or lead information that that may may reveal reveal [officers'] [officers’] duty duty assignment." assignment.” to information This ruling was catalyst for the the New New Jersey Jersey Department Department of This ruling was the catalyst Law and Public Public Safety Safety to to amend amend its its regulation, regulation, N.J.A.C. N.J.A.C. 13:1E13:1E3.2(a)(7), to include a specific specific reference reference to "overtime “overtime data data 3.2(a)(7), to include pertaining an individual individual law law enforcement enforcement officer." officer.” Judge Judge pertaining to to an Feinberg’s decision the Feinberg's decisionwas was based, based,inin large large part, part, on on the

1 Plaintiff alleges that that certain certain specific specific documents documents 1 Plaintiff also also alleges responsive to the request were not provided.

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October 2, 2017 Page 3 certification certification provided provided by by Major Thomas Gilbert, the former Chief of Staff to the Superintendent of the State Police. As the the State State Police Police has has once once again again been been called called upon upon to to As provide factual basis basis for for the the propriety propriety of of withholding withholding provide aa factual overtime information Troopers, as authorized authorized by N.J.A.C. N.J.A.C. overtime information of of its Troopers, 13:1E-3.2(a)(7), thethecurrent Chief the 13:1E-3.2(a)(7), current Chiefofof Staff Staff to to the Superintendent Police, Major Major Scott Scott Ebner, Ebner, has has Superintendent of of the the State State Police, submitted new certification certification detailing same privacy privacy submitted aa new detailing that that the the same and safety safety considerations considerations supporting supporting Judge Judge Feinberg's Feinberg’s 2005 2005 and decision true today. today. decision remain remain true

Accordingly, the State Police's Police’s Accordingly, the State

denial of overtime overtime information information should upheld as as N.J.A.C. N.J.A.C. denial of should be be upheld 13:1E-3.2(a)(7) is 13:1E-3.2(a)(7) is not not only only consistent consistent with with OPRA OPRA and other law, but its prescriptions necessary to safeguard the public and this State’s State's police force. COUNTERSTATEMENT OF THE CASE Plaintiff challenges OPRA Plaintiff challenges the the State State Police’s Police's denial denial of of OPRA request number W116326, requesting the following: 1. 1. Actual Actual payroll payroll records records for for Gerald Gerald T. T. Theckston, Theckston, Nicholas Renna, Spencer Bailey and Sandor Sandor M. Nicholas R. R. Renna, Spencer L. L. Bailey Dazza that show ACTUAL amount made each in 2015 for amount made various categories, such as salary, salary, overtime, overtime, various categories, such as longevity, uniform allowance, etc. 2.Records 2. Records that overtime earned earned in that show show the amount of overtime 2015 by each of the following employees: Gerald T. 2015 by each of the following employees: Gerald Theckston, Theckston, Nicholas Nicholas R. R. Renna, Renna, Spencer Spencer L. Bailey and Sandor M. Dazza.

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October 2, 2017 Page 4 3. The each of of the the following following 3. The final final pay pay stub stub for for each employees that much money money each earned in employees that shows shows how how much 2015: Gerald T. T. Theckston, Theckston, Nicholas Nicholas R. R. Renna, Renna, 2015: Gerald Spencer L. Bailey and Sandor M. Dazza. [Plaintiff’s to Plaintiff's Plaintiff’s Verified Verified [Plaintiff's Exhibit Exhibit AA to Complaint]. After seeking seeking extensions extensions without without objection, objection, the State Police Police After the State responded providing various the named named responded by by providing various payroll payroll records records for for the troopers, each purporting to redact redact the the overtime overtime information. information. troopers, each purporting (See Plaintiff’s Plaintiff's Exhibit 1 to Certification of CJ Griffin). Plaintiff filed instant matter matter alleging alleging that the State State Plaintiff filed the instant Police unlawfully Police unlawfully denied denied access access to to the the final final pay stub sought in item number number 3 of of their their request request above above and and the the named named troopers' troopers’ item overtime information. information.

Plaintiff alleges that that the records records Plaintiff also also alleges

produced confusing and non-responsive and State produced were were confusing and non-responsive and that that the State Police did not timely respond. Following the institution of this Following the institution of this matter matter by by Plaintiff, Plaintiff, Defendants that the the documents documents produced, produced, (Plaintiff's (Plaintiff’s Defendants learned learned that Exhibit Exhibit 1), 1), inadvertently inadvertently redacted redacted the the wrong wrong information, information, leaving unredacted the officers' officers’ overtime overtime information. information. leaving unredacted the Defendants Defendants also discovered discovered that no records had been produced for Trooper Dazza. Trooper Sandor Sandor M. Dazza.

This was This was an an entirely entirely inadvertent inadvertent

withholding withholding and Plaintiff’s Plaintiff's Verified Verified Complaint Complaint and Order to Show Cause challenge the the State State Police's Police’s inadvertent inadvertent failure failure Cause does not challenge to produce produce any any records records for for Trooper Trooper Dazza. Dazza. to

Nevertheless, Nevertheless, on

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October 2, 2017 Page 5 August 29, 29, 2017, 2017, Defendants Defendants produced produced the same records records for for August the same Trooper been produced produced for for the the three three other other Trooper Dazza Dazza that that had had been Troopers, correctly redacting redacting the the Trooper's Trooper’s overtime overtime Troopers, this this time correctly information, thus fulfilling Defendants Defendants obligations obligations under OPRA. information, thus fulfilling (See Trooper Dazza’s Dazza's records, attached hereto as Ex. A). LEGAL ARGUMENT POINT I THE PRODUCTION PRODUCTION OF THE "TALRS" “TALRS” RECORDS WAS AN APPROPRIATE APPROPRIATE AND AND LAWFUL LAWFUL RESPONSE RESPONSE TO TO PLAINTIFF’S OPRA REQUEST PLAINTIFF'S Plaintiff first asserts that the records that were produced were records requested. Namely, Plaintiff Plaintiff argues argues that that were not not the records requested. Namely, item #3 of of his his request, request, "[t]he “[t]he final each of the the item final pay pay stub stub for for each following employees money each each earned earned in following employees that that shows shows how how much much money 2015: Gerald Gerald T. Theckston, Theckston, Nicholas Nicholas R. Renna, Spencer Spencer L. Bailey and Sandor M. Dazza,” Dazza," was unlawfully withheld. In response response to to Plaintiff's Plaintiff’s OPRA OPRA request, request, Defendants Defendants In produced “Time System” ("TALRS") (“TALRS”) records for "Time and Leave Reporting System" four Troopers, Troopers, redacting redacting only the the overtime overtime information information and the four certain personal identifiers. identifiers. certain personal

(Defendants’ These (Defendants' Ex. Ex. A). A). These

records The Trooper's Trooper’s records provide provide with with the the exception exception of of overtime. overtime. The “final pay stub," stub,” on the the other other hand, hand, cannot cannot include include "how “how much much "final money each 2015” because because of the need need to to redact redact the the money each earned earned in in 2015" of the “Gross Wages," Wages,” thus “Gross "Gross thus rendering rendering the the record record non-responsive. non-responsive. "Gross

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October 2, 2017 Page 6 Wages” must be be redacted redacted because because otherwise, otherwise, simple simple mathematics mathematics Wages" would permit discovery of that Trooper’s Trooper's overtime information. Moreover, “payroll "payroll records,” records," which which are not defined by OPRA, represent narrowly carved carved out exception exception to to the the prescription prescription represent aa narrowly against releasing personnel personnel records. records. Kovalcik Kovalcik v. Somerset County Prosecutor’s Office, However, the Prosecutor's Office, 206 206 N.J. N.J. 581, 581, 592-593 592-593 (2011). (2011). However, lack of any any authority authority suggesting suggesting that stub is a a payroll payroll lack that aa pay pay stub record should preclude the application of this narrow exception. The GRC has has attempted attempted to to define define what what constitutes constitutes a a payroll payroll The GRC record.

Gregory Havlusch, Havlusch, Jr. Jr. v. Gregory v. Borough Borough of of Allenhurst Allenhurst

(Monmouth), (Monmouth), GRC Complaint Complaint No. 2011-243, 2011-243, at page 3-5 (January 29, 2013).22 Therein, 2013). Therein, payroll payroll records records are are described described as as those those records records kept employer that track track money money flowing flowing to employees employees and kept by the employer time worked Based on on that that description, description, a pay time worked by by employees. employees. Id. Based stub is more more akin akin to to aa personal personal accounting accounting record record than than an an stub is employer’s payroll record. employer's pay stub stub will will disclose disclose personal personal information information such such as as A pay confidential information, personal personal payroll payroll deductions deductions and confidential tax tax information, other information information protected personnel records records exemption. exemption. protected by the personnel N.J.S.A. 47:1A-10; 47:1A-10; see also 26 U.S.C. § 6103. Indeed, nothing in GRC’s Havlusch Havlusch opinion payroll the GRC's opinion suggests suggests that that aa pay stub is payroll

2

A copy of this GRC opinion is attached hereto as Ex. C.

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October 2, 2017 Page 7 record.

Thus, there exists exists no no authority authority providing providing for its Thus, there for its

dissemination under OPRA. was not not an an unlawful unlawful denial denial to withhold withhold any In sum, it was any of Trooper’s final pay stubs. the Trooper's POINT II THE TROOPERS' TROOPERS’ OVERTIME RECORDS WERE LAWFULLY LAWFULLY WITHHELD UNDER OPRA AND THE COMMON LAW. A. N.J.A.C. N.J.A.C. 13:1e-3.2(a)(7) 13:1e-3.2(a)(7) is is Not Not Inconsistent With N.J.S.A. 47:1A-5(e) or N.J.S.A. 47:1A-10. “[A]gencies are only obligated obligated to to disclose disclose identifiable identifiable "[A]gencies are only government Burke v. v. Brandes, Brandes, 429 429 N.J. N.J. Super. Super. 169, 169, 174 government records.” records." Burke (App. (App. Div. Div. 2012). 2012). Accordingly, Accordingly, determining determining whether whether a record record is “government record" record” is a "threshold “threshold question" question” merely beginning a "government analysis of whether whether a record record must must be be disclosed disclosed under under OPRA. OPRA. the analysis Paff v. Ocean Ocean County County Prosecutor's Prosecutor’s Office, Paff Office, 446 446 N.J. Super. 163, 176 (App. (App. Div. Div. 2016). 2016). 176

Indeed, government government records exempt Indeed, records are are exempt

from public access under OPRA to the extent provided by statute, regulation N.J.S.A. 47:1A-1. Further, OPRA OPRA regulation or or Executive Executive Order. Order. N.J.S.A. 47:1A-1. Further, itself, carves out certain certain categories categories of records also also exempt exempt itself, carves out of records N.J.S.A. 47:1A-1.1; 47:1A-1.1; Paff Paff v. v. Galloway Galloway Twp., 162 from disclosure. disclosure. N.J.S.A. N.J. 340, 358 (2017). “Payroll records" records” are government records records under under OPRA. OPRA. "Payroll are government N.J.S.A. 47:1A-10.

This, inquiry as This, however, however, does does not not end the inquiry

the Legislature has determined that OPRA:

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October 2, 2017 Page 8 shall not abrogate abrogate any exemption of public shall not any exemption of a public record government record record from from public public access access record or government heretofore made...;any other other statute; statute; resolution resolution heretofore made...;any of either either or or both both Houses Houses of of the the Legislature; Legislature; of regulation regulation promulgated promulgated under under the the authority authority of any statute Executive Order Order of of the the Governor; Governor; statute or or Executive Executive Order Governor; Rules Rules of Court; Court; Executive Order of of the Governor; any federal federal law; law; federal federal regulation; regulation; or federal federal any order. [N.J.S.A. 47:1A-9(a)]. N.J.A.C. 13:1E-3.2(a)(7) provides “the following following N.J.A.C. 13:1E-3.2(a)(7) provides that that "the records be considered considered government government records records subject subject to records shall shall not be public N.J.S.A. 47:1A-1 amended public access access pursuant pursuant to to N.J.S.A. 47:1A-1 et et seq., as amended and supplemented:” supplemented:" 7. The duty duty assignment assignment of of 7. The officer enforcement or identifiable information information that identifiable to information information that may may to that assignment, including, but but assignment, including, overtime data pertaining to overtime data pertaining enforcement officer.

an an individual individual law law any personally may reveal reveal or lead lead may reveal such duty duty reveal such not limited to, to, not limited an an individual individual law law

As initially initially proposed, proposed, this regulation did not contain contain the the As this regulation did not language, “including, limited to, to, overtime overtime date date language, "including, but but not not limited pertaining individual law That pertaining to to an an individual law enforcement enforcement officer.” officer." That language was the proposed proposed regulation regulation by NJ language was added added to to the by the the NJ Department Public Safety result of of Judge Judge Department of of Law Law and and Public Safety as as a result Feinberg’s opinion Division of Feinberg's opinion in in Newark Newark Morning Morning Ledger Ledger Co. Co. v. Division State New Jersey Jersey Department Department of Law and and Public Public State Police Police of of the New of Law Safety, MER-L-1090-05, MER-L-1090-05, Unpub. Unpub. (Law Div. July 5, 2005) (Feinberg,

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October 2, 2017 Page 9 A.J.S.C.). 3 See SeeId. Id.at at 19 19 (citing (citing to to section section 77 without without reference reference A.J.S.C.).3 the overtime overtime language; language; see also also 42 42 N.J.R. N.J.R. 2569(a) 2569(a) (November (November to the 1, 2010) 2010) (explaining (explaining why why the the regulations regulations remained remained proposed, proposed, 1, without adoption, adoption, for for so many years and signaling the opening of the public comment period; 43 N.J.R. 3188(b) (December 5, 2011) (including reference to Newark Morning Ledger Co., supra). In Newark Newark Morning Morning Ledger Hon. Linda Linda R. In Ledger Co., Co., supra, supra, the the Hon. Feinberg, A.J.S.C., name Feinberg, A.J.S.C., (ret.), (ret.), held held that that “the "the release release of of the name of each each officer officer and and the thecorresponding corresponding detailed detailed overtime overtime of information may lead to to information information that that may reveal reveal information may reveal reveal or or lead such duty assignment." assignment.” such duty

Id. at at 19. 19. Id.

In so so holding, holding, Judge Judge In

Feinberg weighed the statutory statutory language language of of N.J.S.A. N.J.S.A. 47:1A-10 47:1A-10 Feinberg weighed the (finding are government government records) records) and N.J.S.A. N.J.S.A. (finding payroll payroll records records are 47:1A-5(e) “immediate access" access” to "public “public employee employee 47:1A-5(e) (calling (calling for for "immediate salary and overtime information"), along with with the public policy salary information”), along considerations considerations of OPRA, against the proposed regulation N.J.A.C. 13:1E-3.2(a)(7), as then existed, existed, McGreevey McGreevey Executive Executive Order Order 13:1E-3.2(a)(7), as it it then No. 21 ("Any (“Any government record where the the inspection, inspection, examination examination or copying of that record would substantially substantially interfere with the State's ability to protect and defend the State and its citizens against acts sabotage or terrorism, terrorism, or which, which, if if disclosed, disclosed, against acts of sabotage would materially increase consequences of potential potential would materially increase the the risk or consequences

3

A copy of this unpublished opinion is attached hereto as Ex. D.

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October 2, 2017 Page 10 acts of of sabotage sabotage or or terrorism"), terrorism”), and very detailed detailed acts and aa very certification Police, to reach reach the the conclusion conclusion certification from from the the State State Police, that withholding withholding overtime overtime information only acceptable acceptable that information is is not only under necessary to allow the State State Police Police to to function function under OPRA OPRA but necessary appropriately. Newark Newark Morning Morning Ledger Thus, appropriately. Ledger Co., Co., supra, supra, at at 19. 19. Thus, Judge withholding of Judge Feinberg’s Feinberg's opinion opinion details details why why and and how the withholding overtime information consistent with overtime information for for State State Troopers Troopers is is consistent with all other related related provisions provisions of law. other of law.

Understanding Judge Understanding that that Judge

Feinberg’s opinion is not binding, Defendants urge this court to Feinberg's Judge’s learned analysis analysis as each issue issue presented presented here adopt the Judge's is mirrored and addressed therein. Furthermore, a facial challenge Furthermore, challenge to the current language of N.J.A.C. Jersey N.J.A.C. 13:1E-3.2(a)(7) 13:1E-3.2(a)(7) has has already already been been upheld upheld in in New Jersey Second Second Amendment Amendment Society Society v. v. Division Division of of State State Police Police of the New Jersey Pub. Safety, Safety, 2015 2015 WL 2236464 2236464 *7 (App. (App. Jersey Dep’t Dep't of of Law Law and Pub. Div. May 14, 2015)4 Div. 2015) 4 (finding (finding that section section 7 is not not in in conflict conflict “with accessibility accessibility to personnel records as provided in N.J.S.A. "with 47:1a-10.”); 47:1a-10."); See See also Cynthia Cynthia Burton Burton v. NJ Department of Law and Public Safety, Division of State Police, GRC Complaint No. 20102011) ("Despite (“Despite payroll records being public 330, at 12 (May 24, 2011)

4

A copy of this unpublished opinion is attached hereto as Ex. E.

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October 2, 2017 Page 11 records N.J.S.A. 47:1A-10," 47:1A-10,” they were nevertheless nevertheless exempt records under N.J.S.A. under N.J.A.C. 13:1E-3.2(a)(7).). 13:1E-3.2(a)(7).).55 Accordingly, N.J.A.C. 13:1E-3.2(a)(7) is consistent with with Accordingly, N.J.A.C. 13:1E-3.2(a)(7) is consistent the OPRA OPRA statutory statutory scheme should be be provided provided all all due due the scheme and and should consideration N.J.S.A. 47:1A-1 47:1A-1 and and N.J.S.A. N.J.S.A. consideration as as mandated mandated by by N.J.S.A. 47:1A-9(a). B. The The Troopers’ Troopers' Overtime Overtime Information Information was was Properly Redacted Pursuant to N.J.A.C. 13:1e-3.2(a)(7). provided above, this this Court's Court’s predecessor predecessor was was confronted confronted As provided with the exact same question presented here today, whether there exists a nexus nexus between between the the release release of of individual individual Trooper's Trooper’s exists overtime information revealing of their duty duty overtime informationand and the the revealing of their assignments. Analyzing very detailed detailed assignments. Analyzingthe the law law against against a a very certification certification provided provided by by Major Major Thomas Thomas Gilbert, Gilbert, then then Chief Chief of Staff to Colonel Joseph Fuentes,6 Fuentes, 6 Judge Judge Feinberg found the nexus to be be well well established established in in fact fact and and the the overtime overtime information information to properly withheld from production. Such nexus still still exists exists today. today. Such a nexus

(See Certification of (See Certification

Major Scott Scott Ebner, Ebner, attached attached hereto Ex. B). B). Major hereto as as Ex.

Major Scott Scott Major

Ebner, the current current Chief Col. Fuentes, Fuentes, details that Ebner, Chief of Staff to Col. overtime earners earners tend to be those those Troopers Troopers assigned assigned the highest overtime to special special units units dealing dealing with with particularly particularly sensitive sensitive operations operations 5

A copy of this GRC opinion is attached hereto as Ex. F. Col. Fuentes Fuentes was was at at that that time, time, and and remains remains so so today, today, the the Col. Superintendent of the Division of State Police.

6 6

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October 2, 2017 Page 12 such as the protection of top government government and judicial judicial officials, anti-terrorism efforts Thus, anti-terrorism efforts and and those thoseworking workingundercover. undercover. Id. Id. Thus, should public amass overtime data troopers in a should the public amass the overtime data for all troopers given year, those at the top of the list, i.e. those earning the most overtime, overtime, would identified as being in in those those sensitive sensitive most would be identified units. Id. units. Id. The Appellate Appellate Division Division in Second Second Amendment Amendment Society, Society, supra, cautioned section 7 to improperly improperly deny cautioned “NJSP "NJSP against against the the use use of section public However, not public access access to to overtime overtime information.” information." Id. Id. at at 7. 7. However, statement dicta in an an unpublished unpublished opinion, but the only is this statement word “improperly,” as qualify "deny," “deny,” can only be word "improperly," as is is used used to to qualify can only interpreted to leave room for the ability of the State Police to “properly” deny "properly" deny such such public public access access under under section section 77 when when it it is necessary and appropriate appropriate to do so to protect the public safety. This is especially true considering considering section genesis section 7 finds its genesis See also also Cynthia Cynthia Burton, Burton, GRC in Judge Feinberg’s Feinberg's 2005 2005 opinion. opinion. See Complaint No. 2010-330, supra (holding “release of [the (holding that the "release payroll] this instance instance leave leave the the [Executive [Executive payroll] records records in in this Protection Bureau] vulnerable to how heavy heavy of aa security security level level Protection Bureau]7 vulnerable places on on protecting protectingvarious variousdignitaries..."). dignitaries…”). Thus, Second it places Thus, Second Amendment Society an impediment impediment to the Amendment Society should should not not be be seen seen as as an to the

7

The "Executive “Executive Protection Protection Bureau" Bureau” and the "Office “Office of Executive Executive The Protection” are the same. same. See See Certification Certification of Major Major Protection" are one one and and the Ebner, ¶ 9. 7

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October 2, 2017 Page 13 State Police’s arguments the State Police's arguments contained containedherein hereinoror to to the authoritative force of the regulation. Finally, that Plaintiff has requested requested the information information for for Finally, that Plaintiff four Troopers This Court Court is four Troopers only only should should be be of of no no consequence. consequence. This permitted, request is only permitted, if if not not required, required, to to assume assume that that this request the beginning and that the inevitable eventuality of the release of these these four four Troopers' Troopers’ overtime overtime information information will the of will be be the collection See Gilleran Gilleran collection of of all all Troopers’ Troopers' overtime overtime information. information. See v. Twp. of Bloomfield, Bloomfield, 227 N.J. 159, 159, 176 176 (2016). (2016).

Gilleran, In Gilleran,

the Supreme Supreme Court Court analyzed analyzed the the availability availability of of government government the security footage and acknowledged acknowledged that once once "unfettered “unfettered security camera camera footage access” is granted to work product product of of one one camera, camera, "then “then access" is granted to the work footage

from

security

cameras

in

all

government

facilities...would be demand.” facilities...would be subject subject to to release release on demand." 176.

Id. at Id.

Simply put, the application of an Simply put, when when determining determining the application of an

exception under aggregate or cumulative cumulative effect effect of exception under OPRA, OPRA, the the aggregate granting the request at bar must be taken into account. Here, no question question that that if if the the overtime overtime Here, there there should should be be no records one trooper trooper be deemed deemed public public under under OPRA, OPRA, all such such records for for one records public, and and nothing nothing would would preclude preclude Plaintiff, Plaintiff, records would would be public, his internet followers, followers, or anyone else, else, from from amassing amassing the the his internet or anyone overtime data Troopers, thus overtime data for for all Troopers, thus bringing bringing to to bear bear the very dangers detailed by Major Ebner in his certification.

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October 2, 2017 Page 14 While it it might might be be said said that that aa single single Trooper's Trooper’s overtime overtime While information will not reveal that Trooper's Trooper’s duty assignment, when compared with all other Troopers' Troopers’ overtime information, the duty assignments of the list list will will be be revealed, revealed, assignments of those those at at the the top top of the and it it is is the theconfidentiality confidentiality of of these these Troopers' Troopers’ duty duty and assignments that Thus, pursuant pursuant assignments that are are of of the the utmost utmost importance. importance. Thus, Ebner’s certification certification and and N.J.A.C. N.J.A.C. 13:1E-3.2(a) 13:1E-3.2(a)(7), to Major Ebner's (7), the State Police properly properly denied denied access access to overtime overtime information information of State Police the four listed troopers. C. Entitled to Overtime Overtime Records Records C. Plaintiff Plaintiff is is Not Not Entitled Under the Common Law. The right to to access access common common law law records records "is “is aa qualified qualified The right one.” Keddie Keddie v. v. Rutgers, Rutgers, 148 148 N.J. N.J. 36, 36, 49-50 49-50 (1997). (1997). one."

“New "New

Jersey courts have long recognized a limited common-law right to inspect governmental Southern New New Jersey Jersey Newspapers, Newspapers, inspect governmental records.” records." Southern Inc. v. v. Township Township of Mt. Laurel, Laurel, 141 141 N.J. N.J. 56, 56, 70-71 70-71 (1995) (1995) Inc. of Mt. (emphasis In order order for for aa citizen citizen to to establish establish that that he (emphasis added). added). In has a common-law right to the disclosure disclosure of certain certain governmental records, establish the following: following: (1) records, he must first establish (1) that that he has standing right to inspect inspect the records; records; (2) (2) the the standing to to assert assert his his right records “public records;” his interest interest records sought sought are are "public records;" and and (3) (3) that his in the the information information outweighs outweighs the "public “public interest interest in in in the confidentiality Id. at at 71-72. confidentiality of of the the documents.” documents." Id.

MER-L-001055-17 10/02/20174:41:42 4:41:42PM PMPg Pg15 15ofof17 17Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

October 2, 2017 Page 15 Given the liberal liberal interpretation interpretation of the standing standing Given the of the requirement, conceded that that Plaintiff Plaintiff has has standing. standing. requirement, it it is conceded

See

Id. at 71 71 ("The (“The interest interest does does not not have have to to be be purely purely personal, personal, Id. but rather rather may be 'one ‘one citizen citizen or or taxpayer taxpayer out out of of many, many, but may be concerned with a public problem or issue.’”). issue.'"). With respect to the third prong, the court must engage in a balancing process “concretely focused the relative relative balancing process "concretely focused upon upon the interests of the parties parties in in relation relation to to these these specific specific interests of the materials.” McClain McClain v. v. College College Hosp., Hosp., 99 99 N.J. N.J. 346, 346, 361 361 (1985). (1985). materials." This process "is “is flexible flexible and and adaptable adaptable to to different different This process circumstances circumstances and and sensitive sensitive to to the fact that the requirements of confidentiality others.” confidentiality are are greater greater in in some some situations situations than than in others." Ibid. There no doubt doubt that that Plaintiff Plaintiff and and other other media media There is is no organizations have reporting on matter of public public organizations have an an interest interest in reporting concern. However, concern. However, given given the the link link between between aa Trooper's Trooper’s individual individual overtime and assignment shown above, the the State's State’s interest interest overtime and duty assignment maintaining the confidentiality confidentiality of State Trooper's Trooper’s duty in maintaining of its State assignments vastly vastly outweighs outweighs Plaintiff's Plaintiff’s generalized generalized interest. interest. assignments Again, the release of overtime overtime records reveal Again, the release records will will lead lead to the reveal Trooper’s duty assignments and to the identification of those of Trooper's Troopers most sensitive sensitive posts posts within within the the State State Troopers holding holding the the most Police. Police. The The reveal reveal of of that that information information will will not not only only put put those those

MER-L-001055-17 10/02/20174:41:42 4:41:42PM PMPg Pg16 16ofof17 17Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

October 2, 2017 Page 16 Troopers Given the Troopers in in danger danger but but endanger endanger the the public public at at large. large. Given State's overwhelming interest in confidentiality, State’s overwhelming interest confidentiality, Plaintiff Plaintiff is not entitled to overtime overtime information information of State State Police Police Troopers Troopers not entitled under the common law. POINT III PLAINTIFF’S REMAINING WITHOUT PLAINTIFF'S REMAINING ARGUMENTS ARGUMENTS ARE WITHOUT MERIT MERIT AS OPRA OPRA REQUIRES REQUIRES THE THE PRODUCTION PRODUCTION OF OF DOCUMENTS, NOT NOT THE OF THOSE DOCUMENTS, THE EXPLAINATION EXPLAINATION OF THOSE DOCUMENTS, THE STATE POLICE’S AND POLICE'S UNCHALLENGED EXTENSION EXTENSION REQUESTS REQUESTS RENDERS UNCHALLENGED RENDERS ITS RESPONSE TIMELY. “[A]gencies are only obligated obligated to to disclose disclose identifiable identifiable "[A]gencies are only government Burke v. v. Brandes, Brandes, 429 429 N.J. N.J. Super. Super. 169, 169, 174 government records.” records." Burke (App. 2012). There no obligation obligation under to (App. Div. Div. 2012). There is is no under the the law law to provide explanations of records. provide explanations of those records.

Thus, fact that that a Thus, the the fact

plaintiff responsive government they plaintiff receives receives responsive government records records that that they cannot OPRA to to cannot personally personally understand understandisisnot not an an issue issue for for OPRA resolve.

Indeed, there nothing stopping stopping a requestor requestor from from Indeed, there is nothing

seeking an explanation of certain records or employing their own efforts in deciphering the records. Plaintiff's timeliness argument argument is is also Plaintiff’s timeliness also without without merit. merit. Plaintiff has Verified Complaint Complaint and Order to Plaintiff has included included in in his Verified and Order Show Cause the State Police's Police’s numerous extension request emails. However, challenges to those emails have been provided, provided, thus However, no challenges establishing that the various various establishing that Plaintiff Plaintiff tacitly tacitly agreed agreed to to the

MER-L-001055-17 10/02/20174:41:42 4:41:42PM PMPg Pg17 17ofof17 17Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

October 2, 2017 Page 17 extensions.

Thus, Plaintiff cannot contend that that the the Thus, Plaintiff cannot now now contend

See N.J.S.A. N.J.S.A. 47:1A-5(i). 47:1A-5(i). extensions are are akin akin to to aa denial. denial. See CONCLUSION the foregoing foregoing reasons, reasons, Plaintiff's Plaintiff’s Verified Verified Complaint Complaint For the and Order to Show Cause should be dismissed with prejudice.

Respectfully submitted, CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY

/s/ Adam Adam Robert Robert Gibbons Gibbons _____ By: /s/ Adam Robert Gibbons Deputy Attorney General Attorney ID # 093732014

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg11ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017

■

■

Exhibit A .~: i.

