Scheeler v. MVC SOI GRC 2014-75

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State ~f New JerseyCHRIS CHRISI'IE OFFICE OF THE ATTORNEY GENERAL

Gouerri,or' DEPARTMENT OF LAW AND PUBLIC SAFETY

DIVISION OI' LAW

KIM GUADAGNO 25 MARI{ET STREETI t. Gouerr~or PO Box 114

Trt~NTON, NJ 08625-0114

March 19, 2014

VIA OVERNIGHT DELIVERY and EMAILGovernment Records CouncilIn Care of Robert T. Sharkey, Esq.101 South Broad StreetP.O. Box 819Trenton, New Jersey 08625-0819

Re: Harry B. Scheeler,CommissionGRC Complaint No.

Dear Mr. Sharkey:

On behalf of the New(the "Commission"), enclosedStatement of Information for the

Encl.

Jr. v. NJ Motor Vehicle

2014-75

eIOHN J. HOFFMANActing Attorney General

cT~FI'REY S. eTACOBSONDirector

Jersey Motor Vehicle Commissionplease find the Commission'sabove-captioned matter.

Respectfully submitted,

JOHN J. HOFFMANACTING ATTORNEY GENERAL OF NEW JERSEY

By: ~.

Valentina M. DiPippoDeputy Attorney General

Cc (with enclosures): Harry B. Scheeler, Jr., 201 WebsterStreet, Apt B-7, V~Toodbine, NJ 08270 via overnight delivery andemail

HuGxEs JUSTicE CoMPLEx TEr,~PxorrE: (609) 292-4254 Fnx: (609) 292-5649New Jersey Is Arti Equal Opportunity Employer Prirtited on Recycled Paper and Recyclable

Custodian Statement of Information Scheeler v. MVC GRC Complaint No. 2014-75

State of New JerseyGovernment Records CouncilStatement of Information Form

This form is to be used by Records Custodians as their response to a complaint filed withthe Government Records Council ("GRC") alleging the unlawful denial of a request toaccess government records under the Open Public Records Act ("OPRA"), N.J.S.A.47:1A-1 et seq.

An offer to mediate this complaint has been denied by one or more of the parties, ormediation has not resolved the complaint, and the matter is now within the GRC'sjurisdiction. The GRC will conduct an investigation as part of the adjudication of thematter. The Custodian or the Custodian's Legal Counsel may complete the Statement ofInformation. However, the Records Custodian (or alleged Records Custodian) must signthe Statement of Information. The GRC will also consider any legal briefs, additionaldocumentation or information submitted with the Statement of Information.

The signed Statement of Information must be returned to:

Government Records CouncilIn care of [Robert T. Sharkey]

101 South Broad StreetP.O. Box 819

Trenton, NJ 08625-0819Phone: (609) [984-2105]Fax: (609) 633-6337

E-mail: [[email protected]

The Statement of Information must be received no later than five (5) business daysfrom your receipt of this form. Failure to comply with this deadline may result in theGRC adjudicating this complaint based only on the information submitted in the Denialof Access Complaint by the requestor of the records.

Please note that by signing the Statement of Information, the Custodian (or allegedCustodian) is certifying that a copy will be provided to the Complainantsimultaneously with it being provided to the GRC.

IMPORTANT: Do not provide any records or excerpts of records that the Custodianclaims is privileged or not accessible to the public under OPRA. A general description ofthe records' content will be sufficient.

DEFINITIONS: "Records request" or "request" refers to the formal OPRArequest on which the complaint is based; "Requestor" or "Complainant" refersto the person who made the request on which this complaint is based;"Agency" refers to the public agency or subdivision of that agency to whichthe records request was directed; and "Records Custodian" or "Custodian"refers to the individual charged by the agency with the responsibility forfulfilling the request for records on which this complaint is based.

Statement of Information Page 1


PART 1: CONTACT INFORMATION

1. GRC Complaint Number:

2. Name of Complaint:

3. Name of (Alleged) Custodian:

Job Title of Custodian:

4. Custodian's Public Agency:

Address:

2014-75

Scheeler v. MVC

Joseph F. Bruno

Administrative Analyst

New Jersey Motor VehicleCommission

225 E. State Street

9`~' Floor, East Wing

Trenton, NJ 08666-0162

Phone: 609-777-1407

Fax: 609-984-1528

E-mail: [email protected]

5. Name of Custodian's Legal Counsel: Valentina DiPippo, DAG

R.J. Hughes Justice ComplexAddress: P.O. Box 114

25 Market Street, 8th floor, P.O. Box 114

Trenton, NJ 08625-0114

Phone: 609-292-4254

Fax: 609-292-5649

E-mail: [email protected]



5. PART 2: ABOUT THE DENIAL OF ACCESS COMPLAINT

6. Attach a copy of the OPRA records request upon which this Complaint is based.Please mark this attachment "Item 6."

7. Indicate the date on which the Custodian received the OPRA records request uponwhich this complaint is based. (If the Custodian did not receive an OPRA recordsrequest, simply indicate "None received.")

