2003-111

Final Decision

At its February 27, 2004 public meeting, the Government Records Council (“Council”) considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations.  The Council dismissed the case on the following basis:

1. The custodian violated the requirements of OPRA in failing to respond to the request within the statutorily required seven business days.
2. The custodian responded on October 17, 2003 with all of the requested records where they existed. 
3. It was concluded that the delay in response was not “knowing and willful” under the OPRA statute.

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 Acting Executive Director

Relevant Records Requested: All documents authorizing health benefits for Township committee members, all documents providing changes to their coverage, any records of documents allowing committee members health benefits after they leave the Township.
Custodian: Rosa Garcia - Crowley
Request Made: June 25, 2003
Response Made: October 17, 2003
GRC Complaint filed: August 24, 2003

Recommendations of Acting Executive Director

The custodian properly disclosed the documents requested by Mr. Beaver.    The requestor was satisfied by the information received, however he filed a denial of access complaint with the GRC due to failure of the custodian to respond in a timely fashion.  In regards to this issue, the custodian submitted a response to this request 51 days after the initial request.  In the Statement of Information, the custodian claimed the following for the delay:

• The Township needed to retrieve information that dated back 40 years and thus, the project involved extensive research
• The Middletown clerk went on maternity leave on September 5, 2003
• The Township hired a deputy clerk in November 2003

The Acting Executive Director respectfully recommends the Council find that:

1. The custodian violated the requirements of OPRA by not denying or providing access to copies of requested records that were responsive to the Complainant’s request within the statutorily required seven business days.
2. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period.  The custodian responded on October 17, 2003 with all of the requested records where they existed.  The delay in response was not “knowing and willful” under the OPRA statute. It is recommended that this case be dismissed.

Legal Analysis

Pursuant to N.J.S.A. 47:1A-5(i), upon receipt of a request for records, a custodian “…shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived…. If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request…” In the instant case, the custodian did not provide a response within the time period required under the statute.

By law, it is the custodian’s duty to provide some response to the requestor within seven business days whether the “response” is to provide the records, deny the request, or state that the records are archived or the custodian will require more time, the custodian shall provide a response. [Emphasis added]  In the Beaver case, the custodian did not respond.

On October 17, 2003, the attorney for the custodian responded to Beaver stating, “[y]our request required some research and review of archived records due to the fact that Township Committee members have been covered by the Township health plans for some decades.”  Reilly provides complainant Beaver with:  1.  Copy of the relevant pages of the State Health Benefits plan; 2.  Copy of N.J.S.A. 40A10-16 and 40A: 1-17 3.  Resolution dated 5/8/79-terminating participation in the State Health Benefits Plan; 4.  Resolution dated 4/24/1979 establishing Township self-insurance plan; 5.  Relevant eligibility pages of Township Health Plan Manual 1986; 6.  Relevant Pages about Township eligibility Health Plan Manual 2000; 7.  Resolution 03-83 continuing prescription claim services contract and eligibility portion of the contract; 8.  Resolution 03-84 continuing dental claim services contract.  Reilly goes on to state that the relevant portions of the recent manuals etc. are available for [Beaver’s] inspection at Town Hall.  Reilly also states “…no committee members has received or is receiving such coverage after leaving office.” 

Reilly apologized for the delay, which, according to Reilly, resulted from “…the search of old records and a miscommunications as to the documents required for a response.”

On October 27, 2003, complainant wrote to GRC and said that he has no heard anything from GRC since filing the complaint.

On November 7, 2003 GRC sent custodian Rosa Garcia an SOI.

On December 10, 2003, Bernard Reilly responded to GRC’s SOI.   In his cover letter, Reilly states that the complainant was told that the research would take some time; then the delay was caused by the custodian’s pregnancy; then the Deputy Clerk retired.  Reilly also states that a response was forwarded to Reilly on October 17, 2003.  Thus, the time of delay was calculated from seven (7) business days after the request (August 6, 2003) to October 17, 2003.[51 days (Labor day and Columbus Days not inlcuded0]

The excuses given for the failure of the custodian to respond to the requests were:  “…the search of old records and a miscommunications as to the documents required for a response”.  Further, the attorney for the custodian stated that the requestor was told the response would take some time; that the response was delayed due to the custodian’s pregnancy and that the Deputy Clerk had retired.

Pursuant to N.J.S.A. 47:1A-11a, “[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA]…and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation…” There is no question that the custodian did not provide a timely response.  The legal question becomes whether the delay was “knowing and willful” under N.J.S.A.  47:1A-11.

The definition of willful misconduct is analyzed in a Deputy Attorney General’s Opinion dated September 22, 2003 (relating to GRC case 2003-153).  DAG Scheindlin cites Fielder v Stonack, 141 N.J. 101, 124 (1995), wherein the New Jersey Supreme Court held:

Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use.  While its general contours, given its language, are similar in all contexts, it may differ depending on the common-law rule or such statute to which it is relevant, and perhaps even within such rule or statute different depending on the facts.

It is apparent that willful misconduct constitutes more than negligent conduct.  [cites omitted].   Further, “there must be some knowledge that the act is wrongful.”

Fielder, supra, 141 N.J. at 124.  DAG Scheindlin also cites Alston v. City of Camden, 168 N.J. 170, 185 (2001), wherein the Supreme Court upheld the trial court’s jury instructions regarding willful conduct:

[t]o satisfy the requirement of willfulness, there must be a positive element of conscious wrongdoing and another way of looking at it is willful misconduct is the commission of a forbidden act with actual knowledge that the act is forbidden.  And finally, willful misconduct is a definition which is –does not include and is above what you might understand to be gross negligence or recklessness.  Id. At 184 [emphasis added]

DAG Scheindlin underscores the fact that OPRA [N.J.S.A. 47:1A-11a] also uses the term “knowingly”, “thereby indicating even more strongly that actual knowledge of the wrongfulness of the act is required.” See Scheindlin opinion, supra.

In the instant case, and in accordance with DAG Scheindlin previous GRC opinion, there is no willful or knowing misconduct on the part of the Middleton Township custodian.  The custodian’s attorney certifies that the requester was told the request would take a longer period of time.  The research plus the custodian’s pregnancy plus the retirement of the Deputy Clerk all led to the 51 day delay in the requester receipt of the records.  Although the custodian should have responded within the seven day time period, the delay was, at best, negligent and did not rise to the level of “knowing and willful”.

Documents Reviewed

June 25, 2003 - Records Request

August 24, 2003 -Denial of Access Filed (background information submitted)

October 17, 2003 - Response by Custodian’s Attorney

October 27, 2003 - Denial of Access Resubmitted to GRC

November 1, 2003 - Requestor Submitted Article to the GRC

November 7, 2003 - Statement of Information Sent to Custodian

December 10, 2003 - Statement of Information Submitted to GRC

January 26, 2004 - Supplemental Letter Submitted by Requestor

Conclusion

1. The custodian violated the requirements of OPRA by not denying or providing access to copies of requested records that were responsive to the Complainant’s request within the statutorily required seven business days.
2. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period.  The custodian responded on October 17, 2003 with all of the requested records where they existed.  The delay in response was not "knowing and willful" under the OPRA statute. It is recommended that this case be dismissed.

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

Dated: February 23, 2004 

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