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg22ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 (A) PMIS.zws - PASSPORT PASSPORT (A)

JERSEY DEPARTMENT PERSONNEL NEW JERSEY DEPARTMENT OF OF PERSONNEL NEW EMPLOYEE INQUIRY EMPLOYEE MASTER MASTER INQUIRY EMPLOYEE NAME: NAME: dazza dazza EMPLOYEE

SCRN,ID;41 SCRN.ID:41

oullem

SSN: ~ SSN: TITLE NAME TITLE NAME : TITLE TITLE CODE CEDE : SALARY RANGE : SALARY SALARY SALARY - BASE: BASE:

13:26:37 PM PM Tuesday, February 2017, 13:26:37 February 21, 21, 2017, Tuesday,

TROOPER SERVICE : U U 31851 CLASS CLASS OF QF SERVICE 31851 T 17 STEP : 7 7 T STEP EXTRA 75230.04 EXTRA : 75230.09

POSITION NUMBER POSITION NUMBER : PAYROLL NUMBER NUMBER PAYROLL : DEPT/DIV/BUREAU DEPT/DIV/BUREAU : ORG/FUND/PROG/OBJ: ORG/FUND/PROD/OBJ:

LOCATION CODE 001562 CEDE 001562 LOCATION UNIT NUMBER NUMBER UNIT 32 32 LPP CODE LPP LICENSE CODE LICENSE 060000 12 1200 100 12 1200 100 060000

COMP METHOQ: 2 COMP METHOD: 2 WORK NE WORK WEEK WEEK : NE

ZZZ ZZZ 70 70

LPPMONI OPER: LPPMON1 OPER: 02/21/17 13;26 02/21/17 13:26 M SANDOR SANDnR PART TIME o : PART TIME % D EEO BODE CODE : D EEC TOTAL; 75230.04 75230.04 TOTAL:

UNIT UNIT SCOPE APPT AUTH APPT AUTH ESSENTIAL EMP: ESSENTIAL EMP: CC/PA/EXT: 000 000 000 CC/PA/EXT: 000

P620 P620 LPP LPP B10 B10

M M OVERRIDE DATA : GENDER OVERRIDE DATA GENDER DATE OF DATE OF BIRTH Y 00000 Y 00000 EDUCATION EDUCATION : 37 ETHNIC/RACE 37 ETHNIC/RACE B AGE B AGE N R STATUS N TEST DT: WORK TEST DT: VETERAN WORK 0 VETERAN STATUS : 0 RESIDENCE ESIDENCE CODE CODE 62609 RATE/DT/SCLE: 62609 TYPE DATE RATE/DT/SCLE: APPT APPT DATE APPT UA APPT TYPE UA N N ENT BUT -OF-STEP : OUT-OF-STEP SERV ANNIVERSARY 1416 ENT PERM PERM SERV ANNIVERSARY DATE DATE : 1416 LEAVE THRU STATUS A LEAVE THRU STATUS A HIRE 62609 HIRE DATE 62609 : PERM DATE DATE PERM TITLE CODE: CODE: PERM PERM TITLE APPT THRU DATE APPT 000683256 EMPLOYEE ID ID : 000683256 TITLE EMPLOYEE PF2=FUNC TITLE PF8-VIEW HISTORY HISTORY PF2=FUNC PF8-VIEW PF1=REFRESH PF1=REFRESH SCREEN SCREEN SSN/POS SSN/POS IRAN NEXT TRAN PF10=PREV MENU PF1I=MAIN PF11=MAIN MENU MENU PF12=EXIT PF12=EXIT PMIS PMIS NEXT PF10=PREV MENU

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg33ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 (A} PMIS.zws PMIS.zws - PASSPORT (A) PASSPORT

PM February 21, 21, 2017, Tuesday, Tuesday, February 2017, 13:26:40 13:26:40 PM

X 300-02 HIT X300-02 HIT ENTER ENTER TO TO CONTINUE CONTINUE SCRN.ID:42 OF PERSONNEL SCRN,ID:42 DEPARTMENT OF OPER ID: ID: LPPMON1 OPER LPPMONI NEW JERSEY DEPARTMENT EMP EMP ID: ID: HISTORY INQUIRY INQUIRY 000683256 000683256 EMPLOYEE HISTORY 02/21/17 13:26 X3;26 02/21/17 EMP NAME; SSN: DT: EMP NAME: DAllA, SSN: IIIMMINIMMI HIST DAllA, SANDOR SANDOR M M HIST START DT: OFFLINE HISTORY: N OFFLINE N V-DV: N GENDER: M M ED: B HISTORY: N V-DV: GENDER: ED: SCOPE: P620 P620 B SCOPE: EFFECT APP C TITLE SAL EFFECT APP POS P/R W POS W SAL A A P/R DEP/DIV DEP/DIV REFERENCE REFERENCE DATE TYP W DATE TYP M M CODE NUM NUM SALARY NUMBER NO W BUR CODE RNG RNG C BUR SALARY A/D NUMBER C A/D 72616 UA 2 NE 7 2616 UA 2 31851 001562 32 32 NE 17 10 10 001562 T 17 3~85~ T TROOPER _ TITLE: TITLE: TROOPER 60116 UA NE 6 0116 UA 31851 T T 17 32 NE 2 31851 09 001562 00562 32 2 17 09 T ITLE; TROOPER TROOPER _ TITLE: 4 2016 UA 31851 T T 17 42016 UA 2 31851 001562 32 32 NE 2 17 09 NE 09 001562 T TITLE: ITLE; TROOPER TROOPER _ 62715 6 2715 UA T 17 UA 2 NE 2 31851 31851 T 001562 32 32 NE AD 001562 17 AD T TROQPER ITLE: TITLE: TROOPER _ AD 001562 62814 UA 2 NE 6 28 9 UA 2 31851 T 17 00562 32 32 NE 17 AD 3 851 T TITLE: TROOPER TITLE: TROOPER OQ1552 32 62913 6 29 3 UA T 17 AD 001562 2 31851 32 NE UA NE 2 17 AD 3 851 T TITLE: TROOPER TROOPER TITLE: NE ~ 31851 AD 001562 001562 32 32 NE 6 3012 UA 31851 T T 17 63012 UA 2 17 AD TITLE: TITLE: TROOPER TROOPER PF1I=MAIN PF12=EXIT PF8~MASTER PF10-PREV PF10=PftEV PF11=MAIN PF12=EXIT PMIS PFB=MASTER PMIS

LP P LP P

75230.04 75230.04

LP P LP P

75230.04 75230.04

LP P P LP

75230.04 75230.04

LP P P LP

75230.04 75230.04

1416 LPP01700354 LPP01700354 1916 025 025 ~9~6 LPP01700103 LPP01700103 1416 025 025 LPP01604174 1416 LPP01~04174 1916 025 025 INC01525037 1416 INC01525037 1916

LP P LP P

72334.02 72339.02

INC01426290 1515 INC01426290 1515

LP P LP P

6943$,00 69438.00

INC0~329454 1519 1514 INC01329454

LP P LP F

66541.98 66541.98

1513 INC01301460 1513 INC01301460

NEXT TRAN IRAN NEXT

SSN/POS SSN/POS

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg44ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 (A} PMIS.zws (A) PMIS,zws - PASSPORT PASSPORT

13:26;93 PM PM February 21, 21, 2017, Tuesday, February 2017, 13:26:43 Tuesday,

X300-01 X 340mm01 END REACHED END OF OF FILE FILE REACHED LPP~ON1 OPER ID; ID: LPPMON1 DEPARTMENT OF OPER NEW JERSEY DEPARTMENT OF PERSONNEL PERSONNEL SCRN.ID:42 NEW SCRN.ID:42 INQUIRY 13:26 INQUIRY 02/21/17 13:26 02/21/17 HISTORY EMP ID; EMPLOYEE EMP ID: 000683256 EMPLOYEE HISTORY 000683256 70211 HEST START DT: 70211 SSN: MOMMINEM ' START DT: EMP SANDER M EMP NAME; NAME: DAZZA, M SSN: DAZZA, SANDOR ,HIST B ED: V-DV: V-DV: N GENDER: M ED: B SCOPE: SCOPE: P620 P62Q ~FFLINE HISTORY: HISTORY: N OFFLINE N GENDER: M REFERENCE REFERENCE W DEP/D~V POS P/R W DEP/DIV TITLE SAL A P/R EFFECT APP EFFECT APP C C TITLE A/D SALARY A/D NUMBER NUM NUMBER C NUM NO W W BUR C NO BUR DATE TYP M DATE TYP M CODE CODE RNG RNG UA 2 7 0211 UA 2 31851 31851 70211 T ITLE: TROOPER TROOPER TITLE: 70310 7 0310 UA UA 2 31851 2 31851 TITLE: TROOPER TITLE: TROOPER _ 2 31851 2 31851 7 Q310 UA 70310 UA T TROOPER TITLE: ITLE: TROOPER 31851 2 31851 50410 UA 2 5 091 UA TROOPER TITLE: TITLE: TROOPER _ 10210 UA UA 2 10210 2 31851 31851 T ITLE; TROOPER TROOPER _ TITLE: UA 2 6 2~Q9 UA 2 31851 31851 62609 TITLE: TITLE: TROOPER TROOPER

AD 001562 17 AD T 17 T 0 01562

32 32

NE NE

LP P LP P

63645.96 63645.96

1512 LPP01289820 LPP01289820 1512

T 17 x01562 T 17 AD AD 001562

32 32

NE NE

LP P LP P

60749.94 6Q799.94

LPP01289818 1511 1511 LPP01289818

AT 001562 17 AT T 17 001562 T

32 32

NE NE

LP P LP P

57853,92 57853.92

1510 LPP01289819 LPP01289819 1510

001562 Z2 001562 T 17 T 17 12

32 32

NE NE

LP P LP P

56580,85 56580.85

1510 1510 LPP~1284486 LPP01284086

T 17 AT T 17 AT 001562 0 1562

32 32

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LP P P LP

56580.85 56580.85

ATB01001353 1510 ATBQ1Q01353 1510

OQ1562 02 001562 T 17 02 T 17

32 32

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LP P P LP

53723.44 53723,44

1510 LPPa~9a7512 LPP00907512 1510

TITLE; TITLE: NEXT IRAN PF12~EXZT PMZS NEXT -EXIT PMIS TRAN PF10~PREV PF11~MA~N PF8=MASTER FEU-MAIN PF12.PF8=MASTER PE10---PREV

SSN/POS SSN/POS

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg55ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 {B} TALRS.zws (B) TALRS. zws PA SSPORT - PASSPORT

LAST NAME

21, 2017, Tuesday, Tuesda y, February 21, PM 2017 , 13:29;00 13 :29:00 PM

SS MIONMEms S S NO = PR PR PAY PN PAYTIME PAYTIME ANNUAL TYPCP CP PN PAY CAC~TYP ANNUAL PMT NUM CD CD CD NUM PER PER YR SALARY YR PMT CD PAID PAID

DAZZA 32 27 2015 DAllA 3 2 27 2015 DAllA 32 2415 DAZZA DAZZA 2015 32 Z2 DAZZA DAZZA 32 26 32 2015 DAZZA DAZZA 32 25 2015 2415 2015 DAZZA 32 24 29 2Q15 32 2015 DAZZA 2Q15 DAZZA 32 W DA2ZA DAZZA 32 23 2015 23 DA~~ZA DAllA 32 V V 2015 DAZZA 2015 DA2ZA 32 22 2015 DAZZA 21 32 21 DAZZA 32 T 2015 DAZZA DAZZA 32 20 2015 DAZZA DAZZA 32 20 2015 D~ZZA DAZZA 32 S 2015 WANT TO CONTINUE N DO YOU WANT CQNTTNCIE Y OR 0R N

1 1 5

5 5

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1 10.0 2 1 2 10.E

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2 ~ ~ ~ 1 10.0 10.0 2 2 1 1 10.0 2 2 1 ~ ~ ~ 2 1 1 10.0 10.0 2

II

GROSS GEN GEN

EFFECT EFFECT DATE

3,392,34 15/Q6/27 3,392.34 15/06/27 15/06/27 ao~oo~oo 00/00/00 15/06/27 3,392.39 15/06/27 75,23~.~4 3,392.34 75,230.04 75,230.04 3,392.34 75,230.04 15/06/27 3,392.39 15/06/27 3,392.39 15/06/27 75,230.04 3,392.34 X5/06/27 ~ ~ 00/00/00 00/04/00 11=1 6/ 27 3,392.39 15/0 75,230.04 3,392.34 15/06/27 ~ ~ 00/00/00 oo/oo/oo 75,230.09 3,392.34 15/06/27 75,230.04 15/06/27 75,234.04 3,392.34 3,392.39 15/46/27 75,230.04 15/06/27 ~ ~ 00/00/00 ao/ooloo 3,392.39 15/06/27 75,230.04 3,392.34 15/06/27 111111 15/06/27 00/00/00 11

75,230.04 75,230.09

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg66ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 (B} TALRS.zws (B) - PASSPORT

L LAST AST NAME

PAY CA PR PR PAY CA NUM NUM PER PER YR YR PAID

Tuesday, February 21, 21, 2017, Tuesday, February 2017, 13:29:03 PM SS NO ~ SS NO ~= IIMMOMMOMS TYP CP TYP CP PN PN PAYTIME PAYTIME ANNUAL ANNUAL PMT CD CD SALARY

~~ 19 32 2015 2015 11 22 11 10.0 10.0 DAZZA 5 I~ I~ III ~ 32 19 19 2015 5 DAZZA 32 1~ 18 1 22 11 10.0 2015 1 10.0 DAZZA 32 18 2015 5 5 I~ I~ III ~ DAZZA DAZZA 2015 11 22 11 10.0 32 17 17 2015 10.0 DAZZA 32 17 17 2015 5 DAZZA DAZZA 32 P 5 2015 2015 5 DAZZA P 32 P 2015 2015 5 5 DAZZA DAZZA 32 P 2015 5 DAZZA DAZZA 32 P 2015 2015 3 3 8 8 8 8 1.0 1.0 DAZZA DAZZA 32 16 2015 11 22 11 10.0 2015 10.0 DAZZA 32 15 32 15 2015 2015 11 22 1~ 10.0 10.0 DAllA DAZZ~ 32 N 2015 5 5 I~ I ~ ~ UM DAZZA 32 N 2015 2015 3 3 7 702.5 7 88 702.5 DAZZA DAZZA 32 14 2015 2015 11 22 11 10.0 32 14 10.0 DO DO YOU WANT WANT TO CONTINUE Y DR OR N ? DAllA DAZZA

75,230.04

GROSS GEN

EFFECT DATE

3,392.34 3,392.34 15/06/27 ~ 111111 15/06/27 3,392.34 15/06/27 3,392.34 15/06/27 ~ 15/06/27 15/06/27 3,392.34 15/06/27 3,392.34 15/06/27 15/06/27 00/00/00 00/00/00 00/00/00 999.99 1,000,00 1,000.00 00/00/00 75,230.04 3,392.34 3,392.34 15/06/27 75,230.04 75,230,04 3,392.34 3,392.34 15/06/27 15/06/27 ~ 00/00/00 2.42 2,42 1,7aQ.05 1,700.05 00/00/00 00/00/00 72,334,02 3,294.37 72,334.02 14/06/28 3,299.37 19/06/28 ~ 75,230.04 ~ 75,230.04

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg77ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 (B) TALRS.zws TALRS,zws - PASSPORT (B)

LAST LAST NAME

DAZZA DAllA DAllA

PAY Pu PAY CA PR CA NUM NUM PER PER YR YR PAID PAI D

32 M M 2015 20 .5 32 1~ 13 2015 DAllA DA 2, 2,A 32 L 2015 DAllA DA2ZA 32 12 2015 DAZZA 32 12 2015 DAZZA DAZZA 32 K 2015 DAZZA DAZZA 32 11 1~. 2015 DAZZA 32 2015 ~2 J DAZZA DAZZA 32 10 2015 20 .5 DAZZA DAZZA 32 10 2015 DAZZA DA2ZA 32 09 2015 DA2ZA DAZZA i-~ 32 H 2015 DAZZA 32 08 2015 201.5 DAZZA DAZZA 32 G 2015 20.5 DA2ZA DAZZA 32 07 2015 201.5 DO YOU WANT TO Td CONTINUE Y Y OR N

Tues day, February 21, 2~, 2017, 2017, 13:29:05 PM Tuesday,

SS NO == OMMEMOOMO S S NO TYP CP PN PN PAYTZME PAYTIME ANNUAL TYP CP ANNUAL PMT CD CD SALARY

5 5 1 ~ 5 5 1 1 5 5 5 1 1 5 5 1 1 5 5 1 1 5 5 1 1 5 5 1 1

?

GROSS GEN

EFFECT EFFECT DATE

~ ~ ~ 00/00/00 00/00/00 1~ 1 10.0 72,334.02 22 1 110.0 72,334.02 3,294.37 3,294.37 14/06/28 14/06/28 ~ ~ ~ 00/00/00 00/d0/00 1~ 1 22 1 ~. 10.0 10.0 72,334.02 72, 34.02 3,294.37 3,294.37 14/06/28 4/06/28 1 1 00/00/00 00/00/00 I I 11111 22 1 110.0 10,0 72,334.02 72,334,02 3,294.37 14/06/28 14/06/28 ~ ~ ~ ~ ~ 111111 00/00/00 1 1 x.0.0 72,334.02 72,334.02 3,294.37 14/06/28 22 1 110.0 ~ ~ ~ ~ 111111 14/0~/2~ 14/06/20 1~ 1 10.0 72,334.02 22 1 1. 10.0 72,334.02 3,294.37 14/06/28 ~ ~ ~ ~ 111111 00/00/00 1~ 1 10.0 72,334.02 22 1 110.0 72,334.02 3,294.37 3,294,37 1 14/06/28 /06/28 ~ ~ ~ ~ ~ 00/00/00 1 1 22 1 110.0 10.0 72,334.02 72,334.02 3,294.37 14/06/28 3,294.37 14/06/28

•

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg88ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 ~B} TALRS (B) P ASSPORT zws --PASSPORT TALRS.zws

LAST NAME

PR PAY NUM PER PAID PAI D

February 21, 21, 2017, 2017, 13:29:08 PM Tuesday, February Tuesday, X3:29 :08PM

CA YR

SS NO = = ss No TYP CP PN PAYTIME CD CD CD PMT CD

ANNUAL SALARY

GROSS GEN

EFFECT DATE

W.._..___.~_..~..~.~~.___- --- ---- _.~_..._ --- -- -- -___r...~.~ ---------- ---------_ ~---_----DAZZA

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32 07 32 07 32 F 32 F 32 06 32 06 32 06 32 06 32 E 32 05 32 05 32 32 05 05 D 32 D 32 32 04 32 04 04 32 32 04 32 32 C C 32 03 32 03 32 03 03 32 32 B B 32 32 32 02 02

2015 2015 2015 2015 2015 2015 2015 2015 2015 2015 2015 2015 2015 2015 2015

5 5 1 5 5 1 5 5 1 5 5 1 5 5 1

DAZZA DAZZA DA7ZA DAZZA DAZZA DO YOU WANT TO CONTINUE Y OR N ? DO YOU

I

2

1

10.0 10.0

2

1

2

72,334.02 72,334,02

3,294.37

10.0 10.0

72,334.02

3,294.37

1

10.0 10.0

72,334.02

3,294.37

2

1

10.0 10 .0

72,334.02 72 334.02

3,294.37 3, 294.37

2

1

10.0

72,334.02

I

I

a

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3,294.37

14/06/28 00/00/00 14/0 6 / 2 8 14/06/28 14/06/28 00/00/00 00/00/00 14/0 6 / 2 8 14/06/28 14/06/28 00/00/00 14/06/28 14/06/20 14/0~/2B 00/00/00 14 /06/28 14/06/28 14/06/28 00/00/00 14/06/28

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg99ofof77 77Trans Trans ID: ID: LCV2017275435 LCV2017275435 MER-L-001055-17 10/02/2017 13:29:11 PM PM February 21, Tuesday, February 21, 2017, 2017, 13:29:11 Tuesday,

(B) TALRS.zws (B) TALRS.zws - PASSPORT PASSPQRT

LAST NAME

SS NO = 111.111110 S S ND PR PAY CA TYP CP PN PN PAYT[ME PAYT~M~ PAY TYP CP PR ANNUAL YR PMT PMT CD CD CD CD NUM PER PER YR NUM SALARY PAID

DAZZA DAllA 2015 32 A 2015 32 A DAZZ~ DAllA 2015 32 01 2015 32 01 DAZZA 2015 DAZZA 2015 32 01 01 32 DQ YaU WANT TO CQNTINUE Y QR DO YOU OR N TQ CONTINUE

5 5 1 1 5 5 ? ?

~ ! 2 ~ 1

~ ~ 10.0 ~! 10.0 ~ ~ I

GROSS GEN

EFFECT DATE

~ ~ 00/00/00 00/00/00 72,334.02 72,334.02 3,294.37 3,294.37 14/06/28 14/06/28 14/06/28 ~ ~ 14/06/28

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Exhibit B ~ z z t

t

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~~~R? ~T~~HER S. CHRISTOPHER ~ . PORRINO PC~R~~:~~ ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625-0112 .~ L` C72'"i~ ~~L' for ,~"L?.~' Defendants ~'~.~' C'.~r2 CC~"cz 1'l ~ ~ Attorney

..i ~ r~ ~ ~ Police ~1T~ tnl +..~~~'.~'.~s New Jersey ~?~' State ~c~ L'_I.. .~U ,.~ .~. Cam'''and ~ t"~ C~ David

~ C~.~J~ .~. _~'I ~`~ . Robbins.

By: Adam Robert Gibbons U~uty Deputy Attorney General A~.~c~rn~y ~~:~~y~.1 Attorney ID # 093732014 (609) 633-7786 a~~m, g :~b~r~ 1..a~=. r~~~~g . qc~v [email protected] ~~.~P~,R ~R COURT C ART ~ ~~W JERSEY SUPERIOR OF' NEW J~R~Et~' LAW DIVISION (CIVIL PART) MERCER COUNTY

: HON. MARY C. JACOBSON, A.J.S.C. LIBERTAIANS FOR TRANSPATENT GOVERNMENT, A NJ NONPROFIT : ~CJ~F~~~.~'~C7N, CORPORATION, Docket No. MER-L-10455-17 Plaintiff, v V.

CERTIFICATION t~F OF ~~~.2"IF`I~.~.TTrJN MAJOR SCOTT EBNER ~~"C~:'R ~C~3~T EE3IItiI'EER

'~,~ JERESY NEW ~ ~,7E~ESt~' STATE ~~'~'~'~ POLICE ~'~..~ICF and ~~1~i ~ l~A.~T DAVID ROBBINS, his R~~BIN S , ~.in z~~ ~Z ~ c~.~: ~~;i~l capacity ~a~~Gz~y as official Records ~.5 Re~crd~ c~;ustc~a.~.~n for Custodian f~~ the ~h~ New N~~ Jersey J~r~~y ~~a~e Police, Pa~.~.c~, State i~e~~~c~ant~ Defendants. .

~a c~.~ Scott ~cc~~~ Ebner, 1, Major of full ~b~~~, o~ u1~. age, a~~~, do ;~a of ~-~ my ~T.~ own p~~~scar~~~. c~wt~: personal knc~~r~.eag~ ~.h.~ following f.c~l~?,~~~ri~g statements ~ -~~~~m~~t~ b~ knowledge mz~k~ make the by way ~.rayr of ~f certification c~r~.i~ic~~~.c~n in

lieu of affidavit pursuant to R. 1:4-4(b): ~. ~ 1.

a~ri .~ w~.t~~..r~ the ~~.~ New ~~~,7 Jersey I am a Nla;j~r Major within ~7~~~~~ Department and L~~~a~tm~r~.~ of o~ Law Lew Inc

~~b1:~G Safety, ~a~~~~r, Division Public I~~.v~.sic~n of State Pca~:~~:e. S~.a.te Police.

1

ID: LCV2017275435 Trans ID: 77Trans 12ofof77 Pg12 PMPg MER-L-001055-17 10/02/2017 4:41:43PM 10/02/20174:41:43 MER-L-001055-17

~. 2.

22 ~~~ the t~~ past ~f the State ~us~ 22 ~~a~~ Pnl~~e I have b~~n been a m,er.~ber member of Police for ~ h~~~

~pe~~r~ . years.

3.

~:c~~e~:~~ p~ .~t~~ ~er~e as Cc~~ane~ Joseph a~ the f.rie Chief ~~~~.e~ of T curre~.t~y ~o Colonel I currently serve Staff to

~'~~~rte~, Superintendent Vii. Fuentes, ~iaTr~ ~~:~p~:.~ir~~.~nc~~rlt a~ R. of t.~~ the ~~..v~.s~c~n Division t~~ of ~~L~te State ~c~1.vi..^~. Police. I`. have ~e.~v~d in ~t~ this 2 15. capaca,~.~ since served March 2016. s A~ ~e .arch ta~a.~ capacity 4. 4.

~_.i.m:it~~ A~ ~~~~~, my nit limited ~u~i~s include, ~"hi~~ of v:~ Staff, As Chief my duties lout are a~~ not :include, but

~:.~ ~~ .ntender~~,• t.~, ~h~ following: 1~~:is~n for ~~c~l ~~~s~i~g: act the Superintendent; ~.ct as to, the ~~-~~ liaison !=v the ~s the ~.h~ Division's ~~x~~n~a.~~.~ ~r~~ ~~r:~th the a~.~:~s~.ca~~. ~ ~ Operations, co~.rc~lir~~~ing with r responsible for coordinating t~~~r~M~on~, v~ Branches Hz~mel~nd ~.h~ ~nve~~i~a~ic~n~, ,~dmi.ni~tr~~.~ B~a~~h~s and ~a~~~ the Homeland Security, Administrative S~cu~:ity, Investigations, ~nsu~~ and Intelligence Regi~r~~.t Operations Qp~.~~~ions and C~r~ter; ensure ~~~iee cif the Regional ?"n~.e:~ l~.g~nc~ Center; Office of ~~r~r~~.~3~-~~, public publ.~c ~,~c~:~_ oversight, ~pera~~~~r~al continuity, operational aggressive conta.nai~y, augr~~~:~~.~~ fiscal ~c:~.c~un~abilit~ and. ~.~zd and. ~~fec~iY~re cc~7n~lex and accountability effective ~~~p~n~e response tc~ to ~a mu~titude multitude c~~ of complex criti~dl incidents; the liaison, ~..a..ai.sa~ t~ Lair on can ~~rve as as the c~~ Law ir~c~ia~n~.~; serve critical to the the Di~isi~n Division of cc~mpi~.az~~..~ ~~~.:_~t~1 ~:ivi~. litigations; 1i~ie~~~.~c~n~; ~rls~are ~.nt~i~:el~vd~~ EEO, ~EQ, anticivil ensure compliance with relevant r ~~ig~~. env r.~nm~nc. policies; wank environment ~ta:~i~~.ic~n and retaliation maintain aa high end hostile ~~lici~~; ma~~~ain hast:~le work ~h~ Attorney ~ax.t~. ~r~~ c~~ interaction .~w~ c~~ ir~~~~~~~~t~~n with. ~i~gr~~ of Cer~~era~., ~~~~~.~n.ey General, degree the O~~ Office of the t'~ ~ management, I"C'tc~i I"3 rz ny ~IC'~ E-'t7 ~ ~ bargaining ~? cx .~" ma .1. ~1' . S 1, C7 T'~, TCt~Tt1k: E' ~' ~ ~ ~~ .~. .~. levels .~. ~' ~C7' E' ~. S of y' ~ 1. T1? ng unions, Division members, all L1~"i 10321S r

governr~e~~tal 1.ev~l~ of la~,~ enforcement ~.~1 levels entorcem~:nt agencies, c~~ governmental out~id~ law ~.~cncie~, all outside ~n~~~t~~-~Wlc~c of ~r~~~ to c~ ~ - issues wi.ur a a multitude tc~ deal issues impacting ~.~~~. with ~ ffic~~l~, in impactj..~g officials, ~n order ~~^ ~ support ~~~~e ~.a~~ in~s~..fat.~.r~e and .c~~ of {:.h~ operational, o~ the ~:~~r~~ti~rz~.~, administrative the State s~.~~r~cr~ :~~~s~ the mission ~~1.i~~. Police.

5. 5.

t.h~ following adcii~...an to the above, ~bovE, the }~ureaus I~ f~ll~~~a.ny offices, bureaus In addition

my command: Prc~~~ctican, ~~~~..ce of f:~.~1~. under cif Executive unc~~~ my E~~~c~.Y~a.~r~ Protection, ~~.mrr~~n~: Office ~.~.~ units ur~i~.s fall and ~.~u~r~~nc~' ~ ~er~ryces ~zc>t::.~~wti~~ Lt. ~~~~:urity Jnit, Lt. Protective Services ~u~~au, Bureau, Governor's Security Unit, ,-, 2

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A~~r~r~~e~T ETc~v~.~n~.~~' ~ Security ~~c.:~r~.t. ~r Unit, ~~gr!a. ~a:~y Protection Governor's ~~ni.t, Dignitary ~rc~~e~;~.~~n Bureau, B~:~~~~~t~, Attorney t~erer~~' ~ Security General's ~~~ara..wy Unit, ~~~.~~f Counsel C~~n~~1 Security I~ir~c~c~r C~rz~~., Chief ~~c~~ity Unit, ~~~?it, and ~~~. Director

of Homeland Security Unit. ~, 6.

~.~~I~.~.~.on, I can a ~w~:~~ Brancn ~~~:~~:~~ In ~ ~ addition, S interact :i:~~.~r~:tu•~ on d~~: ~q basis ~v~.~~:~~~ the a daily i~~~~.~ with

~c~mm~r~]:~r~~ a~ operation Commanders c~jhc~ who oversee c~~•~r~~~ areas ~re~s of c~~er~~ion directly w~.~~ ciire~.~~:1~ involved ~.r~~~c~~.v~d with ~ ~ C Ll r' .J. `~. ~1 ~ counterterroris iQTTI~? .~.. r~. T", C~, security, T'3~ ~' ~' ~ C: V E'• ~' 1 C C3 ~~ T~ w ~. ~' ~.r- ?" ~"' C:~ ~`1.. ~`iTt ~ ~. homeland undercover investigations I 1~~ ~ ~.1~' ci ` ~.. tJ ~. ~ and c.~ ~'1C

our Regional Operations & Intelli 7.

~ "i. S ~: ~.. ~' `.~" i~ ~ ~' C~ .~ overtime Disclosure of ~ ~~ ~' ~ ~ .I~ ~

e Center. ~ ;~ ~' t pay,

~J ~~' ~ :~' t 1..3710 ~"1Q i,1.~' .~a r overtime hours, and ~ l"t

c;ornpensa~.~~y 'c~.m~ ~:~r individual compensatory time for will reveal ~.rz~ividu~:~. State ~t~~e Troopers ~'.~~aQ~e.~~ ~,~~i1.~. ~h~ r~~ea the n~m~~ ~~~~ State ~t~~~~ Troopers "~`r~o~~rs ~r.~,o names cif of the who ~~v~ have worked of wc~.~~k~~c~ the J..a.~~~~t amount ~m~unt r~~ ~:~~~ largest c~~r~~~~..~cr~. This zn~~rma~ic~~, when t,~r~~~~r~ viewed overtime. `~l~i.s information, b~ v~a.~~~~~ in i. the ~:he aggregate, ~c~~r~~~.te, can can be ~a;:~~~ to ~:~ c~~~t~~m~.r~~ a.~ the ~~P top used determine the assignments of ~.h~ duty d~~y a~~ig~m~~~~ to ~~~~ troopers ~.:~r~~~~~~ at ~,t the ~.~~~ overtime overwime ~.~.s~.s. Th.~ s link ~~.~~.~ of lists. This ~ ~ the l~.nk between b~tw~~n overtime ~~rert~.._me pay pay and and duty ~ ~~~.c~nrne~zt is ~..s possible ~~~~~,b~~ because assignment '::.he highest hiahes~ earners earn~~s of c~:~ overtime ~ecau~e the cv~r~~.~~~ pay ~~~~~ m~oz~e na4. are c~~~.~r than ~~~;~ ~z:~ those t~h~~~:c; troopers more often not h~r~e~and ~rc~c~~~~ engaged ~nc~agec~ in ~.n homeland ~~curi~t~, ~xecutzv~ security, executive prate~a..c~n protection ~and undercover ~.s~~~nn~.~nt~ assignments. ~ ~r~d~r~d~wer ~~zGh . Such ~r~~~~.edc~e, in turn., will w~.~..~ assist knowledge, in turn, ~~~~..~~ terrorists te,rrflr~,.sw.~ and Q~F~~~ wrong-doers ar~~ other w~Qr~~-ac~~~~ ~rh.~ n~~r~ to ~Tew Jersey who intend ~~~se harm ~ax~zrG to tc~ New ~7~~r~~~ or ar high ~~w Jersey tt~ cause h~c~h level ~~re~. New Jers~~r

officials. 8.

n~~r~ always ~l;~~y~ maintained `T~e State Ut~~e Police The Poi.ice have ~~~,.nt~.~.~~:~. the the

c~n~i~.e~:~i~~.i~.~ of confidentiality trooper ~u~~,r duty ~~~~..gr~m~n~:~. assignments. This fl~ ~~c~c~per ~h~.~ confidentiality ~:c~nf~c~e~~. ~~.it.~ i~ r~~c~~~~Ar~T because ~~c;~as~ knowledge is necessary of the knowl~c~~~ c~~ ~r.~ character ch~rac~~r of ~~= a a trooper's ~.r~~~~~'s ~ w ~ gr~z~r!~r~ lc~ Urfa ~o~ assignment could make that ~trooper k~ that. r~~~~~~ ~a target ~.a ~ get for ~~r harm ~~~ rrn from from ~.~~ rc~ri.~ ~.~ and ~~c~ criminals. r~°im~.n~. .~ , ~i~ch terrorists Such knowledge risk that '~x~~~~rleaq~ increases ~.r~c~re~~~~ the ~h~ risk ~~~~ 3

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~~~ intent ~~~~n~ on ~n causing ~aus~n~ harm harm to ~~ a~ particular p~r~i~~lar trooper ~.z~~~er will ~g~~1, be one abbe to t~ ~~ able. ~.~~:~~:~~"~r that ~h~:~~. • ~r~c~p~~. Ire addition, ~~ic~ .~..~on, information identify r oper. In infU.rm~~~.~n about ~~~a~ assignments ~.~s:~c~nm~z~~. ~n~~.r..a~~..~P~ ;~~~i~r~~.; compromises security ~.r:~ in general; for fe.~ example, ~x~m~~.~.~, a~~ trooper's t,~~r~~~~'s se~uri~~' a ~~i~nn~~r~ ~~ assignment. to ~~s~~~ assess ~ecur~.t~r security a~ at ~~~.~.c~~c~~ buildings considered con~~.~.~~e~ potential ~c~~~n~. ~.~r~~~:~.~~. ~~~.~~~~~, terrorist targets, i~ ~~~~~.r~s~c't, iac~uld ~bc~.~. if disclosed, would ~~c~v~..~~~ provide information ~.~~:f~r,.m~~:~..c:~n about ~.ar~e~~ b~i~c~ f~'~~ targets the being reviewed by the re~r~.ewed ~~ the State ~~.~~~ Police. Fc~~ic~.

