2004-191

Tina Renna
   Complainant
      v.
County of Union
   Custodian of Record

Complaint No. 2004-191

At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 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
Government Records Council
On The 14^th Day of April, 2005
Vincent P. Maltese, 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

Request Made: October 27, 2004
Response Made: October 28, 2004
Custodian: Sharda Badri[1]
GRC Complaint filed: November 12, 2004

March 10, 2005
At the March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 3, 2005 Executive Director’s Findings and Recommendations including the administrative change to page 1 under “Response Made: October 28, 2004” to “Response Made: November 17, 2004” and all related documents submitted by the parties. At that meeting, the Council voted to adopt “1” and “2” of said findings and recommendations, and to postpone making a decision on “3” until the Executive Director reviewed the factual information concerning the Custodian’s delay in responding to the request pursuant to N.J.S.A. 47:1A-5(e) and N.J.S.A. 47:1A-5(i) and report said findings to the Council. The Council therefore found that:

March 28, 2005
Letter from the Complainant to the Government Records Council (GRC) staff. The Complainant asserts that the Custodian’s counsel has lied in reference to the fact that the former Custodian Sharda Badri is no longer an employee. Specifically, the Complainant asserts that the former Custodian is an employee of the county appointed as the Director of the Office of Citizen Services. As such, the Complainant wants the Council to “consider the above false information submitted by the County of Union and find them guilty of a knowing and willful violation of OPRA.” The Complainant states that this is the second instance that the County has “lied in stating that an employee was no longer available for comment due to termination.”

WHETHER the Custodian’s failure to provide the Complainant written notification of the delay in access, prior untimely responses to OPRA requests, and alleged false statements of the prior Custodian’s continued employment with the County rises to the level of knowing and willful violations of OPRA under the totality of the circumstances?

OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states:

If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in section 12 of P.L.2001, c.404 (C.47:1A-6). N.J.S.A. 47:1A-7(e).

The Complainant alleges that the Custodian committed knowing and willful violations of OPRA on the basis of (1) the delay in access in this case, (2) the prior decisions against the County evidencing a pattern of repeated violations, specifically GRC Cases 2004-110 and 2004-162, and (3) the alleged false statement made by the County regarding the former Custodian’s employment.

OPRA stipulates that in the event of a delay in access, the Custodian must advise the requestor of the delay. OPRA states that:

If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor. N.J.S.A. 47:1A-5(g).

OPRA further requires the Custodian to notify the requestor of the delay and the reasons for such delay. Specifically, OPRA provides that:

If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record. N.J.S.A. 47:1A-5(g).

If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. N.J.S.A. 47:1A-5(i).

The Custodian acknowledged receipt of the request in a written response to the Complainant one day after the request was filed. However, there was no indication in that written response that there may be a delay in the release of the requested records.

As a result of this lack of written notification, the Complainant asserts that the request was not filled within seven (7) business days because no notification was provided advising of a delay in access or reasons for such delay. Conversely, the Custodian’s counsel certifies that the Complainant was notified within seven (7) business days, by telephone, that the records request would take longer than seven (7) business days due to the fact that some of the requested records were in storage and not readily available for review. (It should be noted that the Custodian promptly made available the requested records as they became available, and the Complainant ultimately received all documents responsive to the request.)

In GRC Case 2004-135, Foster v. New Jersey Department of Personnel, the Council found the verbal notification for a delay in access from the Custodian was insufficient and that the Custodian should have notified the Complainant of the reasons for the delay in writing. Despite the failure of the Custodian to provide the required written notification, the Council found that the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA.

Upon review by the Executive Director (as directed by the Council at the March 10, 2004 public meeting), it has been determined that the Custodian has been placed on the “Matrix” in a prior case, GRC Case 2004-162, due to an issue of timeliness.

The Complainant alleges that the Custodian’s counsel lied in reference to the termination of the former Custodian, Sharda Badri. Specifically, the Complainant asserts that the former Custodian is still an employee of the county appointed as the Director of the Office of Citizen Services. The Complainant wants the Council to “consider the above false information submitted by the County of Union and find them guilty of a knowing and willful violation of OPRA.” The Complainant states that this is the second instance that the County has “lied in stating that an employee was no longer available for comment due to termination.”

Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the Council shall:

“receive, hear, review and adjudicate a compliant filed by any person concerning a denial of access to a government record by a records custodian …; issue advisory opinions …; prepare guidelines and an informational pamphlet …; prepare lists for use by records custodians …; make training opportunities available for records custodians …, and operate an informational website and a toll-free helpline …”

OPRA does not give the Council the authority to govern how a Custodian internally handles denial of access complaints. The County of Union may freely determine how it handles denial of access complaints, including whether to allow comments on such complaints from previous employees of the Custodian’s office. While Shadra Bahdri may still be an employee of the county, she is no longer functioning in the capacity of Custodian and no longer works for the Custodian’s office. Thus, the Council may not address this assertion of the Complainant.

In due consideration of the Council’s prior decision in Foster regarding the lack of written notification of a delay in access, the fact that the Custodian was placed on the Matrix for only one other case, and the fact that the Council does not have jurisdiction to govern how a Custodian internally handles denial of access complaints, the Council should find that the Custodian’s actions do not rise to the level of knowing and willful violations of OPRA under the totality of the circumstances.

The Executive Director respectfully recommends that the Council should dismiss the case on the basis that:

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

[1] Nicole Tedeschi is the new Records Custodian

Final Decision on Access; Interim Decision on Knowing and Willful Viol

Tina Renna
   Complainant
   v.
County of Union
   Custodian of Record

Complaint No. 2004-191

At the March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 3, 2005 Executive Director’s Findings and Recommendations including the administrative change to page 1 under “Response Made: October 28, 2004” to “Response Made: November 17, 2004” and all related documents submitted by the parties. The Council, therefore, voted to adopt “1” and “2” of the said findings and recommendations and to hold a decision on “3” until the Executive Director reviews the factual information concerning the Custodian’s delay in responding to the request pursuant to N.J.S.A. 47:1A-5(e) and N.J.S.A. 47:1A-5(i) and report said findings to the Council. Therefore, the Council hereby finds that:

Interim Decision Rendered by the
Government Records Council
On The 10^th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.

Findings and Recommendations of the Executive Director

Request Made: October 27, 2004
Response Made: October 28, 2004
Custodian: Sharda Badri - County of Union[1]
GRC Complaint filed: November 12, 2004

Background
October 27, 2004
Complainant submitted a written Open Public Records Act (OPRA) Request seeking copies of all bills and/or invoices, payments, from the firm of Garrubbo, Romankow, Rinaldo & Capece, Westfield, New Jersey, in regards to the numerous legal battles that involved the County of Union and former employee Joseph A. Renna.

October 28, 2004
E-mail from Custodian to the Complainant acknowledging receipt of the OPRA request.

November 12, 2004
Complainant filed a Denial of Access complaint with the Government Records Council (GRC) alleging a denial of access to government records.

November 12, 2004 and November 30, 2004
Offer of Mediation sent to both parties.

December 8, 2004
Statement of Information received from the Custodian’s counsel states, “all invoices and vouchers from April 1, 2003 to present were made available to requestor on November 17, 2004. All archived invoices and vouchers prior to April 1, 2003 were made available on December 1, 2004. Requestor has yet to inspect or purchase the records.”

February 8, 2005
E-mail from Complainant to the GRC responding to the Statement of Information stating that she did receive the requested records partially 15 days after the request and fully completed 25 days after the request. However, the Complainant states that she was not contacted and given a reason for the delay, she was only given notification that her request had been received. She contacted the Custodian’s counsel on two occasions to inquire about the status of her request but was never given a response.

February 12, 2005
E-mail from Complainant to the GRC alleging a knowing and willful violation of the Open Public Records Act on the basis of the delay in access in this case and the prior decisions against the County, specifically GRC Cases 2004-110 and 2004-162.

