2002-111

Final Decision

At its April 8, 2004 public meeting, the Government Records Council (“Council”) considered the April 8, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Finding and Recommendations of the Executive Director. Therefore, the Council dismissed this complaint on the basis that the Complainant withdrew his complaint on March 25, 2004. This dismissal shall be construed to include disposition of the entire matter before the Council, including, but not limited to, any aspect of the matter still residing with the Council, any complaint referred to the Office of Administrative Law including those either pending or withdrawn, any pending fines to be levied but not yet adjudicated and any motions to the Council.

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 8th Day of April, 2004

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council 

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Supplemental Findings and Recommendations of the Executive Director

Executive Director’s Supplemental Findings and Recommendation

The Government Records Council (“Council”) considered this case at its February 27, 2004 meeting. The Council voted unanimously at that meeting to direct Acting Executive Director Dice to seek legal counsel regarding whether the Council should refer the complaint back to the OAL for a continuation of the determination on whether the Custodian had knowingly and violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.

After additional legal consultation following the Council’s Interim Decision, the Council voted in its March 11, 2004 meeting to:

1. Dismiss the Complainant’s opposition to the Council’s acceptance of the custodian’s motion for reconsideration on the basis that the Council has received legal advice from the Division of Law that acceptance of the motion is proper and within the Council’s purview. 
2. N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.

Subsequent to the above Order, the Executive Director received Email correspondence from the Complainant, Yehuda Shain, on March 25, 2004 stating that he was withdrawing his complaint. 

The Executive Director respectfully recommends that the Council dismiss the case on the basis of the complainant’s voluntary withdrawal of the complaint on March 25, 2004.  This dismissal shall be construed to include disposition of the entire matter before the Council, including, but not limited to; any aspect of the matter still residing with the Government Records Council, any complaint referred to the Office of Administrative Law including those either pending or withdrawn, any pending fines to be levied but not yet adjudicated and any motions to the Council.

Analysis
No legal analysis is needed as the complainant voluntarily withdrew his complaint. 

Additional Documents Submitted to the Council for Review

• March 25, 2004 – Email correspondence from Complainant to the Executive Director withdrawing the complaint

Paul F. Dice, Executive Director
Government Records Council

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Interim Decision

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Supplemental Findings and Recommendations of the Executive Director set forth below and all related documentation submitted by the parties.

1. Dismiss the Complainant’s opposition to the Council’s acceptance of the custodian’s motion for reconsideration on the basis that the Council has received legal advice from the Division of Law that acceptance of the motion is proper and within the Council’s purview. 
2. Refer this case back to the OAL for a determination on whether the Custodian had knowingly and violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.

The Council unanimously voted to adopt the entirety of said Findings and Recommendations.

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
Virginia Hook, Secretary
Government Records Council

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Supplemental Findings and Recommendations of the Executive Director

Executive Director’s Supplemental Findings and Recommendation

The Government Records Council (“Council”) considered this case at its February 27, 2004 meeting. At the Acting Executive Director’s request, the Council voted unanimously not to accept the Acting Executive Director’s February 23, 2004 Findings and Recommendations stating the complaint should be dismissed on the basis of the Complainant’s statement in his January 29, 2004 letter to Paul Dice, the then Acting Executive Director of the Council, that “… I am closing the case from my side.”   That statement gave rise to the Office of Administrative Law (“OAL”) closing its file on the Council’s request for a determination on whether the custodian had knowingly and willingly violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.  Mr. Dice requested complainant’s subsequent and conflicting February 26, 2004 statement to Mr. Dice that “I do not intend to withdraw the complaint…”

Also in his February 26, 2004 letter to Mr. Dive the Complainant restates his continued opposition to the Council’s acceptance of the Custodian’s request for reconsideration.  He says, “As I have stated previously, I still stand by my understanding of Case Law that in this type of situation there is no reconsideration to be granted.”

On the basis of the foregoing, the Council voted unanimously at its February 27, 2004 meeting to direct Acting Executive Director Dice to seek legal counsel regarding whether the Council should refer the complaint back to the OAL for a continuation of the determination on whether the Custodian had knowingly and willingly violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.