~r~ addition, ~~~l .~~.~az~, In

troopers in undercover work would be exposed. 9. 9.

T~ is is particularly parc~.~:~~z.1,.~x~ly important i~~~or~~~~~ to ~.~ shield It ~~~%.~1~ from f.~~c~m disclosure ~i~~,la~u.~~

~ ~e names ~amc~~ of a~ the t~-c~o~er~ who ~~~ troopers the ~ahc~ hold ?~r~ .~assignments dss c~nrn~n~.s engaged. ~n~a~ea in ~n ?~rc~~.~c~ian caf h~z;~~ .end security ~ecurit~r and end guarding protection of homeland ~~~~~i.:~g State ~tat~ officials. ~~~ic ~.l~. ~'h~~~ assignments These include t~i€~ the Office ~~s~gnr~~~°ts inc:~.tz^~ ~;~~.~c~ of ~f. Executive ~~e~~u~t~ ~~ Protection, P~~~~.e~:~.ir~r°~, ~rc~t~~:t~ ire Protective Services iBureau, Governor's Security Unit, Lt. ~~:~vi~~s i.z~~~,t~, ~c~~r2~~~~' ~ ~~cu:~:a_~~Y U~~~i~~~ L~. ~vtr~~~rY~.~~' s ~~~~~.~ ~_~.~.T Unit, ~Tx~.~ ~.~ Dignitary Governor's Security ~.gn~.t~~y Protection Prr~~~~~.~~r1 Bureau, B~.r~~~., Attorney .~~~arn~y Ger~~r~l' ~ ~~~:ur~~y ~ni~~ c~~a~~~s~~' General's Security Un.~t, Unit, Chief Counsel Security ~~c~~i~~ Unit, U~i~., Director ~~..~~c~~~ of ~~: ~c~rn~ ~~nc~ Security ~L~.~ ~, Incident ~._~~. .~. ..~er~ ~. Management ~ecu~it~ Unit, Homeland Intelligence ~~a.lagcrnen~ Unit, ;, r ~. _~~rt ~.~-l~ ~~,~~~~c ~J1~ <~ ~ ~,`. ~"'a Watch

c~ 1"1 ~~. ~l~Warning ~i c~ ~' ;C`l ,. ?.'1~ ~Unit, I'~ 1. ~. r ~ c~ 1,. `~' ~..~" ~ l :l~"~~~' Center and. Real Time Crime L ~'}. ~.. ~ `~ ~ Aviation ~ ~ T"l. ~. ~ ~ Units, ~` V1ct ~ .~.. {~ T`9

~3~a~PC~.u, ~ari~e Bureau, Marine Police, ~alic~, Statehouse ~°~~~~~.~~ase ~~c~uri~.~r, Security, Security ~~E~a~i~.r~s, 5e~~.~~i~y Operations,

Canine init, Hughes ~7t.~~tic~ ~arz~.n~ '.~~i ., and. ard. H~gh~~ Com~~e~ ~~c~r~.t~. Justice Complex Security.

These T~~se troopers ~.~~o~a~rs

~ ~~ critical cr ,.~~~:~. . to ~~t~r Jersey cad" New t,~ the ~rc~t~~tic~~ of are ~~~e protection ~"~rs~~ from t.~r~c:~~.s~~>. ~.~~~m terrorists. Tr~~~~~rs guard bu~.l~~.~~~~~ at ~~~~x~ ~ the ~.~-:~ people Troopers p~a~~..e and ~~.d buildings ~t the ~~~ center ~~~~~r of ~~ our car state st~~:~ ~o~r~rrzm~r~~ ~.~~ ~ra_:mi~~al justice u~tic~ s~ast~zn~ government and criminal systems .~-- targets ~.~rce~~ of r~~ certain ~e~~~~.r~ a.~~~?~~:~~.~ ~c~ :~r~~~~.anal and interests to i~at international domestic terrorists, a~~i ~cm~s~.~c t~~rc~ri~~s, as well +~~1~ as ~s to urist~~1~ a.. n.c~:~v.~c~u~ls ~~d thc~e with w~i~.~i personal unstable individuals and those per~~~:a:l, vendettas. ~ren~et~.a~.

~i~c~ Since

~i'1~., the the Aviat or and and Marine I~~a~a.~.e li~.~t~ 9/11, Aviation Units ~atr~a.. patrol our waterways c~~r skies sk~.~~ and ~.r~d ~raterVaa~~s

4

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rr~~~c~~~ of ~,ri~~~ with much ~:~i~.a.ca:~,transportation, f~c~.~ onrazethe t.~~~i~ focus ~.~ their tr~n~~;~~~~:~ta.n~, ~~~critical ~~c~r:~rnunica~ior and infr~s~ruc~.l.~r_~ on and u~ili communication utility modern lives 1.i~~s ~r which cur. moc~e~~. y infrastructure whi~~ our ~c~ dependent.. ar~~ so d~~~~i~~~>~:. . These are positioned to are uniquely units are These units pr~~~~.c~~ ~.r.a.q~.~~..~~ rc~~i~~iQrz~c~ tc~ provide 1~~~f ~~~~~r.~me:~~ ~,r~.~.h law enforcement with an ~~~~r.~.r~c~e not t?~rc~u~h ~~n advantage ~;ra~:~,~~~.~ through z.~w available en~Pr~~i_n:~.~~-~~ gatherings conventional ground-based ~at~:c~~.s. patrols. Large cnn~,=er~t.ona~ gLcurd~-base~l ~~r~r~ entertainment g~~k~~r.~.ng~ ~.ermir~~4.~ also ar~d public ~:.ranspor~at a~on terminals pu~l~c transportation and need ~ra~~~t protection Mate ~.1so need car and and State ~c~la..c~ canine c~.n1. ~~ ~ t"~e~~ locations often sweep w~~~~:_~ often sweep these Police patrols ~,oca~~.on~ for explQsi~res. nor explosives. ~c~ua~.ly important I:~ is i~ equally ~.0. It ~i~~~lc~ from 10. imp~x~a;1t~ to ~.c; shield £r~;:m disclosure c~~.~c~.~~ar~ the ~h~ ~f the names ~ro~~ers who as~~.~n~:e:-1~~ engaged hula assignments names of ws~:~ hold tree troopers ~~ndercover in undercover engaged in "I'n.es~ assignments op~r~tio~s. These as~i~nmex~t~ include operations. the Crime ~..r~r~lude the ~~p~r~ssi~r Units Cr~.~ne Suppression ~7nifi~ n<~ Gangs ~~rig~ and ~ C;~~~h~ Units, ~r.c~~:~1. :1e~. Crime ti;~i~s, among and end Organized am~nc~ others. c~th~~s.

~'r~c~~r~ Troopers

~ S~icsz~c~d to ~anc~~.rcc~v~r details ~~i~.~t~..a~~ of ~.hes~ units, assigned wi~.hi~ these ~~t~~i1~ within ~~:~ the amts, by ~.c~ undercover day virtue trs T,~br~., often t~~.~ir work, cif their n.c~~.ur~ e~~~~~li~g Q~t~r: are nature of ~~q~ir~d to Lca work w~.~~~~ hours ire required hours exceeding ~.he n~r~a1 the normal work work day day anc~ and may may r~c~ do sc~ so ~~r for lnr~r~ long periods periods of of time. time. Thus, Thus, ~.r~ these ~h~se units, with these ~'rc>a~~:~~ in uni-~~s, with a~signmen~~, tend ~h~ ~ assignments, Troopers ~.~cumu~.~~t~ ~~n~ to ~.c~ accumulate l large of ov~:~ct:~:~~ overtime. amounts oaf . arge amounts

11. ~. ~ . Kr~c~~aledg~ Knowledge Q~ of ~:n~ the names names of r~.~ troopers ~ x c~c~~~rs engaged ~.n these ~~.g~g~c~ in ~ ~.~~~ ti~~u~d be ~:e~ror~.s~.s, as f uncti~n~ would functions be valuable members ~T~.luab~e to well as gang as well gang memb~:rs ~o terrorists, criminal elements, ~the~ criminal cc~~:~.l.c~ target end other e1~m~r:~.s, who and Fn~r~c could ~~:::~~c~~3t these tro~~per~. for these troopers L~~ and/car as a~ta~k bui harm part of plan to buildings, to attack a p~.an ~~arm and/or c~~ a a~ ~a~w ~.~:fra~~:rucu.;~~e:~ .dwr~gs, infrastructure gc~v~rnm~n~ ~~f~.c;i.~1s. or officials. In ~r government ~r~ an a~ age age when u~cr.~ wren the car. be ~~e internee in~erne~: can ~e used ~er~c~nal information -~c3 assemble ~.~~em~~~ scattered sca~.t~rer personal in~orma~i~~: and to aid provide r~~~~~:ils ~~rc~vid~ details

about residence, troopers and memb~r~ members of r~s~..~;enc~, family ~~,~ activities, ~am~..~~~.T and a~.~.iv~.~i~~, ~.:~rc>c,~:;~ ~.baut Ys ~r~~ o~ t-.l~~~.r families families could cc~ulci be their physical harm, ~lace~ at r.~s;~ for b~ placed ~t~r ~~~.r~i~:~l ~~: risk farm, including ~ ncl.u~ir~g

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.~~e~~.~~, ~~.~c~ ~r~d kidnapping and other threats ~:~~~gr~e~ designed to c~~t~.e~: ~~;r~~~s ~.c~ intimidate in~.imid~.t~ or c~ frustrate ~~~~~~:ra~: ~.~~~ ~x:acap~:~' ~ ability ~a perform ~~~~c~~m his ~j~~. the trooper's his job. ~k~1.~.i~.~~ to ~.~ . State ~ ..~t~Troopers rt'x.:c~cap~rs who w~~.o are az~ assigned ~~sis~~.ec~ to ~.~ positions ~~ the 12. p~~i~~any in ~~:e units u~i~:~ ~.c~~n~ .~.. f ~.~~ above ~~b~~.~e ~~c~r~~. ~~ greater ~~ ea ~ ~~ amount ~mc~~~nt:: ~~ identified work a of overtime than tha~~ those who ~~~~.~ ~ ~m~ ~:'r~~~ whc~

are ~h~ ~ assigned ~s~a..gn~~~. to ~.c~ c~~.~ier her positions. p~ss~~.a~s .

Therefore, when the T~~~r~~c~.~e, ~,=~~n t~~ overtime r~UY~r~::~mE

i n~c~rmatiQn collected information trooper is ~~:1.1.ec~~e~ for ~c~ an ~~~~ individual . .~ compared iradi~.~ir~~a:~l ~.~~~~a~~: ~;ith ~arn~~~ed with ~ .~'1~ overtime z~ Vii" ~ S ~w ::~..2i:~' information s.I1~ C? ~'~c~i. ~.1C~ ~, of C.~ ~ other CJ ~:. ~ ~' .I" troopers, the ~: ~" C~ ~'~ ~' ,~" ~ ,, a c. pattern ~..~ ~ ~. ~': P ?" 71, will `vJ 1.~i. .~.. emerge, ~WY3 f.~. .~' ~ ~ ~

:ic~~r~~i~~ .n~ the the d~~~.y identifying duty ~~si~~.m~n~. assignment cif of ~~. these Troopers. T~ have ~~ `~'~c~~~~~~. r~view~~ ~~~.~;~~ reviewed ~ ~~e Division's L~~.T~~io~,' ~ overtime Q~~e~~:im~ figures the fig~r~~ for ~~~ 2015 2~.5 and ~~nc~ 2016 2~~.~ and ~nci they t~~ey confirm cca~.~~.x~ ~. ~'l. r~i nearly T"I ~ c~ .~' ~.. V .~.. ~. C~ U f the ~ ~"3. F_? top ~ Q ~'1 overtime that all of are in c3 ~' ~ t`~ V ~.' .~''~1 1~' earners ~ ~ .~'' z1~' ~'" S .3. I~, these ~ ~'1 ~' S ~ c3 ~ ~ 1C~ 7'1~.?~ ~'I"I ~. a . assignments.


Court Rule 1:4-4.

Major Scott l~aar ~~:~.~~t Ebne ~k~~e ~" Chief ~~ of Staff Chef ~ta~~" '~~ O~~ic~ of c~ the the C~~e~ ~.£ Staff Office Chief of ~~a~ l~a..vi~ ~~~i of Division State Police ~ ~ Stawe police ~~~~~; Dated:

,,

6

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~ i z Exhibit C t

t

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg18 18ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

. K7di: .tif~~ . ' ~i,

*tate of 1/etti 3er5cp GOVERNMENT RECORDS COUNCIL 101 Soinn BROAD STRITT PO Box 819 T'Rr.N roN, NJ 08625-0819

CHIUS ~;~~~tr~; CHRISTIE ~~~rr~r~~~`r.~ Governor

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FINAL FINAL DECISION DECISION Council Meeting Records Council January 29, Government Records Meeting 29, 2013 2013 Government January Jr. Gregory W. Havlusch, Jr. Gregory W. Havlusch, Complainant Complainant v. v. Borough Borough of of Allenhurst (Monmouth) Allenhurst (Monmouth) of Record Custodian of Custodian Record

Complaint No. No. 2011-243 Complaint 2011-243

meeting, the Council ("Council") ("Council") At At the January 29, 29, 2013 2013 public the Government Government Records Records Council the January public meeting, of the considered the the January January 22, 22, 2013 Supplemental Findings Findings and and Recommendations Recommendations of the Executive Executive considered 2013 Supplemental Council voted unanimously Director The Council voted unanimously Director and and all all related related documentation documentation submitted submitted by by the the parties. parties. The of said recommendations. The Council, therefore, finds that that to adopt to the entirety entirety of said findings findings and and recommendations. The Council, therefore, finds adopt the e-mail the Complainant Complainant withdrew withdrew his complaint via this Complaint his complaint Complaint should should be be dismissed dismissed because because the via e-mail this further adjudication adjudication is to the the GRC GRC on on January January 9, 9, 2013. 2013. Therefore, is required. required. to Therefore, no no further determination in in this matter. Any This final administrative this matter. Any further further review review should should be This is is the the final be administrative determination Superior Court Court of of New New Jersey Jersey within within forty-five forty-five (45) (45) pursued in in the the Appellate Division of of the pursued Appellate Division the Superior days. Information Information about about the the appeals appeals process process can can be be obtained obtained from from the the Appellate Appellate Division Division Clerk's Clerk's days. Office, Hughes Hughes Justice Justice Complex, Complex, 25 25 W. Box 006, Trenton, NJ 08625-0006. Office, W. Market Market St., St., PO PO Box 006, Trenton, NJ08625-0006. Council in in care Proper Proper service service of of submissions submissions pursuant pursuant to to any any appeal appeal is is to to be be made made to to the the Council care of of the the 101 Director the of New Jersey Government Records Council, South Broad Executive Director at the State of New Jersey Government Records Council, 101 South Broad Executive at State Trenton, NJ Street, PO 819, Trenton, 08625-0819. Street, PO Box Box 819, NJ 08625-0819. Final Decision Decision Rendered Rendered by by the Final the Council Government Government Records Records Council of January, January, 2013 On Day of 2013 On The The 29t" 29th Day Robin Berg Berg Tabakin, Tabakin, Esq., Esq., Chair Robin Chair Government Records Records Council Council Government

II attest attest the the foregoing foregoing is is aa true true and and accurate accurate record record of of the the Government Government Records Records Council. Council. Secretary Steven Ritardi, Esq., Esq., Secretary Steven Ritardi, Council Government Records Records Council Government Decision DecisionDistribution DistributionDate: Date: February February 6, 6, 2013 2013 ~ :s ~

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STATE OF NEW NEW JERSEY JERSEY RECORDS COUNCIL GOVERNMENT RECORDS

Supplemental Findings and Recommendations of the Executive Director Director January 29, 29, 2013 2013 Council Council Meeting Meeting Jr.' Gregory W. Havlusch, Jr.l Complainant

GRC Complaint No. 2011-243

v. v

Borough Borough of Allenhurst (Monmouth)2 Custodian of Records Records Records Relevant to Complaint: A copy of the sign-in sheets indicating hours worked at the Allenhurst Beach Club by Jim Foley for a period beginning April 26, 2011 and ending July 15, 2011. Request Made: July 15, 2011 Response Response Made: July 20, 2011 Custodian: Lori L. Osborn GRC Complaint Filed: July 22, 20113 Background December 18, 2012 Government Government Records Records Council's Council's ("Council") ("Council") Interim Order. Order. At At its December 18, 18, 201.2 meeting, the Council public meeting, Council considered 2012 public considered the November November 20, 20124 20124 Findings Findings and and Recommendations Recommendations of of the the Executive Executive Director Director and and all related documentation submitted by the parties. The Council voted unanimously unanimously to the parties. to adopt adopt the entirety entirety of said findings findings and recommendations. recommendations. The Council, therefore, found that: Council, The The The Executive Director respectfully recommends the Council find that:

1.

Because requested sign-in sign-in sheets sheets qualify qualify as Because the the requested as disclosable payroll disclosable payroll records pursuant as defined by N.J.A. N.J.A.C. C. 12: 16-2.1 and effectuated by N.J.S.A. N.J.S.A. 47:1A-10, 47:1A-10,the the Council Council finds finds that that the the Custodian Custodian has has unlawfully unlawfully denied denied the the Complainant access to the Complainant access the requested requested records. records. See Jackson Kean University, Jackson v. v. Kean University, GRC GRC Complaint Complaint No. No. 2002-98 2002-98 (February Custodian must provide access to the (February 2004). 2004). Therefore, Therefore, the the Custodian requested records.

~ No on record. No legal legal representation representation listed listed on record. David Laughlin, Birdsall and and Laughlin Laughlin (Wall, (Wall, NJ). NJ). 2 Represented Represented by by David Laughlin, Esq., Esq., of of Birdsall 33 The Denial of received the Complaint on on said said date. date. The GRC GRC received the Denial of Access Access Complaint 44 This for adjudication This complaint complaint was was prepared prepared and and scheduled scheduled for adjudication at at the the Council's Council's November November 27, 2012 27, 2012 meeting; said meeting was cancelled quorum. meeting; however, however, said meeting was due to to lack lack of of quorum. cancelled due 2

Gregory Borough of of Allenhurst 2011-243 — v. Borough Allenhurst (Monmouth), (Monmouth), 2011-243 —Supplemental Gregory Havlusch, Havlusch, Jr. Jr. v. Supplemental Findings Findings and and Recommendations Recommendations of of the the Executive Director Director Executive

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2.

within five (5) The shall comply comply with with item item #1 #1 above Custodian shall above within The Custodian business days from of the Council's Interim Order with with business days from receipt receipt of the Council's Interim Order including appropriate appropriate redactions, redactions, including aa detailed detailed document index document index lawful basis for each each redaction, redaction, and basis for and simultaneously simultaneously explaining the lawful confirmation of provide certified confirmation compliance, in in accordance with provide certified of compliance, accordance with N.J. Court Court Rule Rule 1:4-4,5 1:4-4,5 to the Executive Executive Director.6 Director.6 N.J.

3.

Council defers of whether whether the Custodian Custodian knowingly knowingly and The Council defers analysis analysis of unreasonably denied willfully violated violated OPRA OPRA and and unreasonably access under under the willfully denied access totality the circumstances circumstances pending compliance with with totality of of the pending the the Custodian's Custodian's compliance Order. the Council's Council's Interim the Interim Order.

December December 19, 2012 2012 Council's Interim Order Order distributed distributed to to the Council's Interim the parties. parties. January 9, 2013 E-mail The Complainant E-mail from from the the Complainant Complainant to to the the GRC. GRC. The Complainant states states that he has received wishes to received the the requested requested records records and wishes to withdraw his Complaint.

Analysis No analysis required.

Recommendations Conclusions and Recommendations The Executive Director Director respectfully respectfully recommends The Executive recommendsthe the Council Council find find that that this this Complaint dismissed because Complaint should should be be dismissed because the the Complainant Complainant withdrew withdrew his complaint complaint via email Therefore, no no further further adjudication mail to to the the GRC GRC on on January January 9, 9, 2013. 2013. Therefore, adjudication is required. Prepared Darryl C. C. Rhone Rhone PreparedBy: By: Darryl Case Manager Manager Case

By: Karyn Karyn Gordon, Esq. Approved By: Acting Executive Acting Executive Director Director January 22, 22, 2013

5 " I certify 5 "I certify that that the the foregoing foregoing statements statementsmade madeby byme me are are true. true.II am am aware if any aware that any of of the the foregoing foregoing that if statements made willfully false, statements made by by me me are are willfully I am to punishment." punishment." false, I am subject subject to Satisfactory compliance 66 Satisfactory compliance requires Custodian deliver requires that that the the Custodian deliver the the records) record(s) to to the in the the Complainant Complainant in the requested If aa copying copying or or special special service requested medium. medium. If service charge charge was was incurred by the incurred by the Complainant, Complainant, the the Custodian Custodian must must certify certify that that the the record record has been made has been made available available to the Complainant Complainant but but the the Custodian to the Custodian may may withhold withhold delivery financial obligation Any such such charge delivery of of the the record record until until the the financial obligationisis satisfied. satisfied. Any charge must must adhere adhere to to the the provisions provisions ofN.J.S.A. of N.J.S.A. 47:1A-5. 47:1A-5.

Gregory Gregory Havlusch, Havlusch, Jr. Jr. v. v. Borough Borough of of Allenhurst Allenhurst (Monmouth), (Monmouth), 2011-243 2011-243 —Supplemental - Supplemental Findings Findings and and Recommendations Recommendations of the the Executive Executive Director Director

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I NTERIM ORDER INTERIM December 18, 2012 Government Records Council Meeting Gregory W. Havlusch, Jr. Complainant v. Borough Borough of Allenhurst (Monmouth) (Monmouth) Custodian of Record

Complaint No. 2011-243

At the December December 18, At 18, 2012 2012 public meeting, the Government Records Council ("Council") considered Findings and and Recommendations considered the the November November 20, 20, 2012 Findings Recommendations of the the Executive Executive Director and and all all related related documentation submitted by by the parties. parties. The Council voted The Council voted unanimously unanimously to adopt the the entirety entirety of said findings and recommendations. The Council, therefore, finds that:

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1.

Because requested sign-in sign-in sheets sheets qualify qualify as disclosable Because the the requested disclosable payroll payroll records records pursuant pursuant as defined by N.J.A. N.J.A.C. C. 12: 16-2.1 16-2.1 and effectuated by N.J.S.A. 47:1A47:1 A10, the the Council Council finds finds that that the theCustodian Custodian has 10, has unlawfully unlawfully denied denied the the Complainant Complainant access to the requested records. See Jackson Jackson v. Kean University, GRC Complaint No. 2002-98 (February GRC Complaint No. 2002-98 (February 2004). 2004). Therefore, Therefore, the the Custodian Custodian must must provide access to the requested records.

2.

The Custodian shall The Custodian shall comply comply with with item item #1 above within five five (5) (5) business business days from receipt of the days from Order with appropriate receipt of theCouncil's Council's Interim Interim Order with appropriate redactions, redactions, including including aa detailed index explaining detailed document document index explaining the lawful lawful basis for each eachredaction, redaction, and basis for andsimultaneously simultaneously provide provide certified certified confirmation confirmation of of compliance, in accordance with N.J. Court Rule 1:4-4,1 1:4-4,1 to to the the Executive Director.2

3. 3.

The The Council Council defers analysis of whether the Custodian knowingly and willfully violated OPRA unreasonably denied violated OPRA and and unreasonably denied access accessunder under the the totality totality of the the circumstances circumstances pending pending the the Custodian's compliance with the Council's Interim Order.

"I certify certify that the foregoing foregoing statements that the am aware that if "I statements made made by by me me are are true. true. II am if any any of of the the foregoing foregoing statements statements made made by by me me are willfully false, false,I I am am subject to punishment." are willfully 2 Z Satisfactory Satisfactory compliance compliance requires Custodian deliver the Custodian deliver the requires that that the the record(s) records) to to the the Complainant Complainant in the the requested requested medium. Ifaacopying copyingor or special special service charge was was incurred service charge incurred by by the the Complainant, medium. If Complainant, the the Custodian Custodian must certify that the record has has been made record the Complainant made available available to Complainant but but the the Custodian Custodian may to the may withhold delivery delivery of the record until the financial obli financial obligation is satisfied. satisfied. Any AnY such such charge charge must must adhere adhere to the provisions of N.J.S.A. 47:1A-5. ganon is Provisions of ;'~~eii~ New Jersey Jersey is is ari an Fgu
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Interim Interim Order Order Rendered Rendered by by the the Government Records Council Council Government Records of December, Day of December, 2012 2012 On The 18`r' 18t" Day

Robin Berg Berg Tabakin, Chair Robin Chair Government Records Government Records Council Council

II attest foregoing is attest the the foregoing is aa true true and and accurate accurate record record of the Government Records Council. of the

Denise Denise Parkinson Parkinson Vetti, Vetti, Secretary Secretary Government Records Government Records Council Council Decision December 19, Decision Distribution Distribution Date: Date: December 19, 2012 2012

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STATE OF NEW JERSEY GOVERNMENT RECORDS COUNCIL Findings Findings and Recommendations of the Executive Director December December 18, 2012 Council Meeting Gregory W. Havlusch, Jr.1 Jr.' Complainant

GRC Complaint No. 2011-243

►~ v. Borough Borough of of Allenhurst (Monmouth)2 Custodian of Records Records Records Relevant to Complaint: A copy A copy of of the the sign-in sheets indicating hours worked at the Allenhurst Beach Club by Jim Foley Foley for for a period beginning April 26, 2011 and ending July 15, 2011. Request Request Made: July 15, 2011 Response Made: July 20, 2011 Custodian: Lori Lori L. Osborn GRC Complaint Filed: July 22, 20113 Background July 15, 2011 2011 Complainant's Open Public Records Act Complainant's Open Act ("OPRA") ("OPRA") request. request. The The Complainant Complainant requests requests the the records records relevant relevant to to this complaint listed above on an official official OPRA OPRA request request form. form. July 20, 2011 2011 Custodian's OPRA request. Custodian's response response to to the OPRA to the request. The The Custodian Custodian responds responds to the Complainant's Complainant's request in writing on the Complainant's OPRA request form on the third (3rd) business business day following receipt receipt of of such such request. request. The The Custodian Custodian states that that access access to the denied because the requested the requested record record is denied requested sign-in sheets are employee employee time time sheets that sheets that constitute personnel records exempt from disclosure under OPRA pursuant to N.J.S.A. 47:1A-10. 47:1 A-10. July 22, 2011 ZO11 Denial led with the Government Records Denial of of Access Complaint ffiled Records Council ("GRC") with the with the following attachments: • • •

Complainant's OPRA Complainant's OPRA request request dated dated July July 15, 15, 2011 Letter Letter from the Custodian to the Complainant dated July 20, 2011

~ No legal representation representation listed No legal listed on on record. 22 Represented Represented by by David David Laughlin, Laughlin, Esq., of13irdsall Laughlin (Wall, NJ). NJ). Esq., of Birdsall and Laughlin 3 The the Denial Denial of of Access Access Complaint on said date. The GRC GRC received received the Complaint on

Gregory v. Borough Borough of of Allenhurst Allenhurst (Monmouth), (Monmouth), 2011-243 2011-243 — Gregory Havlusch, Havlusch, Jr. Jr. v. Findings and —Findings and Recommendations Recommendations of of the the Executive Executive Director Director

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contends that that he was unlawfully denied access to the requested The Complainant contends assertion that the requested records are are the Custodian's Custodian's assertion that the requested records records and and disagrees with the records disagrees with disclosure. The The Complainant Complainant agrees to mediate this complaint. exempt from disclosure. 2011 July 25, 2011 Custodian.4 Offer of Mediation sent to the Custodian.4 2011 August 4, 2011 Information ("SOI") ("SOI") sent to the Custodian. Custodian. Request for the Statement of Information August 8, 2011 2011 Custodian's SOI SOI with with the following attachments: Custodian's • •

2011 OPRA request dated July 15, 2011 Complainant's OPRA Complainant's Letter from the Custodian to the Complainant dated July 20, 2011

search for the The Custodian certifies that that her her search The Custodian certifies the requested requested records records yielded yielded the Custodian further further certifies that the requested records have a requested sign-in sheets. The Custodian sheets. The six (6) year year retention retention schedule. schedule. In In addition, addition, the the Custodian Custodian certifies certifies that six that none none of the requested records have been destroyed. The Custodian states Borough attorney the Borough attorney advised The Custodian states that that the advised her her that that the the Complainant's Complainant's request should be be denied because the requested records constitute OPRA exempt personnel records per N.J.S.A. N.J.S.A. 47:1A-10. 47:1 A-10. The Custodian maintains that the signin Jim salary because as a manager, he is not an calculate Jim Foley's in sheets sheets are are not not used to calculate Foley's salary hourly theCustodian Custodian contends contends that hourly employee. employee. Instead, Instead,the that Mr. Foley Foley only signs the time time sheet so the Borough has an an idea idea of the number sheet so Borough administration administration has number of hours worked worked by Allenhurst Allenhurst Beach Beach Club management.

Analysis access to to the the requested requested records? records? Whether the Custodian unlawfully denied access OPRA provides that: readily accessible "...government records "...government records shall shall be be readily accessible for for inspection, copying, or examination examination by citizens of by the citizens of this State, State, with certain exceptions..." with certain (Emphasis (Emphasis added.) added.) N.J.S.A. 47:1A-1.

