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2004-14
Final Decision
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 hereby finds 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 I attest the foregoing is a true and accurate record of the Government Records Council. Supplemental Findings and Recommendations of the Executive DirectorAlbert P. Poreda, GRC Complaint No. 2004-14Complainant v. Hudson County Custodian of Records Relevant Records Requested:
Custodian: Neil Carroll, Jr. Background April 8, 2004 June 10, 2004 January 13, 2005 February 25, 2005 March 1, 2005 March 4, 2005 Analysis Whetherthe Complainant was a prevailing party in his denial of access complaint 2004-14? The Open Public Records Act (OPRA) provides for the Council to render a decision of a denial of access complaint. Specifically, OPRA states in relevant part: ...receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian... N.J.S.A. 47:1A-7(b). The council shall, by a majority vote of its members, render a decision as to whether the record which is the subject of the complaint is a government record which must be made available for public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented. N.J.S.A. 47:1A-7(e). …a requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee. N.J.S.A. 47:1A-7(f) If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee. N.J.S.A. 47:1A-6 In the Council's April 8, 2004 Interim Decision, the Council found that the Custodian's lack of response was considered a denial of access and ordered disclosure of all requested information pursuant to the Open Public Records Act ("OPRA"). Once the Custodian complied with the Council's orders in the interim decision on access, the Council issued a Final Decision to dismiss the case, albeit to close the case. Therefore, the Council should find that the Complainant was a prevailing party in this case based on the Council's April 8, 2004 Interim Decision in this case pursuant to N.J.S.A. 47:1A-7(f) and N.J.S.A. 47:1A-6. There is no dispute on the fee sought by the Complainant’s counsel as stated in the March 4, 2005 letter to the GRC staff that he [Mark Morchel] felt the "amount being sought was "Reasonable," and that if ordered to pay attorney's fees by the Council, the amount would not be challenged." Therefore, the Council does not need to address whether the $1618.42 attorney’s fee is reasonable. Conclusions and Recommendations The Executive Director respectfully recommends that the Council should find that:
Prepared By: Gloria Luzzato, Assistant Executive Director Approved By: Final Decision
At its June 10, 2004 public meeting, the Government Records Council (Council) considered the May 25, 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 findings and recommendations. The Council, therefore, dismissed the case on the basis of:
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 I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: June 21, 2004 Supplemental Findings and Recommendations of the Executive DirectorJune 10, 2004 Council MeetingAlbert P. Poreda GRC Complaint No. 2004-14 Relevant Records Requested: A Copy of Scoring Sheets Completed by Selection Committee, a Copy of Contract Awarded to Winning Vendor, a Copy of Transcript of Pre-Bidders Conference and a Copy of transcript of Freeholders’ Caucus Custodian: Neil Carroll, Jr. (Custodian’s Counsel) Supplemental Recommendations of the Executive Director This case was initially heard at the GRC Public Meeting on April 8, 2004. The Council ordered that:
In response to the Interim Decision, the Custodian’s Counsel gave a detailed explanation of the events concerning the request and asserted that all requested documents responsive to the request were provided. The Complainant responded indicating that he had not received the requested information. At the May 13, 2004 public meeting, the Government Records Council (“Council”) ordered:
On May 24, 2004, the Custodian of Records, Neil Carroll, submitted a certification in response to the Counsel’s Interim Decision. Mr. Carroll certified that he was the designated Custodian of Records for the Office of the County and the Office of the County Administrator. He certified to the events concerning the request and identified all the records provided in response to the request. The Custodian certified that all records responsive to the request were provided to the Complainant and that the statements of the certification were true to the best of his knowledge. Additionally, the certification addressed the issue of a knowing and willful violation. In the certification, Mr. Carroll explained that the response to the May 23, 2003 request was issued one day beyond the statutory timeframe. In the other request of May 30, 2003, Mr. Carroll stated that the response was issued two days beyond the statutory timeframe. In the first case, he claimed that the receipt of the request by the Custodian was delayed as a result of an administrative shuffle in the Clerk’s Office and in the second request, the delay was the result of an employee that mistakenly thought that the time constraints of OPRA only applied upon submission of a records request form authorized by the County. The Executive Director respectfully recommends that the Council dismiss the complaint on the basis of:
Analysis The designated Custodian of Records has certified that all records responsive to the request have been provided to the requestor pursuant to N.J.S.A. 47: 1A et seq. In addition, the Custodian has certified that the custodian’s lack of a timely response should not be considered a knowing and willful violation of OPRA under the totality of the circumstances. In his response, the Custodian explained that the first response to the May 23, 2003 request was issued one day beyond the response deadline. On the other request of May 30, 2003, Mr. Carroll stated that the response was issued two days beyond the response deadline. In the first case, he claimed that the receipt of the request by the Custodian was delayed as a result of an administrative shuffle in the Clerk’s Office and in the second request, the delay was the result of an employee that mistakenly thought that the time constraints of OPRA only applied upon submission of a records request form authorized by the County. OPRA provides that "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 as soon as possible, but no 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). Pursuant to N.J.S.A. 47:1A-11(a), “{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. Although the Custodian failed to supply the Complainant a response within the seven-business day timeframe, the delay in responding, at best, may be viewed as negligent. In the instant case, and in accordance with a previous Council decision in Beaver v. Township of Middletown (2003-111) the circumstances did not rise to the level of a knowing and willful misconduct on the part of the Hudson County Custodian. Based on the May 24, 2004 certification provided by the Custodian of Records, this complaint should be dismissed. Documents Reviewed
Paul F. Dice [1] The date indicated on the complaint was January 15, 2003; however it is determined that the complainant intended to date the complaint January 15, 2004 since the GRC received the complaint February 20, 2004. Interim Decision on Access
At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 4, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to amend said findings and recommendations. Therefore, the Council hereby orders:
Interim Decision Rendered by the Government Records Council I attest the foregoing is a true and accurate record of the Government Records Council. Supplemental Findings and Recommendations of the Executive DirectorAlbert P. Poreda GRC Complaint No. 2004-14Complainant v. Hudson County Custodian of Records Relevant Records Requested: A Copy of Scoring Sheets Completed by Selection Committee, a Copy of Contract Awarded to Winning Vendor, a Copy of Transcript of Pre-Bidders Conference and a Copy of transcript of Freeholders’ Caucus Supplemental Recommendations of the Executive Director An Open Public Records Act (“OPRA”) complaint was filed January 15, 2004 in which the Complainant alleges that an OPRA request filed May 13, 2003 and various other dates remained unfilled. By confirmed fax on March 9, 2004 a request from the GRC staff to the custodian’s counsel for the custodian’s statement of information was unanswered. Thus, the custodian offered no defense in this case. At its April 8, 2004 public meeting, the Government Records Council (“Council”) considered the April 8, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Finding and Recommendations of the Executive Director and amended the recommendations to include the addition of “4” and "5” below. The Council ordered that: The Custodian’s lack of response was considered a denial of access pursuant to N.J.S.A.47: 1A-5(i).