On March 2, 2004, Paul Dice Received a February 23, 2004 letter from Mr. Guy P. Ryan – custodian’s counsel.  Mr. Ryan states that the Administrative Law Judge treated the Complainant’s January 29, 2004 statement that he wished to withdraw the case as a request to terminate the hearing.  Further, Mr. Ryan states his belief that the judge feels that the complainant made the request for the hearing.  Based on his concern that the OAL’s referral of the case back to the Council, an action that resulted in the OAL’s relinquishment of jurisdiction, [1] would result in the Council proceeding to make a decision without the facts that would have been developed at a full hearing, Mr. Ryan asserts that the Council has the following options:

1. Refer the case back to the OAL to give the custodian an opportunity for a hearing, regardless of whether the Complainant participates, or
2. Dismiss the violation and fine against the clerk based on the Complainant’s withdraw of the case.

On the basis of the legal advice received subsequent to the Council’s February 27, 2004 Order to the Executive Director, the Council voted in its March 11, 2004 public meeting to:

1. Dismiss the Complainant’s opposition to the Council’s acceptance of the custodian’s motion for reconsideration on the basis that the Council has received legal advice from the Division of Law that acceptance of the motion is proper and within the Council’s purview. 
2. N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.

Analysis

The Government Records Council is the party that referred this case to the Office of Administrative Law for the purposes of determining whether the Custodian had knowingly and willingly violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances.  That referral should not have been terminated at the Complainant’s request.  Any alterations in the referral should come form the Council.

Additional Documents Submitted to the Council for Review

• February 3, 2004 letter from Guy P. Ryan to Honorable Ana C. Viscomi, A.L.J.
• Undated letter from Complainant to Guy P. Ryan acknowledging receipt of Ryan’s February 3, 2004 letter
• February 18, 2004 letter form Honorable Ana C. Viscomi, A.L.J. to Guy P. Ryan
• February 23, 2004 letter form Guy P. Ryan to Paul Dice

Paul F. Dice, Executive Director
Government Records Council
March 7, 2004

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Interim Decision Regarding Custodian Penalty

The Government Records Council (“Council”) considered this case on follow-up at its December 11, 2003 meeting and voted unanimously to:

1. Refer the Complaint to the Office of Administrative Law (OAL) as a contested case for an evidentiary hearing on the question of whether there are knowing and willful violations of OPRA in this case that are unreasonable under the totality of the circumstances;
   To request an expedited or accelerated hearing from the OAL; and
   
2. To retain jurisdiction of this case and acknowledge its obligation pursuant to N.J.A.C. 1:1-9.4(e)(8) to render a Final Decision within 15 days of receipt of an Initial Decision from OAL.
   At its February 27, 2004 public meeting, the Government Records Council (“Council”) considered the following February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties.

The requestor submitted a January 29, 2004 letter to the Council and the Office of Administrative Law (“OAL”) stating “…I am closing the file from my side.” Subsequent to that communication, the Acting Executive Director received an acknowledgement from the OAL that it closed its file.

The Acting Executive Director respectfully recommended that the Council dismiss this complaint on the grounds that the requestor wishes to have his file close. 

The Council voted unanimously to amend the Findings and Recommendations and hold the decision in abeyance for the GRC’s Counsel to confer with the Office of Administrative Law on its conclusion of the matter that was referred to the Office of Administrative Law. 

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of the Executive Director

Executive Director’s Recommendation

The Government Records Council (“Council”) considered this case on follow-up at its December 11, 2003 meeting and voted unanimously to:

1. Refer the Complaint to the Office of Administrative Law (OAL) as a contested case for an evidentiary hearing on the question of whether there are knowing and willful violations of OPRA in this case that are unreasonable under the totality of the circumstances;
2. To request an expedited or accelerated hearing from the OAL; and
3. To retain jurisdiction of this case and acknowledge its obligation pursuant to N.J.A.C. 1:1-9.4(e)(8) to render a Final Decision within 15 days of receipt of an Initial Decision from OAL.

The requestor submitted a January 29, 2004 letter to the Council and the Office of Administrative Law (“OAL”) stating “…I am closing the file from my side.” Subsequent to that communication, the Acting Executive Director received an acknowledgement from the OAL that it closed its file.

The Acting Executive Director respectfully recommends that the Council dismiss this complaint on the grounds that the requestor wishes to have his file closed.

Legal Considerations and Issues

The closure of the complaint does not require a legal analysis.

      _______________________________

Paul F. Dice, Acting Executive Director
Government Records Council
Dated:  February 23, 2004

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Final Decision

At its October 9, 2003 public meeting, the Government Records Council considered whether to assess a penalty in Complaint No. 2002-111 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., for failure to provide timely access to a copy of the contract between the Township and its attorney and itemized statements from the attorney for the last three years for services rendered the Tax Assessor.

