2004-28

Final Decision

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 October, 2004

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

Virginia Hook, Secretary
Government Records Council 

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Complainant stated the following in the “Records Denial List” section of his complaint:

1. The name of the Complainant, that is, the name of the person who brought the alleged zoning violation of the Complainant’s play fort to the Township of West Caldwell’s attention.
2. June 20, 2002 e-mail from “WC-General Delivery mail@westcaldwell.com” to “code-enforcement@westcaldwell.com on the subject “Fw: Locating Children’s Play Equipment.”
3. August 20, 2002 memo from Gail Marie-Stewart to Jock Watkins and Carl Graziano on the subject “Board of Adjustment.”

Custodian: Benedict Martorana (Clerk)
Request Made: “August 15, 2003[1]; September 5, 2002, September 6, 2002”
Response Made: August 16, 2002; September 12, 2002
GRC Complaint filed: March 12, 2004

Background

Complainant’s Case Position

Complainant references three Open Public Records Act (OPRA) requests that are at issue: August 15, 2002, September 5, 2002 and September 6, 2002. The issues posed in the Denial of Access Complaint and the attachment thereto titled “Other information for the Government Records Council to consider” are as follows:

1. Redaction of the name of the person who “brought the alleged zoning violation against my son’s play fort” from the Zoning Enforcement Report.
2. Non-disclosure of a June 20, 2002 e-mail from WC – GENERAL DELIVERY mail@westcaldwell.com to code-enforcement@westcaldwell.com on the subject “Fw: Locating Children’s Play Equipment.”
3. Non-disclosure of an August 20, 2002 memo from Gail Marie-Stewart to Jock Watkins and Carl Graziano on the subject “Board of Adjustment.”
4. West Caldwell’s September 12, 2002 response was not timely. Complainant submitted “Exhibit A3” to show that West Caldwell’s August 16, 2002 e-mail indicates that West Caldwell “was handling the request under OPRA.”
5. West Caldwell’s lack of acceptance of complainant’s September 5, 2002 e-mail request for paper copies of records.
6. West Caldwell’s records form does not meet OPRA requirements, as it does not contain “a statement of the requester’s right to challenge a decision by a public agency to deny access and the procedure for filing an appeal.” Further, West Caldwell’s counsel’s September 12, 2002 denial letter did not contain such statements.
7. The Custodian did not properly respond to Complainant’s request as the Custodian did not sign, date and provide a copy of the form submitted by the Complainant, as is required by OPRA. Rather, Complainant received West Caldwell’s counsel’s September 12, 2002 denial letter.
8. The Township’s records request form fails to meet OPRA requirements as it does not have a space for the Custodian to list reasons for denying requests, in whole or in part.

Public Agency’s Case Position

1. There are two defenses in support of redacting the name and address of the person who made a complaint regarding Mr. Wilcox’s play fort from the Zoning Enforcement Report:
   1. West Caldwell’s need to maintain confidentiality outweighs the Complainant’s right of access to the subject information.
   2. The Zoning Enforcement Report is not disclosable pursuant to OPRA’s exemption for Criminal Investigatory Records.

2. Regarding the allegation that West Caldwell withheld the June 20, 2002 e-mail from WC – GENERAL DELIVERY mail@westcaldwell.com to code-enforcement@westcaldwell.com on the subject “Fw: Locating Children’s Play Equipment:”

   a.      The claim is frivolous.

   b.      The Complainant acknowledges that the document was in a public file that he inspected. “Since the papers were in Township files which Mr. Wilcox concedes were ‘available to the public’ (Wilcox Information at ¶¶4-5, page 1), there was no violation.”

   c.      Complainant’s request was vague as he “did not in his OPRA request specifically delineate the files he wanted the Township to review to secure documents for him.”

   d.      Complainant explicitly stated he did not want documents already in his possession. “Exhibit A15 is a copy of Mr. Wilcox’s e-mail message to West Caldwell on June 20, 2002, with a cover note…Clearly, the only items that were apparently omitted from the production were cover notes for documents already in his possession.”

3. Regarding the allegation that West Caldwell withheld the August 20, 2002 memo from Gail Marie-Stewart to Jock Watkins and Carl Graziano on the subject “Board of Adjustment:”

   a.      The claim is frivolous.

   b.      The Complainant acknowledges that the document was in a public file that he inspected. “Since the papers were in Township files which Mr. Wilcox concedes were ‘available to the public’ (Wilcox Information at ¶¶4-5, page 1), there was no violation.”

   c.      Complainant’s request was vague as he “did not in his OPRA request specifically delineate the files he wanted the Township to review to secure documents for him.”

   d.      Complainant explicitly stated he did not want documents already in his possession. “Exhibit A16 is a simple cover memo for Mr. Wilcox’s Application No. 18-02…Clearly, the only items that were apparently omitted from the production were cover notes for documents already in his possession.”

4. Complainant’s August 15, 2002 request was not subject to OPRA provisions. According to township’s counsel, West Caldwell “was under no obligation under OPRA to treat the e-mails as formal requests for public records.”