Additionally, OPRA defines a government record as: anypaper, paper,written orprinted "... any "... written or printedbook, book, document, drawing, map, plan, document, drawing, plan, photograph, or image image processed photograph, microfilm, microfilm, data data processed processed or processed document, document, information maintained electronically information stored stored or or maintained electronically or or by sound-recording or in in a similar similar device, or any copy thereof, that has been made, made, maintained maintained or Custodian declined declined to to respond respond to to the the GRC's GRC's Offer Offer of Mediation. of Mediation. The Custodian "4 The Gregory v. Borough Borough of of Allenhurst (Monmouth), 2011-243 2011-243 — Allenhurst (Monmouth), —Findings and Recommendations Recommendations of Gregory Havlusch, Havlusch, Jr. Jr. v, Findings and of the the Executive Executive Director Director

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course of of his his or or its its official official has been in the the course or that has been received in kept on onfile file ... ... or kept 47:1A-1.1. N.J.S.A. business ..." ..." (Emphasis (Emphasis added.) added.) N.J.S.A. 47:1A-1.1. business regards to to payroll payroll records, records, OPRA OPRA provides provides that: that: IIn n regards individual in records of of any any individual of personnel or pension pension records in the the possession possession of "...the personnel including but limited to to records records relating relating to any but not not limited public agency, agency, including to any a public or against an individual, individual, shall shall not be considered grievance filed filed by by or grievance against an not be considered aa an individual's individual's name, title, position, government record record ... except that that ... ... an government ... except title, position, of separation salary, payroll payroll record, length length of of service, service, date of separation and and the reason reason of any any pension pension received amount and and type received ... ... shall a therefor, and and the the amount type of shall be be a therefor, N.J.S.A. added.)N.J. 47:1A-10. government record[.]" (Emphasis added.) S.A. 47: 1A- 1 O. government record[.]" (Emphasis on the Custodian to denial of of access lawful. OPRA places places the to prove prove that is lawful. OPRA the onus onus on the Custodian that aa denial access is Specifically, Specifically, OPRA OPRA states: states: agency shall shall have proving that "...[t]he [t]he public denial of "... public agency have the the burden burden of of proving that the the denial of N.J.S.A. 47:1A-6. 47:1 A-6. access access is is authorized authorized by by law..." law..." N.J.S.A. Further, that government government records Further, OPRA OPRA provides provides that records made, made, maintained, maintained, kept kept on on file, file, of its or received public agency agency in the course course of its official official business business are or received by by aa public in the are subject to public public N.J.S.A. 47:1A-1.1. access unless 47:1 A-1.1. A A custodian access unless otherwise otherwise exempt. exempt. N.J.S.A. custodian must must release all release all records an OPRA OPRA request "with certain certain exceptions." request "with exceptions." N.J.S.A. N.J.S.A. 47:1A-1. records responsive responsive to to an 47:1 A-1. Additionally, OPRA Additionally, OPRA places places the the burden burden on on aa custodian custodian to to prove prove that that aa denial denial of of access to records records is is lawful lawful pursuant pursuant to N.J.S.A. 47:1A-6. to N.J.S.A. 47:1A-6. In matter, the the instant instant matter, the Complainant Complainant requested sign-in sheets In the requested sign-in for aa Borough sheets for Borough employee. In response, response, the the Custodian Custodian denied denied access employee. In access to to the the requested requested records stating that sign in the sheets are are as as personnel personnel records records that the sign in sheets that are are exempt exempt from from disclosure disclosure under OPRA pursuant In the Denial of ofAccess pursuant to to N.J.S.A. N.J.S.A. 47:1A-10. 47:1A-10. In the Denial AccessComplaint, Complaint, the the Complainant Complainant contended sign-in sheets sheets are payroll records contended that that the the sign-in not exempt are payroll records and and therefore therefore from exempt from disclosure. disclosure. OPRA payroll records OPRA provides provides that records are that payroll are government government records subject to disclosure. N.J.S.A. A-10. In Jackson v. Kean University, v. Kean University, GRC N.J.S.A. 47:1 47:1A-10. In Jackson GRC Complaint Complaint No. No. 2002-98 2002-98 (February (February 2004), 2004), the the Council Council undertook undertook to to define define the the term term "payroll "payroll record" as follows: "Neither "Neither OPRA OPRA nor nor Executive Order ##11 Executive Order 11 defines defines the the term term 'payroll `payroll record.' Thus, we look to to the the ordinary ordinary meaning record.' Thus, we look of that term, meaning of term, and are are informed informed by by other other regulatory regulatory provisions provisions defining defining that that phrase. phrase. `Payroll' 'Payroll' is defined list of of employees employees to defined as as aa list to be be paid paid and and the due to each of the amount amount due them. them. Black's Black's Law Law Dictionary Dictionary(7th (7thEd., Ed., 1999). 1999).ItIt is is also also clear clear that that documents documents included included within within the the payroll payroll record record exception exception are, are, in part, part, records law to to be be maintained or reported records required required by by law maintained or reported in in connection connection with with payment salary to to employees employees and and is is adjunct adjunct to salaryinformation payment of of salary tosalary information required disclosed. In this regard, required to to be be disclosed. In this regard, N.J.A. C. 12: 16-2.1, aa Department N.JA.C. 12: 16-2.1, of requires the of Labor Labor regulation regulation entitled entitled `Payroll 'Payroll records,' records,' requires the following: following: Gregory v. Borough Borough of of Allenhurst Allenhurst (Monmouth), (Monmouth), 2011-243 2011-243 — Gregory Havlusch, Havlusch, Jr. Jr. v. Findings and of the Executive —Findings and Recommendations Recommendations of Executive Director Director

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Every having workers workers in employment, Every employing employing unit unit having employment, regardless regardless of whether such or is an"employer" "employer" as as defined whether suchunit unitisis or is not not an the defined in the Unemployment Compensation Compensation Law, Law, shall shall keep keep payroll records that shall Unemployment shall show, for each pay period: 1. 1.

The beginning and ending dates;

2.

full name each employee The full and the the day The name of each employee and day or days days in in each each calendar week on which services for remuneration are performed;

3.

The of remuneration paid to each The total amount of each employee employee showing showing including commissions separately separately cash, cash, including commissions and and bonuses; bonuses; the cash cash value all compensation compensation in any medium medium other other than than cash; cash; value of all in any gratuities of employment course of gratuities received received regularly regularlyinin the the course employment if reported reported by the employee, or if if not so reported, the minimum wage rate rate prescribed under under applicable laws laws of this State or of of the United or the States or the amount ofremuneration remuneration actually actually received States by the amount of received by employee employing unit, whichever is the higher; employee from from his employing unit, whichever higher; and and service charges employer and service charges collected by the employer collected by and distributed distributed to workers in in lieu of gratuities and tips;

4.

The total amount of all remuneration paid to all employees;

5.

The The number of weeks worked.

The State of New Jersey, Jersey, as as well well as The State of New as its itsconstituent constituent agencies, agencies, is is an an employing employing unit. unit. (See (See N.J.S.A. N.J.S.A. 43:21-19, 43:21-19, aa statute statute entitled entitled `Definitions' 'Definitions' in Article 1 1 of ofthe theUnemployment Unemployment Compensation Compensation Law, Article Law, which which defines defines `employing any of `employingunit' unit' to mean the State State or any of its its instrumentalities instrumentalities or any any political political subdivisions.) subdivisions.) Therefore, Therefore,the the State State is is required required to keep keep payroll payroll records with N.J.A. records in accordance accordance with C. 12:16-2. N.J.A.C. 12:16-2. By By the same same token, token, Kean Kean University, University, as as an an instrumentality instrumentality of of the the State, State, is an employing employing unit. See See N.J.S.A. 18A:62-1 and N.J.S.A. 18A:62-1 and 18A:64-21-1 18A:64-21-1 (Governor (Governor continues continues as as public public employer employer for for purposes of negotiation by state colleges.) Additionally, because Additionally, because certain certain types types of of sick sick leave payments are treated as within the meaning wages wages within meaning of ofthe theUnemployment Unemployment Compensation Compensation and and Temporary Temporary Disability Disability Benefits Benefits laws laws for for both tax and and benefit benefit entitlement entitlement purposes, purposes, the the payroll payroll record should include the type of leave so that it may be treated appropriately appropriately for tax and benefit purposes. See N.J.A. N.J.A. C. 12:164.2. Based an employee's Based upon upon the above, above, an employee's payroll payroll records records should should include include information allow a person information that that will will allow person to to determine determine whether whether an an employee employee took a leave of absence, the dates of the leave, whether whether it was paid, and if if so, the amount amount of salary salary received for so, for the paid leave of absence. For received paid leave of absence. For example, for a two week period, and the employee example, if if a payroll record is for employee is paid $52,000.00 paid $52,000.00 a year3, year3, and and has has taken taken a paid of absence paid leave leave of absence of one one week for week for that that pay pay period, period, the payroll record the payroll record should should show show that that the the employee employee actually actually worked one one week, took took one week of leave and received Gregory Gregory Havlusch, Havlusch, Jr. Jr, v. v, Borough Borough of of Allenhurst Allenhurst (Monmouth), (Monmouth), 2011-243 2011-243 —Findings and Recommendations Recommendations of Findings and of the the Executive Executive Director Director

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full salary salary during during the $2,000.00. The employee received the $2,000.00. The fact fact that that the the employee received her her full week of of leave, shows that it was aa paid pay period, even even though though she she took took a week pay leave leave of absence. law supports absence. Therefore, Therefore, the relevant relevant law supports a conclusion conclusion that information should be disclosed. Jackson, Jackson, supra. the requested information

Employee sign-in sign-in sheets sheets detail detail the the number number of weeks Employee weeks and dates dates specifically specifically worked worked as specified in N.J.A. C. 12:16-2.1. Complainant's request request for for employee sign-in N.J.A.C. 12:16-2.1. Thus, Thus, the the Complainant's employee sign-in for payroll payroll records, which records sheets sheets is aa request request for records, which records are are subject under subject to to disclosure disclosure under N.J.S.A. 47:1A-10. N.J.S.A. Accordingly, because qualify as sheets qualify as disclosable payroll Accordingly, because the the requested requested sign-in sign-in sheets disclosable payroll records records pursuant pursuant as as defined by by N.J.A. N.J.A.C. 12:16-2.1 and effectuated by N.J.S.A. 47:1A-10, C. 12:16-2.1 47:1 A-10, Council finds the Council finds that Custodian has has unlawfully unlawfully denied the Complainant access to the the that the Custodian requested Kean University, records. See v. Kean University, GRC requested records. See Jackson Jackson v. GRC Complaint Complaint No. No. 2002-98 2002-98 (February Custodian must Therefore, the the Custodian must provide provide access access to to the the requested (February 2004). 2004). Therefore, requested records. level of a knowing Whether the Custodian's Custodian's actions rise to the level Whether knowing and and willful willful violation violation of OPRA and unreasonable denial of access access under under the totality of the circumstances? of OPRA denial of The Council defers of whether whether the The Council defers analysis analysis of the Custodian Custodian knowingly knowingly and and willfully willfully violated violated OPRA OPRA and and unreasonably unreasonably denied denied access access under under the totality of of the the circumstances circumstances pending pending the the Custodian's compliance with the Council's Interim Order.

Conclusions and Recommendations Conclusions The The Executive Executive Director Director respectfully respectfully recommends the Council find that: 1. 1.

Because requested sign-in sign-in sheets sheets qualify qualify as Because the the requested as disclosable disclosable payroll payroll records by N.J.A. 12: 16-2.1 records pursuant pursuant as as defined by N.J.A.C. C. 12: 16-2.1 and effectuated by by N.J.S.A. N.J.S.A. 47:1A-10, 47:1A-10,the the Council Council finds finds that that the the Custodian Custodian has has unlawfully unlawfully denied denied the the Complainant access to to the requested Complainant access requested records. records. See Kean University, See Jackson Jackson v. v. Kean University, GRC GRC Complaint Complaint No. No. 2002-98 2002-98 (February (February 2004). 2004). Therefore, Therefore, the the Custodian Custodian must provide access to the requested requested records. records.

2.

Custodian shall The The Custodian shall comply comply with with item item #1 #1 above above within within five (5) business the Council's business days days from from receipt receipt of of the Council's Interim Order Order with with appropriate detailed document appropriate redactions, redactions, including including aa detailed document index index explaining for each each redaction, and simultaneously explaining the the lawful lawful basis for provide provide certified certified confirmation confirmation of of compliance, compliance, in accordance with N.J. N.J. Court Rule Rule 1:4-4,5 1:4-4,5 to the Executive Director.6

"I certify certify that foregoing statements made by by me me are are true. 55 "I that the the foregoing statements made true. II am aware any of aware that if if any of the foregoing the foregoing statements made by me are willfully false, I I am subject to punishment." Satisfactory compliance 66 Satisfactory Custodian deliver requires that that the the Custodian deliver the the record(s) to the compliance requires records) to the Complainant Complainant in the the requested If aacopying copying or or special special service requested medium. medium. If service charge charge was was incurred by the incurred by the Complainant, Complainant, the the Custodian Custodian must certify certify that the record has been made the Complainant Complainant but made available available to the Custodian Custodian may may withhold to the but the withhold financial obligation delivery of of the the record until the the financial obligationisis satisfied. satisfied. Any delivery record until Any such such charge charge must adhere adhere to the the provisions of N.J. N.J.S.A. lA-5. provisions of S.A. 47: 47:1A-5. Gregory Borough of of Allenhurst (Monmouth), 2011-243 2011-243 — Gregory Havlusch, Havlusch, Jr. Jr. v. Findings and v. Borough Allenhurst (Monmouth), —Findings and Recommendations Recommendations of of the the Executive Executive Director Director

5 5

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3. 3.

The Council Council defers of whether whether the Custodian knowingly knowingly and The defers analysis analysis of the Custodian and unreasonably denied under the willfully violated OPRA OPRA and and unreasonably denied access willfully violated access under the of the totality of pending the the Custodian's Custodian's compliance circumstances pending with totality the circumstances compliance with Order. the Council's Council's Interim Interim Order. the

Prepared By: By: Darryl Prepared Darryl C. C. Rhone Rhone Case Manager Manager Case Approved Esq. Approved By: By: Karyn Karyn Gordon, Gordon, Esq. Acting Executive Director Director Acting Executive

2012' November 20, November 20, 20127

' This was prepared This complaint and scheduled at the Council's complaint was prepared and scheduled for for adjudication adjudication at Council's November November 27, 2012 27, 2012 meeting; meeting; however, however, said said meeting meeting was was cancelled cancelled due lack of due to to lack of quorum. quorum. Gregory Jr, v. v. I3orough Borough of of Allenhurst 2011-243 — Allenhurst (Monmouth), (Monmouth), 2011-243 Gregory Havlusch, Havlusch, Jr, Findings and and Recommendations of the the Faecutive —Findings Recommendations of Executive Director Director

6 6

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~

~

Exhibit D .~~~

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE CQMMITTEE ON OPINIONS

NEWARK MORNING CO., MORNING LEDGER CO., Publisher of Star -Ledger, Publisher of the Star-Ledger,

Plaintiff, v. v. DIVISION OF STATE POLICE OF THE NEW NEW JERSEY DEPARTMENT SAFETY, OF LAW AND AND PUBLIC PUBLIC SAFETY,

JERSEY SUPERIOR COURT OF NEW JERSEY LAW DIVISION-MERCER COUNTY :MER-L-1090--OS No.:MER-L-1090-05 DOCKET No. CIVIZ CIVIL ACTION OPINION

Defendant. Defendant.

Decided: Decided:

5, 2005 2005 July July 5,

Livelli, (Robinson && Livelli, plaintiff (Robinson Keith J. the plaintiff Keith for the Miller for J. Miller brief) . ''the brief). attorneys; Mr. Mr. Miller, Miller, on on the of New New Jersey, Jersey, the State State of Peter C. C. Harvey, General of of the Peter Harvey, Attorney Attorney General Attorney Scheindl n, Assistant .Assistant Attorney for f or the (Lewis A. .A.. Scheindlin, defendant (Lewis the defendant Deputy General, of of Counsel counsel and on the brief; Kenneth B. Goodman, Deputy General, . the brief) Attorney General, General, on the brief). F FEINBERG, A.J.S.C. EINBERG, A.J.S.C.

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FEINBERG, A.J.S.C. A.J.S.C. FEINBERG, the release release to the The case relates relates to this case single issue issue in this The single information for for overtime pay of pay information and overtime o f the name, salary and name, rank, salary 2000 to 2004. from 2000 2004. each enlisted member member of of the State Police from Ledger") is ("Star Ledger") Plaintiff, Newark Morning Ledger Ledger Company ("Star is Plaintiff, Newark newspaper in in general general the the Star-Ledger, Star -Ledger, a newspaper publisher of of the the publisher of New New Jersey. Jersey. Defendant Defendant circulation throughout the the State State of circulation throughout

New. Jersey Jersey the New. Police of of the is the State Police Division of of State is the Division Police") . ("State Police"). and Public Department of of Law Law and Public Safety Safety ("State Department is not background is For the most part, the procedural procedural background not in in For Star the Star with the a~,,reporter dispute. On August August 31, 31, 2004, reporter with 2004, a dispute. On on matters matters report on investigate and Ledger assigned to investigate and report Ledger assigned to public records records submitted aa public Police, submitted related to to the State Police, related the State of lstodian of Records zstodian Records

request to to the P request the State State ~' ("Custodian"), put ( `Custodian") , pur N N.J.S.A. .J.S.A. 47:1A-1 et

