2004-06

Case Disposition: The Complainant voluntarily withdrew his complaint (via letter from his attorney) from the Office of Administrative Law (OAL) on April 4, 2006.

Type of Administrative Disposition: Complaint withdrawn.

Applicable OPRA Provision: Not Applicable.

Effective Date of Disposition: May 11, 2006

Interim Decision on a Determination of a Knowing and Willful Violation

At its April 14, 2005 public meeting, the Government Records Council ("Council") considered the April 7, 2005 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 findings and recommendations. The Council, therefore, finds that the case will be referred to the Office of Administrative Law to determine if the Custodian knowingly and willfully violated N.J.S.A. 47:1A-5(i).

Final Decision Rendered by the
Government Records Council
On The 14^th Day of April, 2005
Diane Schonyers, Vice-Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary
Government Records Council

Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: Assignment of Mortgages, Cancellation of Mortgages, Deeds, Discharges of Mortgages, Disclaimers, Easements, Extension of Mortgages, Files Maps – Major Subdivision, Foreclosures, General Judgments and Releases of Satisfactions, Hospital Liens and Releases, Institutional Liens and Releases, In Ram/Tax Sale and Releases, Lies Pendent (including discharges), Minor Subdivision, Miscellaneous Records, Mortgages (including modifications and postponements), Partnership Agreements, Reimbursement Agreements, Releases/Subordinations/Satisfactions of Mortgage, Recognizance Bonds (open or with discharges), Road Books, Township Deeds, Basements, Mortgages, Lies Pendent, Notices, and Tax Sales, Trade Names, Unfilled Maps, Vacation of Streets. All of these above listed documents were requested from the period of January 1, 1984 to December 31, 1988 and January 1, 2002 to present.

Inheritance Tax Waiver (January 1, 1989 to present); Federal Tax Liens and Releases (January 1, 1993 to present); Mechanics Liens, Rights, Claims and Discharges (January 1, 1995 to present); Construction Liens, Rights, Claims and Discharges (January 1, 1995 to present); U.C.C (Secured Transactions or Financing Statement – January 1, 1999 to present); Notice of Settlement/Notice of Sale (Last 45 days from date of response).

Tax Maps; Cross Reference Lists for Tax Parcels Numbers or Condos; and Wetlands – All for the Period of 1984 to present.

Request made: September 24, 2003
Response made: December 18, 2003
Custodian: Kathleen Donovan (Custodian counsel – Jack Carbone, Esq.)
GRC Complaint filed: January 26, 2004

The Government Records Council heard Fred Burnett v. Bergen County Clerk, GRC case 2004-6 on January 13, 2005 wherein it was referred to the Office of Administrative Law (OAL) to determine:

Complainant’s counsel sent an e-mail to the Government Records Council (GRC) inquiring as to how the GRC will be handling the aspect of knowing and willful violations in the case. They wanted to know if this matter would also be referred to the Office of Administrative Law (OAL).

According to a January 26, 2004 letter, written by Complainant's counsel, Yianni Pantis, who is based in California.[1] The first request for this information was made on September 24, 2003, and was not responded to until December 18, 2003 from Nancy A. Bradford, Deputy Clerk. (Copies of the aforementioned correspondence are included as attachments to the January 26 letter.) According to Complainant's counsel this letter also references a conversation with Mr. Burnett, which never occurred, and indicated "requests under the Open Public Records Act need to be made to the Open Public Records Act Custodian of the County of Bergen. It is not this office." Complainant's counsel states that, "Ms. Bradford failed to identify the name of the Custodian or his/her contact information in her response letter. Moreover, a relatively thorough search of Bergen County's website did not reveal any reference as to who the Open Public Records Act Custodian of the County of Bergen is."

The Complainant responded to the Custodian's December 18, 2003 letter with a December 23, 2003 letter asking that his request be forwarded to the Custodian if it was not whoever received the letter. In the same letter, the Complainant states that he is troubled because of the way his OPRA request has been handled and states that the company he works for, Data Trace has been unsuccessfully trying to obtain digital images and microfilm from the Bergen County Clerk's office.

Bergen County responded to the December 23, 2003 letter on January 2, 2004 asking that the Complainant fill out the proper OPRA request form. In the Complainant's response he states that the use of an official request form could not be mandated, as supported by the Government Records Council.