January 31, 2014

8. Indicate the date on which the Custodian responded to the OPRA records requestupon which this complaint is based. Provide all written documentation supporting theCustodian's response. If you use additional pages to respond, please mark each page"Item 8." (If the Custodian did not respond to the OPRA records request, simplyindicate "No response was given.")

February 1l, 2014

9. In keeping with the GRC's statutory mandate to investigate alleged denial of accesscomplaints pursuant to N.J.S.A. 47:1A-7.e. and the court's instruction that allCustodians responding to denial of access complaints provide a document indexcontaining certain information to the GRC pursuant to its decision in John Paff v. NJDe artment of Labor, 392 N.J. Super. 334 (App.Div. 2007), the Custodian mustprovide the document index table below. The document index table is required inthe tAhle format presented below. Please mark the table "Item 9."

An exam~~le of the required document index in table format is as follows:

~A) ~B)~C)- ---

~D) ~E) ~F) 1List of all List the Records List of all records If records were If records List the legalrecords Retention provided to disclosed with were denied explanation and

responsive to Requirement and Complainant, in redactions, give in their statutory citationComplainant's Disposition their entirety or a general nature entirety, give for the denial ofOPRA request Schedule for each ~~ith redactions description of a general access to records(include the records responsive (include the date the redactions. nature in their entirenumber of to the such records were description of or with

pages for each Complainant's provided). the record. redactions.record . OPRA re uest

1.List of all DMV 3 years for items 1. List of all DMV Requestor sought Employee N.J.S.A. 47:1A-1.1 et seq.employees at 1 year for item 2. employees at Egg names of manual -

Egg Harbor Twp No responsive Harbor Twp employees procedural/location. 2. record information location. Employee operationalEmployee foc item 3. Items 4 schedule forschedule for

5, & 6 are subject January 31, 2014January 31, DMV policy can2014. to periodic change. registration3. MVC policy discounts. DMVwhich permits procedure for


Custodian Stltement of Information Scheeler v. MVC GRC Complaint No. 2014-75

employees to processingrefuse to give full registrationname to public. discounts for SSI,4. DMV policyon registration

lifeline, PADDrecipients

discounts.5. DMVprocedure forprocessingregistrationdiscounts forSSI, lifeline,PADD recipients.6. DMV employeemanual

For more clarification of the information required in the document index in table format:

A. An itemized list of all records responsive to the Complainant's OPRA request thatwere made, maintained, kept on file or received by your agency on the date of therequest, regardless of whether you deem such records are exempt from disclosure.

B. State the agency's Records Retention Period (in years) and Destruction Schedule(in years) for each record responsive to the request as established and approved bythe New Jersey Department of Treasury, Records Management Services.

C. Of the records responsive to the request, indicate which records, if any, wereprovided to the Complainant, in their entirety or with redactions, and the datessuch records were provided.

D. Of the records responsive to the request and provided to the Complainant withredactions, give a general nature description of the redactions.

E. Of the records responsive to the request, and not provided to the Complainant intheir entirety, give a general nature description of the record.

F. Specifically state the legal explanation and statutory citation (to OPRA or otherlaw that applies) for such denial based on a public agency's burden of provingthat all denials of access are authorized by law pursuant to N.J.S.A. 47:1A-6 andthe court's instruction to provide same in John Paff v. NJ Department of Labor,392 N.J. Super. 334 (App.Div. 2007).

10. Specifically describe the search undertaken to satisfy the records request uponwhich this complaint is based.

11. Specifically state the last date on which documents that may have been responsiveto the request were destroyed in accordance with the Records Destruction Scheduleestablished and approved by New Jersey Department of Treasury, RecordsManagement Services.



12. Provide all facts and legal arguments in support of the Custodian's actions withregard to the handling of the OPRA records request upon which this complaint isbased on an attached written statement marked "Item 12."

If the Custodian fails to complete this form completely and accurately (responding toeach numbered item specifically as directed and providing a document index in table

format), this form will be returned to the Custodian for proper completion thusprolonging the adjudication of the complaint.

By signing this Statement of Information, I certify that:

n I am the Custodian charged by the public agency with the responsibility forresponding to the request for records on which this complaint is based; or

n I am the alleged Custodian of an organization I do not believe to be a publicagency obliged under the provisions of OPRA;

n The documents attached hereto are true copies of all documents sent or receivedby the Custodian or the Custodian's staff (records the custodian claims areprivileged or not accessible to the public under OPRA are not included);

n A copy of this Statement of Information will be provided to the Complainantsimultaneously with it being provided to the GRC; and

n The foregoing statements made by me are true. I am aware that if any of theforegoing statements made by me are willfully false, I am subject to punishmentpursuant to the New Jersey Court Ru 1:4-4.

