Saturday, December 17, 2016

Salem judge rules that filed criminal complaint becomes exempt under OPRA when placed in personnel file.

At a December 16, 2016 hearing, Georgia M. Curio, Assignment Judge of Cumberland, Salem and Gloucester counties, ruled that a criminal complaint possessed by the Woodstown-Pilesgrove Regional School District was exempt from public disclosure as a "personnel record."  Curio's remarks were made orally from the bench in an Order to Show Cause hearing in Heather Grieco v. Regional Board of Education, Docket No. SLM-L-162-16.

Grieco requested the complaint after reading in the school board's March 26, 2015 closed meeting minutes that Superintendent Thomas A. Coleman, Jr. reported "that [redacted] case has been remanded back to the prosecutor to be downgraded and then sent back to the court."  The minutes label the matter as a "discussion item" and a "personnel matter" but provide no further information about the underlying criminal charge.

Grieco, concluding that a school employee had been charged with a criminal offense, sought a copy of the criminal complaint so that she could identify the identity of the defendant and the nature of the underlying charge.  Business Administrator Frank A. Rizzo, in a July 15, 2016 letter, denied the request stating that "[w]hile there is one document responsive to the request, the document is a personnel record contained in the individual's personnel file. Personnel records are exempt from disclosure under N.J.S.A. 47:1A-10 and the general privacy provision contained in N.J.S.A. 47:1A-1."

Grieco's lawyer, Raymond Baldino of the Clinton-based Law Office of Walter M. Luers, argued that criminal complaints are public filings and the fact that the complaint was later placed in an employee's personnel file did not retroactively make it exempt from disclosure. Curio disagreed and stated that personnel records are "carefully guarded" even if the criminal complaint was considered a public record by the courts or other agencies. 

Curio also upheld the school board's denial of Grieco's request for closed minutes that redacted the name or at least the initials of a student who had filed a due process petition.  She ruled that the minutes were properly redacted even though the student's name may have been made public in related filings held by the Department of Education and Office of Administrative Law.

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