 |
|
2004-17
 |
FINAL DECISION |
|
Interim Decision on Access |
|
Supplemental Findings and Recommendations of the Executive Director |
|
Interim Order |
|
Findings and Recommendations of the Executive Director |
FINAL DECISIONMartin O'Shea, GRC Complaint No. 2004-17 Respondent, STATEMENT OF THE CASE In this matter, Complainant-Petitioner, Martin O'Shea seeks to have a civil penalty imposed upon the Custodian of West Milford Township, Kevin J. Byrnes ("the Custodian"), in accordance with the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 et seq. O'Shea charges that the penalty is warranted because the Custodian committed a knowing and willful violation of OPRA in his handling of two OPRA requests filed by O'Shea in January 2004. Specifically, the Denial of Access Complaint, filed on February 23, 2004, alleges that: 1) the Custodian did not provide a response to his January 12, 2004 OPRA request within the requisite seven-day time period prescribed by OPRA, and 2) the Custodian failed to respond to his January 29, 2004 request until May 7, 2004, when the Council entered an Interim Order requiring that he do so. The Custodian responds to these charges stating that he provided O'Shea with all responsive documents in his possession, and denies that he knowingly and willfully violated OPRA. He, however, acknowledges that he failed to communicate with O'Shea regarding the unavailability and/or absence of responsive records within the statutorily-prescribed time frame. Having determined, at its public meetings of April 26, 2004, and June 12, 2004, that the Custodian did, in fact, fail to meet the statutory deadline for providing a complete response to the January 12, 2004 request, and did, in fact, fail to respond at all to the January 29, 2004 request, the Council must now determine whether these violations were knowing and willful under the totality of the circumstances, requiring the imposition of a civil penalty pursuant to OPRA, N.J.S.A. 47:1A-11. PROCEDURAL HISTORY The Council first considered O'Shea's Complaint at its April 26, 2004 public meeting, in conjunction with a Statement of Information submitted by the Custodian, dated March 23, 2004, and the Findings and Recommendations of its Executive Director, Paul F. Dice, dated April 20, 2004. By a unanimous vote, the Council adopted the Executive Director's Findings and Recommendations, with minor modification, and issued an Interim Order requiring, in pertinent part: 1) The Custodian will provide a certification to the Council explaining his failure to comply with the statutory seven (7) business day time period in responding to the Complainant's January 12, 2004 OPRA request. 2) The Custodian is ordered to disclose all documents responsive to the Complainant's January 29, 2004 request within five (5) business days of the Council's decision. 3) The Custodian will provide a certification to the Council explaining his failure to comply with the statutory seven (7) business day time period in responding to the Complainant's January 29, 2004 OPRA request. Following receipt of the Custodian's certification, submitted in response to the Interim Order, the Executive Director, on June 4, 2004, issued Supplemental Findings and Recommendations to the Council. At its public meeting on June 12, 2004, the Council voted unanimously to adopt the Executive Director's findings, and issued an Interim Decision on Access finding that: 1) Access is not an issue in this complaint. 2) Pursuant to N.J.S.A. 47:1A-5(g), the Custodian failed to prove that he did respond, in writing, to the Complainant's January 12, 2004 OPRA request and certified that he did not respond to the January 29, 2004 OPRA request. 3) The Custodian admittedly failed to respond verbally or in writing to the Complainant's January 29, 2004 request until May 7, 2004, at the direction of the Council. The Custodian certified that he responded to the January 12, 2004 request on the day he submitted his request, but has nothing to support his allegation. 4) The Complaint is referred to the Office of Administrative Law ("OAL") for a determination of whether the Custodian's alleged response to the Complainant's January 12, 2004 request and his lack of response to the Complainant's January 29, 2004 request is a knowing and willful violation of OPRA. The matter was accordingly referred to the OAL for an evidentiary hearing to determine whether the Custodian's late response to O'Shea's January 12, 2004 OPRA request and his failure to respond to O'Shea's January 29, 2004 request constituted knowing and willful violations of OPRA. At its public meeting of November 9, 2004, the Council voted to have the OAL return the case so that the Council could conduct an expedited hearing. On December 14, 2004, the Council sent a Notice of Hearing to the parties, scheduling the hearing for February 10, 2005 and March 10, 2005. On January 6, 2005, the Executive Director conducted a telephone, pre-hearing