Signature:

Printed Name: Joseph F. Bruno

Job Title: Administrative Analyst

Date: March 18, 2014


of 1

Joseph Bruno - OPRA Request DMV 1/31

From: Harry Scheeler To: "[email protected]" Date: 1/31/2014 12:10 PMSubject: OPRA Request DMV 1/31CC:

This is an electronic OPRA request. Please email all documents to this email in PDF form.

1. List of all DMV employees at Egg Harbor Twp location.2. Employee schedule for January 31, 2014.3. MVC policy which permits employees to refuse to give full name to public.4. DMV policy on registration discounts.5. DMV procedure for processing registration discounts for SSI, lifeline, PADD recipients.6. DMV employee manual.

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New JerseyMotor 1/ehicle CommissionSTATE OF NEW JERSEY

February 11, 2014

Harry B, Scheeler201 Webster StreetApt. B-7Woodbine, New Jersey 08270

Re: Open Public Records Act request W83450

Dear Mr. Scheeler:

P.O. Box 160Trerton, New Jersey 08668-0180

Chris Ch~istleGovernor

Klm GuadagnoLt. Govenw~

Raymond P. MartinezChairman and Chief Adminis#rator

This office is in receipt of your Open Public Records Act ("OPRA") da#ed January31, 2014, wherein you seek disclosure of certain Motor Vehicle Commission ("MVC")record information.

With regard to that aspect of your request which seeks "List of all DMVemployees at Egg Harbor Twp location" enclosed please find ali available recordinformation responsive to that aspect of your request.

With regard to that aspect of your request which seeks "Employee schedule forJanuary 31, 2014" enclosed please find all available record information responsive tothat aspect of your request.

Wifh regard to that aspect of your request which seeks the "MVC policy whichpermits employees to refuse to give full name to public" no official written policy exists.Therefore there is na record information responsive to your request. Employeesstationed at the MVC's field locations are discouraged from providing their full name tothe public as a matter of personal safety. The manager and supervisor of each facilitywill provide their full name to customers in the event that there is any difficulty with atransaction at the facility or with employee or employees.

With regard to that aspect of your request which seeks "DMV policy onregistration discounts" and "DMV procedure for processing registration discounts farSSI, lifeline, PADD recipients" all passenger vehicles, motorcycles, vans, pickup trucks,non-conventional vehicles, and omnibus registered to recipients of the foiiowing

On the Road (o ExcelJe~l~eVisit us at 4vww.njmvc,gov

New Jersey is an Equal Opportunity Errp(oyer

programs are exempt from paying the increased fees pursuant to the Insurance ReformAct:

Pharmaceutical Assistance to the Aged &Disabled (PAAD)Supplemental Security Income (SSI)Lifeline

Applicants must present a current PAAD or SSl Card or oraaf of Lifelineeligibility. If the name on the registration ar driver license differs from the information onthe card, the customer must provide additional verification. -Applicants wha {ease theirvehicles are eligible for these discounts. The applicant is required to provide proof ofeligibility along with a copy of the lease agreement showing their cAnnection to thevehicle being registered. Parenfs, guardians, foster parents of PAAD, SSI, or Lifelinerecipients are eligible for reduced registration fees.

With regard to that aspect of your request which seeks the "DMV employeemanual" the MVC presumes that you are seeking the employee manual far field facilitypersonnel. N.J.S.A. 47:1A-1.1 provides, "Government record" or "record" means anypaper, written or printed book, document drawing, map, plan, photograph, microfilm,data processed or image processed document, information stored or maintainedelectronically or by sound-recording an in a sirnilar device, or any copy thereof, that hasbeen made, maintained or kept an file in the course of his or its o~cial business by anyofficer, commission, agency or authority of the State or of any politico! subdivisionthereof, including subordinate boards thereo#, or that has bezn received in the course ofhis or its o~fcial business by any :,uch office, commission, agency, or authority of theState or of any political subdivision thereof, including subordinate b~ard~ thereof. Theterm shall not include inter-agency or ir~tra-agency advisory, consultative nr deliberativematerial. N.J.S.A. 47:1A-1.1 further provades "a government record shall not includethe following information which is deemed to be confidential for the purposes of P.L.1963, C. 73 (C47:1A-1 et se.} as amended and supplemented:...administrative ortechnical information regarding computer hardware, software and networks which, ifdisclosed, would jeopardize computer securifi~r..."

The MVC's employee manual contains procedural information that providesguidance to MVC employees regarding the use of the various MVC computer networkswhich is designed in ensure the issuance og accurats, secure documents to the publicin accordance with fhe law. Disclosure of the contents of the "DMV employee manual"would severely undermine the MVC's ability to do so. The MVC cannot therefore,accommodate this aspect of your request.

Thank you for the opportunity to be of assistance.