The Council originally considered this complaint at its September 11, 2003 meeting. By Order dated September 11, 2003 and made effective September 15, the Council:

• Dismissed the portion of the Complaint seeking access to the records on the grounds the records had already been provided and adopted and incorporated that portion of the Acting Executive Director's September 5, 2003 Findings and Recommendations related to dismissal of that portion of the Complaint;
  
• Found that additional information was needed to assess whether the custodian knowingly and willfully violated OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-7(e) and N.J.S.A. 47:1A-11; and
  
• Deferred determination on penalty until its next meeting to give the custodian an opportunity to submit any argument or explanation in defense of her handling of this OPRA request.

At its October 9, 2003 meeting, the Council considered the following additional material: an affidavit from record custodian Bernadette Standowski dated September 30, 2003 and an October 3, 2003 e-mail from the requestor in response.

By an affirmative vote of five members, the Council finds:

• The records custodian, Bernadette Standowski, violated OPRA by providing access to the government records sought approximately five months after the OPRA request was received;
  
• The custodian knowingly and willfully denied access to the requested government records;
  
• The denial of access was unreasonable under the totality of the circumstances;
  
• The custodian is fined $1,000.00 pursuant to N.J.S.A. 47:1A-7(e) and N.J.S.A. 47:1A-11, and, therefore,
  
• The complaint is dismissed.

There is no application for attorney's fees.

The fine shall be paid by check or money order made payable to "Treasurer, State of New Jersey" and shall be delivered to the Acting Executive Director on or before December 4, 2003 at:

Government Records Council
101 South Broad St.
PO Box 819
Trenton, NJ 08625-0819

Vincent P. Maltese,
Chairman Government Records Council

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

Virginia Hook,
Secretary Government Records Council

Dated: October 15, 2003

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Interim Decision

At its September 11, 2003 public meeting, the Government Records Council considered Complaint No. 2002-111 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide timely access to copies of a contract between the Township and Scott Kenneally, Esq. and itemized statements by Kenneally for services rendered the Tax Assessor for the last three years. Although the custodian alleges, without proof, that records reflecting amounts paid by the Township to Kenneally were provided 15 days after the request was received, the records actually sought were apparently provided over 5 months after the request was received as a result of discussions during mediation with the Township attorney.

The Council considered the Requestor's complaint and attachments; the custodian's Statement of Information and attachments; communications on behalf of the custodian dated April 16,17, June 9 and August 19, 2003; communications on behalf of the requestor dated June 27, July 7 and August 12, 2003 and the Acting Executive Director's Findings and Recommendations dated September 5, 2003 that:

• The custodian violated OPRA by denying timely access to the requested records, however Aaccess had been ultimately provided to all the government records sought;
• The denial of access appears to be the product of inattentiveness and negligence on the custodian's part, not knowing and willful behavior; and, that therefore,
• The complaint should be dismissed.

By affirmative vote of five Council members at its September 11, 2003 meeting, the Council voted to adopt and incorporate that portion of the Director's September 5, 2003 Findings and Recommendations relating to dismissing the portion of the Complaint seeking access to the records, but decided that additional information was needed to determine if the custodian knowingly and willfully violated OPRA and if access was unreasonably denied under the totality of the circumstances, to determine if a penalty under N.J.S.A. 47:1A-7(e) is warranted. and deferred A determination on this matter was deferred defer decision on custodian penalty until its next meeting, to giveing the custodian an opportunity to submit any argument or explanation of it's actionsin its defense within twenty days from receipt of this Order. The Council must receive submissions on this matter by October 1, 2003.

A copy of this Decision shall be provided to the requester, the custodian, and all counsel of record.

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

Government Records Council
Dated: September 15, 2003

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Findings and Recommendation of Executive Director

Relevant Record(s) Requested:

1. Contract between Lakewood Township and Scott Kenneally, Esq., covering the Tax Assessor's Department
2. Copy of the itemized statements for work done by Scott Kenneally, Esq., regarding the tax assessor's office for the last three years

Request made: November 15, 2002
Custodian: Bernadette Standowski, Township Clerk
Request denial: November 26, 2002
GRC Complaint filed: December 27, 2002

Executive Director's Recommendation

The complaint concerns a request for copies of contracts of a certain attorney hired by the Township and copies of itemized statements of work performed by said attorney over a period of time. The Township failed to provide immediate access to the request for contracts and provided the itemized statements five months later. No explanations for the delay have been provided. There is also no factual basis to reach a conclusion that the custodian knowingly and willfully violated OPRA. The requestor has received all requested documents.

