2004-110

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 3, 2004 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 with the amendment that the Government Records Council’s staff will counsel the Custodian on the OPRA obligations pursuant to N.J.S.A. 47:1A-5(g). The Council, therefore, found that:

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 9^th Day of December, 2004

I attest the foregoing is a true and accurate record of the Government Records Council.

Findings and Recommendations of Executive Director

Custodian: Jean B. Montfort
Request Made: 7/8/041, 7/20/041, 7/27/042
Response Made: 7/26/04
GRC Complaint filed: 8/9/04

The Complainant filed a Denial of Access Complaint with the Government Records Council on August 9, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following:

Denial of Access to the above mentioned records. The Complainant states that she submitted two OPRA requests to the County of Union on July 8, 2004. On July 20, 2004 (the 8^th business day) the Complainant contacted the County Clerks Office and spoke to clerk intern Marlena Russo who informed her that the complaint was never received. (The Complainant states that she has a fax transmittal sheet, which states that it was in fact received.) The request was re-faxed on 7/20/04. The Complainant states that she received a response on 7/26/04 from the clerk’s office stating that there were no bids, bills, or postage.

On July 27, 2004 the Complainant submitted a revised OPRA request for service contracts and was informed that day by clerk intern Laura Scutari that the requested documents were archived and she was not aware of how long it would take to provide them. On July 30, 2004 the Complainant called the clerks office to check on the availability of the documents and was informed that Laura Scutari no longer worked there. Marlena Russo stated that she would look into it. On August 9, 2004 the Complainant spoke with Marlena Russo who informed her that her request was in the law department and they would be contacting her shortly. In a September 03, 2004 e-mail to the Government records Council the Complainant states that the County did not respond to her request within the statutory time. She states that it took 33 business days for the request to be fulfilled. She also states that she met with county counsel Anthony Orlando on the 33^rd business day, “ and he said my original request for bills should have been fulfilled.” The Complainant believes the County has delayed their response and held back information for political reasons.

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

The Clerk’s office first received and logged in Mrs. Renna’s two requests on July 20, 2004. If the initial fax was received and misplaced by the clerk’s staff “it was an inadvertent error and certainly not intentional as is asserted by the requestor. Nonetheless, the staff remains adamant that no request was received on the 9^th”. In response to the July 20 request the staff began the process of acquiring the records requested. The first request states, “All bills and bids pertaining to the Runnels Specialized Hospital mailer, 3 bids submitted for artwork, 3 bids submitted for printing, bills for artwork, bills for printing, postage/handling bills. The second request is seeking “Runnels Specialized Hospital Commercial”. This should include all information from the commercials inception to present, 3 bids submitted for production, bills for air time, and bills for consultation”

Custodian’s Counsel states that Mrs. Renna did not specify what mailer she was referring to, its content, or when she believes it was sent out. Therefore, the staff found what they believed was the Runnels mailer Mrs. Renna was seeking information about and prepared a response. The July 26 response stated that were no bids or bills for printing/artwork, nor were there any postage bills. The Complainant was also informed verbally that the records she was seeking were archived and it would take some time to receive and sort them. It was estimated that it would take up to ten days to fulfill the request.

On July 27, the County received a revision to the July 20^th requests. With this request the Complainant was informed verbally that the request would take some time to complete. The County’s counsel states that on or about August 24^th Mrs. Renna was informed that all records were now compiled and available for her inspection and purchase. On the 26^th of August the Complainant was provided access to these records and purchased copies of many of them. Custodian’s counsel states that the staff did their best to accommodate this requestor and did not violate the provisions of OPRA. He also states that because of the volume of the request additional time was needed, the requestor was informed of this, and her patience and cooperation were sought. Finally, counsel states that since the records have been provided to Mrs. Renna in the shortest time practicable, the claims raised in this complaint are frivolous.

In response to the Complainant’s September 3, 2004 e-mail to the GRC Custodian’s counsel states that comments attributed to him in the e-mail do not accurately reflect what was said. Counsel states that as he explained to Mrs. Renna, the problem stemmed from the fact that the request was not properly understood by the Clerk of the Board’s staff, which led to over production of documents. It is also stated by counsel that Mrs. Renna expressed what he thought to be genuine remorse for the confusion that led staff to spend hours retrieving and copying documents that were not desired, leading to a delay in response time. Finally, counsel states that he told Mrs. Renna that it should have been much easier for her to get the information she was seeking, including the bills for the Runnells commercial.

The following correspond directly with the Findings and Recommendations of the Executive Director:

N.J.S.A. 47:1A-5(e) states, immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.

In September 3, 2004 e-mail to the Government Records Council the Complainant states that it is her position that the County did not respond to her request within the statutory time, and it took 33 business days for the request to be fulfilled. Also, the Complainant states that her first request was for bills and the response was that there were no bills. When the County presented the documents on the 33^rd business day the Complainant states that she met with County Counsel Anthony Orlando who said her original request for bills should have been fulfilled.

In response to the Complainant’s September 3, 2004 e-mail to the GRC Custodian’s Counsel states that comments attributed to him in the e-mail do not accurately reflect what was said. Counsel states that as he explained to Mrs. Renna, the problem stemmed from the fact that the request was not properly understood by the Clerk of the Board’s staff, which led to over production of documents. It is also stated by counsel that Mrs. Renna expressed what he thought to be genuine remorse for the confusion that led staff to spend hours retrieving and copying documents that were not desired, leading to a delay in response time. Finally, counsel states that he told Mrs. Renna that it should have been much easier for her to get the information she was seeking, including the bills for the Runnells commercial.

While the Custodian should have been more diligent in handle the Complainant’s OPRA requests, there was not an unreasonable denial access and the Custodian’s actions should not be viewed as a knowing and willful violation of OPRA under the totality of the circumstances.

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

      1.    August 3, 2004 – Statement of Information (w/attachments)3
      2.    August 9, 2004 – Denial of Access Complaint (w/attachment)
      3.    August 10, 2004 – Offer of mediation to Complainant and Custodian
      4.    August 11, 2004 – E-mail from the Complainant to the GRC
      5.   August 24, 2004 – E-mail from the Complainant to the GRC
      6. September 3, 2004 – E-mail from the Complainant to the GRC
      7.    November 24, 2004 – Custodian’s counsel’s letter to the GRC

1.The Custodian violated N.J.S.A. 47:1A-5(e) on the basis that the Complainant should have been granted immediate access to some of the information requested
2.Based on Custodian’s Counsel’s November 24, 2004 letter, the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.
3.The case should be dismissed on the basis of #1 and #2 directly above.

Approved By:
Paul F. Dice
Executive Director
Government Records Council
December 3, 2004

1 This is referring to the first request under Records Requested
2 This is referring to the second request under Records Requested
3 The Government Records Council sent out the Statement of Information (SOI) on August 17, 2004, making the August 3 date impossible. (There is no other date noted on the SOI, however, it was received by the Government Records Council in a timely matter)