` ~ Very truly yours,

Joseph F. BrunoMVC Custodian of RecordsOffice of Legislative and Regulatory Affairs

Yaur request for government records (W83450} is as follows:

1. List of all DMV employees at Egg Harbor Twp location.2. Employee schedule for January 31, 2Q14.3. MVC policy which permits employees to refuse to give full name to public.4. DMV policy on registration discounts.5. DMV procedure for processing registration discounts for SSI, lifeline, PADDrecipients.6. DMV employee manual.

Of THE STgT.

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State o f New JerseyCHRIS CHRISTIE OFFICE OP' THE ATTORNEY GENERAL

Gouerrta DEPARTMENT OF LAW AND PUBLIC SAPF,TY

DIVISION OF LAW

KIM GLIADAGNO `L5 MARIfET STREETLt. Gouern.o~ PO Box 114

TxErrTON. NJ 08625-0114

March 19, 2014

Government Records CouncilIn Care of Robert T. Sharkey, Esq.101 South Broad StreetP.O. Box 819Trenton, New Jersey 08625-0819

Re: Harry B. Scheeler, Jr. v. NJ Motor VehicleCommissionGRC Complaint No. 2014-75Item 12

Dear Mr. Sharkey:

JOHN J. HOFFMANActing Attorney Geri.eral

cTEPP'REY S. eTACOBSONDirector

I am submitting this written statement as counsel for

the New Jersey Motor Vehicle Commission (the "Commission"), on

behalf of the Commission's Open Public Records Act ("OPRA")

custodian, Joseph F. Bruno (the "Custodian"), as to Government

Records Council ("GRC") Complaint No. 2014-75.

FACTS AND PROCEDURAL HISTORY

The complainant, Harry B. Scheeler, Jr., submitted

OPRA request # W83450 on January 31, 2014, in which he sought:

1. List of all DMV employees at Egg HarborTwp location.

2. Employee schedule for January 31, 2014.

HUGHES JUSTICE COMPLEX TELEPxoNF: (609) 292-4254 Fnx: (609) 292-5649New Jersey Is Ari. equal Opportur~ity Employer Printed ors Recycled Paper ar~d Recyclable

March 19, 2014Page 2

3. MVC policy which permits employees torefuse to give full name to public.

4. DMV policy on registration discounts.5. DMV procedure for processing

registration discounts for SSI,lifeline, PADD recipients.

6. DMV employee manual.

[Item 6 .

On February 11, 2014, the Custodian responded to Mr. Scheeler by

email stating that:

[l.] With regard to that aspect pf yourrequest which seeks "List of all DMVemployees at Egg Harbor Twp location"enclosed please find all available recordinformation responsive to that aspect ofyour request.

[2.] With regard to that aspect of yourrequest which seeks "Employee schedule forJanuary 31, 2014' enclosed please find allavailable record information responsive tothat aspect of your request.

[3.] With regard to that aspect of yourrequest which seeks the "MVC policy whichpermits employees to refuse to give fullname to public" no official written policyexists. Therefore there is no recordinformation responsive to your request.Employees stationed at the MVC's fieldlocations are discouraged from providingtheir full name to the public as a matter ofpersonal safety. The manager and supervisorof each facility will provide their fullname to customers in the event that there isany difficulty with a transaction at thefacility or with employee or employees.

[4. and 5.] With regard to that aspect ofyour request which seeks `DMV policy onregistration discounts' and `DMV procedurefor processing registration discounts forSSI, lifeline, PADD recipients' all


passenger vehicles, motorcycles, vans,pickup trucks, non-conventional vehicles,and omnibus registered to recipients of thefollowing programs are exempt from payingthe increased fees pursuant to the InsuranceReform Act:

Pharmaceutical Assistance to the Aged &Disabled (PAAD)Supplemental Security Income (SSI)Lifeline

Applicants must present a current PAAD orSSI Card or proof of Lifeline eligibility.If the name on the registration or driverlicense differs from the information on thecard, the customer must provide additionalverification. Applicants who lease theirvehicles are eligible for these discounts.The applicant is required to provide proofof eligibility along with a copy of thelease agreement showing their connection tothe vehicle being registered. Parents,guardians, foster parents of PAAD, SSI, orLifeline recipients are eligible for reducedregistration fees.

[6.] With regard to that aspect of yourrequest which seeks the `DMV employeemanual' the MVC presumes that you areseeking the employee manual for fieldfacility personnel. N.J.S.A. 47:1A-l.lprovides, `Government record' or `record'means any paper, written or printed book,document drawing, map, plan, photograph,microfilm, data processed or image processeddocument, information stored or maintainedelectronically or by sound-recording on in asimilar device, or any copy thereof, thathas been made, maintained or kept on file inthe course of his or its official businessby any officer, commission, agency orauthority of the State or of any politicalsubdivision thereof, including subordinateboards thereof, or that has been received inthe course of his or its official businessby any such office, commission, agency, orauthority of the State or of any politicalsubdivision thereof, including subordinate


boards thereof. The term shall not includeinter-agency or intra-agency advisory,consultative or deliberative material.N.J.S.A. 47:1A-l.l further provides `agovernment record shall not include thefollowing information which is deemed to beconfidential for the purposes of P.L. 1963,C. 73 (C47:1A-1 et se [q] . ) as amended andsupplemented: administrative ortechnical information regarding computerhardware, software and networks which, ifdisclosed, would jeopardize computersecurity .'