Records Act, Public Records Public Act,

~~~+ di ~'

sought the request sought request

..Z the State State Police ..~ the

information. following f ollowing information

{ 2 ) rank; rank; (3) ( 3 ) base t1) name; (2) base ~ 1) name;

from f rom years throug years 2000 throug

hours; (6) (6) (5) overtime overtime hours; annual salary; (4) pay; (5) overtime pay; (4) overtime annual salary; allowances. (7) any banked and (7) banked overtime overtime hours; hours; and any other other allowances. Custodian denied denied the the request request On October October 27, 27, 2004, 2004, the the Custodian f¢llows: the denial was as as follows: for the denial was in entirety. The i n its entirety. The reason reason for

1

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because being issued, issued, because This This denial denial is is being documentation as providing the name) requested and overtime overtime by name) (salary and r equested (salary and security the would undermine the security and would undermine sensitive certain i of of ntegrity integrity Division, which which assignments within the the Division, a ssignments within such to such includes but is is not limited to not .limited i ncludes but. Homeland Security, Security, as assignments as Homeland assignments Executive and Counter-Terrorism, Counter -Terrorism, Protection. Protection. . 1 f . Ex [(Pl. Compl. Aff. Ex. 1 at [ ~ Pl . Cornpl . 1 9I 6; Schuppe Af 6; Schuppe

} J. 1.)). 1.

of the the While the refused to to disclose all of disclose all While the custodian custodian refused

information provides: i nformation sought, sought, the letter provides: State Police fully The Division Division of of State Police fully The agrees that the Public Public has has the right right to agrees that know th.e the salaries salaries paid paid to to Troopers. Troopers. If If know submit another another OPRA OPRA you would you would like like to to submit of request of salar%~s/overtime r equest. seeking seeking salaries/overtime asking` for specific Troopers for specific Troopers without without asking' names, the State Police Police will make make every names, you with with this to this effort to supply you supply e ffort i nformation. `~ information. 2. ) J [(Shuppe 1 at 2.)) [ (Shuppe Aff. . Ex. 1 the Star Several between counsel counsel for for the Several communications Star communications between Ledger General Gregg Gregg Spellmeyer Spellmeyer (DAG) Ledger and and Deputy Deputy Attorney Attorney General (DAG) February or f ollowed. In March of followed. or March Tn February of 2005, 2005, the the State State Police Police release aggregate aggregate salary salary and and overtime overtime information information agreed to release salary and and overtime information for f or each overtime information each unit unit as as opposed opposed to to salary f or each individual trooper.1 efforts to to for each individual trooper. Subsequent Subsequent efforts failed. amicably resolve the matter failed.

i The f 1 The State State Police Police represent represent that that the the custodian custodian responded to the on February filed the the request on Februaxy 10, 2005. 2005. The Star Ledger filed 2

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filed an an order Ledger filed order to Star Ledger the Star 21, 2005, On April 21, 2005, the of prerogative lieu of show complaint in in lieu prerogative verified complaint show cause cause and and verified requested information. the requested information. of the writs all of writs seeking seeking access access to all information. are documents and and information are The the. documents The complaint complaint asserts asserts the exemptions, government records, there there are are no no statutory statutory exemptions, government records, withhold legal grounds to withhold regulatory provisions provisions or or other other legal grounds to regulatory overtime pay pay of of the and that salaries and and overtime the salaries that the the documents documents and matter of public of legitimate legitimate public State is aa matter State Police troopers is Police troopers concern. interest i nterest and concern. compelling the the an order: order: 1) 1) compelling The seeks seeks an The complaint complaint member for each each enlisted enlisted member release of of salary and overtime pay for 2000, 2001, 2001, 2002, 2002, 2003 2003 the year's year's 2000, of the State Police for for the of the State Police overtime pay, base salary, salary, overtime pay, rank, base and 2004, 2004, including name, rank, including name, any other other and overtime overtime hol.Irs, hors, and any hours, banked banked overtime overtime hours, attorney fees in in reasonable allowances; 2) awarding attorney fees allowances; awarding reasonable 2) civil imposing a a civil accordance ,with accordance with N.J.S.A. N.J.S.A. 47:1A-6; 47:1A-6; 3) 3) imposing N.J.S.A. 47:1A-11; 47:1A-11; and and 4) 4) penalty on defendant pursuant to N.J.S.A. penalty defendant pursuant may,deem equitable and this court equitable and court may,deem for f or such relief as this such other other relief

just. just. and On June State Police Police filed opposition and 2005, State filed opposition 15, 2005, dune 15, of of time for the failure failure of claim: is out out of for the claim: (1) complaint is (1) the complaint

requires R. 4:69-6(a) .4:69-6(a) requires complaint complaint seventy-days later. While While R. seventy days later. forty-five an action within fatty-five an aggrieved party to bring an action within aggr~.eved party to bring complaint ~is that the the complaint days, the court argument that days, is court rejects the argument untimely. untimely. 3 3

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in conformance conformance with with the action in the action the the Star Ledger to to file file the required by R. 4:69-5; 4 : 69-5; (2) (2) the forty-five days~ rule rule required by R. f orty-five (45) the (45) days access under under OPRA; OPRA; and and (3) records are are exempt public access exempt from from public (3) records the State disclosure will interfere interfere with with the the ability ability of of the disclosure will State and to Police to protect State against against terrorism terrorism and to Police to protect the the State the State protect While the State Police Police protect State State officials officials from from harm. harm. While

oppose information, in its its entirety, entirety, they they oppose the request request for for information, of aggregate do not oppose oppose the the release release of aggregate overtime overtime data, data, or or

overtime figures with trooper names redacted. redacted. release of The The State Police submits submits that that the the release of records records State Police by with disclosure of banked by name, names, along along with disclosure of banked overtime overtime will will unduly unduly interfere interfere with the of the the State the ability, ability, of Police to State Police to preserve the release release of preserve security security inasmuch inasmuch as as the of overtime overtime i nformation by name will will identify information by name the State identify '"the State Troopers Troopers engaged in engaged in homeland homeland security security and and executive executive protection. protection. As a result, the State a asserts that result, the State Police Police .asserts that OPRA OPRA exempts exempts such such i information access. nformation from from public access.

ANALYSIS I . STATUTORY RIGHT TO STATUTORY RIGHT PUBLIC RECORDS I. TO INSPECT INSPECT PUBLIC RECORDS UNDER UNDER OPRA OPRA.

The Star Ledger asserts asserts that there there is no no justification justification under statute or or regulation, regulation, to under OPRA, OPRA, or any other withhold other statute to withhold the requested the requested salary salary and and overtime overtime information. information.

Tn In

response, response, the the State State Police represents that that the the re] of Police represents rel,.ease pease of the name name of of individual troopers and the and the amount individual troopers their of their amount of

4 0

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engaged in in troopers engaged identify those those troopers banked overtime will identify banked overtime will protection. executive protection. homeland security homeland security and executive

result, As aa result,

information may this information the agency asserts that the release of this may who other wrong-doers wrong-doers who potentially assist assist terrorists terrorists and and other potentially Jersey level New New Jersey or high high level intend i ntend to cause harm to New Jersey or

officials. o fficials. copy inspect and and copy examine, inspect OPRA permits the public to examine, 4PRA permits the public 47:1A-1. government records. N.J.S.A. N.J.S.A_. 47:1A-1. government records. readily be readily government records shall shall be records government copying, or or inspection, copying, accessible for inspection, accessible for this citizens of the examination by the citizens of this by examination for the the State, exceptions, for State, with certain exceptions, and interest, and protection of of the public interest, the public protection of access access any on the the right right of limitations on any limitations 73 (C.47:1A-1 (C.47:1A-1 c~.. 73 accorded by by P.L. P.L. 163, 1963, c. and' supplemented, supplemented, et amended and et seq.) seq. ) as as amended favor of the shall be construed in favor construed in of the shall be access. public's right of access.

(N.J.S.A. [N.J.S.A. 47:1A-1.] 47:1A-1.] defined as: as: Government records are defined book, written or or printed printed book, paper, written any any paper, map, plan, map, plan, drawing, document, drawing, document, data processed microfilm, data processed photograph, microfilm, photograph, processed. document, document, image processed. or or maintained maintained stored or stored i nformation information sound-recording or or electronically or by by sound-recording electronically or device, or any copy in similar device, or any copy i n aa similar maintained thereof, has been been made, made, maintained that has thereof, that of his or course of his or file in the course kept on file or kept any officer, its official business by any officer, business by its official the commission, agency or or authority authority of of the commission, agency political subdivision subdivision State of any any political or of State or subordinate boards boards thereof, including subordinate thereof, including been received received in thereof, or that has been that has thereof, or his or or its its official official the course of of his the course such officer, officer, any business business by

5

,:

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of the the commission, commission, agency, agency, or or authority of of any political subdivision subdivision State or or of State any political thereof, thereof, including including subordinate subordinate boards boards thereof. The terms shall shall not The terms not include include thereof. .intra-agency advisory, i inter-agency advisory, nter -agency or intra-agency deliberative material. consultative, or deliberative

(emphasis added).] 47: lA-1. J. (emphasis [N.J.S.A. [N. J. S.A_._ 47:1A-1.1 added} . ]

of State Clearly, Clearly, the salary and overtime overtime information information of State salary and T roopers statutory definition a Troopers fall within of a the statutory definition of fall within the "government record." of the "government record." Indeed, Indeed, public public release release of the salary salary and overtime information of and of public employees, employees, such as State Troopers, is Troopers, is specifically specifically authorized under N.J.S.A. N.J.S.A. 47:1A47:1A10 : "an individual's 10: individual' s name, name, title, title; position, salary, salary, payroll record, service, record, length• length of of service,

of separation date date-~ of and the separation and the

reason amount and of any reason therefor, therefor, and and the the amount and type type of any pension pension received shall record,.." shall be aa government government record,"

Ibid. Ibid. (emphasis (emphasis

added) . added). I n addition, N.J.S.A. 47:1A-5(e) In 47:1A-5(e) specifically specifically requires i mmediate access to public immediate access to public employee employee salary salary and and overtime 'overtime i nformation. N.J.S.A. information. N. J. S.A. 47:1A-5(e) 47 : 1A-5 (e) states, states, "Immediate access ordinarily shall ordinarily shall be be granted granted to to budgets, bills, vouchers, budgets, bills, vouchers, contracts, including contracts, including collective negotiations agreements and i individual public employee salary ndividual employment employment contracts, contracts, and public and overtime information." and overtime information."

N.J.S.A. .47:1A-5(e) N.J.S.A. :47:lA-5(e) (emphasis r'

added). added) .

',

6

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overriding public requests, the the overriding public considering OPRA OPRA requests, In considering any limitation construe any limitation on the policy is is for policy courts to on the for courts to construe

right of of the public's right of access. access. right in favor the public's right of of access access in favor of N.J.S.A. 47:1A-1. N.J.S.A. 47:1A-1.

Certain records, records, however, however, are of such a are of Certain

statutorily exempted exempted from confidential nature that they are statutorily from confidential the disclosure Act. the of the the Act. disclosure requirements requirements of

N.J.S.A. 47:1AN.J:S.A. 47:1A-

approximately twenty-six 1.1. The twenty-six 1.1. statute identifies identifies approximately The statute establish exemptions exemptions to the categories categories that, that, in in essence, essence, establish to the

release of release of information. information.

The State The State asserts asserts two two apply apply in in

submits that these two two this case. State submits this the State that these case. Furthermore, Furthermore, the in favor of the strong public the exemptions disclose aa strong public policy policy in exemptions disclose favor of government information, confidentiality of security-related security-related government information, confidentiality particularly implicates homeland homeland security. particularly that that which which implicates security.

Relying on on these the S-C4te Relying these provisions, provisions, the State argues argues that that the the type of release of of the release Troopers implicate implicate these these type of name of of Troopers the name

security concerns. concerns. (1} emergency security information information These emergency or or security These include: include: (1) any buildings or facility which, if or procedures procedures for buildings or facility which, if or for any building or the building or disclosed, would jeopardize security disclosed, would jeopardize security of of the (2~ security facility f acility or persons therein; security measures measures and therein; and (2) a which, if disclosed, would create a surveillance techniques if disclosed, would create techniques which, or persons, property, electronic data or risk to risk of persons, the safety electronic data to the safety of 47:1A-1.1. software. software. N.J.S.A. N.J,S.A. 47:1A-1.1.

7

'~

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the strong strong public public policy While the court While recognizes the court recognizes policy i protecting this this type type of interest implicit in protecting of information, nterest implicit information, the court is' constrained the to find constrained to find aa nexus .nexus between court is between the the i nformation sought case and information sought in this case and the exemptions listed the. exemptions listed

above. above.. The State Police also also argue argue that that the the request request is exempt exempt under J.S.A. 47:1A-9a N.J.S.A. 47:1A-9(a) 47:1A -9(a) states: under N. N.J.S.A. 47:1A-9a and and b. b. N.J.S.A. states: The provisions of [OPRA] shall provisions The of [OPRA] shall. not not abrogate any abrogate any ~ exemption of a public exemption of public r record ecord or government government record from public access heretofore made pursuant to access heretofore made pursuant to [ OPR.A~; any any other other statute; statute; resolution [OPRA]; resolution either o f either of or of or both both Houses Houses of the the Legislature; regulation promulgated Legislature; regulation promulgated under the authority any statute under the of . any authority of statute or or Executive ~`~the Governor; Executive Order Order of of 'the Governor; Executive the Governor; Executive order Order of of the Governor; Rules of Court; any federal law; federal federal law; of Court; any federal regulation; or federal fedezal order., regulation; or order.;;

v

[ zbid. ) [Ibid.] To support. To this, State State Police support. this, Police relies relies on on Executive Executive Order ("EO") Order {"EO") 21 21 (2002). (2002) .

N.J.S.A. N.J.S.A. 47:1A-9a. 47:1A-9a.

EO 21 21 states states E4

i n pertinent part: in 1. all levels 1. At all levels of of government-State, government'-State, county, municipal school district— county, municipal and school district— the following the records shall shall not not be following records be deemed to public records records ..., deemed to be be public . . ,, and and thus shall shall not not be be subject subject to thus to public public i inspection, examination: nspection, copying or examination: a. Any Any government a. government record record where where the inspection, examination or inspection, examination or copying copying o f that that record record would would substantially of substantially ;" i the State's interfere with the nterfere with State's ability ability to protect and defend protect defend,. the the State and its State and its

8

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of sabotage sabotage or or citizens against acts acts of citizens against if disclosed, terrorism, or which, which, if terrorism, or disclosed, would materially materially increase would increase the the risk risk or consequences ofof potential of consequences potential acts acts of s abotage or terrorism. terrorism. sabotage General b. The General is Attorney is b. The Attorney to promulgate, promulgate, hereby directed to in hereby directed in consultation consultation with the Domestic Domestic Security Security Preparedness Task Preparedness Task Force, Force,, aa regulation regulation determination of to govern the t o govern the determination of which which government records shall be deemed to records shall be deemed to government be confidential confidential pursuant to subsection pursuant to subsection (a). ( a) . (Ibid.~] [Ibid.]

rather than than specific, specific, in in nature. nature. EO EO 21 21 is general, general, rather 21, in the Attorney General the 21, in pertinent grants the Attorney General the pertinent part, part, grants

authority to governing the authority to promulgate governing the promulgate regulations regulations which government determination of o~f which government 'records `records shall deemed determination shall be deemed to be confidential and as disclosure be confidential and protected, protected, as disclosure would would to ,, materially consequence of potential materially increase increase the the risk risk or consequence of potential terrorism. acts of sabotage sabotage or or terrorism. acts

In EO 21, accordance with In accordance with E0 21,

there there are proposed new new rules, rules, N.J.A.C. entitled N.J.A.C. ~ 13:1F, 13:1F, entitled are proposed "Domestic Security "Domestic Security Preparedness PreparednessAccess AccesstotoRecords." Records." 36 36 N.J.R. N.J.R. 4630(a). 4630 (a) . proposed rules rules delineate numerous Specifically, the proposed Specifically, the delineate numerous

categories of information that: should not not be accessible accessible because access t o such such government records would to government records would substantially interfere with with the substantially interfere the protect and State's ability to to protect and defend defend State's ability the State State and its citizens against against acts sabotage and terrorism and of o f sabotage and terrorism and would wou~.d

D9

„r:

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or . materially increase increasethe the risk risk or materially of consequences of potential potential acts acts of of consequences terrorism. sabotage or terrorism. [Ibid.) . [Ibid.].

transit, and mass transit, For example, example, building plans, plans, airport and For inventories infrastructure, records, inventories i nfrastructure, and emergency emergency response records, nuclear power plants, of information regarding nuclear plants, o~ explosives, explosives, information or local local emergency resources, biological agents, agents, State State or biological emergency resources, related intelligence records, contagious contagious diseases and other i ntelligence records, other related review. nformation is information is excluded i excluded from review.

generally ibid. See generally ibid.

There is nothing, nothing, however, proposed regulations that however, in the proposed exempt the the name, name, salary salary and overtime information of law exempt and overtime information of law ,,

enforcement officers from from public public disclosure. disclosure. No enforcement officers No reference reference i s made is made to to payroll or any any protected payroll records records or protected records, records, by ;:

name name or category. or category. 2002, took took. effect OPR.A, adopted January 8, effect on OPRA, adopted on on January 8, 2002, on July July on July 8, 20.02. 21, signed July 8, 8, 2002, the 8, 2002. EO 2002, notes notes "due EO 21, signed on "due to to the provisions Administrative Procedures provisions of of the Procedures Act Act and the Administrative and the the i mplementing regulation implementing regulation adopted adopted pursuant pursuant to to that that Act, Act, the the

agencies' agencies' proposed proposed rules rules will will not not be be finalized until finalized until earliest ...." at the the earliest . . . ." October 1, 2002 2002 at October 1,

Ibid. Ibid.

4 Paragraph Paragraph 4

of EO 21 21 provides: provides: o f EO In I the fact fact that that State n light light of of the State agencies have departments and agencies departments and have proposed proposed rules rules exempting exempting certain certain government government records disclosure, and records from from public. public disclosure, and

10 10

,~

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published been published these have been regulations have these regulations be cannot be but for but cannot public comment, comment, f or public . adopted prior prior to the effective effective date date . . directed to to . State agencies are hereby directed State agencies requests records requests handle all government records handle all government rules the rules in consistent with the i n aa manner manner consistent and proposed and as been proposed as they they have have been published . published . .

[Ibid.] [Ibid. ] and 2002, clarified clarified and EO 26, August 13, 13, 2002, 26, adopted on August EO adopted on 21. replaced and and rescinded rescinded paragraphs paragraphs 22 and and 33 of of EO EO 21. replaced

For

paragraphs 2 2 and and our purposes, made, regarding paragraphs changes made, purposes, the changes ease the case 3, are not not relevant to the relevant to clarifications are 3, and and the the clarifications of EO however, provides provides 26, however, before the the court. court. Paragraph Paragraph 66 of EO 26, before are "[t]he provisions of of E~~cutive EXecutive Order Order No. No. 21 are " [t]he remaining remaining provisions f.

not hereby continued continued toto the the extent extent that that they are they are not hereby

inconsistent with this this Executive Executive Order:'" Order." Ibid. i nconsistent with continues a permit Paragraph 6, therefore, continues to to permit a Paragraph therefore, 6, Government to adopt rules department or agency within State Government department or operation of a proposed proposed and regulations and to permit of a regulations and permit the operation final adoption. adoption. prior to its its final rules or prior to rules regulation or regulation 21, public public Therefore, pursuanttoto Paragraph Paragraph4 4 of~ of EO EO 21, Therefore, pursuant directed to handle handle all government "agencies are hereby all government hereby directed "agencies .are

records requests with the the rules rules as records manner 'consistent 'consistent with requests in in aa manner . . ." Ibid. Ibid. they have have been been proposed proposed and and published published ....." those challenged; those Neither party party has has raised raised ororchallenged/ Neither that permit record provisions 26 that permit government government record provisions of of EO EO 21 or EO 26

11

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appears, from from the It appears, custodians to rely rely on on proposed proposed rules. rules. It custodians to the Orders, that that these language Executive Orders, these provisions provisions l anguage of of both both Executive far departments were added to were sufficient time time for departments and and provide sufficient to provide their records, records, agencies within State government evaluate their government to evaluate certain documents documents from from propose regulations and withhold propose regulations and withhold certain of the proposed public inspection pending the the adoption public inspection pending adoption of the proposed rules. rules.

at variance with the the While this process may may be be at While this process variance with

normal the normal regulatory process, one one can can only conclude regulatory process, conclude that that the E ORRA, Executive Branch, understanding understanding the the broad broad scope scope of xecutive Branch, of ORRA, f elt it was have agencies was appropriate appropriate to agencies and felt to have and departments, departments, w within undertake aa careful ithin State State government, government, undertake review and careful review and analysis of analysis of its its records to detvrmine, det'~rmine, for records to for purposes of purposes of security security and safety, and safety, those those records records to to be be considered considered confidential. confidential. Recognizing the time time delay 41ay inherent Recognizing the inherent in the the :,.

n normal rule adoption process, EO EO 21 21 and ormal rule adoption process, and EO EO 26 included 26 included l anguage to to permit permit custodians custodians of language of records deny access, records to deny access, based pending final based on on aa proposed proposed rule, rule, pending final adoption. adoption.

Now, Now,

three years years after OPR.A, for three of OPRA, after the passage passage of for the the court, court, the the continued efficacy of that practice continued practice raises some concerns. concerns. The State The State Police Police has supplied the has supplied the court court with the with the certification of Kenneth B. B. Goodman, certification of Kenneth Goodman, Deputy Deputy Attorney Attorney General assigned Department the Division Law of the Department Division of of the General assigned to to the of Law o f Public Public Safety, the D, attached attached to to the of Safety, State State Police. Police. Exhibit Exhibit D, c ertification, is Agency certification, is aa copy copy of of EO EO 26 Summary Summary of State State Agency

12

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Rule Changes. Rule Changes.

changes are rule changes These rule are available available at These at

. . the proposed Rule Changes to EO 26 On the the website, website, the 26 are are l isted alphabetically, listed beginning with with the alphabetically, beginning the Department Department of of Agriculture, and the Department Agriculture, and ending with the ending with Department of of Treasury. Treasury. There are are several rule changes There several proposed proposed rule changes to the Department Department to the o f Law and and Public of Public Safety. While there Safety. While there is no reference is no reference to to payroll records, under under Section Section 3.2, 3.2, Records payroll records, Records designated designated confidential, include "the duty assignment confidential, assignment of an an individual individual l aw enforcement enforcement officer officer or or any any personally law personally identifiable identifiable i nformation that may reveal or lead to information information lead to information that that may reveal reveal such duty assignment."

Ibid. Ibid. (emphasis (emphasis added). added) .

While While the the court court does not know know the does not the status status of of this this proposed proposed regulation, regulation, under under EO EO 21, 21, 9I' 9r 4 4 and and EO EO 26, 26, 9I1 6, 6, r resolution of that esolution of issue is is not not required. that issue required.

There is no There is

i nformation on the the OPRA or State OPRA or State Police Police website information website to to indicate indicate that the the proposed rule changes that proposed rule changes have have been been adopted. adopted. I mportantly, no raised the Importantly, no one has raised the issue issue that that the the proposed proposed rule was - considered rule was considered and and rejected. rejected.

Therefore, Therefore, the the court court

a ssumes that proposed rule that the the proposed rule change assumes is still change is still pending. pending. Moreover, 3.2(f) , unlike Moreover, proposed proposed rule, rule, 3.2(f), unlike many many of of the other the other proposed Law and proposed rules rules identified identified in in the the Law and Public Public Safety Safety Section, does any suggested Section, does not not include include any or suggested changes char~.ges or m modifications. odifications.

13 13

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Proposed therefore, in in the the context (f), therefore, context of of Proposed rule rule § ~ 3.2 3. 2 (f), two questions. this this case, case, presents presents two questions.

First, will the First, will the

i name, rank, rank, title, information nformation sought; sought; to to wit, wit, name, title, overtime, overtime, c ompensation time, compensation and other other allowances, allowances, time, banked banked overtime overtime and of an an individual individual law law disclose the duty of disclose the duty assignment assignment enforcement personally identifiable enforcement officer officer or or any any personally identifiable i nformation that to information information that lead to that may reveal information that may may lead may reveal such duty duty assignment? such Second, if if it it does, is Second, does, the Star Star assignment? is the Ledger information under under the Ledger entitled entitled to to the the information the common common law? law? The sole The sole issue issue is is whether whether OPRA OPRA requires requires the the release of release of the annual annual overtime the pay, overtime overtime pay, overtime hours hours and and banked banked overtime overtime hours of each hOurs of .by name, name, of enlisted member, member, .by each enlisted of the the State State Police. The State Police Police asserts asserts Police. The State that that the the release release of of i individualized ndividualized overtime overtime information information will identify identify the the State State T roopers engaged in homeland security and and executive Troopers engaged in homeland security executive protection. protection.

According to the State State Police, Police, the the agency According to the agency has has

always always maintained of trooper maintained the the confidentiality confidentiality of trooper duty duty a ssignments. assignments. ******** ******

or Thomas The certification certification of The of Maj Major Thomas Gilbert, Gilbert, Chief Chief of of

Staff to of the S taff to the the Superintendent of Superintendent the Division Division of of State State Police, represents that the disclosure disclosure of of overtime Police, represents that the overtime pay, pay, o vertime hours, overtime compensatory time hours, compensatory for individual time for individual State State T roopers will will reveal reveal the Troopers the names StateTroopers names ofof State TroopersRio ~ohave have y

worked the largest largest amount of overtime. worked the amount of overtime.

14 14

According According to Major to Major

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information provides indication of of the Gilbert, this provides an an indication the Gilbert, this information troopers because the troopers with with the troopers duty duty assignment of these troopers engaged .in homeland security security the highest overtime in homeland overtime are those engaged

and executive protection. executive protection.

3. ) (Gilbert Aff. ~1 3.) (Gilbert Aff.

These

,, . assignments assignments include include the the Executive Executive Protection Protection Unit, Unit, Homeland Security, Security, Security Security Security, Marine Police, Statehouse Statehouse Security, Marine Police, and Hughes Justice Complex Complex Operations, Canine Operations, Canine Unit, Unit, and Hughes Justice

Security.

(Id. 1 ~ 5.) 5. ) (Id.

have identified several serious The The State State Police identified several serious Police have safety and security release of safety should the the release security consequences, consequences, should of information be this information this be made made available the public. available to the public.

These

i include: nclude: (1) assisting terrorists and and other wrong-doers who (1) assisting othex wrong-doers i intend ntend to cause harm to New Jersey or or high level New Jersey Jersey officials; (2~ increasing the officials; (2) increasing the risk r°sk of of compromising compromising trooper's safety and that of their families; (3) their families; (3) increasing trooper's increasing ability of the the ability of Troopers people and buildings at guard people and buildings Troopers to guard at center of the center of state government and the and the the criminal state government criminal justice justice jeopardizing critical systems; (4) s ystems; (4) jeopardizing critical transportation, transportation, communication and communication and utility utility infrastructure systems; and and (5) infrastructure systems; (5)

compromising the protection of compromising protection of large the large entertainment entertainment gatherings, transportation terminals; gatherings, public pubic transportation buildings, terminals; buildings, i infrastructure nfrastructure and government government officials. n addition I addition to direct link In pay to the the direct link between between overtime overtime , . _ and and overtime overtime hours hours and and troopers troopers assigned assigned to to homeland homeland

15

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State Police Police protection units, the State security units, the security and executive executive protection each trooper's trooper's banked of each banked submit that of submit that disclosure disclosure troopers who who compensatory time would readily disclose those troopers To support support are assigned to the Executive Protection Protection Unit. Unit. To assigned to the Executive included the the collective collective has included this, Police has this, the the State State Police Sate bargaining the State bargaining agreements agreements of of enlisted enlisted members members of of the

Police.

to be All members are are entitled to be entitled All enlisted enlisted members

way of of cash compensation or or compensated for overtime overtime by by way compensated for cash compensation

compensable time off. bargaining agreements agreements reflect reflect that ghat The The collective collective bargaining enlisted, non-commissioned enlisted, non-commissionedofficers. officersmay may bank bank up up to to one one hundred cornpen~able time. hundred twenty twenty hours of compensable time. hours of

Similarly, Similarly,

enlisted members members below below the the rank rank of of Sergeant may bank bank up to Sergeant may f orty--eight hours compensable time. forty-eight hours of of compensable tii~ie.

After reaching reaching :~ these limits, these limits, they must must be paid in in cash cash for for overtime hours. overtime hours.

According to the certification of the certification the According of Major Major Gilbert, Gilbert, due to the nature of their enlisted members nature of their duties, duties, enlisted members assigned assigned to the the E Executive Unit are not not subject collective xecutive Protection Unit subject to the collective bargaining bargaining agreements. agreements.

(Id. 9I (Id. 9.)) 9I 9.

I nasmuch troopers assigned as assigned to to the Inasmuch as troopers the Executive Executive Protection Unit of Protection Unit and Homeland~Security Homeland Security Unit Unit are are not not part of these collective these collective bargaining bargaining agreements, members agreements, enlisted enlisted members assigned to security sensitive positions security sensitive assigned positions are are permitted to

16

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compensatory time. bankedcompensatory of banked time. accrue up to accrue up to 480 480 hours hours of ( Ibid. (Ibid.)

According to Major Major Gilbert: Gilbert: compensatory overtime overtime the the banked banked compensatory will nformation .sought plaintiff will information sought by by plaintiff i assigned troopers assigned directly identify identify the troopers Protection Unit. Unit. the Executive to t o the Executive Protection Troopers are Enlisted State State Troopers who are Enlisted who Executive Protection to the Protection assigned a ssigned to the Executive Unit - -- which provides. protection protection for for Unit which provides other high level the and high level Governor and other the Governor subject to to the are not not subject the officials - are o fficials -- the amount 120 hour on the hour limitation amount of of 120 limitation on banked compensatory time that enlisted compensatory time that enlisted banked permitted accrue members are are permitted to members to accrue bargaining pursuant to their collective bargaining pursuant their collective accrue agreements. Instead, they they may accrue agreements. Instead, As 480 hours. As aa result, the up to up to 480 result, the hours. compensatory the compensatory time balances balances of of the time tie EPU troopers Division show show most most of of the Division EPU troopers with 'close close to with hours, while while all 480 hours, all to 480 more other trooper have no more than 120. 1.20. Disclosure ove`~time hours Disclosure of of the banked overtime hours identification of enable the will enable identification the the of the in troopers engaged in executive protection. Those Those intent intent on harming protection. harming state officials able to focus state will be be able officials will focus on this group in establishing establishing to aid on this group to aid in the individuals the identities identities of the individuals the of particular particular officials. protecting Disclosure of of .overtime overtime hours and hours and Disclosure enable the the identification identification earnings earnings will enable in homeland of engaged in o f troopers troopexs engaged homeland security duties, especially especially in in view view of of security duties, members would already the fact fact that EPU members through analysis of the analysis of be identifiable identifiable through time banked compensatory time records. As a compensatory banked records. As to result, wrong-doers will will be be able able to r esult, wrong-doers engaged in focus on f ocus on the the troopers troopers engaged in set homeland security. security. For For the the reasons homeland reasons set f orth above, above, such forth of the such identification of troopers in these troopers in critical areas will these critical areas will security and and substantially compromise compromise security substantially

17

r~ •

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interfere with the ability of of the State defend against against acts of Police to of Police to defend acts terrorism sabotage. terrorism and sabotage. *********

[(Id.

9-10.)]

I n its Star Ledger In it is its brief, brief, the Ledger represents represents that the Star that it not seeking the information related related to the release release of of information the not seeking to the assignment newspaper of State State Troopers. Instead,. the assignment of Troopers. Instead,, the newspaper asserts the rank, salary asserts the request is limited limited to the the name, name, rank, request is salary overtime infozmation and overtime information for for each each State State Trooper. Trooper. At At oral oral argument the Star Ledger, argument the Star Ledger, again, again, emphasized emphasized that the that the request request for information is is unrelated unrelated to to job job assignment. assignment. In for information response concerns raised the State response to concerns raised by by the State Police, Police, the the Star Star Ledger challenges the Ledger challenges the notion notion that,,the that the release release of of the the name name of a a trooper trooper and and overtime pay will, of overtime pay will, in in any any way, way, disclose disclose the duty duty assignment particular trooper. assignment of of aa particular the Star trooper. The The Star Ledger Ledger asserts releasing information information that asserts that that releasing an officer that an officer i s assigned assigned to a is unit, is not the same a particular particular unit, same thing thing as releasing releasing information concerning the the actual information concerning actual "duty "duty

assignment" of the officer. Finally, Ledger represents Finally, the the Star represents that Star Ledger that salary salary and and overtime overtime information of police information of police officers officers is is ~ routinely routinely provided Ledger by by other provided to to the the Star other law Star Ledger law enforcement enforcement agencies in Jersey. This This includes, includes, the agencies in New New Jersey. the Port Authority Port Authority Police Department that provides provides information Police Department that ~.nnually information annually r regarding the salaries, regarding the including overtime, overtime, of of all all of salaries, including of its

18

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that the newspaper has submits that the newspaper Star Ledger has a officers. officers. The The Star Ledger submits public as substantial journalistic as substantial interest informing informing the the public journalistic interest officers are individual law law enforcement enforcement officers to how how much are much money money individual

earning duties. their public duties. earning for for their regulation 3.2(f), 3.2 (f} , the the 26 and proposed regulation Based on Based on EO EO 26 and proposed disclosure of whether the the disclosure crux of the of the issue, issue, therefore, therefore, is whether and the related overtime overtime the the name of each each officer the related name of of dicer and

