Monday, June 28, 2010

Appellate Court: List of employee's training courses is public record

On June 28, 2010, the Appellate Division reversed a Somerset County Judge's dismissal of an Open Public Records Act (OPRA) case. The eight-page opinion in the case, Vasil Kovalcik v. Somerset County Prosecutor's Office, is on-line here.

The records requested were the curriculum vitaes for and lists of training courses taken by two detectives in the prosecutor's office. After the OPRA lawsuit was filed, the custodian certified that the only record responsive to the request was a "two-page document reflecting training courses attended by [one of the detectives]. The prosecutor's office provided a copy of the two-page list to the trial judge for an in camera review. During oral argument, the prosecutor's office argued that the two-page record was "protected from public disclosure as a personnel record under N.J.S.A. 47:1A-10."

During argument, the unidentified trial judge asked the custodian, who was sitting in the courtroom but not placed under oath, to "describe the basic qualifications for someone to become a prosecutor's office [detective]." The custodian replied that a candidate must take a course offered by the Division of Criminal Justice Academy and receive a course certificate. (As a matter of policy, the Appellate Division never discloses the identifies of trial judges in its opinions, except when it affirms the trial judge's ruling.)

The trial judge noted that N.J.S.A. 47:1A-10 exempts "personnel records" from access, except that records that "disclose conformity with . . . educational . . . qualifications required for government employment" are public. Based on the custodian's comments, the judge concluded that the two-page record was exempt because it revealed training courses taken that exceeded those required for the detective's position. The judge held that any training beyond the Division of Criminal Justice's course was "at the pleasure of the prosecutor" and did not need to be disclosed.

The Appellate Division first found that the unsworn comments made by the custodian were "wholly devoid of evidential value because the information" was not sworn to under oath. Therefore, the court found, the custodian's written certification was the only evidence the government could use to carry its burden of proving that the record is exempt from access.

The Appellate Division next found that to the extent that N.J.S.A. 47:1A-10 was ambiguous, it "must be resolved against those seeking to withhold information from public scrutiny." After reviewing the record themselves, the Appellate Division judges specifically found the list of training courses did "not contain any private or confidential information that would trigger any concern for [the detective's] privacy rights."

In sum, the Appellate Division reversed the trial judge's decision and ordered release of the two-page listing of the detective's training courses. The requestor's lawyer was Jack Venturi of New Brunswick.

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