The MVC's employee manual containsprocedural information that providesguidance to MVC employees regarding the useof the various MVC computer networks whichis designed in ensure the issuance ofaccurate, secure documents to the public inaccordance with the law. Disclosure of thecontents of the `DMV employee manual' wouldseverely undermine the MVC's ability to doso. The MVC cannot therefore, accommodatethis aspect of your request.

[Item 8 . ]

On February 11, 2014, Mr. Scheeler filed this denial

of access complaint, in which he challenges the Commission's

responses to requests 1, 2, 4, 5, and 6. With respect to request

1, Mr. Scheeler challenges the redactions made by the

Commission. With respect to request 2, Mr. Scheeler requests

clarification regarding whether employee names have been

redacted. With respect to requests 4 and 5, Mr. Scheeler

contends that the response provided by the Commission was

improper and that the Commission is required to grant access,

deny access, or request clarification. With respect to request


6, Mr. Scheeler contends that the agency improperly relied on

the advisory, consultative, and deliberative material and

computer security exemptions to OPRA, and that the manual should

be provided with redactions.

Request l: Egg Harbor Township Employee List

With respect to request 1, the Commission redacted

portions of employees' last names to protect their safety and

security. As detailed in the Certification of Robert Grill,

Director of Agency Services-South, field agency employees have

received threats from customers. (Certification of Robert Grill

at ,1, 4) On some pccasions, the Commission's security or the

police have been required to address issues at field agency

locations. Id. at 5. In order to adequately protect the safety

and security of its employees, the Commission does not provide

the full name of its field agency employees. Id. at 6. The

Commission provides only the first name and first initial of the

last name of its field agency employees. Id. at 7. The

employee's first name, first initial of the employee's last

name, and the employee's field agency is sufficient for the

Commission to identify its employees and respond to any

inquiries from the public. Id. at 9. In accordance with its

policy, the Commission provided a copy of the employee list for

the Egg Harbor Township field agency containing the first name

and first initial of the last name for each of its employees.


Id. at 10. The Commission redacted the remainder of each

employee's last name due to concerns regarding the personal

safety of its field agency employees. Id. at 11.

Request 2: Employee Schedule for January 31, 2014

With respect to request 2, as certified by Joseph F.

Bruno, Custodian of Records for the Commission, the employee

schedule for January 31, 2014 only contains the first names and

first letter of the last name for each employee. (Certification

of Joseph F. Bruno at 1, 3) Other portions of the schedule,

unrelated to the employees' names, were redacted. Id. at 4. An

unredacted copy of the January 31, 2014 schedule is attached as

Exhibit A to the Certification of Joseph F. Bruno. Ibid.

Requests 4 and 5: DMV Policy on Registration Discounts and DMV

Procedure for Processing Registration Discounts for SS2,Lifeline, and PAAD Recipients

With respect to requests 4 and 5, the response

provided consists of excerpts from the Commission's internal

employee manual for field facility personnel. Id. at 5. The

Commission's internal employee manual for field facility

personnel is exempt from disclosure under the Open Public

Records Act because disclosure would jeopardize computer

security and create a risk to the safety of persons, property,

electronic data or software. Id. at 6. Information regarding

the agency's policies and procedures pertaining to SSI,

lifeline, and PAAD benefits is available on the Commission's


website at http://www.state.nj.us/mvc/Vehicle/Fees.htm. Id. at

7.

Request 6: DMV Employee Manual

With respect to request 6, the Commission does not

have an employee manual for all employees. Id. at 8. The only

"employee manual" maintained by the Commission is an employee

manual for field facility personnel. Id. at 8. The Commission

maintains an internal employee manual for field facility

personnel (the "manual") Grill Cert., supra, at 12. The

manual is a document created for the purposes of instructing

field agency employees how to review identification documents

and process requests for learner permits, driver licenses,

titles, and registrations. Id. at 13. The manual has always

been maintained by the Commission as an internal document, not

subject to disclosure under the Open Public Records Act. Id. at

14.

The manual provides specific instructions to field

agency employees regarding how to verify and authenticate

identification documents that are presented by customers. Id. at

15. The manual also provides information regarding how to

navigate the Commission's computer system, including what

information to input into the computer system. Id. at 16. The

manual also includes direct links to the computer system. Id. at

17. The manual could be used to hack the Commission's computer


database or modify the Commission's records. Id. at 18. The

Commission employs an extensive system of checks to prevent the

issuance of fraudulent learner permits, driver licenses, titles,

or registrations. Id. at 19. The manual contains detailed

information regarding the evaluation of identification documents

by field agency employees, which could be used to obtain

fraudulent learner permits, driver licenses, titles, or

registrations. Id. at 20.