of an "duty assignment assignment of an disclose the the "duty i nformation will information will disclose officer individual law enforcement officer or i or any any personally personally ndividual law enforcement lead. to identifiable informationthat thatmay may reveal reveal or or lead i dentifiable information to such duty reveal such information that may may reveal i assignment." nformation that duty assignment." < .http://www.state.n~.us/opra/eo26_f.ule_final.html> Star Ledger (emphasis While the ( emphasis added). added) . t+Jhile the Star suggests that that the the Ledger suggests court simply simply minimize State Police Police or, court minimize the the concerns concerns by°'the bythe State or, r of hand, the certifications certifications do do raise raise reject eject them them out out of hand, the serious safety concerns. serious safety and and security security concerns.

While the court court While the

free and fully the overriding appreciates fully overriding policy policy to provide provide free and simply disregard open access, access, the the court is disinclined disinclined to to simply disregard court is second-guess the the judgment the State concerns or to second-guess of the these concerns State . judgment of

Police.

State Police Simply put, provided Simply put, the the State Police has has provided

to conclude that the information that leads leads this this court court to i nformation that the conclude that corresponding r name of officex and the corresponding release the name each officer and the elease of of the of each to lead to detailed overtime information informationmay may reveal reveal or or lead detailed overtime

information may reveal reveal such duty duty assignment. i nformation that that may assignment.

199 I

,

-..

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common-law balancing test, test, Furthermore, applying applying the common-law Furthermore,

while the court while significant public interest interest recognizes the the significant court recognizes newspaper in this this of o f aa reputable reputable and widely distributed distributed newspaper and widely the security set forth forth in this this State, the security and, safety issues State, and safety issues set Ledger in in case, outweigh the interest interest of of the case, outweigh Star Ledger the the Star disclosure ~. disclosure. secure Star Ledger to Recognizing the the interest interest of of the Star Recognizing to secure the i of the information, coupled with with the the legitimate interest of nformation, coupled legitimate interest certain information,• ~o withhold option State Police Police to ,withhold certain information.,~~ two options (1} 'the exist: (1) the release all salary salary and and overtime overtime exist: release of of all i or, in each trooper trooper redacted; redacted; or, information name of nformation with the the name of each the name o•f trooper with with the the alternative, alternative, (2) the name o•~ each the (2) the each trooper

release of release of aggregate regarding overtime overtime pay, pay, aggregate information information regarding hours, other allowances. hours, compensable time, banked hours and other time, banked hours~~and allowances. .F

in an an effort to reach an an The parties are are directed directed to confer in limitations issue,. given given the amicable resolution of of that amicable resolution that issue, the limitations set forth herein.. set herein. argues that State further that further argues The The State

J. S . A. 47:1A-9b N.J.S.A. N. 47 : 1.A--9b

overtime of of supports nondisclosure of of the the name name and banked overtime supports nondisclosure

State Troopers. N.J.S.A. State Troopers. ~7:1A-9b states N.J.S.A. 47:1A-9b states that OPRA abrogate or Shall not abrogate or erode Shall erode any any not legislative privilege privilege or executive or legislative executive- or grant of heretofore grant of confidentiality confidentiality heretofore established or recognized by the established recognized or by the this State, Constitution of this Constitution of State, statute, statute, ; judicial case case law, law, which court which J court rule rule or or judicial privilege of confidentiality grant of confidentiality privilege or or grant

20

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claimed to restrict public may duly duly b6 be claimed to restrict or government access record or government access to public public record record. record.

[Ibid.] [Ibid. ] Reliance misplaced. Reliance on this this statute statute is misplaced.

rejects The The court rejects

State Police Police the notion that N.J.S.A. 47:1A-9b 47:1A-9b permits the State that N.J.S.A. t o withhold withhold the the requested information. to information. I. ATTORNEY'S ATTORNEY'S FEES FEES II. I Absent the set Absent of one of of the the exceptions exceptions set the applicability applicability of

forth fees are are not not awarded to a f orth in R. R. 4:42-9, attorney fees awarded to 4:42-9, attorney prevailing those exceptions, of those more prevailing party. party. One One of exceptions, more specifically set all cases cases specifically set forth forth in in paragraph paragraph 8, 8, is is "in all where the where counsel fees ,b17statute." statute." Unlike Unlike the permitted~:by fees are are permitted Right Law, which Right to Know Law, attorney fee of just just which permitted an attorney 4PRA provides access $500.00, provides that that aa person`~~~who person .~who is denied $ 500.00, OPRA denied access :~ o a who by the of the the record, t a government government record by the custodian of record, who to

i aa proceeding proceeding to custodian's institutes to challenge challenge the the custodian's nstitutes decision by filing an an action action in in Superior Superior Court, decision by filing who Court, who prevails reasonable attorney's prevails shall be entitled to aa reasonable attorney's fee. fee.

See N.J.S.A. 47:1A-6. 47:1A-6. I n assessing assessing the the propriety award of In propriety of of an award attorney of attorney first determine f ees if if any, any, the the court must first whether NJDPM NJDPM fees determine whether court must qualifies as "prevailing party." evaluating qualifies as aa "prevailing party." Second, Second, in in evaluating is the number number of counsel, the the by counsel, the court hours expended of hours expended by .court is r of required to carefully certification of required to carefully scrutinize the certification scrutinize the

21

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services to determine whether services to determine whether the the number number of of hours hours is is reasonable. reasonable.

court must Third, the court must determine Third, the ,determine the the

appropriate hourly appropriate hourlyrate rate for for an an attorney with with the attorney the background, background, experience and skills skills comparable comparable to to plaintiff's

counsel. counsel. A "prevailing "prevailing party" A party" has has been been defined as "one defined ~s "one who who succeeds on a a significant significant issue, issue, thereby succeeds thereby achieving achieving some of some of the benefit benefit sought sought in the the litigation." litigation." Dunn, the Dunn, supra, supra, 312 312 N.J. Super. at 332 (citations at 332 (citations omitted). N.J. Super. To qualify qualify as as a omitted . To prevailing prevailing party, party, "a "a party party must must demonstrate demonstrate that that his his l awsuit causally related lawsuit was causally was related to to securing securing the the relief relief obtained, and obtained, and had had some basis in law." ~~.aw." Id. some basis Id. at at 332 332 (citing (citin Sin er, su ra, 95 487, cert. Singer, supra, 95 N.J. N.J. 487, cert, denied sub nom., nom. , New New denied sub Jersey v. 832, 105 S.Ct. Jersey v. Singer, U.S. 832, Singer, 469 469 U.S. ~~Ct. 121, 121, 83 83 L.Ed.2d L.Ed.2d (1984} ) . 6 4 (1984)). 64 Based the findings findings set Based 'on on the set forth forth herein, herein, the the court court finds that that the the Star Star Ledger finds Ledger is is not not a "prevailing party." party." I II. N.J.S.A. N.J.S.A. 47:1A-11. III. 47:1A-11. Star Ledger has demanded judgment Star judgment against State Police i ."mposing a civil penalty on imposing on defendant defendant pursuant to N.J.S.A. N.J.S.A. pursuant to 4 7:1A-11. 47:1A-11.

N. J. S.A. 47:1A-11a 47:1A-11a states N.J.S.A. states in in pertinent part pertinent part

that:. "A "A public public official, that: official, officer, officer, employee custodian employee or or custodian .. .who knowingly and and willfully willfully violates who knowingly 73 violates P.L.1963,/ P.L.1963,' c. c. 73

22

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and supplemented, (C.47:1A-1 et seq.) and is (C.~7:lA-1 et amended and supplemented, and seq. ) as amended

found f ound to have have unreasonably access under the unreasonably denied denied access the totality totality circumstances, shall be subject to to a civil civil penalty . . . ." o f circumstances, of be subject penalty ...."

Ibid. bid. I Based request for Based on on the the facts facts of of this this case, case, the the request for 47:1A-11 is relief relief under N.J.S.A. N.J.S.A. 47:1A-11 is denied. denied.

CONCLUSION Accordingly, judgment of the the Accordingly, judgmentisis entered entered in in favor favor of

State.

23

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg54 54ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

Exhibit ~ Z 1 E ■

■

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg55 55ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017 i►~ ~.3~l... New Jersey ~ecc~r~ Second ,~rr~~r~dn~er~t Amendment Soc. v. ~ia~is~c~r~ Division of A.3d... 4V~~v J~r~~~ e~f State..., ~Ve~t Reported ~g~rsrted in ~o~. v. Mate..., Not 2015 WL 223464 2236464 2015 WL

2g15 2015 WL WL 2236464 2236464 the Westlaw citation is currently available. Only the UNPUBLISHED OPINION. OPINION. CHECK COURT RULES BEFORE CITING. Superior Court Court of New Jersey, Appellate Division.

NEW JEKSEY JERSEY SECOND AMENDM~,NT AMENDMENT NF~W SOCIETY, Plaintiff—Appellant, Plaintiff—Appellant, v.

DIVISION OF STATE POLICE QF OF THE THE NEW NEW DIVISION STArI"E I'ULICF. AND DEPARTMENT OF OF LAW JERSEY DEPARTMENT I.AW .AND SAFETY,Defendant—Respondent. Defendant—Respondent. PUBLIC SAFETY, Adoption of of N.J.A.C. I In n re Adoption N.~.T.A.C. 1.3:1F—~3.

Argued Feb. 24, 2015. Decided i4, 2015. 2oi5. Decided May 14, Superior Court On appeal from the Superior of New New Jersey, Court of Jersey, Law Division, Division, Mercer Mercer County, County, Docket Docket No. L-1143-11 L-1143-11 (A(A2103-11) 2103-11) and from from the the Office Office of Law and and Public Public Safety Safety (A-2396-11). (A-2396-11). Attorneys and Attorneys Law Firms Firms and La~v ~,.ic~~a~•d t:~l.itma~~. argued argued the the cause cause for for appellant appellant New New Richard Gutman Jersey Second Amendment Society (A-2103-11). ,i<~~~ie 13~-<:tlik argued for appellant American argued the cause cause for appellant American Janie Byalik (A-2396-11) Civil Civil Liberties Union of Liberties Union of New New Jersey Jersey (A-2396-11) (Pashman Stein, P.C., attorneys; Smith and Ms. (Pashman Stein, P.C., "l'. Stx~itl~ attorneys; Dennis I~~a:~~~is 'F. on the brief). Byalik, nn

N.J.S„4. *1 The COPRA), ~V..I.~S".,~. The Open Open Public Public Records Records Act Act (OPRA), *1 access to 47:lA-IA l1 to generally provides provides for for ready ready access to —13, —13, generally from such "government records" they are "exempt from records" unless unless they are "exempt by... ...regulation regulationpromulgated promulgated under under the authority of of access by Governor[,]" or by any statute or Executive Order of of the the Governor[,]" "Executive Order Order of of the theGovernor." Governor." IV. N.J. J.:S`. S. ~i. A. ~7:1A--I 47:1A-1;;see see also ;~4~.
Records which which may may reveal reveal ... anagency's agency's 3. 3. Records ... an surveillance, security or investigative techniques surveillance, security techniques or procedures or undercover personnel;

I ~atxiel IVI. Daniel M. Vannella, Vat~r~ellt~, Deputy Attorney General, argued Division of of for respondent Police of the cause of State the cause for respondent Division State Police Safety Department of Law and the New New Jersey Jersey Department and Public Public Safety General, attorney; Ler~~is A. ~1. (John J. Hoffman, Attorney Attorney General, attorney; Lewis of counsel on General, and Scheind lin,Assistant Assistant Attorney Attorney General, of counsel and on Scheilc~lin, brief; .Tustin Justin L. L. C."c~nfc~rti, Conforti, Deputy Deputy Attorney General, on the brief; the brief brief)..

individual law law The duty duty assignment assignment of of an anindividual 7. The 7. enforcement officer officer or any any personally personally identifiable identifiable enforcement information that may reveal or lead information information lead to to information reveal such such duty including, that may may reveal dutyassignment, assignment, including, pertaining to an to an but not limited limited to, overtime overtime data pertaining individual law enforcement officer. individual

IR and l MESSANO, t:)S"~~'K OSTRER HA.YDEN. Before Judges .li~i~.:?~SANO, [~~►Y UEN.

[Ibid. [Aid]]

Opinion PER CURIAM.

Governor in turn, turn,issued Exuctrtivu Governor Chris Chris Christie, Christie, in issuedExecutive t)t~der No. Order (E047), which proposed I`~Io. 47 ~7 (.EU~7), which implemented the proposed pending final adoption. 42 N.J.R. 2830(x) Regulation pending 2830(a) 42 N.J.R. (Dec. 6, 2010).

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Barush, on behalf of of plaintiff On March March 14, Robert Barush, plaintiff On 14, 2011, 2011, Robert on behalf New Amendment Society Society (the (the Society), Society), New Jersey Jersey Second Second Amendment for "the served aa request "the most most recent recent guide guide ... served request upon upon NJSP NJSP for ... (FIU) ] prepared prepared by [NJSP] Firearms Investigation Investigation Unit Unit [[ (FIU) [NJSP] Firearms in firearm regulations regulations ... ... are are enforced enforced in to help help ensure to ensure that that firearm standardized manner manner by municipal police police departments." departments." aa standardized by municipal or for "Security "Security Measures Measures or Citing OPRA's Citing OPRA's exemption exemption for '~',J.S'.ri. ~7:1r~.--1, Surveillance Techniques," N.J.S.A. 47:1A--1,E047, E047, and and Surveillance Techniques," Regulation, NJSP NJSP denied On the proposed Regulation, the denied the the request. request. On April 25, 2011, 2011, the Society Society filed tiled a a verified complaint and and April verified complaint or seeking access records or order to to show show cause cause seeking access to the records order to the their production production in in redacted redacted form form pursuant pursuant to to compelling their OPRA common law. law. OPRA and and the the common including the certification of of NJSP filed NJSP filed opposition, opposition, including the certification Schlueter Lieutenant Schlueter of Lieutenant David David B. B. Schlueter of the FIU. Schlueter the FIU. stated that Applicant Investigation Investigation Guide Guide stated that the the Firearms Firearms Applicant "for law enforcement" expressly "for enforcement" (the Guide) was was created expressly in "to aid [NJSP] and municipal police police departments departments in aid [NJSP] andmunicipal of firearms-related applications and and the investigation of firearms-related applications the investigation in enforcing in a uniform in enforcing ... firearms regulations in uniform and and. firearms regulations for public standardized manner.... It was never intended intended for public was never release release ." ." Additionally, Additionally, Schlueter Schlueter certified certified that that the the Guide Guide and contained "security contained "security and investigative techniques techniques and and investigative which would procedures," the would be be detrimental detrimental to to procedures," of which the release of public public safety safety in in that that reveal internal internal it would it would reveal law operating procedures operating procedures that that law officers undertake, undertake, enforcement officers enforcement not and they do what they do not and what reviewing in firearmsundertake, in reviewing firearmsundertake, conducting related applications applications and and conducting related background investigations. investigations. The The background information this information public release release of of this public criminal-minded would would provide provide criminal-minded individuals with with undue undue insight individuals insight into into taken be taken the process process that could be the that could unlawfully procure of to procure advantage advantage of to unlawfully firearms. firearms. *2 *2

SOP, exempt argued that that the was an anSOP, exempt NJSP the Guide Guide was NJSP argued from proposed from disclosure under OPRA OPRA pursuant pursuant to disclosure under to the the proposed Regulation Society's Regulation and and E047. E047. It also argued argued that that the theSociety's It also interest interest in in disclosure disclosure under under the the common common law law right right to to know know favoring nonwas outweighed safety interests interests favoring was by public public safety nonoutweighed. by disclosure. disclosure. Law Division Division judge We gather gather from We from the record that that the the Law judge requested aa more certification from from NJSP, NJSP, and and aa requested more specific specific certification

INESTOVN

supplemental certification certification was filed by supplemental by Lieutenant Lieutenant Darryl Darryl was filed of the L. Williams of stated that the L. of the FIU. Williams stated that release release of Guide would would be be Guide detrimental to detrimental to public public safety safety because because it reveal internal internal security security it would would reveal related operating related and and investigative investigative operating procedures procedures and and techniques techniques law law enforcement enforcement officers officers undertake, undertake, and and do not undertake, do undertake, how how they they should should or be conducted, be what databases databases or conducted, what informational sources other informational sources are are other or consulted, what what standards standards may may or consulted, may apply, how to deal deal with with may not not apply, how to personal references references given given by by the personal the applicant, medical information information applicant, what medical may and/or needs to may be be pertinent pertinent and/or needs to be through more more intensive intensive be pursued pursued through other follow up or follow up or investigation, investigation, other must background background sources sources that that must be should be contacted contacted and and what what should person with with the the be discussed in person be discussed in application applicant the time time application applicant at at the is is made, reviewing firearms made, in inreviewing firearms related applications applications and and conducting conducting related background investigations. background investigations. considering After reviewing reviewing the in camera camera and andconsidering After the Guide Guide in order to show cause cause oral argument, oral argument, the the judge judge denied denied the the order to show order dated dated and and dismissed dismissed the the Society's Society's complaint complaint by by order December 2, 2011. 2011. December 2, December 5, 5, The The proposed proposed Regulation Regulation became became effective effective December of 2011. N.J.R. 3188(b). The The Society Society filed filed its its notice notice of 2011. 43 43 N. J. R. 3188(b). appeal appeal on on January January 4, 4, 2012. 2012. January 19, 2012, the American Civil Civil Liberties Liberties Union Union 19, 2012, the American On January New Jersey (ACLU) (ACLU) filed filed aa notice notice of of appeal appeal contending contending of New that the Regulation violated New Jersey Jersey that the Regulation violated OPRA OPRA and and the the New separation of of powers. consolidated the the Constitution's separation Constitution's powers. We We consolidated appeals. In I n 2013, citing both both pending pending appeals, LPS proposed proposed 2013, citing appeals, LPS amendments to to the See 45 45 N. N.J.R. 2023(a) amendments the Regulation. Regulation. See J. R. 2023(x) (Sept. 3, 2013).In Inits itssummary, summary,LPS LPSstated stated that that paragraph paragraph (Sept. 3, 2013). a(1) of of the the Regulation clearly express express the the a(1) Regulation "d[id] not clearly "d[id] not purpose for it was promulgated-to serve purpose for which which it serve the the public public was promulgated-to law interest in protecting protecting the confidentiality of of [LPS's] [LPS's) law interest in the confidentiality enforcement and legal Ibid. The The legal services enforcement services functions." functions." Ibid. Regulation would Regulation would be amended

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MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg57 57ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017 ~t~~tv J~r~~~ ire A.3d... New Jersey ~~~c~nd Second Ai~n~rr Amendment Soc. v, v. ~i~vi~6~ Division of Not f~~pt~rt~c! Reported in rrr~er~t ~~~. c~# State..., ~►.~rl... ~t~te..., h1e~t 2015 2015 WL WL 2236464 2236464 to clarify to clarify that all[LPS] operating that not not all [LPS]standard standardoperating procedures training materials materials are considered procedures and and training are considered confidential. [LPS] proposes to provide confidentiality confidential. confidentiality [LPS] proposes for r°ecords, including procedures, for records, including standard standard' operating operatingprocedures, manuals and training materials, which may may reveal ... and training materials, which an agency's investigative, surveillance, surveillance, security, tactical, tactical, an agency's investigative, or operational techniques, techniques, measures, measures, or or procedures, procedures, or operational which, if disclosed, would the safety which, if disclosed, would create create aa risk risk to to the safety of persons, property, electronic data, or of or software, or electronic data, software, or effectively conduct compromise an agency's agency's ability ability to to effectively conduct compromise an investigations.... be narrowly narrowly investigations....This Thisprovision provisionisis to to be construed of information information that construed to to prevent prevent disclosure disclosure of that could risk jeopardizing or compromising compromising the jeopardizing safety safety or the could risk ability to For example, ability to conduct conduct investigations. investigations. For example, the the provision provision covers covers records, records, such such as as the thestandard standard operating operating procedure for investigation investigation of firearms applications.... applications.... procedure for of firearms *3 *3 [Id. at 2023-24.] 2023-24.] LPS J.,~. 13:1E 3.2(a)(~) LPS proposed proposed no no amendment amendment to to ~'. N J. A. C.'. C 13:1E-3.2(a)(7) (section (section 7), and no no specific specific comments comments were were made made regarding regarding 7), and that subsection subsection of of the 2024. However, However, that Regulation. Icl. the Regulation. Id. at at 2024. addressing other proposed proposed changes, changes, LPS LPS stated stated that the addressing other Regulation confidential any any "[was] not to make make confidential Regulation "[was] not intended intended to record concerning aa public which is currently record concerning public employee, employee, which is currently in N Aaccessible to the the public public as as set set forth forth in N.J. S. AA. 47:1 47:1Aaccessible to ,J :~' 10."' Ibicl. 10." 2 Ibid. The The Regulation Regulation now now provides: provides: [T]he following [T]he records shall shall not be following records considered beconsidered government government records records subject subject to to public public access access pursuant pursuant to to [OPRA]: [OPRA]:

overtime but not limited duty assignment, assig~2n~e~zt, including, inchtcliizg, but limited to, to, overtime officer. dnta to an an individual individual law enforcement officer. data pertaining pertaining to l :~: l ~;--3.~(a} [N. J. A. C:". C. 13:1 E-3,2(a) (emphasis added).] [:1'.,I..4. supplemental We granted We granted the Society's motion motion to to file the Society's filesupplemental Regulation briefs regarding regarding the briefs the effect of the effect of the amended amended Regulation on the points points raised raised on on appeal appeal and all parties parties to to on the and invited invited all address the issue. address the issue. I brief, the n its the Society In its supplemental supplemental brief, argues that that its its appeal appeal Society argues is moot since since itit was was wrongfully wrongfully denied access to the is not not moot to the denied access justify Guide, Regulation as Guide, and and the the Regulation as amended amended does does not not justify exemption from production. The The the Guide's continued continued exemption from production. the Guide's Division Law is Society also also argues argues no no remand remand to the Law Division is Society the necessary. necessary. NJSP agrees that the Society's as aa NJSP agrees that the appeal isis not not moot moot as Society's appeal result of the however, result of the amended amended Regulation. Regulation. It argues, however, It argues, new that the Guide Guide "continues "continues to under the the new that the to be be exempt exempt under 3.2{a}(?), and [R]egulation," specifically specifically 1~'..d. and [R]egulation," N.J.A. A. C f;. 13:1E 13:1E--3.2(a)(2), OPRA's exemption OPRA's exemption for for "security or surveillance surveillance "security measures measures or which, if if disclosed," ~T. S. ~~. techniques would pose techniques which, disclosed," would pose risks..: risks. N.J. S.A. 4"7:1A—l.t. Following 47:1A-1.1. Following oral oral argument, we requested requested and and received for our our in in camera review. received the the Guide Guide for camera review. all ACLU and NJSP consented withdrawal of of all ACLU and NJSP consented to the the withdrawal points raised points raised by by ACLU's ACLU's appeal, appeal, save challenge to to save its its challenge section 7.Over we subsequently section 7. Over NJSP's NJSP's objection, objection, we subsequently granted granted ACLU's motion ACLU's motion to the record to include to supplement include aa supplement the certification from self-professed certification from Harry Harry B. B. Scheeler, Scheeler, Jr., Jr., aaself-professed detailing responses "government activist," detailing responses he he received received "government activist," from NJSP to OPRA OPRA requests requests made in 2014 2014 and from NJSP to and attaching attaching made in what that what was was furnished furnished by by the agency. agency. It suffices suffices to say that the responses NJSP contain responses from from NJSP contain substantial redactions, redactions, including including the names of of all all NJSP NJSP personnel. personnel. the names

2. sta~zdard operating operating procedures, procedures, 2. Records, including standard Records, iyzclucling n~a~zuals, manuals, uyzcl and training materials, that that may reveal ... an tf•ainifig materials, agency's surveillance, surveillance, security, security, tactical, investigative, or ugericy's operational techniques, measures, or or procedures, proce~latres, which, w/zic/z, create aa risk risk to the safety iiff disclosed, tivoislc~ create ofpersons, persons, disclosed, would safety of property, or .roftivare, or compromise an compronzisc an property, electronic data, or software, or investigcztrons; agency's ability to effectively conduct conduct investigations;

section 77 is overly broad ACLU argues that that section is overly broad and ACLU argues and is is demonstrably demonstrably being being used used improperly improperly to to deny deny public public section access to government records. NJSP NJSP argues that access to government records. that section 7 is is consistent with OPRA's withhold 7 consistent with OPRA's "mandate "mandate to to withhold government records and reflects reflects government records in in the interest," and the public's public's interest," "a of [LPS's] [LPS's]rulemaking rulemakingauthority." authority." "a permissible permissible exercise exercise of

7. The The duty duty assignment assignrrrent of ofan an individual incliviclual law laN~ enforcement enforeernent officer or any officer or any personally personally identifiable identifiable information information that that reveal such lead to to information information that may reveal or or lead that may such may reveal

*4 Having Havingnow *4 now considered arguments in light of of the the considered the the arguments in light record legal standards, record and Law and applicable applicable legal the Law standards, we we reverse the Division's that dismissed dismissed the complaint Division's order order that the Society's Society's complaint and and remand remand for for further further proceedings with this this proceedings consistent consistent with deny section 77 of of the opinion. We deny ACLU's ACLU's challenge the opinion. We to section challenge to Regulation. Regulation. We appeal first. We address address the the Society's Society's appeal first.

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The Society's 1) (A-2103-11) Society'sAppeal Appeal(A-2103—I The C7uide was was part The Law Law Division Division judge judge found found that that the the Guide part from OPRA pursuant to of an SOP, therefore exempt from OPRA pursuant to SOP, an therefore exempt then existed. He subsection a(1) of of the the Regulation Regulation as as it it then subsection a(1) existed. He access whether the Society was was entitled to access also entitled to also considered considered whether the Society set balancing test common law by applying applying the balancing test set under the common { 113 1~ (1986). 1'~8f~). Loigtnan v. Kinunelman, 102 1V'.J. N.J. 98, forth in Kirr~rtn~lrruay7, It)? t)~3, i forth in ~.~r.>ig~rrrctr~7 Relying in in large large part part upon upon the certification of of Lieutenant Lieutenant Relying the certification of Williams, the the judge judge concluded concluded that, that, although although some Williams, some of knowledge, the information in the publicknowledge, the information in the Guide Guide was was public i.e., application forms, forms, statutes or or firearms firearms application i.e., contained contained in in statutes warranted. disclosure of of the the "total "total document" disclosure document" was was not not warranted. Guide The reasoned that that the the need need to The judge keep the the Guide judge reasoned to keep noting Society's interest, confidential outweighed the Society's confidential outweighed the interest, noting release of of the the Guide Guide "would "would indicate indicate the the methodology methodology that that release the State [I]t could could compromise compromise the State Police Police go[ go[ ]] through.... through.... [I]t determining used in the investigative investigative procedures procedures that that are are used in determining the The judge judge whether be issued issued or or not." not." The whether a firearm firearm should should be further "interest or or need further stated need to to get get stated that Society's "interest that the the Society's the the entire some of of the since some the entire document" document" was was reduced reduced since information in was "already "already public." public." information in the the Guide Guide was

other words, words, the tl2e party quotation marks marks omitted). "In other quotation omitted). "In requesting documents must wl2y he seeks access to must explain expl~rin why the r°equestecl requested c~oeuments." documents." Ibid. (emphasis (emphasis added). added). and LPS, LPS, *5 We with the the Society Society and *5 We therefore therefore disagree disagree with necessary. We We which argued of which argued aa remand remand was was not notnecessary. both of a(1) of of the the of the section a(1) believe that that in in light light of the change change to to section believe necessary both appropriate andnecessary Regulation, remand is is both appropriate and Regulation, a a remand any consider, without respect to to any judge may may consider, without respect so so that that the the judge of whether production showing of particularized need, need, whether production of showing of tactical, reveal ... security, tactical, the Guide "may "may reveal ...surveillance, surveillance, security, or measures, or operational techniques, techniques, measures, investigative, or or operational investigative, the procedures, which, if disclosed, would would create create aa risk risk to to the procedures, which, if or software, software, safety of electronic data, safety of persons, persons, property, property, electronic data, or effectively conduct an agency's conduct or compromise compromise an agency's ability ability to to effectively E—~~."Z(a)(2}. N..1.A.C. 13:1E-3.2(a)(2). investigations." ~'. 13: l investigations." !V../.:~~. reason. for another another reason. We think think aa remand remand is is required required for We of our review the We have conducted our own in camera review of the conducted own in camera We have correctly on whether whether the the judge judge correctly primarily on focused primarily Guide, focused from exempt from concluded that that the Guide was was exempt concluded the entire entire Guide of its its production, even though though he he acknowledged acknowledged. much production, even much of in the public public domain. domain. were in contents were

Guide As request for for the As noted, when the Society's request the Guide noted, when the Society's from OPRA's OPRA's Regulation exempted exempted from was was made, made, the the Regulation Operating all "Standard "Standard Operating definition of a government definition of government record record ~rll 13:1E-Procedures and training N.J.A. Procedures training materials." materials." %~' . J..F~. C. C:". 13:1E3.2(~:i)(1} (?()I()}. 3.2(a)(1) (2010).We Wewould wouldagree agreethat that the the Guide Guide is is part part investigation of of SOP regarding regarding the the investigation and parcel of of NJSP's SOP firearms firearms applications. applications.

issue, when the considered the the issue, that when thejudge judge considered We understand understand that We took the position and agreed that, that, NJSP and the judge agreed NJSP took the position the judge pursuant to not government government Regulation,all allSOPs SOPs were not pursuant to the the Regulation, records under under OPRA. OPRA. Now, Regulation no no Now, however, however, the the Regulation records the longer SOPS; it only exempts exempts SOPs longer exempts exempts all all SOPs; it only SOPs to to the in raised in adversely impacts the concerns concerns raised extent disclosure adversely impacts the extent section a(2) a(2) of of the Regulation. Regulation.

of this this scope of However, the the Regulation Regulation now now limits limits the the scope However, reveal ......surveillance, surveillance, may reveal exemption to to SOPs exemption SOPs "that "that may techniques, security, investigative, or or operational operational techniques, security, tactical, tactical, investigative, if disclosed, would create measures, or disclosed, would create measures, or procedures, procedures, which, which, if electronic property,electronic a risk risk to safetyofofpersons, persons,property, tothe thesafety an agency's ability to to or software, or compromise agency's ability data, or software, or compromise an 13:1E-~-:3.?(a) C. 13:1 3.2(a) effectively conduct conduct investigations." investigations." !V..I.A. N.J. A. C'. effectively implicitly reached reached (2). The Law Division may have (~). Division judge judge may have implicitly this criteria. aa determination determination that criteria. However, However, the Guide Guide met met this that the so in if he he made made such such a determination, determination, he he did did so in the the context context of of if which obligated access, which common law law right right to obligated to access, the Society's common factors. consideration of of~ certain him to certain factors. him to balance balance consideration

exemption, an exemption, Whenever aa government agency asserts asserts an Whenever government agency of redacted redacted clearly favors favors the production of OPRA clearly OPRA the production Burnett X7,1~—S{~); see also C~'t~i~r~ett government S.A. 47:1A--5(g); governmentrecords. records.IV. N. J. ~S"..~. 408, 437 (2009) (permitting (permitting ~t)~, (2f)()9} v. Cnty. C'r~ ~~. of Ber~,~rr~rr, 198 19~ N.J. :~'. ~J X37 ~;'Bergen, redaction of social social security from requested redaction of numbers from requested land land security nLimbers when access access is is Redaction is is also favored when title records). records). Redaction also favored law right S. the common common law sought under the right to to know. know. See, e.g., :S'. sought under C'~1. v. ?~ ~~'. J. 478, 4i~, 124 N.J. v. N.J. r1ar tlr.., I Jersey Pub, Co. ~~v Pirb. ~~'. J. Expressway .F';d~>r•~~:S~s~-vrt.~- Muth., JeY~s { 1 `)9l }. X88—~3~) 488-89 (1991).

"[u]nlike OPRA, recently reiterated, reiterated, "[u]nlike As OPRA, aa As the the Court Court recently person seeking public documents documents pursuant pursuant to common seeking public to the the common person State's law balanced against against the the State's law right of must be be balanced of access access must f~'Ii'c~ti°le v, Bar~~tr~>/a interest preventing disclosure." interest in in preventing disclosure." O'Boyle v. Borough (~{)i~) (citations (citations and and ] ~S, 196 (9b (2014) o f Longport, I..,orr~s,7~~or~, ?218 18 NJ. ,~V. J. 168, of

remand In order under under review review and and remand I n sum, sum, we we reverse reverse the order shall conduct conduct aa trial court, which shall the matter matter to to the the trial court, which the consider whether a(2) of whether section section a(2) hearing to of the the Regulation Regulation hearing to consider definition of applies to exempt exempt the the Guide from from OPRA's OPRA's definition of applies should be be a government whether the Guide Guide should government record and whether jurisdiction. produced in in redacted form. do not not retain retain jurisdiction. produced form. We do

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ACLU's Appeal (A-2396-11) (A-2396-11) A CL ZI's Appeal Regulation section 7 when the the Regulation ACLU to section ACLU objected objected to 7 when J.R. 3188(b). was See 43 N. N.J.R. was first in 2010. 2010. See first proposed proposed in the ACLU argued argued that that the 1~'.J.5..~. 47:1A-10, X7:1A--10, ACLU Citing N.J.S.A. information that proposed rule rule "appears proposed "appears to exempt exempt information that including mandates be made public," public," including OPRA specifically specifically mandates Further, ACLU ACLU information." Id. 3190. Further, "overtime Id. at 3190. "overtime information." justification for blanket contended "there "there [was] no justification for a blanket contended [was] no or duty assignments of of~ law law exemption of the identities duty assignments exemption of identities or already permitted permitted enforcement officers" enforcement officers" because because OPRA OPRA already when "disclosure "disclosure would would information information to to be be withheld withheld when investigation in in or investigation jeopardize the the safety person or jeopardize safety of any person the progress," and the statute protected from from disclosure disclosure the progress," statute protected identity whose identity officers and identity of of "undercover "undercover officers and others others whose identity confidential." Ibid. commentators, must remain confidential." Ibid. Other Other commentators, must the including Banish, Barush, objected to the Regulation's use use of of the including Ibid. word "may" because it it was was "too "too broad broad and and vague." Ibid. "[g]eneral overtime overtime In response, noted that that"[g]eneral *6 In response, LPS LPS noted information is public, but but individual individual information is made available to the public, particular information could could be be used information used to determine determine a particular put lives lives at assignment or investigative activity that would put at to amend the proposed proposed rule. rule. risk." risk." Ibid. Ibid. LPS declined to 2014 amendment amendment ACLU's ACLU's comments proposed 2014 comments to the the proposed N.J.R. 627(c) (Apr. (Apr. 7, were generally generally laudatory, were laudatory, see 46 N. J. R. 627(c) previously objection previously 2014); however, continued the the objection 2014); however, itit continued asserted Id. at 628. made regarding section section 7. Id. 628. ACLU ACLU asserted made regarding altogether because because that section that section 77 "should "should be bedeleted deleted altogether overtime withholding access access to the duty assignments and overtime when more more cannot be be justified justified when data of of all all officers officers [[ ]]cannot limited exemptions that the public public interest interest are are limited. that would would serve the in place." Ibi~l. Ibid. LPS LPS reiterated reiterated available and ... are already in Ibid. its previous previous response and declined any any further further action. action. Ibid. its properly adopted adopted agency agency I n reviewing reviewing a challenge In challenge to properly the regulations, we we "begin "begin [[ J] with with aa presumption presumption that that the regulations, oJ~ N.J. Ass'n _F(.s~s'~z cJ both `valid 'valid and reasonable.' reasonable.' " .~~'..t. regulations are both 535, 5~$ 548 (~'(}1?} (2012)(quoting (quoting S'ch. ~~tlr~t'r.s Achn'rs v.v. ~5'~•lrasnc~ler~, Schundler, ?11 211 AV..I. 5~5, S~~h. 1c~ Animals ~~, Soc'y fry`• for the of Cruelty C_'ruc~lt~~~ to ~rairncrls v. td~e Prevention Pt~nvc~rztrof7 of~ 1N.J. ~'..I. :5'c~t°'~~ (SPCA)). ~E~Fy 385 3g~ (2008) t2{}{)8) (SPCA)). N.J. Dept. Agric., 196 N.J. 366, :~".,I. 19Ei ,~'.,I: I~~.~,at. of ~Jf'tlg~~i~~., regulation bears bears the the "burden "burden of~ of The party challenging the regulation proving that the agency's action action was was `arbitrary, 'arbitrary, capricious capricious proving v, t~cr,l~ivray Mid. (quoting Herzr~E~ Henry v. Rahway Stcrtc~~ State or unreasonable.' " Ibi~l. ~%9-~t~ (1980). Prison, 81 N.J. 571, 579-80 (1980)). That Yr-isr.~ra, tV. 57l , That means X31 J. generally will will not reverse reverse an agency an appellate an agency appellate court court generally regulations, action, including its action in promulgating promulgating regulations, the unless: (1) (1) the at issue issue "violate[ "violated JJ the unless: the regulations regulations at