conference with the parties. The hearing proceeded as scheduled on February 10, 2005. O'Shea presented his case and testified on his own behalf. William DeMarco, Esq., attorney for the Custodian, stated that he had decided not to produce the Custodian or Tonya Cubby, a clerk typist for the Township, as witnesses. O'Shea thereupon asked the Council to issue subpoenas to the Custodian and Cubby, and requested that he be permitted to call them as adverse witnesses on his own behalf at the next day of hearing, March 10, 2005. The Council adjourned the hearing on March 10, 2005 at the request of O'Shea, who took ill several days prior to the hearing. The Council rescheduled the hearing for April 14, 2005 and issued subpoenas to the Custodian and Cubby for their respective appearances on that date. The hearing proceeded as scheduled on April 14, 2005 with the Custodian and Cubby testifying as adverse witnesses. After closing remarks were presented by the parties, the Council closed the record and deliberated. After deliberations, the Council informed the parties that it would render a decision at its May 12, 2005 public meeting. FACTS AND REVIEW OF TESTIMONY The operative facts, as adduced at the February 10, 2005 and April 14, 2005 hearing, are as follows: O'Shea filed the first of three OPRA requests with the Custodian on January 12, 2004, seeking all records, including e-mail correspondence, regarding the appointment of William J. DeMarco, Esq. to serve as Township Counsel. On this same date, Cubby, clerk typist for the Township, provided O'Shea with a copy of the resolution authorizing DeMarco's appointment as Township Attorney. However, the professional services contract between DeMarco and the Township had not been fully executed as of that date, and therefore was not available at the time of O'Shea's request. On January 26, 2004, O'Shea confirmed to the Custodian that he had received a copy of the executed contract, along with a written response from the Custodian. On this same day, O'Shea filed a second OPRA request with the Custodian. In this request, O'Shea sought "the Certificate of Insurance William DeMarco has submitted to the Township, all records including e-mails, related to the interviewing of candidates to fill the position with the current Township council, [and] all records, including e-mails, related to [Kevin Byrnes] filling the position of temporary Business Administrator, in addition to [his] job as Township Clerk." On January 29, 2004, O'Shea filed a third request with the Custodian, seeking "[a]ny records, including e-mails, not already released to [him] pertaining to the process of selecting the Township Counsel for 2004, including, but not limited to, applications, resumes, interviews and discussions and comments regarding candidates." On January 30, 2004, the Custodian sent a memorandum to the Mayor and Township Council, seeking records responsive to O'Shea's January 26th and January 29th requests. The Custodian asked that any information be forwarded to him by February 9, 2004, the deadline for responding to O'Shea's requests. On February 4, 2004, the Custodian sent a letter to O'Shea, advising him that there were no records responsive to his January 26, 2004 request. The Custodian did not provide a response to O'Shea's January 29, 2004 OPRA request until May 7, 2004, after the Council entered an Interim Decision and Order requiring him to do so. In his May 7th response, the Custodian explained that he had informed O'Shea of the fact that the Township had no records responsive to his January 26th and January 29th requests. Additionally, he stated that "[i]n retrospect, [he] should have noted in [his] response to the January 26, 2004 request that the response addressed both O'Shea's requests of Monday, January 26, 2004 and Thursday, January 29, 2004." The Custodian restated these responses in a Statement of Information to the Council on March 23, 2004. O'Shea testified that he composes all his OPRA requests to the Custodian on his home computer and brings two copies of the requests to the Clerk's office to be stamped and initialed. As part of his practice, O'Shea then leaves one copy behind and takes one copy home with him. O'Shea stated that he developed this practice because he had "learned over the years that the clerk, Kevin Byrnes...will do anything that he can to prevent me and others from getting information." On cross-examination, O'Shea testified that, on January 12, 2004, he received a copy of the resolution pertaining to DeMarco's professional services agreement with the Custodian. O'Shea stated that the resolution and the contract were identical but for the signature lines at the end of the contract. O'Shea further testified that on January 26, 2005, he confirmed with the Custodian his receipt of the requested agreement. Additionally, O'Shea stated that by January 26, 2004, the Custodian had complied with all of his OPRA requests. Tonya Cubby testified that