Redacting the manual will not sufficiently protect the

integrity of the Commission's process of issuing learner

permits, driver licenses, titles, and registrations. Id. at

21. Redacting the manual will not sufficiently protect the

security of the Commissions' computer system. Id. at ~~ 22. All

information appropriate for public disclosure regarding the

Commission's procedures pertaining to the issuance of learner

permits, driver licenses, titles, and registrations is presented

on the Commission's websites and within publications available

to the public from the Commission. Id. at 23.

LEGAL ARGUMENT

POINT I

The Commission's Policy Regarding the LastNames of Employees is Proper, Does NotConflict with N.J.S.A. 47:1A-10, and DoesNot Constitute a Denial of Access.

The Commission acted appropriately in consideration of


its employees' safety and security when it provided Mr. Scheeler

with a list of the Egg Harbor Township field agency employees

with portions of the employees' last names redacted. The

Commission's policy of providing on the first name and first

initial of the last name of its field agency employees does not

conflict with OPRA's statutory requirement that certain

personnel records must be provided.

N.J.S.A. 47:1A-10 governs the disclosure of personnel

records. It states, in relevant part, that:

[n]otwithstanding the provisions of F.L.1963, c. 73 (C. 47:1A-1 et seq.) or anyother law to the contrary, the personnel orpension records of any individual in thepossession of a public agency, including butnot limited to records relating to anygrievance filed by or against an individual,shall not be considered a government recordand shall not be made available for publicaccess, except that:

an individual's name, title, position,salary, payroll record, length of service,date of separation and the reason therefor,and the amount and type of any pensionreceived shall be a government record;

[N.J.S.A. 47:1A-10.]

The New Jersey Supreme Court has held that the OPRA exemption

for personnel records "begins with a presumption of non-

disclosure and proceeds with a few narrow exceptions." Kovalcik

v. Somerset County, Pros. Office, 206 N.J. 581, 594 (2011).

Courts interpreting the personnel exemption "have tended to


favor the protection of employee confidentiality." McGee v.

Township of East Amwell, 416 N.J. Super. 602, 615 (App. Div.

2010). As explained by the New Jersey Supreme Court, personnel

records are to be maintained in confidence unless the documents

are of the type specifically subject to disclosure under

N.J.S.A. 47:1A-10. Kovalcik, su ra, 206 N.J. at 592. Citizens,

including public employees, have a reasonable expectation of

privacy and agencies are obligated to protect their employees'

information where disclosure would violate the citizen's

reasonable expectation of privacy. N.J.S.A. 47:1A-1. Moreover,

the Open Public Records Act exempts from disclosure records that

would impact safety and security. See N.J.S.A. 47:1A-l.l. The

GRC has previously recognized that disclosure of an employee

list or roster could pose a significant risk to the safety of

personnel. See Alicea v. City of Hoboken Police Department

(Hudson), GRC Complaint 2011-103 (Feb. 2013) (citing Rivera v.

City of Plainfield, Police Department (Union), GRC Complaint

2009-317 (May 2011) and McElwee v. Borough of Fieldsboro, 400

N.J. Super. 388 (App. Div. 2008)).

Here, Mr. Scheeler requested the list of employees at

the Commission's Egg Harbor Township field agency. In order to

protect the safety and security of its employees, the Commission

provided a copy of its employee list, but redacted the list to


only include the first name and first initial of the last name

of the employees.

The Commission does not object to providing the names

of its employees generally.l However, the Commission has

determined that providing the full name and location of its

field agency employees presents a risk to their personal safety.

As Robert Grill has certified, field agency employees have

received threats from customers and in some instances, the

Commission's security or the police have been required to

protect employees. Grill Cert., supra, at 4-5. Due to concerns

regarding employee safety, the Commission does not disclose the

full names of its employees along with their field agency

location.

Mr. Scheeler contends that the Commission's policy of

only providing the first name and first initial of the last name

of its field agency employees contravenes the Open Public

Records Act. In support of his position, he relies on O'Shea v.

Township of West Milford, 410 N.J. Super. 371 (App. Div. 2009).

'The State of New Jersey's website provides information regardingthe name, title, position, and salary of all State employees.See State of New Jersey Public Payroll Information, available athttp://yourmoney.nj.gov/transparency/payroll/. Notably, theState of New Jersey's website does not specifically identify theCommission's field agency employees by the location of theirfield agency. Instead, the Section of the employees who work atthe Commission's field agency locations is identified as either"MOTOR VEHICLE AGENCY SERVICES, NORTHERN REGION" or "MOTpR

VEHICLE AGENCY SERVICES, SOUTHERN REGION."