February 17, 2005
Letter from the Custodian’s counsel to the GRC responding to the Complainant’s February 12, 2005 e-mail stating that the Complainant was informed “verbally by the Clerk’s Office within seven (7) business days that this request would likely take additional time to complete due to the fact that most records were in storage and that the records would also need to be redacted once they were compiled.” The record request encompassed 155-pages spanning 3 years.

February 27, 2005
Letter from the Complainant in response to the February 17, 2005 letter from the Custodian’s counsel stating that no response was received from the Custodian “other than an e-mail to confirm receipt of my request from Marlena Russo, who is an intern for Shardra Bardhi[2], who was then Clerk to the Union County Board of Freeholders, on 10/28/2005.” The Complainant also asserts that the request was not filled within 7 business days “nor was (the Complainant) advised of any unusual circumstances, such as the ones cited by (Custodian’s counsel) in his letter.”

The Custodian’s counsel has submitted the certification on behalf of the Custodian because she is no longer an employee and the current Custodian does not have knowledge of the events that took place regarding this request.

In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. N.J.S.A. 47:1A-5(i).

The Complainant received written verification that the request was received but was not given a reason for the delay in releasing the records. The Complainant was notified “verbally (by telephone) within seven (7) business days of her request that it would take additional time to complete since the documents were not readily accessible.” The requested documents cover a 3-year period and encompass 155-pages. The Custodian’s counsel certifies that the request was completed 25 days after it was submitted and the Complainant confirms receipt of the requested records. Therefore there is no denial of access pursuant to N.J.S.A. 47:1A-5(i).

Whether the Custodian responded in a timely manner by providing access to bills twenty-five (25) business days following receipt of the Complainant’s OPRA request.

The Open Public Records Act (OPRA) provides for “immediate access” to bills. Specifically, OPRA states:

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

N.J.S.A. 47:1A-5(e) does indicate that immediate access shall be granted to bills. However, it also indicates that access shall be “ordinarily” granted. Given that the documents requested spanned 3-years, some of which were archived and involved 155-pages requiring some redaction it is reasonable to conclude that this is not an “ordinary” situation, as the records were not readily accessible. The Custodian provided “all invoices and vouchers from April 1, 2003 to present” on November 17, 2004” and “all archived invoices and vouchers prior to April 1, 2003” on December 1, 2004.

Based on the certification of the Custodian’s counsel the Complainant was notified that her request would take more than seven (7) days to complete due to the fact that the records were in storage and needed review for redactions. The Custodian acted promptly in making the records available to the Complainant as the information became available. As such, it is reasonable to conclude that the Custodian did not violate N.J.S.A. 47:1A-5(e).

The certification of the Custodian’s counsel states that the Complainant was notified “verbally (by telephone) within seven (7) business days of her request that it would take additional time to complete since the documents were not readily accessible.” The Complainant states that her request was “neither filled within seven business days, nor was (she) advised of any unusual circumstances.” The custodian made the records available as they were ready for copying; fifteen (15) days after the records request for items not archived and twenty-five (25) days for those that were in storage.

Based on the certification of the Custodian’s counsel the Complainant was notified of the reasons for the delay in release of the requested records and subsequently provided the requested documents as they became available. Thus, there is no violation of N.J.S.A. 47:1A-5(i).

WHETHER the Custodian’s actions rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

OPRA allows for the GRC to determine a knowing and willful violation of the law under the totality of the circumstances. Speficially OPRA states:

The Complainant alleges the Custodian committed a knowing and willful violation of OPRA on the basis of the delay in access in this case and the prior decisions against the County evidencing a pattern of repeated violations, specifically GRC Cases 2004-110 and 2004-162.

The Custodian’s counsel asserts that the Complainant was notified, by telephone, that the records request would take longer than seven (7) days due to the fact that some of the requested records were in storage and not readily available for review. Additionally, the Statement of Information states that some portions of the bills were redacted in order to protect attorney-client privilege. The Custodian promptly made available the requested records as they became available.

In view of the fact that the records were released to the Complainant and good cause was given for their delay the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-1, et. seq. under the totality of the circumstances.

The Executive Director respectfully recommends that the Council should dismiss the case on the basis that:

[1] Nicole Tedeschi is the new Records Custodian
[2] As stated by the Complainant