   West Caldwell asserts, that Complainant did not submit a request that mentioned OPRA until September 5, 2002. Following that submission, Complainant was advised to submit his request on West Caldwell’s OPRA form, which he did on September 6, 2002. “Accordingly, the first formal request for access to government records was on September 6, 2002.” Complainant was then informed via a September 12, 2002 letter from West Caldwell’s counsel that documents were ready to be picked up at town hall.

5. “Nothing in OPRA requires a municipality to treat an e-mail request for information as a formal OPRA request for government records.” Further, Complainant did not provide certain information, as required by OPRA, necessary for the Custodian to respond. “For example, his address is not on the e-mails.”

6. West Caldwell downloaded their form from the New Jersey League of Municipalities website. “At the time it was adopted, the Township had every reason to expect that the form complied with OPRA.”

7. The Custodian did not have an opportunity to sign, date and provide complainant with a copy of the OPRA request because it was faxed to West Caldwell. Also, Complainant did not sign and date the request. Lastly, Ms. Edwards of West Caldwell did have follow-up contact with the Complainant.

8. West Caldwell does utilize a form to provide reasons for the denial of a request as illustrated by “Exhibit C” of the Statement of Information.

   West Caldwell also asserts a laches defense and seeks dismissal of the complaint on the basis of Complainant’s “inordinate delay in filing such Complaint.”

Analysis

Complainant’s August 15, 2002 Request for Information

On August 15, 2002 complainant submitted a written e-mail request to the Township asking, “[p]lease inform us who made the complaint and who in town government received the complaint.”  OPRA states that a custodian shall promptly respond with a request to inspect, examine, copy or provide a copy of government record. N.J.S.A. 47:1A-5(g). This is a request for information, not access to a government record. Therefore, it is not a valid OPRA request. 

On August 16, 2002, the Township provided a written response that the request is under review.  The Township also states that it is processing the request pursuant to the Freedom of Information Act.  Also on August 16, 2002, the Township’s attorney provided a written response stating, “In response to your August 15, 2004, the Township is the ‘Complainant.’” The Custodian, regardless of whether the August 15, 2002 request was valid for the purposes of OPRA or not, thereby responded to the Complainant’s request for information.

On August 28, 2002 the Complainant states that his request remains unanswered. He still wants to know “[w]ho brought the play equipment to the attention of the West Caldwell Government.” This is again a request for information, not a request for access to records.

Based on the fact that the August 15, 2002 request for information is not a valid OPRA request, this portion of the complaint should be dismissed.

September 5, 2002 and September 6, 2002 Requests

On September 5, 2002, the Complainant submitted an e-mail request to the Township for copies “of all records maintained by West Caldwell and all its public officials, officers, employees and subcontractors relating to the matter of my son’s play fort.” OPRA states that a request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. N.J.S.A. 47:1A-5(g). This is a valid OPRA request.

On September 5, 2002, in response to Complainant’s September 5, 2002 OPRA request, the Township advises the Complainant that it has developed a form and that requests should be directed to the Township’s deputy clerk.

On September 6, 2002, Complainant resubmitted his 9/5/02 request, this time on a Township OPRA request form. On September 11, 2002, he clarified same.

On September 12, 2002 the Township attorney wrote to the Complainant and stated, in part, that:

1. The requested record copies are available for pick-up at Town Hall at no charge.
2. The Complainant’s (person who reported the zoning issue to the Township) name and address had been redacted because:

                        i.      Title 47 of the New Jersey Statutes Annotated states that a government record does not include certain information deemed to be confidential, including “any information that might be used by any law enforcement agency of the State. A law enforcement agency is generally defined as a public agency, which has law enforcement responsibilities.” The zoning officer, in my opinion, falls under this categorization.

                        ii.      An unspecified Administrative Code Regulation states that government records shall not include addresses of individuals.

                        iii.      The new Jersey Supreme Court has a rule requiring a balancing of interest between an individual’s right to information against the public interest and confidentiality.

                        iv.      “It is important to from a policy perspective, that the identity of the individual person making the complaint be kept confidential.”

Complainant states that he picked up the following records at Town Hall on September 12, 2002:

1. July 29, 2002 Zoning Enforcement report from Township of West Caldwell with the entries for “Complainant” and “Address” redacted.
2. August 2, 2002 “Notice of Violation and Order to Abate” sent to Mr. And Mrs. Richard Wilcox by the Township of West Caldwell’s Zoning Office. It outlines violations of the West Caldwell Zoning Ordinance at the complainant’s residence – 18 Memorial Road, West Caldwell, NJ – and actions to be taken by Mr. Wilcox.
3. Counsel for West Caldwell’s August 16, 2002 e-mail to Complainant’s stating that the Township of West Milford is the complainant in the zoning issue.
4. August 8, 2002 letter from Complainant and Elizabeth Dean to requesting a reinterpretation of the zoning officer’s determination regarding complainant’s play fort.
5. Diagram of the property and structures at 18 Memorial Road – Complainant’s residence.
6. Document titled “Accessory Structures on Corner Lots” with the indication “SL-7/31/02” at the bottom-right corner.
7. August 16, 2002 internal West Caldwell e-mail from Ben Marturano to Mayor Joseph Tempesta and Richard Norgard stating that Attorney Robert Podvey will be responding to Complainant’s August 15, 2002 request for information.
8. August 16, 2002 internal West Caldwell memorandum from Carl Graziano to Mayor Tempesta stating that Attorney Robert Podvey would respond to Complainant’s e-mails (no dates specified).
9. September 10, 2002 internal West Caldwell memorandum from Judy Edwards to Jock Watson stating that she does not have records “pertinent” to Complainant’s request.