In the January 26, 2004 letter, Complainant's counsel states that the records being requested are government records to which no exceptions exist. They also state that Bergen County has not responded within the statutory time period as well as neglecting to forward the request to the custodian of record.

Whether the Custodian responded in a timely manner pursuant to N.J.S.A. 47:1A-5(i)?

Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record 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. N.J.S.A. 47:1A-5(i).

Based on submissions from Complainant's counsel, it is not clear whether the Custodian acted reasonably and in a timely and responsible manner in responding to the OPRA request. This matter should be referred to the OAL to determine if the Custodian knowingly and willfully violated N.J.S.A. 47:1A-5(i).

The Executive Director respectfully recommends that the Council refer the case to the Office of Administrative Law to determine if the Custodian knowingly and willfully violated N.J.S.A. 47:1A-5(i).

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 7, 2005

[1] The New Jersey based firm Riker, Danzig, Scherer, Hyland & Perretti LLP, is also representing the Complainant. Custodian's counsel disputed the use of a California based attorney, which is the reason the Complainant is also being represented by New Jersey counsel.

Interim Decision on Access

At the January 13, 2005 public meeting, the Government Records Council ("Council") considered the January 4, 2005 Executive Director's Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations with the amendment that item #2(a) of the Executive Director's conclusions and recommendations need not be considered by the Office of Administrative Law. Therefore, the Council hereby finds that:

Interim Decision Rendered by the
Government Records Council
On The 13^th Day of January, 2005

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

Findings and Recommendations of Executive Director

Fred Burnett GRC Complaint No. 2004-06
Complainant
v.
Bergen County Clerk
Custodian of Record

Relevant Records Requested: Assignment of Mortgages, Cancellation of Mortgages, Deeds, Discharges of Mortgages, Disclaimers, Easements, Extension of Mortgages, Files Maps - Major Subdivision, Foreclosures, General Judgments and Releases of Satisfactions, Hospital Liens and Releases, Institutional Liens and Releases, In Ram/Tax Sale and Releases, Lies Pendent (including discharges), Minor Subdivision, Miscellaneous Records, Mortgages (including modifications and postponements), Partnership Agreements, Reimbursement Agreements, Releases/Subordinations/Satisfactions of Mortgage, Recognizance Bonds (open or with discharges), Road Books, Township Deeds, Basements, Mortgages, Lies Pendent, Notices, and Tax Sales, Trade Names, Unfilled Maps, Vacation of Streets. All of these above listed documents were requested from the period of January 1, 1984 to December 31, 1988 and January 1, 2002 to present.

Inheritance Tax Waiver (January 1, 1989 to present); Federal Tax Liens and Releases (January 1, 1993 to present); Mechanics Liens, Rights, Claims and Discharges (January 1, 1995 to present); Construction Liens, Rights, Claims and Discharges (January 1, 1995 to present); U.C.C (Secured Transactions or Financing Statement - January 1, 1999 to present); Notice of Settlement/Notice of Sale (Last 45 days from date of response);

Tax Maps; Cross Reference Lists for Tax Parcels Numbers or Condos; and Wetlands - All for the Period of 1984 to present.

Request made: September 24, 2003
Response made: December 18, 2003
Custodian: Kathleen Donovan (Custodian Counsel - Jack Carbone, Esq.)
GRC Complaint filed: January 26, 2004

The Complainant filed a Denial of Access Complaint with the Government Records Council on January 26, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging denial of access to the records stated above as well as the following:

According to a January 26, 2004 letter, written by Complainant's counsel, Yianni Pantis, who is based in California (The Complainant is also being represented by the New Jersey based firm Riker, Danzig, Scherer, Hyland & Perretti LLP. Custodian's counsel disputed the use of a California based attorney which is the reason the Complainant is also being represented by New Jersey counsel.) The first request for this information was made on September 24, 2003, and was not responded to until December 18, 2003 from Nancy A. Bradford, Deputy Clerk. (Copies of the aforementioned correspondence are included as attachments to the January 26 letter.) According to Complainant's counsel this letter also references a conversation with Mr. Burnett, which never occurred, and indicated "requests under the Open Public Records Act need to be made to the Open Public Records Act Custodian of the County of Bergen. It is not this office." Complainant's counsel states that, "Ms. Bradford failed to identify the name of the Custodian or his/her contact information in her response letter. Moreover, a relatively thorough search of Bergen County's website did not reveal any reference as to who the Open Public Records Act Custodian of the County of Bergen is."