she is currently a clerk typist in the office of the Township Clerk and has been an employee of the Township for five-and-one-half years. Recently, one of Cubby's duties has been to handle OPRA requests, and she testified that she has received formal training in this area. Cubby stated that it is the Township's practice that either she, the Assistant Clerk, or the Township Clerk, accept OPRA requests on behalf of the Custodian. Cubby explained that if she handles an OPRA request involving an ordinance or resolution, she is directed by the Custodian to provide these documents immediately to the requestor. Thereafter, Cubby is to put a note on a copy of the documents provided, stating that she provided the same to the requestor on a specific date. Cubby stated that this practice serves to assist the Custodian in his handling of OPRA requests by having a staff member provide an initial response to the request and thereafter, have the Custodian complete the processing of the request. Cubby further testified that, on January 12, 2004, O'Shea came into the Township Clerk's office with two copies of his OPRA request that she marked received and dated. In response to the request, Cubby provided O'Shea with a copy of a Township resolution pertaining to DeMarco's appointment. In accordance with Township practice, Cubby then put a note with her initials on the request form indicating that she had provided O'Shea with a copy of the resolution authorizing a contract for professional services with William J. DeMarco, Esquire. Thereafter, Cubby gave O'Shea's request to the Custodian for processing. On cross-examination, Cubby testified that she had never received instructions from the Custodian or anyone else not to cooperate in handling O'Shea's OPRA requests. Cubby testified that she always cooperated with O'Shea in responding to his OPRA requests, even during times when she characterized O'Shea as being a "bully" to her and the Township staff. The Custodian testified that he has been the Municipal Clerk in the Township of West Milford for 27 years and is currently the Township's custodian of records. He testified that it is his understanding of OPRA that when a request is received, the custodian has seven days to either provide the requested material or establish a schedule with the requestor based on when the material will be available. When asked if passing along an OPRA request to members of the Township Council or the Township Attorney is a valid exception to the seven-day response rule, the Custodian testified that it is an exception because the custodian may not have knowledge of any letters, e-mails, or memos between the Township Council members, the Mayor, and the Township Attorney. Regarding the January 29, 2004 request, the Custodian explained that he was going "beyond what OPRA requires" in trying to obtain information for O'Shea. The Custodian asserted that OPRA does not require custodians to do research for a requestor, and therefore, the "extra step" he took to gather more information than what was in his possession constituted part of his response to the OPRA request. On February 4, 2004, the Custodian responded to O'Shea, stating that there were no records responsive to O'Shea's January 26, 2004 OPRA request. However, in retrospect, the Custodian testified that perhaps he also should have referenced and addressed the January 29, 2004 request in the letter. LEGAL ANALYSIS The Open Public Records Act, N.J.S.A. 47:1A-1 et seq. ("the Act") declares that it is the public policy of the State of New Jersey to make available all government records to the public with certain exceptions. The Act requires custodians of records, the persons charged with enforcing its provisions, to provide requestors with records no later than seven business days after the request is filed. N.J.S.A. 47:1A-5(i). As a matter of practice, the seven-day period is at times extended by mutual agreement of the Custodian and the Requestor. Pursuant to N.J.S.A. 47:1A-11, a custodian, public official, officer or employee who knowingly and willfully violates OPRA, and is found to have unreasonably denied access under the totality of the circumstances, is subject to a civil penalty. The law provides for issuance of a $1,000 civil penalty for an initial violation, $2,500 for a second violation that occurs within ten years of an initial violation, and $5,000 for a third violation occurring within ten years of an initial violation. The Council enforces the penalty in the Superior Court of New Jersey in accordance with the "Penalty Enforcement Law of 1999," N.J.S.A. 2A:58-10. The New Jersey courts have defined "willful" misconduct as "much more" than negligent conduct. The Supreme Court, in Fielder v. Stonack, 141 N.J. 101, 124 (1995), defined willful misconduct as "the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden." More recently, in Alston v. City of Camden, 168 N.J. 170 (2001) the Court reaffirmed its holding in Fielder, supra, finding that: to 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.... The Appellate Division also has spoken as to the definition of willful misconduct. In ECES v. Salmon, 295 N.J. Super. 