2003-139

Final Decision

At its April 26, 2004 public meeting, the Government Records Council (Council) considered the April 19, 2004 Supplemental 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 Finding and Recommendations. Therefore, the Council finds that:

1. The custodian has fulfilled the complainant’s request.
2. There has been no knowing and willful violation of N.J.S.A. 47:1A-11 under the totality of the circumstances.
3. The complaint is dismissed

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 26th 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 

Decision Distribution Date:  April 29, 2004

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: Copies of: (1) all correspondence between Burlington City municipal officials and Pennington Properties pertaining to a proposed townhouse development by Pennington Properties in the City of Burlington; (2) all conceptual drawings, sketches, plans, whether prepared by Pennington Properties or the city engineer that relate to the Pennington Properties townhouse development project; (3) internal city correspondence between city officials and departments, city solicitor and city engineer relating to the Pennington Properties townhouse development; (4) all appraisals on property in the certain blocks and lots related to the Pennington Properties townhouse development and all appraisals covering property being considered for the relocation of Lester Fellow Trucking in connection with the project; (5) cost estimates, from whatever sources, for the improvements to be accomplished by Pennington Properties in lieu of cash consideration to be transferred in connection with the project; and (6) any correspondence received or sent to other government entities pertaining to the Pennington Properties townhouse development.
Custodian: Alexander Shultz, Municipal Clerk
Request Made: June 27, 2003
Response Made: July 2, 2003
GRC Complaint filed: October 18, 2003

Executive Director’s Supplemental Findings and Recommendations

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations and amended response deadlines to the Executive Director Dice from the requestor and custodian as indicated below.

1. Order the requestor to provide specific details of the information still being sought, which has not been provided by the custodian.  A response to the custodian and Executive Director, Paul Dice, must be provided within 10 business days after receipt of the Council’s Interim Order. 
2. The custodian will have 10 business days to reply to requestor’s response in Item No. 1 above by providing access to the documents still sought by the requestor pursuant to N.J.S.A. 47:1A-1 et seq.
3. Order the Custodian to provide public access to internal correspondence and inter-agency correspondence, subject to redaction of any information in such correspondence that is “advisory, consultative or deliberative” in nature.  Factual assertions made in such correspondence are not exempt from public access under the relevant provisions of OPRA and the Custodian needs to provide a detailed explanation for any documents withheld or redacted from the Complainant.
4. Order the Custodian to provide a certification explaining the delay in responding to the request and why it should not be considered a knowing and willful violation. 

In a March 25, 2004 letter to the Complainant, the Custodian delineated the information that was now available for the Complainant in response to his request and the Council’s order. 

Since the Complainant had been out of the country for over a month, Mr. Gober advised the Government Records Council (GRC) in the April 7, 2004 letter that he did not receive the Custodian’s March 25, 2004 correspondence. 

In the April 19, 2004 letter, Mr. Gober advised the GRC Staff that he received the requested documents.  

In response to point #4 of the Interim Decision, the Custodian submitted a letter dated April 15, 2004 to the GRC staff.  The letter affirms the reasons for the delay in the Custodian’s response to the requestor.  The initial response to the requestor was made on July 2, 2003 however, the information was not provided at that time.  The Custodian cites several reasons for the delay in correspondence until September 9, 2003.  The reasons mentioned in the April 15, 2004 letter include the following:

1. The city moved from its prior location disrupting operations
2. The Custodian was assigned as Project Manager for the construction of a building during 2003
3. The Custodian went on vacation for 2 weeks in August

Based on the reasons given by the Custodian, we ask that the Council consider the Custodian’s actions in this case as not rising to a knowing and willful violation under OPRA.

The Executive Director respectfully recommends that the Council find that

1. The custodian has fulfilled the complainant’s request.
2. There has been no knowing and willful violation of N.J.S.A. 47:1A-11 under the totality of the circumstances
3. The complaint should be dismissed

Legal Analysis

The legal analysis was set forth in the March 11, 2004 Findings and Recommendations.   No additional analysis is needed. 