On April 22, 2004, the Custodian’ Counsel submitted a response to the April 8, 2004 Interim Decision. In this letter to the GRC, the Custodian’s Counsel maintains that to his knowledge and understanding, all of the requested documents were provided to the requestor. The Custodian’s Counsel contends that the complainant’s attorney submitted to the Office of the County Counsel a records request on May 13, 2003 and a response to the request was made on May 23, 2003, one day beyond the statutory time period. The Custodian’s Counsel maintained further that another request was submitted to the Office of the County Clerk on May 30, 2003 which was responded to on June 12, 2003 and informed the complainant the requested records were available with the exception of the “Selection Committee Scoring Sheets” as the document was “advisory in nature” and reflected personal opinions of committee members. While the response occurred two days beyond the statutory time period, the Custodian’s Counsel contends that its deputy clerk assigned to respond to OPRA requests was reassigned and the request was not forwarded to their office until June 12, 2003. The Custodian’s Counsel contends that redacted copies of the scoring sheets were ultimately provided to the complainant on March 4, 2004 after receiving authorization to release same. The Custodian’s Counsel contends that additional requests were received from the complainant’s attorney on September 5 and October 24, 2003 for a copy of the awarded contract. The Custodian’s Counsel asserts the requested contract was provided to the complainant and his attorney on February 17, 2004. Custodian’s Counsel contends further that another request was submitted on October 6, 2003 for copies of transcripts, which he asserts were mailed to the complainant in October. Additionally, in the April 22, 2004 letter, the Custodian’s Counsel claims that the Government Records Council did not afford Hudson County the opportunity for mediation and he did not receive the “Statement of Information” form. In correspondence from the complainant on April 24, 2004 to the Government Records Council, the complainant contends, “Hudson County failed to provide the documentation as directed by the Government Records Council.” The Executive Director respectfully recommends the Council find that:
Legal Analysis The Custodian submitted a written response to the GRC in response to the April 8, 2004 Council’s Interim Decision on April 22, 2004. In this response, the Custodian’s Council affirmed that all requested documents were provided to the Complainant. He further indicated that a copy of the scoring sheets to which access was initially denied was ultimately provided with redactions on March 4, 2004. In correspondence to the Government Records Council, the complainant contends that all documents requested have not been provided. In that there is conflicting information concerning what was provided and what was not provided in response to the request, the complainant should indicate what has and has not been provided. The Custodian’s Counsel contends that the complainant’s attorney submitted a records request on May 13, 2003 and a response to the request was made on May 23, 2003, one day beyond the statutory time period. He explained the response date was mistakenly miscalculated. Regarding the May 30, 2003 request, the response was made on June 12, 2004, two days beyond the statutory time period. The Custodian’s Counsel contends that its deputy clerk assigned to respond to OPRA requests was reassigned and resulted in the request not being forwarded to their office until June 12, 2003. Additionally the Custodian’s Counsel claims that the Government Records Council did not afford Hudson County the opportunity for mediation and he did not receive the “Statement of Information” form. Confirming faxes reflect that the offer of mediation and the “Statement of Information” (SOI) form was provided to the Custodian’s Counsel on February 25, 2004 (offer of mediation) and March 9, 2004 (the SOI form). Documents Reviewed
_________________________ Paul F. Dice [1] The date indicated on the complaint was January 15, 2003; however it is determined that the complainant intended to date the complaint January 15, 2004 since the GRC received the complaint February 20, 2004. Interim Decision on Access
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 to adopt the entirety of said Finding and Recommendations of the Executive Director and amended the recommendations to include the addition of “4” and "5” below. Therefore, the Council hereby orders that:
Interim Decision Rendered by the I attest the foregoing is a true and accurate record of the Government Records Council. Administrative Changes to Findings and RecommendationsInterim Decision on AccessAlbert P. Poreda GRC Complaint No. 2004-14 The findings and Recommendations of the Executive Director in Complaint No. 2004-14 is to reflect the following change on page 1, the second sentence in paragraph 1 under “Recommendations of the Executive Director:” “January 9, 2004” is changed to “March 9, 2004” _________________________ Paul F. Dice |
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