In an August 26, 2004 response to the Statement of Information, Complainant's counsel states that Bergen County could have complied with the Complainant's request months ago, with the majority of the work to be performed by a third party vendor at reasonable rates that would have significantly reduced the amount of work required of County personnel. Counsel also states, "Bergen County redirected the vendor to submit revised proposals to perform unnecessary and expensive work for the purpose of denying Mr. Burnett the records to which he is entitled by law." Counsel goes on to address the fact that, "Mr. Burnett is a citizen of the State of New Jersey and thus has standing to request public records under the OPRA and can do as he wishes with them, including making them available to his employer."

In response to Bergen County's references to "the out-of-state counsel" Complainant's counsel states that these arguments have been previously addressed and are merely an attempt to turn the tables and misdirect the GRC's attention away from Bergen County's violation of OPRA.

Next, in response to Bergen County's reference of Mr. Burnett's repeated and confusing inquiries it is stated that the reason for the repeated requests was because Bergen County ignored and then did not provide meaningful or proper responses to previous requests. Specifically they state, Bergen County did not respond to Mr. Burnett's original OPRA request dated September 24, 2003 until December 18, 2003 indicating, "requests under the Open Public Records Act must be made to the Open Public Records Act Custodian of the County of Bergen. It is not this office."

Complainant's counsel states, "as far as Bergen County feeling that Mr. Burnett's request was confusing because he did not simply request one particular document, there is nothing vague or confusing about the request." They state that a number of other New Jersey clerks have not had a problem "understanding and satisfactorily responding to similar requests by Mr. Burnett." They also state that the request is for less than seven years worth of records while Mr. Burnett's typical request is for more than twenty years worth of records.

Complainant's counsel also states that Bergen County's claim that the records requested are all in paper format as well as microfilm not being kept on site and therefore not accessible to the County Clerk is untrue.

Complainant's counsel states, "Mr. Burnett knows for a fact that the Bergen County Clerk has in its possession approximately fourteen years' worth of public records in digital format, from 12/1/1988 - 12/31/2001."

Counsel goes on to say, "Also as set forth included is a Declaration of Larry Chiarella, the Bergen County Clerk, as of 2001, maintained all microfilm onsite. In any event, even if the microfilm is now stored offsite, it is simply not credible, nor would it be legal, for any offsite storage facility to prohibit access to the records by the County Clerk, the Custodian by law of those same records."

In response to Custodian's counsel stating that the Complainant never responded to the requests for adequate deposits to cover costs involved, Complainant's counsel responds by saying that the referenced bid was requested and received by Bergen County during the attempted and failed mediation between the parties. To the extent anything related to the forgoing is claimed to be confidential by Mr. Carbone, he has now waived such arguments. It is Complainant's counsel's position that the vendor's bids requested by Bergen County are public records in the first place and cannot be considered to be confidential.

Complainant's counsel includes with their statement what is said to be, "a tried and true copy of the first quote from Bergen County's vendor, Image Access Corp. which was not referenced in the Statement, and is exactly responsive to Mr. Burnett's request.

In response to the Complainant's allegations, the Custodian asserts the following:

In the July 30^th Statement of Information Custodian's counsel states that the records requested are in paper form, and no records are stored in an electronic or scanned format. Counsel also states that an attorney not admitted or authorized to practice law in the State of New Jersey is pursuing this matter, and, " this is a violation of our statutes and the ethical rules of the New Jersey Supreme Court."

Custodian's counsel goes on to state that "Fred Burnett" made the original request but later Mr. Burnett represented himself not as an individual but a corporate requestor and a corporate officer of Data Trace Company. It is stated that inquiries were thereafter made by attorneys on behalf of Mr. Burnett and/or Data Trace by New Jersey counsel, Riker, Danzig, of Morristown, New Jersey, and out of state counsel.

Custodian's counsel states that after repeated and confusing inquiries from Mr. Burnett, Data Trace and counsel, the Bergen County Clerk, after consultation with the attorney claiming to represent "Burnett" directed a letter to him the appropriate person for contact in regard to the records request. It is stated that the Clerk responded to the letter with an itemization of records that were maintained by the office of the Clerk in Bergen County. Custodian's counsel states that, "rather than request a specific document, Mr. Burnett requested over 20 years of title documents and papers." Custodian's counsel goes on to state that all the records stored with the Bergen County Clerk are in a hardcopy paper format. And, although the "original request as well as subsequent requests demanded that the documents be deliverable in TIF images on CD or in microfilm format, " the Clerk does not maintain the records in this electronic format nor has the ability to convert the documents to a TIF format.