In O'Shea v. Township of West Milford, the Appellate Division

considered whether Use of Force Reports ("UFRs") were government

records subject to OPRA. The Appellate Division found the UFRs

subject to disclosure under OPRA and in doing so explained that:

The UFRs with which we deal here arenominally subject to OPR.A, and there is nogoverning policy or statement containingspecific provisions for exempting them fromOPRA's general rule of disclosure. We are,in this matter, guided by the concept thatadministrative actions, including thosestated in or imported to duly promulgatedrules and regulations, cannot override alegislative enactment such as OPRA. Absentspecific legislative leave, no agency isauthorized to deviate from expressed orimplied legislative policies.

[O'Shea v. Township of West Milford, 410N.J. Super. 371, 385 (App. Div. 2009).]

O'Shea is distinguishable from the present matter. In this

matter, the Commission is not deviating from any expressed or

implied legislative polices. Under N.J.S.A. 47:1A-10, the

Commission is only required to provide the name, title, and

position of its employees. As the New Jersey Supreme Court held

in Kovalcik, supra, the personnel exemption is to be construed

narrowly to protect the reasonable expectation of privacy held

by State employees. Kovalcik, supra, 206 N.J. at 592. The

Commission's policy of providing only the first name and first

initial of the last name of field agency employees does not

conflict with the requirements of N.J.S.A. 47:1A-10 because


N.J.S.A. 47:1A-10 does not require the Commission to provide the

specific office location or contact information for any of its

employees. Moreover, the Commission has narrowly tailored its

policy by redacting only a portion of employees' names to comply

with the public policy in favor of open government that is

embodied in the Open Public Records Act while adequately

protecting the safety and security of its field agency

employees.

POINT II

The Commission's Internal Employee Manualfor Field Facility Personnel is Exempt from

Disclosure under OPR.A.

Mr. Scheeler's argument is baseless. The Commission's

internal employee manual for field facility personnel is exempt

from disclosure under OPRA. OPRA exempts from public access

"administrative or technical information regarding computer

hardware, software and networks which, if disclosed, would

jeopardize computer security." N.J.S.A. 47:1A-1.1. OPRA also

exempts from disclosure "security measures and surveillance

techniques which, if disclosed, would create a risk to the

safety of persons, property, electronic data or software." Ibid.

The manual contains information instructing field

agency employees how to review identification documents and

process requests for learner permits, driver licenses, titles,

and registrations. Release of this information could assist


members of the public with obtaining fraudulent learner permits,

driver licenses, titles, and registrations. The issuance of

fraudulent identification documents such as learner permits,

driver licenses, titles, and registrations necessarily poses a

risk to public safety.

The manual also provides instruction to field agency

employees regarding how to enter data into the Commission's

computer system. Dissemination of this information could provide

unscrupulous individuals with a means to hack the Commission's

computer system or modify the Commission's records.

Redacting these records would not adequately protect

the Commission. Any disclosure of the information regarding the

processing of learner permits, driver licenses, titles, and

registrations or the Commission's computer system could threaten

the Commission's security and jeopardize the integrity of the

Commission's processes. Moreover, all information appropriate

for public release contained within the manual is already

publically available through the Commission's website and its

publications.

CONCLUSION

For the reasons set forth above, the Commission

requests the Government Records Council to confirm that no

denial of access to "government records" occurred with respect

to this OPRA Request and that the response of the Custodian in


this matter conformed to the requirements of the New Jersey Open

Public Records Act.

Respectfully submitted,

JOHN J. HOFFMANACTING ATTORNEY GENERAL OF NEW JERSEY

By: V 1~' ~lValentina M. DiPippoDeputy Attorney General

JOHN J. HOFFMANATTORNEY GENERAL OF NEW JERSEYRichard J. Hughes Justice Complex25 Market StreetP.O. Box 114Trenton, New Jersey 08625-0114Attorneys for Custodian of Record

By: Valentina M. DiPippoDeputy Attorney General(609) 292-4254

GOVERNMENT RECORDS COUNCILCOMPLAINT N0. 2014-75

HARRY B. SCHEELER, JR.,

Complainant,

Civil Action

CERTIFICATION OF ROBERT GRILLNEW JERSEY MOTOR VEHICLECOMMISSION,

Custodian of Record.

Robert Grill, of full age, upon his oath certifies and

says:

1. I am employed by the New Jersey Motor Vehicle

Commission (the "Commission"), Custodian of Record in the above-

referenced matter, as the Director of Agency Services-South. I am

responsible for the oversight of agency services in the Central and

South regions. I make this certification in support of the

1

Commission's Statement of Information to the Government Records

Council ("GRC"). I have personal knowledge of the matters stated

herein.

2. In OPRA request # W83450, the complainant, Harry B.

Scheeler, Jr., seeks, amongst other requests, the "[1]ist of all

DMV employees at Egg Harbor Twp location" and the "DMV employee

manual."

3. The Commission's field agency employees deal with

large numbers of customers each day.

4. On occasion, employees at the Commission's field

agencies have received threats from customers.

5. In some instances, field agency security or police

officers have been required to address issues that arose at field

agencies.

