2002-72

Final Decision

Decision Issued: January 17, 2003
Decision Effective: January 31, 2003

At its January 17, 2003 public meeting, the Government Records Council considered Complaint #2002-72 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., against Washington Township. The Complaint alleged a denial of access to: (1) open and closed session proceedings of the Township Planning Board for September-December 2000 and March and April of 2001: (2) all vouchers, statements, invoices and purchase orders from John West, Esq. from March 1, 2000 to May 31, 2001 held by the Chief Financial Officer (CFO); and, (3) vouchers statements, invoices, purchase orders or other documents sent or received by the Township pertaining to professional services rendered by Azzolina, Feury & Raimondi Engineering Group regarding the application of Eva Chacalos, Block 4408, Lot 26.

The Council considered the Requester's complaint, requester's supplement thereto dated November 19, 2002, the Custodian's Statement of Information and supporting exhibits, a resolution of the Township Planning Board dated November 6, 2002, e-mail from the requester to Council staff on January 2, 3, 8 and 16, 2003, e-mail from the Custodian's attorney dated January 10, 2003, letters from the Custodian's attorney dated January 6 and 13, 2003 (both with exhibits) and the Executive Director's Findings and Recommendations dated January 13, 2003.
The Council having decided by affirmative vote of four 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:

• Finds that the records sought are government records;
  
• Directs the Custodian to fulfill the request for access by January 31, 2003; and,
  
• Observes that while the Custodian and CFO failed to give this OPRA request adequate professional attention, neither the Custodian nor the CFO willfully or knowingly violated OPRA or denied access unreasonably under the totality of the circumstances.

A copy of this Decision shall be provided to the requester, the custodian, and all counsel of record. Any application for a stay of this Decision must be filed with the Council by the effective date of this Decision, January 31, 2003.

Vincent Maltese, 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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Finding and Recommendation of Executive Director

Decision Issued: January 17, 2003
Decision Effective: January 31, 2003
Records Requested:

1. Planning Board Meeting Minutes
   
2. Bills for services rendered to Township by John West, Esq
   
3. Documents to or from Azzolina, Feury & Raimondi Engineering Group, re: application of Eva Chacalos.

Date of Request: October 8, 2002
Custodian receiving request: Julie Zykoff, Township Clerk
Requester Claims Access Denied: October 18, 2002
Custodian Claims Access Offered: October 18, 2002
Complaint filed: October 24, 2002

Executive Director's Recommendation

This complaint is the result of substantial miscommunication between the custodian and the requester. It also highlights the importance that custodians take care in considering and responding to requests.

1. With regard to the requested public and closed sessions of Planning Board Meeting minutes and documents related to John W. West, Esq., the Township indicates that all the records are available for inspection or copying. It is recommended that the Council order the Township to provide access to these records (except transcripts of Board meetings which do not exist) within five working days of the execution of the Final Decision. Upon proof to the Executive Director that the records were made available to the requester, the complaint will be dismissed.
   
2. With regard to the requester's demand that the Council fine the custodian for failure to provide the records on a timely basis, it is recommended that no finding of "willful or knowing" violation of OPRA be found, given the circumstances of the complaint, the efforts to comply, and the miscommunications found to have taken place. It is recommended that the Council's Order make it clear that the Clerk and the CFO failed to give this request the professional attention it deserved.

Statement of Facts and Procedural History

On or about October 8, 2002 Conrad Moore advised the Township Municipal Clerk that he was seeking "review and possible copying" of:

1. Planning Board Meeting Minutes for September, October, November and December 2000 and March and April of 2002, both public and closed sessions, transcripts if available;
   
2. All vouchers, statements, invoices and purchase orders held by the Chief Financial Officer pertaining to services rendered by John W. West, Esq., from March 1, 2000 to May 31, 2001; and
   
3. All vouchers, statements, invoices, purchase orders, letters or any other document sent or received by the Township that pertains to professional services rendered or to be rendered by Azzolina, Feury & Raimondi Engineering Group regarding the application of Eva Chacalos, 265 Colonial Boulevard, Block 4408, Lot 26.

In its Statement of Information filed on November 14, 2002, the custodian asserts that:

1. The requester was advised by letter dated October 18, 2002 that copies of the official Minutes of all Planning Board meetings open to the public were available at Township offices during normal business hours, but the requester never appeared; and that transcripts of the meetings do not exist;
   
2. Copies of documents relating to the project at 265 Colonial Boulevard were also made available to the requester for pick-up at Township offices pursuant to a letter dated October 18, 2002, and the requester never appeared to collect same; and
   
3. The Planning Board declined to release the Meeting Minutes from its September 6, 2000 closed session because of the continuing potential for litigation and executed a resolution so stating on November 6, 2002.

The Statement of Information and supporting documentation indicated that it was the Chief Financial Officer's (Jacqueline Do) obligation to provide access to invoices and vouchers from Mr. West. The CFO's letter of October 18, 2002 did not address this request.

In an e-mail to the Council on January 2, 2003, the requester indicated that the Clerk told him that the planning board would have to approve release of any closed session minutes and that the Clerk would "…get back to me. I never heard from her. That was in October of 2002."

In subsequent e-mail to the GRC on January 3, 2003, the requester asserted that after the Township advised him that copies were available for him to purchase, he did not pick up the records because the Township "offered vouchers only in regard to Chacalos." (CFO letter of 10/18/02).

A January 6, 2003 letter from the Township Attorney to GRC (copied to the requester) asserted that the requester was offered copies of vouchers from Mr. West and the Azzolina firm, that Mr. Moore was advised of the availability of these records, never collected them, and that the records remain available for him today.