Documents Reviewed

• March 25, 2004 – Letter from Custodian to Complainant regarding the disclosure of the requested documents and the cost involved for copying them
• April 7. 2004 – Complainant’s Letter to GRC staff
• April 7, 2004 – Complainant’s Letter to Custodian regarding the receipt of the requested documents
• April 15, 2004 – Letter from Custodian addressing Point #4 of the March 11, 2004 Interim Decision
• April 19, 2004 - Complainant’s Letter to GRC acknowledging receipt of requested documents

_________________________

Paul F. Dice
Executive Director
Government Records Council

April 19, 2004

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Interim Order on Access and Custodian Penalty

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations and amended response deadlines to the Executive Director Dice from the requestor and custodian as indicated below.

1. Order the requestor to provide specific details of the information still being sought, which has not been provided by the custodian.  A response to the custodian and Executive Director, Paul Dice, must be provided within 10 business days after receipt of the Council’s Interim Order.
2. The custodian will have 10 business days to reply to requestor’s response in Item No. 1 above by providing access to the documents still sought by the requestor pursuant to N.J.S.A. 47:1A-1 et seq.
3. Order the Custodian to provide public access to internal correspondence and inter-agency correspondence, subject to redaction of any information in such correspondence that is “advisory, consultative or deliberative” in nature.  Factual assertions made in such correspondence are not exempt from public access under the relevant provisions of OPRA and the Custodian needs to provide a detailed explanation for any documents withheld or redacted from the Complainant.
4. Order the Custodian to provide a certification explaining the delay in responding to the request and why it should not be considered a knowing and willful violation. 
5. The custodian will have 10 business days to comply with Items No. 3 and 4 above after receipt of the Council’s Interim Order. 

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

Relevant Records Requested: Copies of: (1) all correspondence between Burlington City municipal officials and Pennington Properties pertaining to a proposed townhouse development by Pennington Properties in the City of Burlington; (2) all conceptual drawings, sketches, plans, whether prepared by Pennington Properties or the city engineer that relate to the Pennington Properties townhouse development project; (3) internal city correspondence between city officials and departments, city solicitor and city engineer relating to the Pennington Properties townhouse development; (4) all appraisals on property in the certain blocks and lots related to the Pennington Properties townhouse development and all appraisals covering property being considered for the relocation of Lester Fellow Trucking in connection with the project; (5) cost estimates, from whatever sources, for the improvements to be accomplished by Pennington Properties in lieu of cash consideration to be transferred in connection with the project; and (6) any correspondence received or sent to other government entities pertaining to the Pennington Properties townhouse development.
Custodian: Alexander Shultz, Municipal Clerk
Request Made: June 27, 2003
Response Made: July 2, 2003
GRC Complaint filed: October 18, 2003

Recommendations of Executive Director

This OPRA complaint filed October 18, 2003 alleges denial of an OPRA request to review copies of (1) all correspondence between Burlington City municipal officials and Pennington Properties pertaining to a proposed townhouse development by Pennington Properties in the City of Burlington; (2) all conceptual drawings, sketches, plans, whether prepared by Pennington Properties or the city engineer that relate to the Pennington Properties townhouse development project; (3) internal city correspondence between city officials and departments, city solicitor and city engineer relating to the Pennington Properties townhouse development; (4) all appraisals on property in the certain blocks and lots related to the Pennington Properties townhouse development and all appraisals covering property being considered for the relocation of Lester Fellow Trucking in connection with the project; (5) cost estimates, from whatever sources, for the improvements to be accomplished by Pennington Properties in lieu of cash consideration to be transferred in connection with the project; and (6) any correspondence received or sent to other government entities pertaining to the Pennington Properties townhouse development.  The Complainant also requests that the Council levy a fine on the Custodian for failure to comply with the provision of OPRA.

The record shows that the Custodian responded to the Complainant’s request on October 23, 2003.  The Custodian’s response asserted:

• With respect to request (1), above, full access to the documents is available;
• With respect to request (2), above, conceptual drawings have not been submitted, and therefore, are not available;
• With respect to request (3), above, internal correspondence constitutes “advisory, consultative or deliberative material” and is not subject to public access under OPRA; and
• With respect to request (4), above, the Custodian is unaware of, and does not possess, any appraisals related to the properties identified by the Complainant.

The Custodian’s response further asserted that certain other information requested by the Complainant is “privileged information” and not subject to public access.  Presumably the Custodian’s position applies to requests (5) and (6), above; however, the Custodian’s response is not specific on this question.  As a result, it is difficult to ascertain just exactly what component of the requested information the Custodian deems to be “privileged” and why he deems it to be so.