86, 107 (App. Div. 1996), the court echoed the Fielder Court's definition, determining that willful misconduct under the New Jersey Conflicts of Interest Law "must be intentional and deliberate, with knowledge of its wrongfulness, and not merely negligent, heedless or unintentional." Applying the law to the facts adduced from the testimony, arguments and evidence offered in this matter by the parties, the Council FINDS that the Custodian did NOT commit a knowing and willful violation of OPRA with respect to the handling of O'Shea's January 12, 2004 request. Notwithstanding the fact that the Custodian committed a violation of OPRA because he provided a copy of DeMarco's professional services contract after the seven-day period had expired, the Council FINDS that the violation is outweighed by the circumstances surrounding the Custodian's handling of this request, based upon the testimonial evidence in the record. Cubby testified she provided O'Shea with all documents in the Custodian's possession on January 12, 2004, which was a copy of a resolution, and could not provide a copy of the professional services contract because it had not yet been fully executed. She, however, notified the Custodian of the request so that he could process it completely once he received a copy of the fully executed contract. As O'Shea confirmed, the Custodian did provide the contract by January 26, 2004, but after the seven-day response period had expired. For the Council to find that the Custodian committed a knowing and willful violation of OPRA, there must be evidence in the record to prove that the Custodian consciously violated the law. The Council FINDS that the respective testimonies of the Custodian and Cubby to be credible in convincing the Council that the Custodian did not withhold any information from O'Shea. On the contrary, the Council FINDS that it is an uncontested fact that the Custodian provided all records responsive to the January 12, 2004 request, albeit late, by January 26, 2004. Therefore, the Council rejects O'Shea's contention that "Kevin Byrnes...will do anything that he can to prevent me and others from getting information" as the evidence is uncontroverted that the Custodian provided O'Shea with all documents responsive to his request. Likewise, the Council FINDS that while the Custodian violated OPRA in failing to respond to O'Shea's January 29, 2004 request, his conduct does NOT rise to the level of a knowing and willful violation. The Council FINDS the Custodian's explanation for not providing a timely response to O'Shea's January 29, 2004 OPRA request to be credible, and has persuaded the Council that his conduct in handling the request was negligent, and not willful. The Council FINDS that the Custodian took the initiative to send a memo on January 30, 2004 to the Mayor and Township Council to inquire if there were any records not in his possession that were responsive to the requests. The Custodian could have provided all the information in his possession at the time to O'Shea and, in essence, could have "closed out" the request but took additional time to contact other Township officials who may have other documents that could be responsive to the request. Further, the Council FINDS that the Custodian attempted to respond to all of O'Shea's outstanding OPRA requests in his letter dated February 4, 2004 to O'Shea but failed to mention that the response included the information sought in the January 29, 2004 request. Based upon this evidence, the Custodian's failure to respond to the January 29 request was NOT an example of willful misconduct to justify a finding of a knowing and willful violation. The Council's finding that a knowing and willful violation did not occur does not negate the fact that the Custodian had knowledge that he did not reply to O'Shea's January 29, 2004 OPRA request. The Council so FINDS that the Custodian had knowledge that he did not reply to the January 29, 2004 request because he admitted that in retrospect, his letter of February 4, 2004 should have indicated that there were no records responsive to O'Shea's January 26, 2004 and January 29, 2004 OPRA requests. The Council further FINDS that the January 29, 2004 request was not responded to by the Custodian until ordered to do so by the Council. The Council further FINDS O'Shea's testimony to be credible, and his testimony on cross-examination that all his outstanding OPRA requests were replied to by January 26th does not negate the fact that the January 29, 2004 OPRA request remained outstanding until May 7, 2004, the date of the Custodian's letter to the Council. Nevertheless, the Council FINDS the Custodian's explanation for not providing a timely response to O'Shea's January 29, 2004 OPRA