There are contradicting claims concerning when documents were made available to the requestor (December or April). These claims become irrelevant in the context of the initial failure to disclose on a timely basis.

The Executive Director finds that the custodian violated the requirements of OPRA to provide access to copies of contracts immediately upon request, and waiting five months to provide copies of the itemized statements of attorney invoices. It is recommended that this case be dismissed and that the custodian and governing body be warned that future violations of this nature could subject the custodian to a finding of knowing and willful violation of OPRA and be subject to monetary fine.

Statements of Facts

On November 15, 2002, the requestor made an OPRA request (one of three made during this time period) for the contract between Lakewood Township and Scott Kenneally, Esq., covering the tax assessor's office and a copy of the itemized statements for work done by Scott Kenneally, Esq., regarding the tax assessor's office for the last three years. The custodian asserts that the requestor received the requested records on December 18, 2002, and additional copies on April 17, 2003.

Internal Township correspondence of the day of the request indicates that the custodian had forwarded the OPRA forms to the tax assessor to respond to the contract information and the itemized statement and that the custodian's office would provide the information regarding Scott Kenneally's itemized statements.

The requestor indicates (in a June 27, 2003 submission) that on November 26th (the seventh business day after the request), he obtained from the tax assessor's office papers that were "a running tally of how much was paid on certain dates to Mr. Kenneally." Upon receipt, the requestor asserts that he took them to the finance office and advised him (presumably the Township Finance Officer) that that information was "not at all what was requested," who responded, "that's what I have" and left the documents with him. The Township's submissions do not record this event as having taken place nor do the submissions reflect if the requestor was given the opportunity to review the contracts of Mr. Kenneally, which, the requestor notes, are to be made available immediately upon request. [N.J.S.A. 47:1A-5(e].

The requestor filed a Denial of Access Complaint dated December 27, 2002 with the Council, claiming that he had not received the itemized billing statements and contracts of Mr. Kenneally. In response to the request, the requestor claimed that only a redacted summary from the Lakewood Treasurer of monies owed to Mr. Kenneally's firm has been provided.

The parties engaged in the GRC mediation process that ended unsuccessfully in the middle of April 2003. Both parties have submitted information concerning the mediation effort that is part of this record.

In an April 16, 2003, letter to the custodian's attorney, the custodian indicated that on December 18, 2002, the requestor picked up the records responsive to the November 15, 2002, request. In a lengthy April 17, 2002 letter to the requestor and the GRC mediator, the custodian's attorney indicated his recollection that during the telephone conference with the parties and the mediator, the requestor had admitted receiving the documents referenced in the custodian's April 16, 2003 letter. The custodian's attorney also provided copies of invoices and contracts to the requestor and described in detail the information provided and actions taken by the Township regarding to all three complaints filed by the requestor. The requestor did not agree that these submissions resolved the matter, and it was returned to the Council for investigation.

The custodian submitted a Statement of Information on June 18, 2003, identifying the documents that the Township claimed to have been given to the requestor on December 18, 2003, and again on April 17, 2003, as:

1. The resolution appointing Charles E. Starkey, Esq. as Tax Appeal Attorney for the Township of Lakewood (Mr. Keannelly works for the Starkey firm);
2. The agreement between the Township and Mr. Starkey;
3. The previously provided billing statement prepared by the chief financial officer of Mr. Starkey's bills; and,
4. For the first time, on April 17, copies of Mr. Starkey's itemized legal bills.

The custodian stated that all documents requested in the Complaint had been provided and the Complaint should be dismissed because there is no factual basis for the claims in the Complaint, and the claims are frivolous.

In June 27, and July 7 2003, communications, in addition to items previously mentioned, the requestor advised the GRC of the following:

1. Access to the requested contracts should have been provided immediately;
2. At a January conference call with the mediator, he advised that the financial documents that he had received were not the ones he requested and that rather than providing these documents within ten days of the conference call, he did not receive them until the latter part of April (as part of the custodian's attorney April 17 letter to the requestor);
3. He did not pick up any records on December 18, 2002; and that if he did, the custodian should have on record a ledger entry and receipt for the copies allegedly provided to him on December 18, 2002.

