Unemployment application information for Bridget Anne Kelly

Mr. Waltman:

This is in response to your recent government records request, wherein you seek the following: "All documentation - including but not limited to electronic correspondence and memoranda - from 2014 to 2015, pertaining to the application for unemployment insurance by Bridget Anne Kelly (date of birth, December 18, 1972)."

Incidentally, in the fax communication received in this office on November 15, 2016, which contained your government records request, you indicated that the request had originally been submitted to the Department on October 20, 2016, and that you had followed up with the Department on October 31, 2016 and November 8, 2016. I have a small office (just my secretary and myself); we have one fax machine which is located directly beside my secretary's desk; and we have no recollection, nor do we have any record of having received either your October 20, 2016 government records request or any follow-up to that request. That is to say, the first time that I became aware of your government records request was on November 15, 2016.

That said, your request is denied for two reasons. First, N.J.S.A. 43:21-11(g), within the New Jersey Unemployment Compensation Law, provides in pertinent part that:

All records, reports and other information obtained from employers and employees under [the New Jersey Unemployment Compensation Law]...shall be confidential and shall not be published or open to public inspection other than to public employees in the performance of their public duties, and shall not be subject to subpoena or admissible in evidence in any civil action or proceeding other than one arising under [the New Jersey Unemployment Compensation Law], but any claimant at a hearing before an appeal tribunal, the division or the board of review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim.

Therefore, if the unemployment compensation records are being requested for the purpose of appealing a benefits determination, the Department will supply those records to the claimant or to a representative of the claimant, so long as the representative provides the Department with an authorization for the release of those records signed by the claimant. Where access to the records is being sought for any reason other than to pursue an appeal under the New Jersey Unemployment Compensation Law, a court order is required directing the release of those records to the requestor. Since you are requesting access to unemployment compensation records for a purpose other than to pursue an appeal under the New Jersey Unemployment Compensation Law and since you have failed to produce a court order directing the release of those records, I must deny your records request on that basis.

Second, your request is denied because it is overbroad and, therefore, an impermissible use of the Open Public Records Act (OPRA). That is, under OPRA agencies are only obligated to disclose identifiable government records." Burke v. Brandes, 429 N.J. Super. 169, 174 (App. Div. 2012), citing MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 549 (App. Div. 2005). A records custodian's obligation under OPRA has been aptly described as follows: "[T]he custodian is obligated to search her files to find the identifiable government records listed in the OPRA request .... However, the Custodian is not required to research her files to figure out which records, if any, might be responsive to a broad or unclear OPRA request." Burnett v. Cnty. of Gloucester, 415 N.J. Super. 506, 515 (App. Div. 2010) (quoting Donato v. Twp. of Union, GRC 2005-182, Interim Order (Jan. 31, 2007)). Thus, an agency does not have a duty under OPRA to analyze and evaluate information in order to respond to an OPRA request. Burke v. Brandes, supra, 429 N.J. Super. at 175; Bent, supra, 381 N.J. Super. at 40. "The requestor must identify the records sought with specificity. The request may not be a broad, generic description of documents that requires the custodian to search the agency's files and 'analyze, compile and collate' the requested information." Bart v. Passaic County Public Housing Agency, 406 N.J. Super. 445, 451 (App. Div. 2009) If a request does not name specifically identifiable records or is overly broad, a custodian may deny access pursuant to the well-established case law. See MAG, supra, 375 N.J. Super. 534; Bent, supra, 381 N.J. Super. 30; N.J. Builders Ass'n, supra, 390 N.J. Super.; Schuler v. Borough of Bloomsbury, GRC Complaint No. 2007-151 (February 2009).

"While OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool [requestors] may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records 'readily accessible for inspection, copying, or examination.'" MAG, supra, 375 N.J. Super. at 546. "OPRA does not countenance open-ended searches of an agency's files." MAG, supra, 375 N.J. Super. at 549. In other words, an OPRA request is invalid if it requires information to be "analyzed, collated and compiled by the responding government entity." Ibid. The purpose of OPRA is to "make identifiable government records 'readily accessible for inspection, copying, or examination'" rather than to require government officials to conduct research and create documents. MAG, supra, 375 N.J. Super. at 546. Your government records request does not identify a specific record(s) sought. Rather, it seeks "all documentation - including but not limited to electronic correspondence and memoranda - from 2014 to 2015 - pertaining to" a particular unemployment compensation claimant. In order to fill your request would require precisely the sort of analysis, collation and compilation that the above-cited case law indicates is not required of a government records custodian under OPRA.

In sum, your government records request is for records protected from disclosure under the New Jersey Unemployment Compensation Law; specifically, N.J.S.A. 43:21-11(g), and your government records request is overbroad and, therefore, an impermissible use of OPRA. For those reasons, your government records request is denied in its entirety.

Sincerely,

David Fish
Executive Director
Legal and Regulatory Services
NJ Department of Labor and Workforce Development