2005-172

At its December 8, 2005 public meeting, the Government Records Council ("Council") considered the December 2, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk's Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 8^th Day of December, 2005

Diane Schonyers, Vice-Chair
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council

Findings and Recommendations of Executive Director

Records Requested: All Executive Session meeting minutes from 2005 in an electronic format.
Request Made: August 26, 2005
Response Made: September 15, 2005[1]
Custodian: Nicole Tedeschi
GRC Complaint filed: September 14, 2005

The Complainant states that on August 26, 2005 she made an OPRA request for the above stated records. She states that as of the date of the Denial of Access Complaint she still has not received a response from the County other than a confirmation of receipt of her request. She also asserts that this is her eighth OPRA complaint submitted to the Government Records Council (GRC) against the County of Union, and the GRC has placed the County on its Matrix three times. The Complainant requests that the GRC find that the County of Union has knowingly and willfully violated the OPRA and unreasonably denied of access under the totality of the circumstances.

Statement of Information submitted by Custodian's counsel[3]with the following attachments:

Custodian's counsel states that the request was received on August 26, 2005, and an initial attempt to forward these documents was made on September 6, 2005. Custodian's counsel states that the September 6, 2005 response failed because of a simple clerical error. He states that no recipient address was placed in the "To" section of the e-mail. He goes on to state that mistakes can and do happen particularly when dealing with so many requests from one requestor. However, he states that all records requested were ultimately sent via e-mail on September 15, 2005.

In conclusion, the Custodian states that since the County of Union has already provided Mrs. Renna with full access to all documents requested in the medium requested, and because the delay in delivering this response to the requestor was purely inadvertent, this incident cannot be viewed as a knowing and willful violation of the OPRA.

WHETHER the Custodian unlawfully denied access to the Executive Session minutes in the medium that they were requested?

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

" ... any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file ... or that has been received ..." (Emphasis added.) N.J.S.A. 47:1A-1.1.

"Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access ... or deny a request for access ... as soon as possible, but not later than seven business days after receiving the request ... In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request ..." (Emphasis added.)

"...If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor..."

Also, the OPRA states that the Custodian has to prove that a denial of access is authorized by law. Specifically, OPRA states:

"...The public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6.

Custodian's counsel states that the request was received on August 26, 2005, and an initial attempt to forward these documents was made on September 6, 2005. Custodian's counsel states that the September 6, 2005 response failed because of a simple clerical error. He states that no recipient address was placed in the "To" section of the e-mail. Ultimately, however, the Complainant was sent all records requested on September 15, 2005.

While the Custodian did ultimately grant access to all records requested, therefore not violating N.J.S.A. 47:1A-1.1. the response to the request (in which the Custodian transmitted the records requested via e-mail) came after the seven (7) business days allowed for a response pursuant to the OPRA; therefore violating N.J.S.A. 47:1A-5.i. and resulting in an unlawful denial of access.

WHETHER the delay in access to Executive Session minutes in the medium that they were requested rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?

"A public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty..." N.J.S.A. 47:1A-11.a.

The OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states:

"...If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]..." N.J.S.A. 47:1A-7.e.

The Complainant requests that the GRC find that the County of Union has knowingly and willfully violated the OPRA and unreasonably denied of access under the totality of the circumstances.

Certain legal standards must be considered when making the determination of whether the Custodian's actions rise to the level of a "knowing and willful" violation of OPRA. The following statements must be true for a determination that the Custodian "knowingly and willfully" violated OPRA: the Custodian's actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian's actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian's actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian's actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).

In this particular case, Custodian's counsel certifies that the Complainant has been provided access to the Executive Session minutes via e-mail on September 15, 2005. And, althoughaccesscame after the seven (7) business days allotted for a response pursuant to the OPRA, therefore violating N.J.S.A. 47:1A-5.i. the Complainant was ultimately given access to all records requested. Also, Custodian's counsel has certified that the reason for the delay was because of an inadvertent clerical error.

Therefore, the Custodian's actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-7.e.

[1] An acknowledgement of the request was made on August 29, 2005. However, this acknowledgement did not grant or deny access to the records requested.
[2] Neither party agreed to mediation of this Complaint.
[3] The Custodian attached a supplemental certification stating that "the information provided therein is accurate to the best of my knowledge and belief."