In order to complete the record, on July 29, 2003, Council staff asked the custodian for all proof showing that on December 18, 2002, the requestor was provided with the records it claims to have provided. In response, on August 6, 2003, the custodian's attorney sent a letter enclosing a copy of the documents provided concerning the itemized statements and a copy of the custodian's above-referenced April 16, 2003 letter.

Subsequent e-mails and submissions between the parties challenged each other on the claim of the requestor receiving information on December 18, 2002. The parties continued to disagree, though the Township only asserts circumstances without firm evidence of receipt. The question of receipt remains unresolved, and ultimately, irrelevant to the disposition of this matter.

Analysis and Conclusion

The credible information in this case indicates that the custodian provided the requested records after a five-month delay. The contradictory facts concerning when the responsive records were actually produced are irrelevant to any findings and recommendations.

The custodian's reliance on having on several occasions provided a summary of bills paid as complying with the request is misplaced, particularly in light of the requestors claim (though not confirmed) that he advised the treasurer (or other official) that the November 26, 2002 response of a listing of payments did not fulfill the request. The custodian's provision of a list of bills and amounts paid did not respond to the request for "copies of itemized bills."

It is clear that the custodian failed to provide access to the requested records within seven business days from the time of the request and the contracts were not provided immediately. If the contracts were provided on December 18 as claimed by the custodian and disputed by the requestor, copies of the itemized statements were not. Only a billing summary was provided, a record clearly not what was requested by the custodian.

The custodian provides no explanation for any of the delays in complying with this request.

The system used by the custodian to respond to requests and to track the fulfillment of requests, failed to meet the needs of the public. While there is some representation that the custodian's office has changed its procedures with regard to receipts, custodians are expected to have a system that enables them to document compliance with OPRA obligations.

There is also no evidence suggesting, or is there a factual basis on which the Council could reach a conclusion that the custodian knowingly and willfully violated OPRA. The fact that the custodian provided untimely access, whether it was December 18, 2002 or in April 2003, is insufficient to support such a finding.

The Executive Director finds that the custodian violated the requirements of OPRA to provide access to copies of contracts immediately upon request, and waiting five months to provide copies of the itemized statements of attorney invoices. It is recommended that this case be dismissed and that the custodian and governing body be warned that future violations of this nature could subject the custodian to a finding of knowing and willful violation of OPRA and be subject to monetary fine.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: September 5, 2003

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Interim Decision Regarding Custodian Penalty

At its December 11, 2003 meeting, the Government Records Council (GRC) considered the custodian counsel’s Motion for Reconsideration and Request for Due Process Hearing. The Council considered the following additional documentation submitted by the parties:

• October 24, 2003 Brief on Custodian’s behalf;
• October 23, 2003 Affidavit of William C. Rieker, CFO, Lakewood Township;
• Undated three-page letter from Yehuda Shain that was sent to the GRC via facsimile on December 2, 2003
• December 2, 2003 letter from Yehuda Shain.

After reviewing the above documentation, the Council concluded that there are material questions of fact whether there are knowing and willful violations of OPRA in this case that are unreasonable under the totality of the circumstances and, further, that an evidentiary hearing is required for the Council to make this determination.By a unanimous vote, the Council amended its October 15, 2003 Final Decision to delete the following text:

• “The custodian knowingly and willfully denied access to the requested government records;
• The denial of access was unreasonable under the totality of the circumstances;
• The custodian is fined $1,000.00 pursuant to N.J.S.A. 47:1A-7(e) and N.J.S.A. 47:1A-11, and, therefore;
• The complaint is dismissed.”

By unanimous vote, the Council voted to:

• Refer the Complaint to the Office of Administrative Law (OAL) as a contested case for an evidentiary hearing on the question of whether there are knowing and willful violations of OPRA in this case that are unreasonable under the totality of the circumstances;.
• To request an expedited or accelerated hearing from the OAL; and
• To retain jurisdiction of this case and acknowledge its obligation pursuant to N.J.A.C. 1:1-9.4(e)(8) to render a Final Decision within 15 days of receipt of an Initial Decision from OAL

The Council noted that custodian’s counsel, Guy P. Ryan, Esq., filed a Notice of Appeal with the Superior Court of New Jersey on November 21, 2003 concerning the Council’s October 15, 2003 Final Decision. Ryan withdrew the appeal on December 9, 2003 without prejudice, having secured the GRC’s agreement that the Motion for Reconsideration would be heard at the December 11, 2003 Council meeting.

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council
Dated: December 12, 2003

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