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enabling ac't's act's express or policies; "" or implied implied legislative legislative policies; enabling record substantial evidence the record in the [not] substantial evidence in or (2) "there "there is is [not] based its its on which which the the agency agency based the findings findings on to support the applyingthe action;" or policies to to the the or (3) "in applying thelegislative legislative policies action;" (3) "in conclusion facts the agency clearly clearly erred by reaching reaching aa conclusion been made reasonably have have been that could made upon upon aa that could not reasonably showing of the relevant relevant factors." in ~~rl~~t~rz, 196 11-'.J: at at 385 (alterations in [SPCA, supra, [A5'}'C11, 19b N.J. ~8S (alterations r~~ Petition Pettic~r~. ,fc~r In re for (quoting Irz original) (emphasis (emphasis added) added) (quoting original) 117 N.J. J: I ~trler~ull~ire~, 1~': J. ~1. C:.10:82-1.2 ICJ:8~,7-1.2&c~10:85-4.1, 1C1: 85--~.1. i 17 1~'. Rulemaking, f A.C. 311, 325 (1989)).] reviewing its in reviewing affordan anagency agency 'great `greatdeference' deference' in "Courts afford its "Courts within its scope of `interpretation of statutes within of authority authority and and `interpretation ofstatutes which it is its adoption adoption of for which its of rules implementing' the laws for rules implementing' the laws (quoting ~~t 549 responsible sr.~pr-u., ?I1 X49 (quoting responsible ." ." Sc~hunE~tc~r~, Schundler„swpra, 211 :'~'.~I. N.J. at SLI~?d"(Z, 196 alt 385). SPCA, supra, N.J. at ,.~,~~~,':~, ~ t)~7 !~''..~. .~~h'~~. its substitute its "Although court should should not not substitute "Although aa reviewing reviewing court an agency's, invalidate aa agency's, courts courts must must invalidate judgment for for an judgment inconsistent with with the the statute statute itit purports purports regulation that is inconsistent citations (quotation marks marks and and citations to interpret." Ibid. (quotation to interpret." Ibic~ exceeding the agency's grant "[A]ny regulation regulation exceeding the agency's grant omitted). "[A]ny vires, authority from ultra vires, from the the Legislature Legislature is considered ultra of authority made [but] such a finding 'is `is strongly disfavored, disfavored, and is made [but] such in exceptional exceptional circumstances.' ~rrle~ v.v. N. J. Gonzalez N.J. circumstances.' " Uc~rr only in only I~z,r. Guar. ~ 17 Prop. I,rc7h. Liab. Ins. 412 N.J. Super .406, . 406, 417 Gt.~~r~, Ass'n, :~.s,s'~r, ~ 12 .i~. Pf°nl~. J. ,~t~pc~r In rF~ re l~~f~r:cte Route 20~i 206 rz~ at 1Vel~v New 1lrrrtivelr Amwell (App.Div.2010) (quoting 1~r~ t APp.Div.?01()) (quoting 1 ~Z 322.~1~`:,1.>5'u~c~r~. Rd., 322 N.J. Super. :~~7, 345, 3S2 352 (.~pp.I.~i~~,), (App.Div.), certif. certif. denied, denied, 162 Rd., ~~9}). Applying IN.J. V: J. l 197 (1999)). Applying these these well-accepted well-accepted standards standards )7 (1 section 7. 7. we reject reject ACLU's ACLU's challenge challenge to to section of review, we right makes plain plain that 'the "OPRA itself itself makes `the public's public's right *7 "OPRA v. ~S"ort~c~t~.set Craty. Kova/cik v. Somerset nay. of access [is] of access [is]not not absolute.' absolute,' "" lr~vrxlc~rk 581, 588 1 1) (alteration Prosecutor's Office, (2011) (alteration ~t.~~.s~crrtc~r~',s C)f~rcc•, 206 ~()6 N.J. .:~'. e~'~ of' in NJ. 274, 274, 284 28~t (2009)). government Educ„ >rlrrc~., I198 ~K .~':.T. (?OU9)). Some Some government protection from disclosure records exempt from disclosure "for the protection records are are exempt "for the Moreover, interest."N.!~'.J.J.,S".21 ~S. ~~ 47:1A-1. '~7:1A--1, Moreover, of the the public public interest." accessible government government records records are exempt exempt from from otherwise accessible any "regulation "regulation promulgated promulgated production required by by any production if if required any ... /bid, of~ any ... Executive Executive Order." the authority authority of Order," Ibid. under the public section 7 ACLU argues 7 does does not advance aa public ACLU argues that that section not advance personnel with interest conflicts with accessibility accessibility to to personnel interest and conflicts S.A. records ~. 47:1A-10. 47:1. A-1~. We disagree. records as provided provided by N ~' . ~I: S. Taking arguments in has Taking the the arguments in reverse order, the the Court Court has reverse order, 47:1A-10 ~%. J': S'. ~2. 47:1 Legislature's said said that 1'N.J.S.A. A-~1~ reflects reflects the the Legislature's

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MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg60 60ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017 ire A.3d._ New Jersey Jersey Second Second Amendment v. division Division of of Mate..., State..., Not Not Reported New F~~ c~rt~d in ~.3d... Amendment Soc. Soc. v. 2015 WL 2236464 WL 2236464 personnel records are, by definition, definition, determination "that "that personnel not classified as any as government government records at all; document that qualifies as a personnel personnel record is therefore not subject to being being disclosed disclosednotwithstanding notwithstanding the other other provisions of of statute." .Kr}r~xl~~ik, Korakik, supra, 206 ,~'..1. N.J. at 592. A A "personnel "personnel the statute." ,Su~~r•c7, Zt)fi only if, [it] record" is is "subject record" [it] ... "subject to disclosure" disclosure" "if, and only fits general fits within one of the within one exceptions to the the general the three three exceptions exemption for for personnel records." Ibicl. Ibid. As exemption As noted, one one "an individual's name, title, such exception exception provides provides that "an position, salary, salary, payroll payroll record, position, record., length of service, service, date therefor, and. and the amount of separation separation and the reason therefor, amount pension received received shall be aa government government and type of any any pension record." :~'..1. N.J. ~S' S.. ,~. A. '~7: 47:1A 1 A._..10. l 0. for the We have have no no doubt We the duty duty doubt that that aa request request for fall assignments assignments of of law law enforcement enforcement officers officers would would fall squarely within OPRA's general exemption for personnel N.J. at 593 (holding records. 2C)fi ~~'..I. ,sc~~~l~i~, 206 S~~ (holding records. See, e.g., It~<~vulc~i~, Kavalcik, supra, that detective's pre-employment training training and detective's record of pre-employment personnel record OPRA); N. education was a personnel N. education was record under under OPRA); Jc~~°se.~~ Ur~~. v.v. Bergen C~'rtt'~~. Prosecutor's P~~~~sc~ez~~or-'.s Office, t7fJic°e, Jersey Media !L.tc~clicr Grp. I.~c~r•ge~t C'nty. (~~.~~p.Di~~.2~~9} (concluding 405 ;V:.I.,S`c~~~~.~r. N.J.Super. 386, pp.Div.2009) (concluding ~~~ ~8fi, 389 3~~) (A for that requests employees of of prosecutor's prosecutor's office office for requests by by employees approval of outside personnel records outside employment employment were were personnel section 7 for purposes extent that section for of OPRA). OPRA). To To the extent purposes of permits non-disclosure non-disclosure of of duty assignments, there is is no permits assignments, there inconsistency inconsistency between betweenthe theRegulation Regulation and and the the statute. statute. In In other section 77 in requestor's way restricts restricts aa requestor's other words, section in no way obtain aa law ability ability to obtain law enforcement enforcement officer's officer's "name, title, position, salary, payroll record, record, length of service, date of separation and the reason reason therefore, and and the amount amount and and Such type of any pension received." N: J. ~S' . ~~. ~7: l ~---1 E). type received." NJ.S.A. 47:1A-10. Such information information would would likely indicate the amount of overtime officer received. received. compensation compensation the the officer Moreover, access Moreover, OPRA OPRA provides provides that that "[i]mmediate "[i]mmediate access ordinarily vouchers, ordinarily shall shall be granted grnntec~ to budgets, budgets, bills, bills, vouchers, overtime salary and overtime contracts, ... and contracts, and public public employee employee salary (emphasis added). added). A. ~7: 47:1A-5(e) iinformation." S.:4. lA—.~(e} (emphasis nforinution. " N.~~'.J.J.S. Section 77 would not not exempt overtime information information unless it might it reveal aa particular particular officer's officer's duty assignment. duty assignment. might reveal NJSP Although the caution NJSP before us, we we caution Although the issue issue is is not before

deny public public of section section 77 to improperly deny against against the use of toimproperly clearly would clearly access to to overtime information information because that that would subvert the express language of of OPRA. OPRA. assignments *8 We exempting the We also also agree agree that thatexempting the duty duty assignments of law enforcement officers officers from from disclosure disclosure is consistent of the public. with protection and and that that of with the the officers' officers' protection the public. 47:1A--1. We have have already ~J: J.J.S.A. ~S"..~. X7:1 A---1. We recognized "[t]he "[t]he 1N. already recognized law of the century [[ ] that many law sad fact fact of the twenty-first twenty-first century that many their enforcementemployees employeesare areatat risk risk by by virtue virtue of their enforcement N.
opinion in in this regard regard be misconstrued, we hasten hasten Lest our opinion be misconstrued, facial to add add that that the theissue issue before before us us is is limited to ACLU's facial section 7, which which we argues challenge to to section challenge we reject. reject. ACLU ACLU argues certification that the documents supplied suppliedby byScheeler's the documents Scheeler's certification an overlyoverlydemonstrate applied section section 77 in an demonstrate NJSP NJSP has applied fashion, redacting redacting basic broad fashion, basic information information such such as as a broad otherwise trooper's badge number number in inrecords records otherwise trooper's name name or badge required required to be disclosed. reach the of that We do do not reach merits of today, We the merits that argument argument today, preferring preferring instead instead to consider consider whether whether section section 7 permits such wholesale information or, stated such redaction of of information or, stated wholesale redaction differently, whether whether NJSP's NJSP's application application of section section 77 to to a differently, request for a government record was arbitrary, capricious request in the and unreasonable the context context of of aaspecific specific request unreasonable in

In r~cre J. IS., for See, e.g., c~.g., .In S'., for specific specific government government records. 3 See, 431 (citation omitted) omitted) 1'~~..I.Sz~pc~t~. 33() (App.Div.) (A~~p.Di~-.) (citation 431 N. J. Super. 321, 321, 330 (describing standard standard of (describing of review of agency's agency's application of '. J. 365 N.J. its (:201 y}. its regulations) certif. certif denied, denied, 216 .1~' ~6S (2013). deny ACLU's ACLU's challenge to the regulation. We deny

All Citations Citations Not inA.3d, WL 2236464 2236464 Not Reported 2015 WL Reportedin A.3d,2015

Footnotes Footnotes that LPS not rely rely upon at 554-5~, 554-55, we by Governor Governor we held held that LPS could could not upon executive executive orders orders issued issued by '~ In Sl~u~l7t~r, X13 N.J.Sup~r. In Slaughter, supra, 413 N.J. Super. ~t production of an McGreevey that that gave continued effect to of an the agency's agency's proposed proposed but but unadopted unadopted regulations regulations to to deny deny production McGreevey continued effect to the operating procedures our decision decision so that LPS LPS could could NJSP standard (SOP) manual. manual. We We delayed delayed the the effective effective date date of of our NJSP standard operating procedures (SOP) so that exempting the SOP from from disclosure. disclosure. ld, consider adoption adoption of the SOP Id. at at 5~~. 555. consider of regulations regulations exempting

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other N.J.S.A. 47:1A-10 N.J.S.,~. "personnel or or pension pension records" records" from from disclosure disclosure under under OPRA, OPRA, but but provides, among other 47;1A-1t~ exempts exempts "personnel provides, among things, payroll record, length of of service, separation and the reason things, that that "an individual's name, reason name, title, position, salary, salary, payroll record, length service, date date of of separation and the therefor, subject the amount amount and type of of any any pension shall be aa government government record" record" and are presumptively subject therefor, and the pension received received shall are presumptively to request. to production production upon upon request. that Scheeler Scheeler has filed complaints with the Government Records Council regarding regarding some some of of The record reveals that has already already filed complaints with the Government Records Council the the redacted records that that were were supplied. supplied.

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FINAL FINAL DECISION DECISION

May 24, 2011 Government Government Records Records Council Council Meeting Meeting May Burton Cynthia Burton Complainant v. v. Safety, &Public Public Safety, NJ Department of Law & Division Division of of State State Police Police Custodian Custodian of of Record Record

2010-330 Complaint No. 2010-330

Council ("Council") ("Council") Government Records Records Council At meeting, the theGovernment 2011public publicmeeting, 24, 2011 At the May May 24, all of Director and all Recommendations of the the Executive Executive Director and May 17, 2011 Findings and Recommendations considered the May the Council voted voted unanimously unanimously to adopt the related documentation documentationsubmitted submittedby bythe the parties. parties. The to adopt The Council related therefore, finds finds that: that: recommendations. The Council, Council, therefore, entirety of said findings and recommendations.

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identify the the records fails fails to to identify "travel" and and "expense" "expense" records The Complainant's request for for "travel" Complainant's request The OPRA pursuant pursuant to to invalid under under OPRA specific government records records sought, sought, said said request request is is invalid specific government Beverage Control, Control, 375 375 N.J. N.J. Division of Alcoholic Beverage MAG Entertainment, Entertainment, LLC LLC v. v. Division of Alcoholic MAG 381 N.J. N.J. Police Department, Department, 381 Super. 534, 546 (App. v. Stafford Stafford Police Div, 2005), 2005), Bent v. (App. Div. Super. 534, Association v. New Jersey Jersey Builders Association v. New Super. 30, 37 (App. New Jersey Jersey Builders Div. 2005), 2005), New (App. Div. Super. 30, (App. Div. 2007), and and 166, 180 180 (App. Div. 2007), Council on on Affordable Housing, 390 390 N.J. N.J. Super. Super. 166, Affordable Housing, Council (February 2009). 2009). 2007- 151 151 (February Bloomsbury, GRC Schuler v. Borough of Bloomsbury, GRC Complaint Complaint No. No. 2007portion of the unlawfully denied said portion As denied access access to to said of the Custodian has has not unlawfully such, the Custodian As such, request. OPRA request. Complainant's OPRA

2. 2.

because payroll records records because requested payroll The Custodian Custodian has lawfully denied access to the the requested N.J.S.A. 47:1A-9.a. which upholds under public access said records are exempt from public access under N.J.S.A. 47:1A-9.a. which upholds from regulation Governor, or any Order of the Executive Order of the Governor, or any regulation exemptions containedin in an an Executive exemptions contained Order No. Executive Order promulgated pursuant pursuant to to an an Executive Executive Order Order of of the the Governor. Governor. Executive No. promulgated Law & &Public Department of rules proposed proposed by by the the NJ NJ Department of Law Public permits rules 47 (Christie (Christie 2010) permits which may 13:1E-3-2(a)3 exempts exempts records records which may C. 13:1E-3-2(a)3 N.J.A.C. effect. N.J.A. Safety to remain in full full effect. Safety to or procedures procedures or investigative investigative techniques techniques or security or reveal an agency's surveillance, security reveal agency's surveillance, law an individual individual law exempts"[t]he "[t]he duty duty assignment assignment of of an 13:1E-3.2(a)7 exempts C. 13:1E-3.2(a)7 and N.J.A. N.J.A.C. and personally identifiable that may identifiable information information that may reveal reveal or or lead lead enforcement officer or any personally including, but to, assignment, including, not limited limited to, reveal such such duty duty assignment, but not information that may reveal to information payroll Despite payroll individual law overtime data pertaining pertaining to to an individual law enforcement enforcement officer." officer." Despite overtime data in of said records records in records being being public records under under N.J.S.A. N.J.S.A. 47:1A-10, 47:1A-10, the the release release of records this instance leaves the Executive Protection Bureau Bureau vulnerable vulnerable to to how how heavy heavy of of aa Executive Protection instance leaves this therefore exempt exempt protecting various various dignitaries dignitaries and and are are therefore security level it places on protecting places on security level under exempt under requested records records are are exempt under the the regulations regulations cited cited above. above. Because Because the the requested under executive Council need address the the claimed claimed executive the Council need not not address the regulations cited above, above, the regulations cited the privilege exemption. exemption. privilege ~a~cr and czJrr~ Rec rlable Nor Jersey Printed on Recycled Recyclable Ric, cl«~ paper F'rra ~Iv, ~cr • Printrd Jcrsc is an F., uczl Opportunity C) ~.~vr•tu»i Employer ;\cii ~tf~ Equal

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg64 64ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

further review Any further review should should be administrative determination in this this matter. matter. Any be determination in final administrative This is the final within forty-five Superior Court New Jersey forty-five (45) (45) pursued in the Appellate Division of of the Court of of New Jersey within the Superior Appellate Division pursued Appellate Division about the the appeals appeals process process can can be be obtained obtained from from the the Appellate Division Clerk's Clerk's Information about days. Information Trenton, NJ 08625-0006. Box 006, 006, Trenton, NJ08625-0006. Market St., St., PO PO Box Office, Hughes Hughes Justice Justice Complex, Complex, 25 25 W. W. Market Office, of the the to the the Council Council in in care care of Proper service of of submissions submissions pursuant pursuant to to any any appeal appeal is is to to be be made made to Proper Council, 101 101 South South Broad Broad Executive Director Director at at the State of Records Council, of New New Jersey Jersey Government Government Records Executive Street, PO Box Box 819, Trenton, NJ NJ 08625-0819. 08625-0819. 819, Trenton,

Final Final Decision Decision Rendered Rendered by by the the Council Government Records Records Council Government 24th Day Day of of May, May, 2011 2011 The 24th On The On Robin Tabakin, Chair Robin Berg Berg Tabakin, Chair Council Records Council Government Records Government record of of the the Government Government Records Records Council. Council. II attest the foregoing is a true and accurate record

Richman, Secretary Secretary A. Richman, Charles A. Charles Council Records Council Government Records Government 1, 2011 2011 June 1, Decision Distribution DistributionDate: Date: June Decision

2

MER-L-001055-17 10/02/20174:41:43 4:41:43PM PMPg Pg65 65ofof77 77Trans Trans ID: ID: LCV2017275435 MER-L-001055-17 10/02/2017

STATE OF NEW JERSEY GOVERNMENT RECORDS COUNCIL Findings and Recommendations Recommendations of the Executive Director May 24, 2011 2011 Council Meeting

Burton' Cynthia Burtonl Complainant

GRC Complaint No. 2010-330

.

v

NJ &Public NJ Department of Law & Public Safety, Division of State Police2 of Records Custodian of Records Records Relevant to Complaint: All travel, travel, payroll payroll and other expense records for costs incurred incurred to to cover the Governor as he traveled traveled around the state state and and country country to campaign to campaign for candidates between Labor for Labor Day Day 2010 and Election Day 2010, as well well as as such such records involving involving the Governor's participation participation in in events for for Reform Jersey Now during 2010. Request Made: December December 6, 2010 Response Made: December 13, 2010 Custodian: D/SFC Christopher Nunziato Nunziato GRC Complaint Filed: December 15, 20103

Background December 6, 2010 Complainant's Complainant's Open Open Public Public Records Records Act Act ("OPRA") ("OPRA") request. request. The The Complainant Complainant requests requests the the records records relevant to this complaint listed above on an official relevant to official OPRA OPRA request form.

December 13, 2010 Custodian's response to the OPRA request. The Custodian responds The Custodian responds in in writing writing to OPRA request on the fifth (5th) the Complainant's OPRA (Sth~ business day following receipt of of such request. Custodian states request. The The Custodian states that that he he conducted conducted a search search of the Division's Division's records records and and identified various various records records responsive responsive to to the the request. request. However, However, the Custodian Custodian states that access requested records access to the the requested records is is denied denied because because releasing releasing the the records records would reveal would reveal confidential security measures confidential security measures and/or and/or surveillance techniques that that would create a safety surveillance techniques safety risk risk and and the the requested requested records records are are therefore therefore exempt exempt from from disclosure under N.J.S.A. N.J.S.A. disclosure under 47:1A-1.1. Additionally, Additionally, the Custodian states 47:1A-1.1. the Custodian states that that said said records records are are exempt from exempt from disclosure under Executive Order No. 47 (Christie 2010) and the executive privilege. No legal No legal representation representation listed listed on on record. 2 Represented by Senior Senior DAG DAG Mary Mary Beth Beth Wood, on behalf behalf of of the NJ Attorney General. General. Represented by Wood, on the NJ of Access on said The GRC GRC received received the Denial of Access Complaint Complaint on said date. date. 33 The the Denial 2

Cynthia. Burton v. v. NJ of Law Divisionof ofState Cynthia Burton Public Safety, Findings and and Recommendations Recommendations NJ Department Department of Law & &Public Safety,Division StatePolice, Police,2010-330 2010-330— —Findings of the the Executive of Executive Director Director

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December 15, 15, 2010 2010 December Denial of of Access Complaint filed filed with with the the Government Government Records Records Council Council ("GRC") ("GRC") Denial Access Complaint following with with the the following attachments: attachments: • •

December 6, Complainant's OPRA Complainant's OPRA request request dated dated December 6, 2010 2010 Custodian's response to the Complainant's OPRA OPRA request Custodian's response to the Complainant's request dated dated December December 13, 13, 20] 0 2010

The OPRA request The Complainant states that that she her OPRA Complainant states she submitted submitted her on December December 6, 6, request on 2010 and that denied said said request request on on December December13, 13,2010. 2010. The 2010 and the Custodian Custodian denied that the The Complainant asserts assertsthat that she she does does not not understand the security risk of understand the security risk of reporting reporting on Complainant on something that has has already happened, such such as as the with the something that already happened, the State State Police Police costs costs associated with associated the Complainant contends contends it Governor's travel. travel. The it is to expect Governor's The Complainant is reasonable reasonable to expect that sharp that aa sharp security force force would ways than security handle future trips in in different different ways than it it did did in in 2010. would handle future trips 2010. The exception which The Complainant also states states that that she Complainant also she has has read read the the exception which discusses discusses the the secrecy of records records to to protect protect an an individual individual trooper's trooper's name. name. The secrecy of The Complainant Complainant states states that that she is not not seeking names of of the the people people on on the the governor's she is seeking the governor's security security team; team; she the names she seeks seeks the the for the details, including including overtime overtime or or compensatory compensatory time, time, of of how how much much it it costs details, costs for the security security Governor, as team team to to travel travel with with the the Governor, as well well as as how how many many troopers troopers traveled with the traveled with the Governor. Governor. Additionally, the Additionally, the Complainant Complainant claims claims that that executive executive privilege privilege cannot cannot be be used used to to conceal how how tax tax dollars dollars are are spent spent and and the the costs incurredby by state state workers. workers. The conceal costs incurred The Complainant asserts asserts that privilege is is designed to protect protect frank Complainant that executive executive privilege designed to frank communications communications between aa governor his or her advisors. governor and or her between and his advisors. The The Complainant Complainant also agrees to to mediate mediate this this complaint. complaint. also agrees January 7, 7, 2011 January 2011 Offer of Mediation sent to Offer of Mediation sent to Custodian. Custodian. January 10, 10, 2011 2011 January The Custodian declines mediation. declines mediation. The Custodian

February February 7, 7, 2011 2011 Request for the sent to Request for the Statement Statement of of Information Information ("SOI") ("SOI") sent to the the Custodian. Custodian. February 2011 February 10, 10, 2011 E-mail Counsel requests requests an an extension E-mail from from Custodian's Custodian's Counsel Counsel to to GRC. GRC. Counsel extension to to of Information. submit the completed Statement Statement of Information. submit the Custodian's Custodian's completed February 2011 February 10, 10, 2011 E-mail The GRC GRC grants grants an an extension extension to E-mail from from GRC GRC to to Custodian's Custodian's Counsel. Counsel. The to SOI until submit the Custodian's Custodian's completed until the the close of business business on on February February 22, submit the close of completed SO1 22, 2011. 2011. February 22, 22, 2011 February 2011 Custodian's SOT with the the following following attachments: attachments: Custodian's SOI with v. NJ of Law Divisionof ofState Cynthia Department of Law & &Public Safety,Division StatePolice, Police,2010-330 2010-330— —Findings Cynthia Burton Burton v. NJ Department Public Safety, Findings and and Recommendations Recommendations of the the Executive Executive Director Director of

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••

•• •• ••

in North North Jersey decision in Jersey Media Media Group, Group, Inc. Department of Copy of of court's court's decision Inc. v. v. NJ NJ Department of Copy Law Division of of State State Police, Police, Docket No. MER-L-907-08 Law &Public & Public Safety, Safety, Division Docket No. MER-L-907-08 (Law (Law Div. 4, 2010). 2010). Div. November November 4, Complainant's OPRA OPRA request December 13, Custodian's response to the Custodian's response to the Complainant's request dated dated December 13, 2010 2010 21, 2011 2011 Certification of Lt. Albert Ponenti dated dated February February 21, Certification of Lt. Albert Ponenti Counsel February Letter to GRC GRC dated dated February 22, 22, 2011 2011 Letter from from the the Custodian's Custodian's Counsel to

OPRA request on The Custodian certifies certifies that received the the Complainant's Complainant's OPRA request on The Custodian that he he received with aa December TheCustodian Custodian certifies certifies that that he he provided provided the the Complainant December 6, 6, 2010. 2010. The Complainant with 13, 2010. 2010. written response to to her her OPRA OPRA request request on on December December 13, written response The certifies that did not not undertake undertake aa search search for for the The Custodian Custodian also also certifies that he he did the requested requested disclosure under exemption for for records because because said said records records are are exempt from disclosure under OPRA's OPRA's exemption records exempt from confidential security measures and/or and/or surveillance records that that would records would reveal reveal confidential security measures surveillance techniques techniques that create aa safety risk. The Custodian asserts asserts that the records records are that would would create safety risk. The Custodian that the are also also exempt exempt under Executive Executive Order Order No. No. 47 47 (Christie). (Christie). under records responsive Further, Custodian certifies responsive to the request request were Further, the the Custodian certifies that that no no records to the were destroyed with the Schedule established established and and approved approved destroyed in in accordance accordance with Records Destruction Destruction Schedule the Records Archives and by New New Jersey Jersey Department Department of of State, State, Division Division of of Archives and Records Records Management. Management. by detailing the the records The Custodian Custodian provides provides a a document index detailing records responsive responsive to to the The document index the Complainant's OPRA Complainant's OPRA request request below: below: (A) List of all List of all records records responsive to responsive to Complainant's OPRA request OPRA request (include (include the number number of of pages pages for each record record).. payroll Travel, payroll and and expense records records for costs incurred incurred to protect the protect the Governor while campaigning between Labor Day Day 2010 and Election Day 2010 2010 Travel, payroll and expense and expense records for costs costs records for

(B) (B) List List the the Records Records Retention Requirement and Requirement and Disposition for each each Schedule for Schedule records responsive to to the Complainant's Complainant's request OPRA re uest 7 years

(C) List of of all all records records provided to in Complainant, in or their entirety or with redactions (include the date such records records were were such provided).

(D) (D) If If records records were disclosed with redactions, redactions, give general nature a general description of description the redactions.

(E) (E) If records records If were denied in in their entirety, give general aa general nature description description of of the the record. record.

(F) (F) legal List the legal explanation and explanation and citation statutory statutory citation for the denial for denial of of access to records in their entirety or with or Aith redactions.

None None

N/A N/A

Travel, Travel, payroll payroll and expense records for the executive protection protection detail providing providing security to the Governor Governor

OPRA's OPRA's exemption for confidential confidential security security measures; measures; Order Executive Order executive 47; executive privilege privilege

7 years

None

N/A N/A

Travel, Travel, payroll payroll and expense for the records records for the

OPRA's OPRA's for exemption for confidential

Divisionofof StatePolice, 2010-330——Findings v. NJ Department of ofLaw Law&&Public Safety,Division Police,2010-330 and Recommendations Recommendations Cynthia Burton Burton v. Public Safety, State Findings and Cynthia NJ Department of the of Executive Director Director the Executive

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incurred to protect the Governor while participating in events for Reform Jersey now in 2010

executive protection detail providing security to the Governor

security measures; Executive Order 47; executive privilege

Department of & Ponenti certifies certifies that that he he is is employed employed by by the NJ NJ Department of Law Law & Lt. Albert Ponenti Chief of of the Protection the Bureau Bureau Chief the Executive Executive Protection Public Safety, Safety, Division Division of of State Police Police as as the Public Ponenti Bureau ("EPB") ("EPB") and and further further certifies certifies that thathe he holds holds the the rank rank of of Lieutenant. Lieutenant. Lt. Lt. Ponenti Bureau Division of in, among of the State Police Police that that specializes specializes in, among certifies that that the EPB EPB is a unit of the Division of State certifies providing security security for for the the State's State's Chief Chief Executive. Executive. other things, providing Custodian properly properly withheld records withheld the the requested requested records Lt. Ponenti certifies that the Lt. the Custodian information regarding regarding the the number number of of Division Division because the the requestor requestor is not entitled entitled to to information because Ponenti certifies disclosure of of information information personnel assigned assigned to to an an EPB EPB detail. detail. Lt. Lt. Ponenti certifies that that disclosure personnel necessarily disclose would necessarily disclose those those staffing staffing levels levels about compensatory compensatory time and overtime would dissemination of of that are Lt. Ponenti Ponenti certifies certifies that that public public dissemination deserving of protections. protections. Lt. that are deserving details at at issue issue here here would would provide provide staffing information for the type of protective service service details for specific and/or designation of of staffing staffing levels levels for specific details details and/or critical insight insight into into the EPB's designation critical wrongdoer to potentially use reasonably allow allow aa wrongdoer to potentially use this this types of details, details, and and could could reasonably types Ponenti also also certifies certifies that that Lt. Ponenti information to to determine determine staffing staffinglevels levelsof of future futuredetails. details. Lt. information criminal, or wolf terrorist, criminal, lone wolf the release allow aa terrorist, or lone records would would allow the requested requested records the release of the executive protection any given given day day and and attacker to to identify identify the strength of the executive protection force on any force on attacker the EPB protocols used by by the EPB in in protecting protecting the the the planned protection strategies and security protocols Governor or other dignitaries. for that secrecy secrecy and and unpredictability are are crucial crucial for Additionally, Lt. Ponenti certifies that potential targets for high-ranking public officials who who are are potential targets for safety public officials of high-ranking safety during during the travels of in writing, writing, if details details of of past past travels travels are exposed in terrorism. Lt. Ponenti certifies certifies that that if are exposed terrorism. Lt. Ponenti Ponenti certifies Lt. Ponenti certifies that that patterns and and likely likely destinations destinations can can quite quite easily easily be be deciphered. deciphered. Lt. patterns the releasing detailed detailedknowledge knowledgeofofregular regularoror routine routine stops stops during during the the course course of of the releasing his everyday everyday routine routine and Governor's schedule schedule would would provide provide extensive extensive insight insight into into his and Governor's said information information could could provide a veritable veritable personal preferences. preferences. Lt. Ponenti certifies certifies that said Lt. Ponenti personal or terrorists activities and and preferences preferences to to criminals criminals or terrorists and and roadmap of the Governor's future roadmap future activities the location location and strength allow them to use information to anticipate the and security security strength this information to anticipate allow them use this plan an an attack attack accordingly. accordingly. provided at any given time and plan seem as information to as innocuous innocuous information Further, Lt. Lt. Ponenti Ponenti certifies certifies that that what what may may seem to aa Further, criminal-minded intelligence to to aa terrorist terrorist group group ororcriminal-minded lay person person could provide provide vital vital intelligence lay information EPB's greatest strength isis keeping keeping information Ponenti certifies the EPB's greatest strength individual. Lt. Lt. Ponenti certifies that that the individual. off the radar. surrounding a "protectee's" "protectee's" movements, radar. and destinations off movements, locations and

February 22, 22, 2011 February The Letter from Custodian's Custodian's Counsel Counsel to to GRC GRC in in support support of of the the Custodian's Custodian's SOI. SOI. The Letter from her Complainant submitted OPRA request on that the the Complainant submitted her OPRA request on Custodian's Counsel Counsel states states that Custodian's on December Counsel December 6, 6, 2010 2010 which which the the Custodian Custodian denied denied on December 13, 13, 2010. 2010. Counsel states states December of State 2010-330—Findings Burton v. v. NJ Department of Public Safety, and Recommendations Recommendations Division of State Police, Police, 2010-330 of Law Law & &Public Safety, Division —Findings and Cynthia Burton of the the Executive Executive Director Director of

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Denial of of Access Access Complaint indicated that that the Complainant's Complainant's Denial Complaint she she indicated that she she has has "trouble "trouble that in in the security risk risk of of reporting reporting on something that that has already already happened" and understanding the security believed it was "reasonable to expect that a sharp security force would handle such future than they did in in 2010." trips in different ways than Custodian properly properly denied Counsel asserts asserts that that the Custodian denied access access to the Complainant's Counsel Complainant's OPRA request request because because of the significant OPRA significant safety safety and security concerns identified by the State Police Police in maintaining the confidentiality State confidentiality of the information information sought, sought, and and because because specifically exempts Executive Order Order No. No. 47 (Christie 2010) Executive 2010) specifically exempts the records records sought from sought from such, Counsel Counsel contends disclosure. As As such, contends that that the GRC should affirm the Custodian's denial of access and dismiss this complaint. in evaluating Additionally, Counsel asserts asserts that that in Additionally, Counsel evaluating public records which records requests requests which implicate underlying this implicate homeland homeland security security concerns, concerns, like like the the request request underlying this matter, matter, New consistently recognized the compelling compelling public interest in maintaining Jersey's courts have consistently governmental explanations confidentiality and and have have deferred of the nexus confidentiality deferred to governmental explanations of nexus between between confidentiality Counsel contends contends that the "mere of aa terrorist attack confidentiality and and security. security. Counsel "mere chance" chance" of or other criminal criminal act against the Governor or or any any other other dignitary dignitary under the Governor under EPB EPB protection protection "would weigh heavily heavily in "would be be a terrible terrible blow to to the the State" State" and and should should weigh in balancing balancing the competing interests interests for for and against Newspapers v. State, 232 competing against disclosure. disclosure. Philadelphia Philadelphia Newspapers N.J. Super. 458, 465 (App. Div. 1989). N.J. Super. Further, Further, Counsel Counsel states states that that in in ACLU ACLU v. County of of Hudson, Hudson, 352 352 N.J.Super. N.J.Super. 44 (App. (App. Div. Div. 2002), 2002), the the court court recognized recognized that that "there "there can can be be no no question" that there there is is "a question" that compelling compelling interest interest in in securing securing the the safety safety of of the the nation's nation's citizens citizens against terrorist attack." Id. I 78. Counsel Counselstates relyingon oncases d. at at 78. states that thatrelying cases decided decided by by the theUnited UnitedStates States Supreme Supreme Court, court observed this "compelling "compelling interest" observed that that this interest" extended extended to protecting protecting the Court, the the court the essential to national security. confidentiality of of information information essential Id. at 78-79 confidentiality security. Id. 78-79 (citing (citing Central Central IIntelligence ntelli gence Agency Agency v. v. Sims, 471 471 U.S. 159, 175 175 (1985); Snepp v. United States, 444 U.S. Counsel states 507, 509 509 n.3 n.3 (1980)). (1980)). Counsel states that that the court also noted:

"[I]ntelligence gathering in the computer age is is like the construction of a "[I]ntelligence gathering computer age of information mosaic one item item of information may frequently mosaic where where the the importance importance of of one may frequently depend depend upon upon knowledge knowledge of of many many other other items items of of information. information. What What may may appear of seem trivial the uninformed uninformed may great moment moment to to one one who seem trivial to to the may appear of great who has of the and may has a broad broad view view of the scene scene and may put put the the questioned questioned item item of information proper context." information in in its proper context." ACLU, ACLU, supra, supra, 352 N.J.Super. N.J.Super. at 79 (internal (internal citations omitted). Counsel claims claims that because EPB security Counsel security protocols are consistent consistent whether whether they former Governor, or a visiting dignitary, disclosure of for the Governor, a former are employed for information would Governor, other other State officials, and that information would endanger endanger the Governor, that visiting foreign and visiting foreign or domestic dignitaries. or Moreover, Moreover, Counsel states that the Third Circuit has similarly adopted aa deferential standard in evaluating of Information standard in evaluating deferral deferral Freedom Freedom of Information Act Act ("FOIA") ("FOIA") requests requests for for information information withheld withheld on on national national security affording substantial substantial weight weight to to an security grounds, grounds, affording agency's affidavit concerning concerning the to withhold the need need to withhold security-related security-related records in in view of of the agency's affidavit v. NJ Cynthia Burton Public Safety, ofof State Findings and Cynthia Burton v. NJ Department Department of of Law Law &&Public Safety,Division Division 2010-330——Findings StatePolice, Police,2010-330 and Recommendations Recommendations 5 of Executive Director Director of the the Executive