Custodian's counsel states, "after a request for proposals, a bid waiver process, and review by the appropriate county officials, we were able to ascertain the amount of money it would cost to make the copies available in various formats for the requestor:

The following corresponds directly with the Conclusions and Recommendations of the Executive Director:

If any party declines mediation or if mediation fails to resolve the matter to the satisfaction of all parties, the council shall initiate an investigation concerning the facts and circumstances set forth in the complaint. The council shall make a determination as to whether the complaint is within its jurisdiction or frivolous or without any reasonable factual basis.

This case should be referred to the Office of Administrative Law to determine if information exchanged during mediation is admissible to the Council, as well as determine the actual and reasonable direct cost of copying the information requested, pursuant to N.J.S.A. 47:1A-1 et seq.

Approved By:
Paul F. Dice
Executive Director
Government Records Council
January 4, 2005

Interim Order

At its October 14, 2004 public meeting, the Government Records Council (Council) considered Bergen County's objection to the Council's consideration of the briefs and positions submitted by Complainant's attorney on the grounds that he is a California attorney not admitted to the New Jersey Bar.

The Council voted unanimously to advise Complainant's attorney that he must file an appearance Pro Hac Vice before the Council or work through an attorney licensed to practice law in the State of New Jersey in order to continue to serve as Complainant's attorney in this Open Public Records Act case. R. 1:21-1 and R. 1:21-2.

The Complainant's attorney will have ten (10) business days from receipt of this order to advise the Council's Executive Director, Paul Dice, how he wishes to proceed.

Interim Order Rendered by the
Government Records Council
On The 14^th Day of October, 2004

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

Interim Decision

At its April 8, 2004 public meeting, the Government Records Council (Council) considered the April 8, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said Finding and Recommendations of the Executive Director to forego any adjudicatory action pending the outcome of mediation.

Interim 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

Findings and Recommendations of Executive Director

Relevant Records Requested: Assignment of Mortgages, Cancellation of Mortgages, Deeds, Discharges of Mortgages, Disclaimers, Easements, Extension of Mortgages, Files Maps - Major Subdivision, Foreclosures, General Judgments and Releases of Satisfactions, Hospital Liens and Releases, Institutional Liens and Releases, In Ram/Tax Sale and Releases, Lies Pendent (including discharges), Minor Subdivision, Miscellaneous Records, Mortgages (including modifications and postponements), Partnership Agreements, Reimbursement Agreements, Releases/Subordinations/Satisfactions of Mortgage, Recognizance Bonds (open or with discharges), Road Books, Township Deeds, Basements, Mortgages, Lies Pendent, Notices, and Tax Sales, Trade Names, Unfilled Maps, Vacation of Streets. All of these above listed documents were requested from the period of January 1, 1984 to December 31, 1988 and January 1, 2002 to present.

Inheritance Tax Waiver (January 1, 1989 to present); Federal Tax Liens and Releases (January 1, 1993 to present); Mechanics Liens, Rights, Claims and Discharges (January 1, 1995 to present); Construction Liens, Rights, Claims and Discharges (January 1, 1995 to present); U.C.C (Secured Transactions or Financing Statement - January 1, 1999 to present); Notice of Settlement/Notice of Sale (Last 45 days from date of response);

Tax Maps; Cross Reference Lists for Tax Parcels Numbers or Condos; and Wetlands - All for the Period of 1984 to present.

Request made: September 24, 2003
Response made: December 18, 2003
Custodian: Kathleen Donovan (Custodian Counsel - Jack Carbine, Esq.)
GRC Complaint filed: January 26, 2004

The requestor and the custodian voluntarily signed Agreements to Mediate on January 30, 2004 and on March 15, 2004, respectively. Based on same, the Executive Director respectfully recommends that the Council and GRC staff forego any adjudicatory action pending the outcome of mediation.

Pursuant to N.J.S.A. 47:1A-7 (d), no further legal analysis is needed at this time.

2004-06

Administrative Case Disposition – Complaint Withdrawn

Interim Decision on a Determination of a Knowing and Willful Violation

Supplemental Findings and Recommendations of the Executive Director

Interim Decision on Access

Findings and Recommendations of Executive Director

Interim Order

Interim Decision

Findings and Recommendations of Executive Director