request to be persuasive, and supported by other facts in the record that are significant in evaluating the totality of the circumstances in this matter. The Council FINDS that the Township has developed a system for handling OPRA requests that is in keeping with OPRA's requirement to provide information to requestors in a timely manner. Based upon Cubby's testimony, the Township's process of having Cubby and/or the Assistant Township Clerk provide resolutions and ordinances "on demand" to requestors and then document to the Custodian that such information was provided shows that the Township is enforcing OPRA systematically and not haphazardly. The Council FINDS Cubby's testimony in this regard to have been helpful in persuading the Council that the Township's OPRA request processing system is a factor impacting the totality of circumstances in this matter. Therefore, under the totality of the circumstances in this matter, the Council FINDS that the Custodian at least attempted to comply with OPRA, and there is no evidence to suggest that he was withholding records, or willfully delaying their production. Thus, the Council FINDS that the Custodian's efforts to reply to the requests, and the fact that he did not withhold any documents, under the circumstances of this case, militate against a finding that the violations were knowing and willful. CONCLUSION AND ORDER Based upon the foregoing, the Council CONCLUDES that the Custodian did not commit a knowing and willful violation of OPRA under the totality of the circumstances in its handling of Martin O'Shea's January 12, 2004 and January 29, 2004 requests. Therefore, the imposition of a civil penalty against the Custodian is not warranted. It is ORDERED that Case No. 2004-17 be dismissed with prejudice. In accordance with the Rules Governing the Superior Court of New Jersey, there is a period of 45 days from the date of this final decision to file an appeal with the Superior Court, Appellate Division. Final Decision Rendered by the I attest the foregoing is a true and accurate record of the Government Records Council. DeAnna Minus-Vincent, Secretary EXHIBITS Joint Exhibits J-1 Complainant-Petitioner's Exhibits O'Shea 1 O'Shea 2 Requestor 3
Custodian-Respondent's Exhibits Township 1
Interim Decision on Access
At the June 10, 2004 public meeting, the Government Records Council (“Council”) considered the June 4, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:
Interim 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 Director
Relevant Records Requested:
Request Made: January 12, 2004 and January 29, 2004[1] At its April 26, 2004 public meeting, the Government Records Council (Council) considered the April 20, 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 Finding and Recommendations with amendments to recommendations Findings and Recommendations changing “…provide an explanation…” in the Executive Director’s recommendation to provide a certification. Therefore, the Council found the following:
On May 7, 2004, the custodian sent a letter to the Government Records Council in response to the Interim Order dated April 26, 2004. In response to item #1 in the above section, the custodian asserts that the complainant received a copy of the resolution authorizing the contract of William DeMarco as the Township Attorney. In reference to the January 26, 2004 request, the custodian affirms that in his written response he notes that the complainant received a copy of the resolution and the contract was enclosed. According to the custodian, the resolution and the contract are identical except that the resolution did not have the signatures of the various parties. The custodian continues by asserting that a contract was not ready at the time of the custodian’s January 12, 2004 request as the various parties were still signing it. On January 26, 2004, the custodian asserts that the complainant called regarding the status of his request and acknowledges that later that day he received in writing a response and the executed copy of the contract. The custodian asserts that no other documents exist except for the resolution and the contract. Regarding items #2 and 3 of the Interim Order, the custodian affirms that he will be mailing a response to the complainant’s January 29, 2004 request on May 7, 2004 noting that no other records exist other than the records previously released. Further, the custodian asserts that the January 26, 2004 request was for “all records, including e-mails, related to the interviewing of candidates to fill the position with the current township counsel.” In his written response dated February 7, 2004, the custodian asserts that the “township does not have any record relating to the interviewing of candidates to fill the position with the current counsel.” The custodian states that in the custodian’s request dated January 29, 2004 the records requested referred to “any records, including e-mails, not already released