Mr. Moore replied to the Council by e-mail on January 8, 2003 that:

1. He did not authorize copies to be made
   
2. Copies of purchase orders were not offered to him by the CFO
   
3. The Township never offered him copies of all West invoices
   
4. He was never notified of the refusal of the Planning Board to make the closed session minutes available, and if he had been, he would still object to the denial.

In a letter dated January 13, 2003 copied to the requester, the Township attorney advised that the Planning Board convened its annual reorganization meeting on January 8, 2003 and voted to open the September 6, 2002 closed meeting minutes. The minutes are now available for the public's inspection at Township offices.

In the same letter the attorney also argues that the Township custodian and CFO had been fully responsive to the OPRA request and that neither person intended to deny the requester access to the engineering and attorney invoices. Township counsel advises that the requester had repeated contact with the Township regarding Ms. Chacalos' variance application and appeared to be acting on her behalf. Thus, when the Township received an OPRA request from Moore for engineering bills related to the Chacalos application (Item 3), for records of Board meetings (Item 1) at which Chacalos' application had been discussed, Township personnel assumed the request for West's invoices (Item 2) pertained only to services rendered in the Chacalos application.

As proof, Township counsel encloses Chacalos' October 22, 2002 letter to the CFO challenging fees assessed against Chacalos for Azzolina and West's professional services. Township attorney faults the requester for failing to communicate with the Clerk to confirm that invoices for all West's services, not just those pertaining to Chacalos matter, were being sought.

Analysis and Conclusion

Based on the representations of both parties, it appears that there has been miscommunication between the requester, the custodian, and the CFO with respect to what records were being sought and whether the records were to be inspected or copied.

While the Township Attorney states that he was informed that all invoices from Mr. West (Item 2 of the request) were provided, not just invoices related to the Chacalos matter, the CFO's October 18, 2002 response to the requester did not mention any West invoices at all. Subsequent submissions from the Township attorney would allow the Council to conclude that Township personnel assumed that the OPRA request pertained solely to records related to the Chacalos variance, whereas Item 2 of the request plainly referred to "all" invoices from Mr. West. Township personnel also construed the request to "inspect and possibly copy" records as an invitation to provide photocopies without contacting the requester to see whether photocopies were needed.

The documents described in Items two and three of the OPRA request are government records subject to public access. Given the apparent confusion stemming from the Township's interpretation of this request in the context of the Chacalos variance and its offer of all the engineering and legal billings pertaining to the Chacalos variance, however, the Executive Director is unable to conclude that Township personnel willfully and knowingly violated OPRA and unreasonably denied access "under the totality of the circumstances."

Therefore it is recommended that the Council order the Township to provide access to all the records requested in Items two and three above within five working days of the execution of the final decision. Upon proof that such records are available, the Council may dismiss this portion of the complaint.

With respect to the Planning Board Meeting minutes sought in Item 1, the Custodian originally advised the requester that while transcripts were not available, "planning board minutes are available at any time for your review." The custodian also advised that she did not have custody of any closed session minutes. However, the evidence in this case is that the custodian promised the requester that she would get back to the requester concerning the Board's decision to release the closed session minutes. Although the Planning Board denied the request by resolution dated November 6, 2002,there is no proof that the requester was given notice of this decision.

The failure to notify the requester of the Planning Board action is not seen as a denial of access, but a failure of communication. Based on the assertion of the requester that the Clerk would notify him of the Board's action, the Clerk appears to have failed to follow up with the Board's decision. This failure to notify does not rise to a willful or knowing denial of access given the circumstances of the matter.

This leaves the issue of access to the closed session minutes and the basis for the Planning Board's decision to deny access. The Open Public Meetings Act (OPMA) provides at N.J.S.A. 10:4-12(a) that all meetings of public bodies shall be open to the public at all times, with certain exceptions set forth in N.J.S.A. 10:4-12(b). Section 12(b) of OPMA permits public bodies, upon adoption of a resolution, to go into "closed" or "executive" session from which the public is excluded in order to discuss certain topics described in the statute. The purpose of the closed session provision is to encourage frank and independent discussion. One of the reasons OPMA authorizes closed sessions is to discuss "any pending or anticipated litigation or contract negotiation…which the public body is, or may become a party." This includes any matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise ethical duties as a lawyer.

A public body that meets in private generally must make the minutes of its meeting "promptly available to the public." This rule applies unless full disclosure would subvert the purpose of the particular OPMA exception; specific information that would undermine the OPMA exception, attorney-client privilege, or work-product doctrine may be redacted from closed session minutes released to the public.
The Township attorney has now advised the Council that the Board reconsidered the closed session minutes of its September 6, 2000 meeting at its annual organizational meeting on January 6, 2003 and has approved release of those minutes. There is no indication that the Board conferred with counsel prior to issuing its November 6, 2002 resolution but likely did consult counsel at the annual organizational meeting at which it approved release of these minutes.

Since the Board's assessment of "potential litigation" is, at best, uninformed without advice of counsel, the Executive Director is unwilling to conclude that the Board's November 6, 2002 decision to keep the minutes of its September 6, 2000 meeting closed was unreasonable "under the totality of the circumstances." However, the Director suggests that the Council warn the Board that in the future such decisions on records sought in OPRA requests should not be taken in the absence of formal attorney advice.

In conclusion, it is apparent that the lack of attention to this request by the custodian and CFO was largely responsible for the filing of this complaint. While their actions do not rise to the level of willful and knowing denial of access, the Executive Director recommends that the Council's Order make it clear that the Clerk and the CFO failed to give this request the professional attention it deserved.

Marc H. Pfeiffer, Acting Executive Director
Government Records Council

Dated: January 13, 2003

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