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State of NJ - Government Records Council Email Grc

2002-32

- Final Decision
- Findings and Recommendation of Executive Director

Final Decision

Janon Fisher                                                       GRC Complaint No. 2002-32
Complainant                                              Decision Issued: January 17, 2003
v.                                                            Decision Effective: January 31, 2003
City of Clifton
Custodian of Record

At its January 17, 2003 public meeting, the Government Records Council considered a request to fine the Custodian in Complaint #2002-32 pursuant to N.J.S.A. 47:1A-7(e) for "knowingly and willfully" violating OPRA and unreasonably denying access "under the totality of the circumstances."

The Complaint challenged the City's denial of access to an audiotape of a telephone call to 911 on December 18, 2001 pertaining to the murder of Gertrude Bizzaro. The Executive Director issued Findings and Recommendations on December 6, 2002 recommending that the Council award access to the 911 tape. Subsequent to the issuance of the Final Decision, the requester advised the Council that he had received a copy of the tape, but asked the Council to fine the Custodian pursuant to N.J.S.A. 47:1A-7(e).
The Executive Director recommends that the Council decline to fine the custodian for the reasons set forth in Findings and Recommendations dated January 13, 2003.

The Council having decided by affirmative vote of three Council members at its January 17, 2003 meeting to adopt the attached Findings and Recommendations of the Executive Director dated January 13, 2003, the Council herewith determines that the custodian has not "knowingly and willfully" denied access to a government record or unreasonably denied access "under the totality of the circumstances" and, therefore, dismisses the Complaint.

In the event the requester seeks counsel fees and the parties cannot amicably resolve the claim, the requester's application for attorney's fees must be received by Council and the custodian by February 14, 2003. Any request shall be supported by a certification of service pursuant to New Jersey Court Rule 4:42. The custodian shall file any response to the application with the Council and the requester 10 business days thereafter.

This Decision shall become effective on January 31, 2003 for purposes of filing an appeal with the Appellate Division of the Superior Court. A copy of this Decision shall be served on the requester, the custodian and any legal counsel of record.

Bernard Spigner, Vice-Chair
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: January 17, 2003

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Findings and Recommendation of Executive Director

Janon Fisher                                                       GRC Complaint No. 2002-32
Complainant                                              
v.                                                            
City of Clifton
Custodian of Record


Action before Council:
Request for imposition of penalties on failure to provide access
OPRA Request made: August 12, 2002
Record Sought: copy of 911 tape
Custodian Receiving Request: Richard Moran, Municipal Clerk
Request denied: August 13, 2002
Custodian Denying Request: Robert Ferreri, Police Chief
GRC Complaint filed: August 22, 2002
Council Determination: December 12, 2002
Records Provided: On or about December 18, 2002

Executive Director's Recommendation

The Executive Director recommends that the Council conclude that the custodian has not "knowingly and willfully violated OPRA" nor has the custodian "unreasonably denied access under the totality of the circumstance" and that, therefore, this complaint be dismissed.

Statements of Facts

On August 12, 2002, Janon Fisher, Special Projects Editor with the Herald News newspaper, submitted a written OPRA request to Richard Moran, Municipal Clerk for the City of Clifton, seeking "any and all 911 tapes connected to the murder of Gertrude Bizzaro on December 18, 2001." On August 13, 2002, Police Chief Robert Ferreri advised the requester in writing that "the matter is currently under investigation which would preclude release of such records."

As part of the City' response to the Council's Statement of Information on the complaint, on October 28, 2002 the Assistant Municipal Attorney wrote to the Passaic County Prosecutor's Office requesting advice on their position if the tape should be release. On November 1, 2002, Chief Assistant Prosecutor William J. Purdy responded that the matter is an "unsolved, open and active investigation" and that the "[p]ublic release of such information is potentially detrimental to the investigation." Shortly thereafter, Mr. Purdy retired.

On December 6, 2002 the Executive Director issued Preliminary Findings and Conclusions recommending that the Council award access to the requester on the grounds that the custodian had provided no facts to allow the Council to conclude that access would be inappropriate under N.J.S.A. 47:1A-3(b).

On December 11, 2002 the Council received a letter from the Assistant Municipal Attorney. The attorney advised the Council that the Assistant Prosecutor Purdy, who had previously advised the City in this matter, had retired. The current Chief Assistant Prosecutor evaluated the status and content of the investigation and the content of the call. The City's letter then stated that the City has "now been advised that based upon the current knowledge from the investigation and the content of the call there was no longer a need to continue to withhold the information requested" and that the tape would be provided to the requester.

In consideration of the City's proposal to provide access to the tape on December 12, the Council deferred action on the complaint. The requester has since advised the Council that the tape has been received. . The requester asks that the Council fine the custodian for "knowingly and willfully" violating OPRA and unreasonably denying access "under the totality of the circumstances." Upon such a finding, OPRA permits the Council to impose monetary penalties not only against the custodian [N.J.S.A. 47:1A-7(e)], but, against any public official, officer, employee [N.J.S.A. 47:1A-11(a)]. In this case, the civil penalty for an initial violation is $1,000. A majority vote of the Council is required to impose the penalty.

Analysis and Conclusion

The facts indicate that the custodian (Municipal Clerk, Richard Moran), was instructed to withhold access to the tape not only by Police Chief Robert Ferrari but City Assistant Municipal Attorney Matthew Priore as well as Passaic County Chief Assistant Prosecutor William Purdy.

The police chief, local and county counsel claimed that release of the tape would compromise an on-going investigation of an unsolved murder and, as such, would be unlawful under OPRA. The Executive Director did not reject the claim in his December 6, 2002 Finding and Recommendation, but merely indicated that the custodian had not yet produced evidence to support it.

Lacking any knowledge of the criminal investigation or the content of the tape, the custodian was unable to evaluate the claims made by the police chief, local counsel, and county prosecutor, or to offer any facts in response to the Findings. Neither would it have been reasonable under these circumstances to expect the municipal clerk to disregard his legal advisor, the local Police Chief, and the County Prosecutor or to release the tape over their objections. As such, the Council would be justified in concluding that the custodian did not "knowingly or willfully" disregard OPRA or act unreasonably under the totality of the circumstances in declining to provide access to the tape.

While it can be argued that the custodian or those who advised the custodian "should have known" that the tape ought to have been accessible, it is clear that the question of access to 911 tapes has been cloudy since OPRA took effect. , Although the Executive Director did recommend access to the tape, the portion of OPRA that governed access to this record has been debated among legal professionals and is only now being determined by the Council (GRC Complaint 2002-33).

The Executive Director recommends the Council find that neither the custodian or any other public official, officer, or employee has "knowingly and willfully" violated OPRA in this case nor have any of these persons unreasonably denied access "under the totality of the circumstance." This complaint should be dismissed.

Marc H. Pfeiffer, Acting Executive Director
Government Records Council

Dated: January 13, 2003

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