to [him] pertaining to the process of selecting the Township Counsel for 2004, including, but not limited to, applications, resumes, interviews and discussions and comments regarding the candidates.” The custodian acknowledges that he should have responded to the January 29, 2004 request with the same response as in his January 26, 2004 request, even though he felt that the requests were similar and addressed by the same response. In response to the custodian’s letter dated May 7, 2004, the Government Records Council staff sent a letter to the custodian seeking more information. The letter requested the custodian to respond to the Interim Decision in the form of certifications for items #1-3 in the above section. Also, the Government Records Council requested clarification on the response that the custodian claimed to have given the complainant on January 12, 2004 and if the custodian attempted to address the January 29, 2004 request prior to May 7, 2004. On May 26, 2004, in response to a staff letter dated May 18, 2004, the custodian attaches a certification that his statements in the letter dated May 7, 2004 are true and if found willingly false he is subject to punishment. The complainant responds to the custodian’s May 7, 2004 letter on May 27, 2004 in a letter to the Government Records Council. The complainant disputes the custodian’s response on January 12, 2004 and affirms that he did not receive the contract of William DeMarco as Township Attorney until January 26, 2004, which violates the statutory seven-business day time period provided by OPRA. The complainant further claims that the custodian should have notified him in writing that the record he requested was not available at the time of the request and the reason it was not available. Regarding the January 29, 2004 request, the complainant accepts that the custodian certifies to admitting that he should have responded to the January 29, 2004 request. However, the complainant claims that the January 26, 2004 and January 29, 2004 requests were not the same and that not responding to the January 29, 2004 request is a violation of OPRA. The Executive Director respectfully recommends that the Council find that:
Analysis Pursuant to N.J.S.A. 47:1A-5 (g), “if the custodian is unable to comply with the request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.” The custodian failed to meet the burden of proof that he did respond in writing to the requestor’s January 12, 2004 request. “Unless a shorter time period is otherwise provided by statue, 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 no later than seven (7) business days after receiving the request...” (N.J.S.A. 47:1A-5 (i)). Regarding the complainant’s January 29, 2004 OPRA request, the custodian admits to not responding to the request, constituting a denial of access, and violating the statutory seven (7) business day time period provided by OPRA. Documents Reviewed The following additional documents were reviewed in preparing the Supplemental Findings and Recommendations for this case:
Paul F. Dice June 2, 2004 [1] As a point of reference, the complainant submitted an OPRA request on January 26, 2004 to the custodian requesting the Certificate of Insurance of William DeMarco, all records including emails, related to the interviewing of candidates to fill the position with the current township counsel and all records, including emails, related to the filling the position of temporary administrator, in addition to the position of township clerk is not at issue in this complaint. Interim Order
At its April 26, 2004 public meeting, the Government Records Council (Council) considered the April 20, 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 Finding and Recommendations with amendments to recommendations # “1” and “3” in said Findings and Recommendations changing “…provide an explanation…” in each to provide a certification. Therefore, the Council finds that:
Interim Order Rendered by the I attest the foregoing is a true and accurate record of the Government Records Council. Virginia Hook, Secretary Decision Distribution Date: April 30, 2004 Findings and Recommendations of the Executive Director
Relevant Records Requested:
Request Made: January 12, 2004 and January 29, 2004 Executive Director’s Recommendations This complaint alleges a violation of the Open Public Records Act (“OPRA”) regarding two requests to the Township of West Milford. The request dated January 12, 2004 sought all records, including emails, that had not previously been released to the requestor, that pertain to the process of selecting the Township attorney in 2004. The requestor, also, seeks relief in response to the January 12, 2004 request, asserting that the custodian did not meet the statutory seven (7) business day time period under OPRA. The requestor argues that the custodian did not respond to his request on January 12, 2004, but did so ten (10) days later and that the custodian used the Township OPRA request as a “barrier to deny access” because he did not use the appropriate form. Further, the requestor is asking that the Council find that the tardy response was “knowing and willful” or that the custodian be put on notice that continued violations may result in a monetary fine. The requestor, in support of his position, cites the Government Records Council (“GRC”) case Shain v. Township of Lakewood (2002-111).[1] According to the custodian, the requestor submitted three (3) separate requests to the custodian’s office regarding this subject matter. The custodian mentions that the requestor did not use the Township OPRA form, but does not claim to render the request incomplete. Regarding the request dated, January 12, 2004, the custodian asserts that the requestor was immediately given a copy of the resolution adopted by the Township Council, which authorized a Professional Services Contract with William DeMarco as Township Attorney. The requestor disagrees with the custodian and states that he did not receive a response on January 12, 2004. Further, on January 26, 2004, a written response and copy of the actual contract was provided to the requestor. The custodian claims that another OPRA request was received by his office on January 26, 2004, in which the requestor sought records regarding the Certificate of Insurance for William DeMarco, all records, including emails relating to the interviewing of candidates to fill the position with the current counsel and all records, including emails that relate to the custodian’s filling of the position of Temporary Administrator. The requestor was advised that a Certificate of Insurance was not requested or necessary in filling the position of Township Attorney and that no records existed regarding interviewing candidates for the position of Township Attorney or filling the position of the Temporary Administrator. The custodian asserts that he did not officially respond to the requestor’s January 29, 2004 OPRA request because he felt that his response to the January 26, 2004 request was of the same topic and sufficient. The Executive Director respectfully recommends that the Council find that:
Legal Analysis Pursuant to the OPRA statute, specifically N.J.S.A. 47:1A-5 (e), “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.” The custodian asserts that immediate access to the Resolution authorizing the contract between Mr. DeMarco and the Township, however, then provided the actual contract to the requestor ten (10) business days after receipt of the written OPRA request. The requestor does not acknowledge receipt of the resolution on January 12, 2004. A contract is immediately accessible under OPRA a sufficient reason for the delay is provided by the custodian. A certification from the custodian should be requested to explain why the contract between Mr. DeMarco and the Township was not immediately made accessible to the complainant. N.J.S.A. 47:1A-5 (i) provides that “unless a shorter time period is otherwise provided by statue, 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 records as soon as possible, but no later than seven (7) business days after receiving the request.” The custodian claims to have responded in part to the requestor’s January12, 2004 OPRA request by immediately providing the resolution, yet the custodian did not indicate when the response would be completed. The custodian asserts that the remainder of the request was compiled with by January 26, 2004, in which the requestor concurs. A certification from the custodian should be requested to explain the delay in responding to the request within the seven (7) day time period mandated by OPRA. Further, N.JS.A. 47:1A-5 (i) provides that “in the event that a custodian fails to respond within seven (7) business days after receiving a request, the failure to respond shall be deemed a denial of the request.” The custodian’s lack of response to the January 29, 2004 OPRA request constitutes a denial of access, even though the custodian felt that the subject of the request was addressed in a previous request. The custodian should certify that if is the subject matter is the same, the documents were received by the requestor, the documents do not exist or that the documents are not public record and why they are not considered public record. Documents Reviewed The following documents were reviewed in preparing the Findings and Recommendations for this case:
Paul F. Dice [1] Please note that a third request made on January 26, 2004 requesting the Certificate of Insurance of William DeMarco, all records including emails, related to the interviewing of candidates to fill the position with the current township counsel and all records, including emails, related to the filling the position of temporary administrator, in addition to the position of township clerk is not at issue in this complaint. |
|
|||
| Copyright © State of New Jersey, 1996 - 2024 |