The record shows that the Custodian delayed almost four months in responding to the Complainant’s request and that the Custodian twice wrote to the Complainant to explain that the delay was related to summer vacation schedules and the moving of the Custodian’s office to a different facility.

The Custodian has failed to file a statement of information as requested by Council staff.

The Executive Director respectfully recommends that the Council:

1. Order the Custodian to provide public access to the requested records which it has not offered to the Complainant according to the provisions under OPRA.
2. Order the Custodian to provide public access to internal correspondence and inter-agency correspondence, subject to redaction of any information in such correspondence that is “advisory, consultative or deliberative” in nature.  Factual assertions made in such correspondence are not exempt from public access under the relevant provisions of OPRA and the Custodian needs to provide a detailed explanation for any documents withheld or redacted from the Complainant. 
3. Order the Custodian to provide a certification explaining the delay in responding to the request and why it should not be considered a knowing and willful violation. 
4. The Custodian will have 5 business days to comply with all of the above Council’s Orders. 

Legal Analysis

N.J.S.A. 47:1A-1 et seq. provide that government records shall be subject to public access, subject to certain clearly enumerated exemptions.  Here, the Custodian’s assertion that certain of the information requested by the Complainant is “privileged” is so vague that the existence of an applicable exemption cannot be ascertained.  Because the Open Public Records Act presumes that a government record is subject to public access unless an exemption exists, it is appropriate to order that access be granted unless an appropriate exemption is clearly identified by the Custodian.

N.J.S.A. 47:1A-1.1 provides that the a government record shall not include “inter-agency or intra-agency advisory, consultative or deliberative material.”  In prior rulings, the Council has taken the position that public access to intra-agency and inter-agency materials must be provided by a custodian, subject to redaction of only those aspects of such materials that are “advisory, consultative or deliberative” in nature.  Hence, an order granting access, subject to the redaction of applicable material, is appropriate.

N.J.S.A. 47:1A-11 provides that a “public official, officer, employee or custodian who knowingly and willingly violates” the provisions of OPRA may be subject to a civil penalty of $1,000 for the first violation.  Here, because the Custodian has failed to provide a statement of information, additional fact finding must be conducted prior to making a determination as to whether the Custodian’s conduct rises to the level of “knowing” and “willful.”  Referral of the case to the Office of Administrative Law for such fact finding is, therefore, appropriate.

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

• June 27, 2003 – Requestor’s original request to Custodian for records.
• July 2, 2003 - Custodian’s letter to Requestor stating that Custodian would be unable to produce the records within 7 days
• August 5, 2003 – Correspondence from requestor to Attorney General concerning proposed Pennington Properties townhouse development
• August 8, 2003 – Follow-Up Letter to Custodian from Requestor regarding Status of request (9/6/03 Letter is on the Bottom of 9/8/03 Letter)
• September 9, 2003 – Custodian’s Letter to Requestor concerning Status of Requested Documents
• October 5, 2003 – Requestor’s Letter to Custodian concerning Status of Requested Documents 
• October 2, 2003 – Letter from Department of Law and Public Safety to Division of Criminal Justice
• October 18, 2003 – Denial of Access Complaint
• October 22, 2003 – Follow-up cover letter from Requestor to GRC concerning Denial of Access Complaint.
• October 23, 2003 – Custodian’s letter to Complainant setting forth documents that would be made available for inspection.
• October 27, 2003 – Requestor’s Letter to GRC regarding the Submission of a Cover Letter to Denial of Access Complaint
• November 4, 2003 – Letter from Requestor to Custodian regarding 10/23/04 Letter
• November 5, 2003 – Letters from Custodian to GRC and Attorney General concerning Custodian’s response to Complainant’s request.  (Note: actual copies of the records provided by Custodian to Complainant were provided).
• January 14, 2004 – Offer of Mediation (to both Complainant and Custodian)
• January 19, 2004 – Mediation Agreement Signed by Custodian and Custodian’s Counsel
• January 28, 2004 – Transmittal letter from GRC to Custodian requesting that Custodian complete a Statement of Information.

_________________________

Paul F. Dice
Executive Director
Government Records Council

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