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"adverse effects result of agency's "unique insights" into into the the "adverse effects [that] [that] might might occur occur as as a result agency's "unigLte insights" 831 F.441, F.441, public disclosure." American Friends Friends Service Service Comm. Comm. V. V. Dept. Dept. of Defense, 831 public disclosure." American Counsel states federal courts (3rd Cir. 1987) 444 (3rd states that that federal courts post-September post-September 1987) (citations omitted). Counsel 11 have consistently consistently concluded an extremely extremely poor poor position to secondsecond11 concluded that that they they are are in in an ofnational national security guess in areas areas of security like like counter-terrorism. counter-terrorism. See guess the executive's judgment judgment in of Justice, 318 F.3d 918, 927-28 (D.C. Cir. Center for National Sec. Studies v. U.S. Dept. of 2003).

Additionally, Counsel states that the GRC has also taken the view that the balance between disclosure and the risk of terrorism must be struck in favor of the public interest Mariano v. v. DEP, GRC in confidentiality. confidentiality. Mariano GRC Complaint Complaint No. 2003-140 2003-140 (February (February 2004). 2004). goal of of providing providing access Counsel asserts asserts that that when balancing the the goal when balancing access to to public Counsel public records records information might against the risk that disclosure might impede impede the the State's ability to against disclosure of such information from terrorism, defend its its citizens the GRC GRC has has found defend citizens from terrorism, the found that that the the State's State's interest interest substantially outweighs the the interest interest of of aa requestor. requestor. Counsel that even where substantially outweighs Counsel states even states where there is a legitimate reason, "once the requested information there is no is information is released, legitimate business business reason, released, there way of ensuring ensuring that such information would remain in the hands of of parties who who would would use it for proper purposes." Mariano, supra. Further, Counsel Counsel states states that the issue of disclosing EPB records has recently been State (unreported)( Docket No. MER-L-907considered in North Jersey Media Group v. State 08, Law Div. 2010). Counselstates states the thecourt courtconcluded, concluded, in indenying denying North North Jersey 08, Law 2010). Counsel Jersey for the protection protection details Media's request for staffing levels details offered Media's request levels for by EPB, that "the offered by details is is critical critical to its ability to effectively effectively protect secrecy of staffing levels levels of the EPB's details Counsel states this State's State's dignitaries." states that the court further further held it was dignitaries." (Slip op. at 15). 15). Counsel "not difficult difficult to conclude" the EPB EPB documents documents would, would, if if disclosed, "endanger the conclude" that the disclosed, "endanger was what exemption for for security safety safety of people people and and property" property" and that that was what "OPRA's "OPRA's exemption security measures protects." (Slip op. at 17).

Counsel claims claims that that the strong strong public public policy, policy, recognized in OPRA, OPRA, regulation, Counsel recognized in regulation, executive order and case law, of ensuring the confidentiality of information related to order of ensuring the confidentiality information executive and of persons overwhelmingly overwhelmingly weighs against the release security and the safety of homeland security Counsel contends that the records. Counsel of the requested records. contends that the arguments arguments the the Complainant Complainant raises in her Denial of of Access incorrect, irrelevant irrelevant and an insufficient Access Complaint Complaint are are incorrect, and represent represent an insufficient basis not enough to disregard the State Police's assertion of of confidentiality on homeland Police's assertion confidentiality on homeland security grounds. Furthermore, Furthermore, Counsel Counsel states states that that on on November November 3, 2010 Governor Christie issued forth proposed OPRA OPRA exemptions for certain records Executive Executive Order Order No. No. 47 which set forth Counsel states retained states that that proposed proposed N.J.A. Eretained by by Executive Executive Branch Branch agencies. agencies. Counsel N.J.A. C. 13:1 13:1Ewhich may reveal an an agency's agency's surveillance, or 3.2(a)3 states states that 3.2(a)3 that records records which may reveal surveillance, security security or investigative government records subject to public investigative techniques techniquesor or procedures procedures are are not not government records subject public Counsel states access under under OPRA. N.J.A.C. 13:1E-3.2(a)7 OPRA. Similarly, Similarly, Counsel states that proposed N.J.A. access that proposed C. 13:1 E-3.2(a)7 states that the duty assignment of an individual law enforcement officer or any personally identifiable identifiable information informationthat that may may reveal reveal or or lead to duty duty assignment, assignment, including but not limited overtime data pertaining law enforcement enforcement officer shall not be be publically publically limited to overtime pertaining to a law proposed regulations full force accessible. Counsel Counsel asserts asserts that that these these proposed regulations are force and accessible. are in in full and. effect effect Burton v. v. NJ of Law Divisionof ofState 2010-330— Public Safety, Findings and Recommendations Cynthia Burton NJ Department of Law & &Public Safety,Division StatePolice, Police,2010-330 —Findings of the Executive Director Director

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pursuant further support pursuant to to Executive Order No. No. 47 47 and and further the Custodian's Executive Order support the Custodian's denial denial of of the the Complainant's OPRA request. Complainant's OPRA request. Analysis Analysis Whether denied access access to requested records? records? Whether the Custodian unlawfully unlawfully denied to the the Custodian the requested

provides that: OPRA OPRA provides that: ".. government records records shall shall be be readily readily accessible "...government accessible for for inspection, inspection, copying, copying, or by the the citizens of this or examination examination by citizens of this State, State, with with certain certain exceptions..." exceptions..." (Emphasis N.J.S.A. 47:1A-1. 47:1A-1. (Emphasis added.) added.) N.J.S.A. .

Additionally, OPRA as: Additionally, OPRA defines defines aa government government record record as: any paper, paper, written written or or printed printed book, book, document, drawing, map, plan, "... any document, drawing, map, plan, photograph, or image photograph, microfilm, microfilm, data data processed processed or image processed processed document, document, information information stored stored or or maintained maintained electronically electronically or or by by sound-recording sound-recording or or similar device, been made, in aa similar or any any copy thereof, that made, maintained maintained or in device, or copy thereof, that has has been or kept on onfile file ... ... or or that has been received in in the the course of his his or kept that has been received course of or its its official official shall not business ...A ...A government record shall business government record not include include the following the following informationwhich whichisis deemed deemed to to be be confidential for the information confidential for of the purposes purposes of [OPRA]...security measures and and surveillance techniques which, which, if if [OPRA] ...security measures surveillance techniques disclosed, would risk to to the disclosed, create aa risk the safety safety of of persons, persons, property, would create property, electronic electronic or software" 47:1A-1.1. data or N.J.S.A. 47:1A-1.1. data software" (Emphasis (Emphasis added.) added.) N.J.S.A. G. . .

onus on Custodian to denial of OPRA the onus prove that that a of access access is is OPRA places places the on the the Custodian to prove a denial lawful. Specifically, OPRA states: lawful. Specifically, OPRA states: agency shall shall have have the the burden burden of of proving proving that that the denial of "...Nile of "... [t]hepublic publicagency the denial N.J.S.A. 47:1A-6. access is 47:1A-6. access is authorized authorized by by law..." law..." N.J.S.A. OPRA OPRA mandates mandates that: that: of this shall not any exemption exemption of "[t]he this act... act... shall public "[t]he provisions provisions of not abrogate abrogate any of aa public record or government from public record or record from public access made pursuant government record access heretofore heretofore made pursuant under the of any any statute or Executive to...regulation promulgated Executive to...regulation promulgated under the authority authority of statute or of the Order Order of of the the Governor; Governor; Executive Executive Order Order of the Governor..." N.J.S.A. Governor..." N.J.S.A. 47:1 A-9.a. 47:1A-9.a. states that: OPRA also OPRA also states that: salary, payroll "... anindividual's name, title, position, salary, "...an payroll record, length of of individual's name, title, position, record, length service, date of separation separation and the reason reason therefor, therefor, and and the the amount amount and service, date of and the and type of any any pension pension received received shall a government type of shall be be a record..." (Emphasis (Emphasis government record..." added). N.J.S.A. N.J.S.A. 47:1A-10. added). 47:1A-10.

Cynthia Burton Burton v. v. NJ NJ Department Department of of Law Law&Public & PublicSafety, Safety,Division Divisionof ofState StatePolice, Police,2010-330 2010-330—Findings Findings and Cynthia and Recommendations Recommendations of the the Executive Executive Director Director of

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OPRA provides provides that that government records made, made, maintained, maintained,kept kept on on file, government records file, or OPRA official business business are subject public received by by a public public agency received agency in the course of its official subject to public N.J.S.A. 47:1A-1.1. 47:1A-1.1. A A custodian custodian must all must release release all access unless otherwise otherwise exempt. exempt. N.J.S.A. access unless "with certain certain exceptions." N.J.S.A. 47:1A-1. 47:1A-1. OPRA request request "with exceptions." N.J.S.A. records responsive responsive to to an OPRA records Additionally, OPRA places places the the burden burden on on aa custodian to prove that a denial of access to Additionally, OPRA records is lawful lawful pursuant to N.J.S.A. N.J.S.A. 47:1A-6. records stated that that she submitted her OPRA request on December December 6, The Complainant Complainant stated 2010 and Custodian denied The 2010 and the Custodian denied access accessto to said said request request on on December December13, 13,2010. 2010. The Custodian Custodian certified certified that that he he denied denied access access to to the the Complainant's Complainant's request request on on the basis that from public access as as "security "security measures the records are are exempt exempt from public access measures and andsurveillance surveillance the records of persons, the safety safety of persons, property, property, techniques which, which, if if disclosed, disclosed, would would create create aa risk risk to the techniques Custodian also also certified The Custodian pursuant to to N.J.S.A. N.J.S.A. 47:1A-l.l. 47:1A-1.1. The electronic data or software" pursuant Order No. records are exempt exempt from from public public access pursuant pursuant to Executive Executive Order that said records No. 47 that (Christie 2010). 201.0). November 3, 2010 Further, the the Custodian's stated that Custodian's Counsel Counsel stated that on on November 2010 Governor Governor Further, forth proposed OPRA exemptions for Christie issued Executive Order Order No. No. 47 which set forth Christie certain records records retained retained by by Executive Executive Branch Branch agencies. agencies. Counsel Counsel stated stated that proposed certain that proposed which reveal an 13:1E-3.2(a)3 provides that records which may reveal an surveillance, 13:1E-3.2(a)3 provides records may agency's N.J.A. C. that surveillance, security or procedures procedures are not government records subject to techniques or security or investigative techniques Similarly, Counsel Counsel stated public access access under under OPRA. OPRA. Similarly, 1V.J.A.C. 13:1Estated that that proposed proposed N.J.A.C. public individual law enforcement officer or any 3.2(a)7 states states that that the duty assignment assignment of an individual enforcement officer 3.2(a)7 personally identifiable identifiable information information that that may may reveal reveal or lead to duty assignment, including personally pertaining to officer shall overtime data pertaining law enforcement enforcement officer but not limited to overtime to a law shall not be but publically accessible. accessible. Counsel Counsel asserted asserted that these proposed regulations regulations are in full force publically force and effect pursuant pursuant to Executive Executive Order Order No. No. 47 47 and support support the the Custodian's denial of the Complainant's OPRA request.

Additionally, the Custodian's Counsel contended that in evaluating public records requests underlying this requests which which implicate homeland security security concerns, concerns, like like the request underlying implicate homeland consistently recognized the compelling matter, compelling public interest matter, New New Jersey's courts courts have have consistently interest in maintaining maintaining confidentiality, and have have deferred to governmental governmental explanations confidentiality, and explanations of the confidentiality and and security. security. Counsel asserted that the "mere chance" of a nexus between confidentiality Governor or any other criminal act against the Governor other dignitary dignitary under terrorist attack attack or or other criminal terrorist protection blow to heavily in EPB terrible blow to the State" State" and and should should weigh weigh heavily EPB protection "would "would be be aa terrible balancing the competing interests for and against disclosure. Philadelphia Newspapers v. State, 232 232 N.J. N.J. Super. Super. 458, 465 (App. Div. Div. 1989). EPB security protocols are consistent whether Counsel also claimed that because EPB for the Governor, aa former former Governor, Governor, or or aavisiting visitingdignitary, dignitary, they are they are employed employed for the Governor, disclosure of that information information would endanger endanger the Governor, Governor, other State officials, and disclosure visiting foreign or domestic dignitaries. denial of IIn n further further support support of the Custodian's denial of access, access, the Custodian included a the Custodian certificationfrom fromthe the Bureau BureauChief Chiefof of EPB EPB with with his his Statement of Information. Information. Lt. certification Statement of information about compensatory Ponenti disclosure of information compensatory time and overtime Ponenti certified certified that that disclosure overtime would necessarily would necessarily disclose disclose those those staffing staffinglevels levelsthat that are are deserving deservingof of protections. protections. Lt. ofState Cynthia Burton Burton v. NJ Department Department of Public Safety, Findings and and Recommendations Recommendations Cynthia v. NJ of Law Law & Divisionof StatePolice. Police,2010-330 2010-330— &Public Safety, Division —Findings of the the Executive Executive Director Director of

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Ponenti Ponenti certified certified that that public public dissemination disseminationof of staffing staffing information informationfor forthe the type type of protective service service details details at at issue issue here here would would provide provide critical critical insight insight into into the the EPB's protective designation designationof of staffing staffing levels levels for for specific specific details details and/or and/or types types of of details, details, and could could reasonably allow allow aa wrongdoer reasonably wrongdoer to potentially potentially use this information information to determine determine staffing levels of of future future details. details. Lt. levels Ponenti also certified that the the release of of the requested records Lt. Ponenti also certified would allow a terrorist, or lone lone wolf attacker the strength would allow terrorist, criminal, criminal, or attacker to identify identify the strength of the executive protection protection force force on on any any given day executive day and the the planned planned protection protection strategies strategies and and security protocols used by the EPB in protecting the Governor or other dignitaries.

in her her Denial Denial of Access Complaint that she Conversely, the Complainant asserted in does not the security risk of reporting reporting on on something something that does not understand understand the security risk that has has already already as the State Police Police side side of of the the costs costs associated with the the Governor's Governor's travel. happened, such as The sharp security The Complainant Complainant contended contended itit is is reasonable reasonable to to expect that that a sharp security force would would it did in 2010. handle future trips in different ways than it The exception to disclosure cited by The Complainant also stated that she she has has read the the exception Custodian which individual trooper's the Custodian which discusses discusses the the secrecy secrecy of of records records to protect an individual name. seeking the names of the people on the name. The The Complainant Complainant stated stated that that she is not seeking including overtime or compensatory time, governor's security security team; she she seeks seeks the details, including of how much it costs for the security as well as how how much Governor, as security team to travel with the Governor, many troopers traveled with the Governor. The complaint are travel, travel, payroll and expense The requested requested records records at at issue in in this complaint expense records cover the Governor incurred to cover Governor during two (2) (2) specific records for for costs costs incurred specific time periods. time periods. With With regard regard to to the Complainant's request for "travel and expense expense records," said request could encompass could encompass aa number number of records records such such as as stipend stipendrecords, records, payment payment vouchers, vouchers, invoices, invoices, toll toll receipts, receipts, parking parking receipts, receipts,hotel hotelreceipts, receipts,etc. etc. The The terms terms "travel records" and "expense "expense records" records" are broad terms that do not specifically specifically refer to any any identifiable identifiable government record. The New The New Jersey Jersey Superior Superior Court Court has has held held that that "[w]hile OPRA provides "[w]hile OPRA provides an an alternative means alternative means of of access to government exempted from its government documents documents not otherwise otherwise exempted reach, it is not intended intended as a research tool litigants may use to force government officials to identify and siphon siphon useful information. Rather, Rather, OPRA OPRA simply to identify useful information. simply operates operates to make make identifiable inspection, copying, or identifiable government governmentrecords records `readily 'readily accessible accessiblefor for inspection, copying, or N.J. S.A. 47: IA -1." examination. ' N.1S.A. 47:IA-1." (Emphasis MAG Entertainment, examination.' (Emphasis added.) added.) MAG LLC v. Entertainment, LLC Division Division of of Alcoholic Alcoholic Beverage Beverage Control, Control, 375 375N.J. N.J. Super. Super. 534, 534, 546 546 (App. (App.Div. Div.2005). 2005). The further held that "[u]nder OPRA, OPRA, agencies Court that "[u]nder to disclose Court further agencies are are required required to disclose only only `identifiable' government records records not otherwise exempt 'identifiable' not otherwise exempt ... ... In short, short, OPRA OPRA does does not countenance open-ended searches searches of of an an agency's agency's files." files." (Emphasis added.) Id. Id. at 549. IIn n determining that that MAG MAG Entertainment's Entertainment's request request for "all documents or records" documents or from the Division of Alcoholic Beverage Control pertaining to selective enforcement was invalid invalid under OPRA, the Appellate Division noted that: "[m]ost significantly, significantly, the request with any any specificity request failed to identify with specificity or or particularity the governmental records records sought. MAG provided neither any identifiers names nor nor any other than than a broad names identifiers other broad generic generic description description of a of State Cynthia Burton Burton v. v. NJ NJ Department Department of Public Safety, Findings and Recommendations Cynthia of Law Law & &Public Safety, Division Division of State Police, 2010-330 -Police, 2010-330 —Findings of of the the Executive Executive Director Director

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of case agency in the case prosecuted prosecuted by brand or or type type of by the the agency brand past. Such Such an the past. an Division's records open-ended demand demand required required the the Division's open-ended custodian to records custodian to manually search search through through all of the agency's manually agency's files, analyze, compile and analyze, compile collate the the information contained therein, therein, and and identify identify for information contained collate for MAG the the selective enforcement defense in the OAL litigation. cases relative relative to its its selective cases Further, were identified, Further, once once the the cases cases were identified, the the records records custodian would then required to evaluate, be evaluate, sort out, out, and be required and determine determine the documents documents to be produced produced and those those otherwise exempted." exempted." Id. Id. Further, Police Department, 381 N.J.Super. 30, 37 (App. Div. Further, in in Bent Bent v. Stafford Police 2005),4 2005),4 the Superior Court references MAG the Superior MAG in in that the Court held that requestor must that aa requestor specifically describe sought because OPRA operates to document sought specifically describe the the document because OPRA make identifiable to make identifiable government such, aa proper proper request "As such, government records records "accessible." "accessible." "As under OPRA request under OPRA must identify with reasonable with reasonable clarity clarity those those documents documents that that are are desired, desired, and a party cannot satisfy this requirement requirement by by simply simply requesting requesting all all of of an an agency's agency's documents."5 documents."5 Additionally, in Jersey Builders Association v. Additionally, in New New Jersey v. New New Jersey Builders Association Council on on Jersey Council Housing, Affordable Housing, 390 Affordable 390 N.J.Super. N.J.Super. 166, 166, 180 180 (App. (App. Div. Div. 2007) the court cited MAG by stating that `complex' because request is is `complex' stating that "...when "...when aa request because itit fails specifically identify fails to tospecifically identify the documents documents sought, sought,then thenthat thatrequest requestisisnot not`encompassed' 'encompassed'by byOPRA..." OPRA..." Furthermore, Bloomsbury, GRC Complaint Borough of of Bloomsbury, v. Borough Furthermore, in in Schuler Schuler v. Complaint No. 2007151 (February 151 (February 2009) 2009) the the Council Council held heldthat that"[b]ecause "Necause the the Complainant's Complainant's OPRA OPRA requests ## 2-5 for identifiable government records, the requests are invalid and the 2-5 are are not not requests requests for Custodian unlawfully denied access to the requested denied access Custodian has has not not unlawfully requested records records pursuant to MAG MAG Entertainment, Division of of Alcoholic Entertainment,LLC LLC v. v. Division Alcoholic Beverage Beverage Control, 375 N.J.Super. 534 375 N.J.Super. 534 (App. and Bent Bent v. (App. Div. Div. 2005) and v. Stafford Stafford Police Department, 381 N.J.Super. 30 (App. Div. 2005)." This substantially different This instant instant matter matter is is substantially different from the facts presented in Burnett v. Gloucester, 415 County 415 N.J.Super. County of of Gloucester, N.J.Super. 506 506 (App. (App. Div. Div. 2010). 2010). In In Burnett, Burnett, the the plaintiff plaintiff appealed of summary summary judgment appealed from from an an order order of judgment entered entered against against him in his suit suit to compel compel production of Gloucester Gloucester of County of production by by the the County of documents documents requested requested pursuant pursuant to OPRA, OPRA, consisting of of "[a]ny "[a]ny and all consisting all settlements, settlements, releases releases or similar similar documents entered into, documents entered approved approved or or accepted acceptedfrom from1/1/2006 1/1/2006totopresent." present."Id. Id.atat508. 508. (Emphasis added). The (Emphasis added). The Appellate Appellate Division Division determined determinedthat that the the request request sought sought a specific specific type type of of document, document, although particular case to specify aa particular to which which such document although itit did did not not specify document pertained, and was therefore therefore not overly overly broad. Id. at 515-16. Here, Here, as as previously previously stated, "travel "travel records" and "expense records" are not requests for aa specific specific identifiable for identifiable government government record. record. In In order order for for this portion of the request to seek specific specific government requestor would have to identify the specific seek government records records the the requestor specific types of travel records records sought as toll sought (such of travel (such as toll receipts, receipts, parking receipts, stipend stipend records, etc.) as well as as the the specific specific types ofexpense types of expense records well records (food (food vouchers/receipts, vouchers/receipts, purchase purchase orders, "4 Affirmed Affirmed on on appeal appeal regarding regarding Bent Bent v. v. Stafford Stafford Police Police Department, Department, GRC GRC Case Case No. (October No. 2004-78 2004-78 (October 2004). 2004). in Bent, As stated Bent. supra. 5s As stated in supra. Cynthia Cynthia Burton Burton v. v. NJ NJDepartment Department of ofLaw Law &Public & PublicSafety, Safety,Division Divisionof ofState StatePolice, Police,2010-330 2010-330—Findings — Findings Recommendations10 10 Recommendations andand of of the the Executive Executive Director Director

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invoices, As written, written, the for travel invoices, etc.). etc.). As the Complainant's Complainant's request travel and request for and expense expense records records provides a broad of category provides broad generic a category of generic description description of records records rather rather than than identifying identifying specific specific government records. Although Although the government records. the Complainant Complainant does does provide provide specific specific time time frames for the request, such such information still does not make this request meet the level of specificity required for a valid OPRA request. Therefore, Therefore, the the Complainant's Complainant's request request for for "travel" "travel" and "expense" records fails to identify specific government government records identify the the specific records sought, sought, said said request request is invalid invalid under under OPRA OPRA pursuant pursuant to MAG Entertainment, Entertainment, LLC LLC v. Division of Alcoholic Control, 375 Alcoholic Beverage Control, N.J. Super. 534, 546 (App. Div. Div. 2005), 2005), Bent Bent v. N.J. Super. v. Stafford Stafford Police Police Department, Department, 381 N.J. (App. Div. 2005), New Jersey Super. 30, 37 (App. Jersey Builders Association v. New Jersey Jersey Council on Affordable Housing, on Affordable Housing, 390 390 N.J. N.J. Super. Super. 166, 166, 180 (App. Div. Div. 2007), 180 (App. 2007), and and Schuler Schuler v. Borough Borough of of BloomsburX, Bloomsbury, GRC GRC Complaint ComplaintNo. No. 20072007- 151 151 (February (February 2009). 2009). As As such, such, the Custodian Custodian has has not not unlawfully unlawfully denied access access to said portion of the Complainant's OPRA OPRA request. However, However, the the Complainant Complainant also also requested payroll records records and has requested payroll has specifically specifically indicated compensatory time reflecting how much it indicated that that she she is is seeking the overtime overtime or compensatory costs costs for for the the security security team team to to travel travel with the Governor. Governor. OPRA OPRA specifically specifically mandates that "an individual's...payroll individual's...payroll record...shall be aa government government record..." N.J.S.A. 47:1A-10. record..." N.J.S.A. 47:1A-10. OPRA contains an an exemption exemption at N.J.S.A. N.J.S.A. 47:1A-1.1 47:1 A-1.1 for for "security OPRA also also contains "security measures measures and and surveillance techniques surveillance techniques which, which, if if disclosed, disclosed, would would create create aa risk risk to the safety safety of of persons, persons, property, property, electronic electronicdata dataor or software." software." Thus, Thus, to deny deny access access to payroll payroll records records on the basis basis that said records records are exempt under N.J.S.A. 47:1A-1.1 47:1A-1.1 is contradictory contradictory to to OPRA's subsequent provision N.J.S.A. 47:1A-10 47:1 A-10 which subsequent provision at at N.J.S.A. which specifically specifically indicates indicates that that payroll payroll records are public records. Furthermore, OPRA OPRA also contains the following provision: shall not not abrogate "[t]he provisions of this act... act... shall abrogate any exemption of of aa public record or government record from public access heretofore made pursuant to...regulation under the of any statute or Executive to...regulation promulgated promulgated under the authority authority of Order the Governor; Governor; Executive Executive Order Order of of the Order of of the Governor..." Governor..." N.J.S.A. N.J.S.A. 47:1A-9.a. 47:1A-9.a. N.J.S.A. N.J.S.A. 47:1A-9.a. 47:1A-9.a. therefore therefore mandates mandates that that OPRA's OPRA's provisions provisions do not supersede supersede any exemption exemption contained containedinin an an Executive Order of of the Executive Order the Governor, Governor, or or any any regulation regulation promulgated promulgatedpursuant pursuanttotoan an Executive ExecutiveOrder Orderof of the the Governor. Governor. The The Custodian Custodian in this matter matter alleged alleged that that Executive Executive Order No. 47 47 (Christie (Christie 2010) 2010) also also exempts exempts the the requested requested records from public access. Executive Executive Order No. No. 47 (Christies 2010) provides that: "[t]he exemptions exemptions from "[t]he from public public access access that that have have been been proposed by the proposed by the Departments Departments of Law and Public Safety, Corrections, Military and Veterans Affairs, Environmental Affairs, Environmental Protection, Protection, and and Community Community Affairs, Affairs, set set forth in Appendix A shall remain Appendix A attached attached hereto, hereto, shall shall be be and and shall remain in full full force force and and Cynthia Cynthia Burton Burton v. v. NJ NJ Department Department of of Law Law &Public & Public Safety, Safety, Division Division of of State State Police, Police,2010-330 2010-330 —Findings — Findings and Recommendations 1 1 and Recommendations 11 of Director of the the Executive Executive Director

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effect pending pending their their adoption adoption as as final final rules rules pursuant pursuant to to the provisions of provisions of effect the Administrative Procedure Act." the Administrative Procedure Act." N.J.A. C. 13:1E-3 in Executive Executive Order Order No. No. 47 13:IE-3 which "Appendix A" A" as as referred referred to to in 47 includes includes N.J.A. "Appendix of records records provisions provisions applicable applicable to to the the New New Jersey Jersey Department Department of of contains confidentiality of Specifically, N.J.A. C. 13:1E-3.1 13:1E-3.1 states this Law and Public N.J.A.C. states that that "[t]he "[t]he rules rules in in this Law Public Safety. Safety. Specifically, all divisions subchapter apply to to the the Department of Law Law & Public Safety &Public divisions and and subchapter apply Department of Safety and all Division of ofState division within within agencies in in the the Department..." Department..." Because Becausethe theDivision State Police Police is is aa division Public Safety, these rules apply to the subject public agency in of Law & &Public the Department of this matter. matter. N.JA.C. provides that that "records "records which which may may reveal reveal the identity identity of a .J.A. C. 13:1E-3-2(a)3 13:1E-3-2(a)3 provides N an agency's confidential informant, informant,aa confidential confidentialsource, source,aa citizen citizen informant, informant, or or an agency's confidential or procedures procedures or surveillance, security or or investigative techniques techniques or or undercover undercover personnel" personnel" Also, N.J.A. C. 13:1E13:1Eare not considered government records subject subjectto to public public access. access. Also, N.J.A.C. government records of an an individual individual law officer or or assignment of law enforcement enforcement officer 3.2(a)7 provides provides that that "[t]he "Nile duty duty assignment personally identifiable to information information that that may may any identifiable information information that that may may reveal reveal or or lead lead to any personally such duty assignment, including, limited to, to, overtime data pertaining pertaining to to an an including, but but not not limited reveal such considered a government record. individual law enforcement officer" is not not considered individual Chief of of the EPB certified certified that disclosing information information about Here, the Bureau Chief Here, the EPB that disclosing about allow aa compensatory time time and and overtime overtime would would disclose disclose the the staffing staffing levels levels that that could could allow compensatory staffing levels of future information to to determine determine staffing levels of future security security details. details. wrongdoer wrongdoer to use the information seeking the names of Although the Complainant Complainant stated stated that that she she is not seeking of the officers, she is with the Governor well as their payroll seeking the number number of officers officers that traveled with Governor as well as their payroll information. Even the identity of the officers information. Even without releasing the identity of officers in the the Governor's Governor's without releasing of officers would reveal reveal the level security team, disclosing the number of level of of strength used in Similarly, by releasing payroll the byreleasing payroll records records of ofunnamed the Governor's Governor's security security force. force. Similarly, unnamed determine the strength of of the security personnel would also also permit permit a requestor requestor to determine the strength personnel security force. force. on leaves the EPB vulnerable to to how how heavy of of a security level level it places on Such information leaves Releasing the in this protecting the requested requested payroll payroll records records in this particular particular protecting various various dignitaries. dignitaries. Releasing under instance security techniques techniques and procedures which are exempt exempt under instance would reveal security and procedures which are would reveal "information that or lead information as well well as as "information that may may reveal reveal or 13:1E-3-2(a)3, as lead to to information N.J.A. C. 13:1E-3-2(a)3, N.J.A.C. of aa law officer pursuant to N.J.A. that may reveal...duty assignment[s]" assignment[s]" of law enforcement enforcement officer C. 13:1 E-3.2(a)7. E-3.2(a)7. lawfully denied Therefore, the the Custodian Custodian has has lawfully Therefore, denied access access to the the requested requested payroll payroll from public exempt from public access access under under N.J.S.A. N.J.S.A. 47:1A-9.a. records because because said records records are exempt records 47:1 A-9.a. Governor, or or any any which exemptions contained containedin in an an Executive Executive Order Order of of the the Governor, which upholds upholds exemptions regulation promulgated promulgatedpursuant pursuanttotoan an Executive ExecutiveOrder Orderof of the the Governor. Governor. Executive regulation Executive Law & 47 (Christie (Christie 2010) 2010) permits Department of & Order No. 47 permits rules rules proposed proposed by by the the NJ NJ Department of Law Order N.J.A.C. exempts records which remain in full effect. 13:1E-3.2(a)3 exempts which Public effect. N.J.A. C. 13:1E-3.2(a)3 Public Safety Safety to to remain in full or investigative or procedures reveal an an agency's agency's surveillance, surveillance, security security or investigative techniques techniques or procedures may reveal may 13:1E-3.2(a)7 exempts an individual individual law law and N.J.A.C. N.J.A.C. 13:1E-3.2(a)7 exempts"[t]he "[t]he duty duty assignment assignmentof of an officer or or any any personally personally identifiable identifiable information information that that may may reveal reveal or or lead to enforcement officer including, but information assignment, including, to, overtime information that may reveal reveal such such duty duty assignment, but not not limited to, pertaining to to an an individual individual law law enforcement enforcement officer." officer." Despite payroll records being being data pertaining of said records in this instance leaves public records under N.J.S.A. 47:1A-10, the release of Divisionof ofState Cynthia Burton Burton v. Public Safety, Findings and and Recommendations Recommendations v. NJ Department of of Law Law & &Public Safety,Division StatePolice, Police,2010-330 2010-330— —Findings Cynthia NJ Department of the Executive Executive Director Director of the

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various security level level itit places places on onprotecting protecting various the EPB to how EPB vulnerable how heavy heavy of aa security the vulnerable to Because the dignitaries and and are are therefore exempt under under the the regulations regulationscited cited above. above. Because therefore exempt dignitaries regulations cited above, the Council need not requested records records are are exempt exempt under under the the regulations cited above, the Council requested exemption. address the claimed executive privilege exemption.

Conclusions and and Recommendations Recommendations Conclusions respectfully recommends recommends the Council Council find that: that: The Executive Director respectfully 1. 1.

The Complainant's request for "travel" and "expense" records fails to identify records sought, sought, said request request is invalid under OPRA government records the specific government Division of pursuant to MAG Entertainment, LLC v. Division of Alcoholic Alcoholic Beverage Beverage Entertainment, LLC pursuant Stafford Police Super. 534, 546 (App. Div. 2005), 2005), Bent v. Stafford Control, 375 375 N.J. Super. Department, 381 381 N.J. N.J. Super. Super. 30, 37 (App. Div. 2005), 2005), New Jersey Builders Department, Jersey Builders Affordable Housing, 390 N.J. Super. Suer. Association New Jersey Council on Affordable Association v. New Jersey Council Schuler Borough of Bloomsbury, and v. GRC 166, 180 (App. Div. 2007), and Schuler v. Borough of Bloomsbury, GRC 2007), 166, such, the Custodian has not As such, the Custodian Complaint No. No. 20072007- 151 151 (February (February 2009). 2009). As Complaint access to to said portion portion of of the Complainant's OPRA OPRA request. unlawfully denied access

2.

lawfully denied access to the the requested requested payroll payroll records records The Custodian Custodian has has lawfully denied access 47:1 A-9.a. because said records are exempt from public access under N.J.S.A. 47:1A-9.a. which upholds exemptions contained in in an Executive Order of the Governor, exemptions contained regulation promulgated promulgated pursuant Executive Order the or pursuanttoto an an Executive Order of of the or any any regulation Order No. 47 (Christie (Christie 2010) Governor. Executive Executive Order No. 47 2010) permits permits rules proposed by remain in full full effect. N.J.A. C. & Public Safety to remain N.JA.C. the NJ Department of Law &Public an agency's 13:1E-3-2(a)3 exempts agency's surveillance, surveillance, 13:1E-3-2(a)3 exempts records records which which may may reveal reveal an NJA.C. 13:1E-3.2(a)7 security or investigative techniques or procedures and N.J.A.C. individual law enforcement exempts "[t]he duty of an individual assignment of officer or exempts duty assignment enforcement officer reveal or lead to information any personally identifiable information that may reveal overtime that may reveal such duty assignment, including, but not limited to, overtime individual law payroll pertaining to enforcement officer." Despite payroll to an individual law enforcement officer." Despite data pertaining records 47:1A-10, the said records being being public public records records under under N.J.S.A. N.J.S.A. 47:1A-10, the release release of said records in this instance leaves the Executive Protection Bureau vulnerable to records how heavy of aa security it places places on on protecting protecting various various dignitaries dignitaries and how security level it under the the regulations regulations cited cited above. above. Because the requested are therefore exempt under Council need not regulations cited above, above, the Council records are exempt under the regulations records exempt under address the claimed executive privilege exemption.

PreparedBy: By: Dara Prepared Dara Lownie Lownie Communications Manager Approved By: Catherine Starghill, Esq. Executive Director May 17, 2011

ofState 2010-330— of Law Safety,Division Divisionof StatePolice, Police,2010-330 Cynthia Burton Burton v. NJ Department Public Safety, Findings and and Recommendations Recommendations Cynthia v. NJ Department of Law & &Public —Findings of the the Executive Executive Director Director of

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