6. Due to concerns regarding the personal safety of its

employees, the Commission does not provide the full name of

employees at its field locations.

7. In order to protect the safety of field agency

employees, the Commission provides the first name and the first

initial of the last name of each employee.

8. The Commission also provides the full name of the

manager at any field location.

2

9. The first name, first initial of the last name, and

field location is sufficient for the Commission to identify any of

its employees and respond to any inquiries from the public.

10. In its response to request 1, the Commission

provided a copy of the employee list for the Egg Harbor Township

field agency containing the first name and first initial of the

last name for each of its employees.

11. The Commission redacted the remainder of each

employee's last name due to concerns regarding the personal safety

of its field agency employees.

12. The Commission maintains an internal employee manual

for field facility personnel (the "manual").

13. The manual is a document created for the purposes of

instructing field agency employees how to review identification

documents and process requests for learner permits, driver

licenses, titles, and registrations.

14. The manual has always been maintained by the

Commission as an internal document, not subject to disclosure under

the Open Public Records Act.

15. The manual provides specific instructions to field

agency employees regarding how to verify and authenticate

identification documents that are presented by customers.

3

16. The manual also provides information regarding how

to navigate the Commission's computer system, including what

information to input into the computer system.

17. The manual also includes direct links to the

computer system.

18. The manual could be used to hack the Commission's

computer database or modify the Commission's records.

19. The Commission employs an extensive system of checks

to prevent the issuance of fraudulent learner permits, driver

licenses, titles, or registrations.

20. The manual contains detailed information regarding

the evaluation of identification documents by field agency

employees, which could be used to obtain fraudulent learner

permits, driver licenses, titles, or registrations.

21. Redacting the manual will not sufficiently protect

the integrity of the Commission's process of issuing learner

permits, driver licenses, titles, and registrations.

22. Redacting the manual will not sufficiently protect

the security of the Commissions' computer system.

23. All information appropriate for public disclosure

regarding the Commission's procedures pertaining to the issuance of

learner permits, driver licenses, titles, and registrations is

0

presented on the Commission's websites and within publications

available to the public from the Commission.

I certify that the foregoing statements made by me are

true. I understand that if any of the foregoing statements made by

me are wilfully false, I am subject to punishment.

DATED: March 18, 2014

~-

I

ROBERT GRILL

5

JOHN J. HOFFMANATTORNEY GENERAL OF NEW JERSEYRichard J. Hughes Justice Complex25 Market StreetP.O. Box 114Trenton, New Jersey 08625-0114Attorneys for Custodian of Record

By: Valentina M. DiPippoDeputy Attorney General(609) 292-4254

GOVERNMENT RECORDS COUNCILCOMPLAINT NO. 2014-75

HARRY B. SCHEELER, JR.,

Complainant,

Civil Actionv.

CERTIFICATION OF JOSEPH F.NEW JERSEY MOTOR VEHICLE BRUNOCOMMISSION,

Custodian of Record.

Joseph F. Bruno, of full age, upon his oath certifies and

says:

1. I am employed by the New Jersey Motor Vehicle

Commission (the "Commission"), Custodian of Record in the above-

referenced matter as an Administrative Analyst, and I am the

Custodian of Records for the Commission. I make this certification

1

in support of the Commission's Statement of Information to the

Government Records Council ("GRC") I have personal knowledge of

the matters stated herein.

2. In OPRA request # W83450, the complainant, Harry B.

Scheeler, Jr., seeks, amongst other requests, "2. Employee schedule

for January 31, 2014[,]" "4. DMV policy on registration

discounts[,]" "5. DMV procedure for processing registration

discounts for SSI, lifeline, PA[A]D recipients[,]" and "6. DMV

Employee Manual."

3. With respect to request 2, the employee schedule for

January 31, 2014 only contains the first names and first letter of

the last name for each employee.

4. Other portions of the schedule, unrelated to the

employees' names, were redacted. An unredacted copy of the January

31, 2014 schedule is attached as Exhibit A.

5. With respect to requests 4 and 5, the response

provided consists of excerpts from the Commission's internal

employee manual for field facility personnel.

6. The Commission's internal employee manual for field

facility personnel is exempt from disclosure under the Open Public

Records Act because disclosure would jeopardize computer security

and create a risk to the safety of persons, property, electronic

data or software.

7. Information regarding the agency's policies and

procedures pertaining to SSI, lifeline, and PAAD benefits is

available on the Commission's website at http://www.state.nj.us/

mvc/Vehicle/Fees.htm.

8. With respect to request 6, the Commission does not

have an employee manual for all employees.

9. The only "employee manual" maintained by the

Commission is an employee manual for field facility personnel.

I certify that the foregoing statements made by me are

true. I understand that if any of the foregoing statements made by

me are wilfully false, I am subject to punishment.

DATED: March 18, 2014

J EPH F. BRUNO

3

EXHIBIT A

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Scheeler v. MVC SOI GRC 2014-75

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