On September 13, 2002, Complainant advised the Township via e-mail that his questions regarding who made the claim to the Township remain unanswered.

The Township violated OPRA by not accepting Complainant’s September 5, 2002 e-mail as it is a valid OPRA request. N.J.S.A. 47:1A-5(g). However after the Complainant re-stated his request on an OPRA form and resubmitted it on September 6, 2002, the Township satisfied same by providing a response on September 12, 2002. The Township’s violation does not rise to a knowing and willful level given that the Township ultimately responded in a written, timely manner.

The issue of the Township’s redaction of the name and address of the person who brought the zoning issue to the Township’s attention must now be addressed. Township’s counsel asserts that the only report that contained that information was redacted and disclosed to the Complainant on September 12, 2004.

Township Counsel defends the redactions, in part, on the defense that the Township’s need for confidentiality outweighs the Complainant’s need for access. Council argues that the Township relies heavily, if not entirely, on citizens to report zoning violations. Therefore, such reports are essential for the Township to enforce zoning regulations and promote public health, safety, morals, and general welfare. This is a reasonable defense.

The Appellate Division has held that the GRC must enforce OPRA's declaration, in N.J.S.A. 47:1A-1, that "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy."  Serrano v. South Brunswick Twp., 358 N.J. Super. 352, 368-69 (App. Div. 2003).  See also National Archives and Records Administration v. Favish,U.S.(United States Supreme Court, March 30, 2004) (personal privacy interests are protected under FOIA).  The New Jersey Supreme Court has indicated that, as a general matter, the public disclosure of an individual's home address "does implicate privacy interests."  Doe v. Poritz, 142 N.J. 1, 82 (1995).[1] The Court specifically noted that such privacy interests are affected where disclosure of a person's address results in unsolicited contact.  The Court quoted with approval a federal court decision, which indicated that significant privacy concerns are raised where disclosure of the address "can invite unsolicited contact or intrusion based on the additional revealed information."  Ibid. citing Aronson v. Internal Revenue Service, 767 F.Supp. 378, 389 n. 14 (D. Mass. 1991).  The Supreme Court concluded that the privacy interest in a home address must be balanced against the interest in disclosure.  It stated that the following factors should be considered:

1. The type of record requested,
2. The information it does or might contain,
3. The potential for harm in any subsequent nonconsensual disclosure,
4. The injury from disclosure to the relationship in which the record was generated,
5. The adequacy of safeguards to prevent unauthorized disclosure,
6. The degree of need for access,
7. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access.

While this case involves redaction of a name as well as an address, the aforementioned balancing of interests is an appropriate concept to consider, though from a different vantage point than the one asserted by the Township’s attorney. Specifically, the Council should weigh the privacy interest(s) of the individual who brought the zoning violation to the attention of the Township against the OPRA Complainant’s right of access.

According to Township submissions, a citizen reportedly telephoned the Township with information concerning a zoning violation. The Township then initiated an investigation and determined that the OPRA Complainant was in violation of zoning regulations.

The Complainant asserts that the citizen should not have an expectation that its name and address will not be disclosed if the citizen has reported an alleged zoning violation. However, that assertion is without substantiation. The record does not indicate that the citizen did, or should have had, the expectation that its name and contact information would be disclosed. Further, it is clear that the zoning issue is one of contention. It is reasonable to conclude that disclosure of the citizen’s name and address could result in unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives.

Applying the Supreme Court’s balancing test, a valid method of balancing party interests, to the instant case yields the following conclusions:

1. The type of record requested:  Records relating to a citizen’s verbal report to the Township of a zoning violation.
2. The information it does or might contain:  The name and address of the citizen who gave a verbal report to the Township regarding a zoning violation.
3. The potential for harm in any subsequent nonconsensual disclosure:  Possible unsolicited contact and confrontation between the citizen and the OPRA Complainant and/or his agents or representatives.
4. The injury from disclosure to the relationship in which the record was generated:  None that be gleaned from the party submissions.
5. The adequacy of safeguards to prevent unauthorized disclosure: This question can only be answered in terms of the actions to date as disclosure is not being recommended. The Township has repeatedly, and reasonably, maintained a position of nondisclosure.
6. The degree of need for access: Little to none. Complainant (OPRA Complainant) states that he requires the information to support his zoning appeal application. This is not a persuasive argument. The Township stated that zoning issues are independent of the citizen’s verbal notice to the Township. The subject property’s lack of conformity with zoning regulations was based on a property inspection by the Township, not the citizen’s verbal representations. It is the Township that brought the action against the OPRA Complainant, not the citizen.
7. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access.  N.J.S.A. 47:1A-1 et seq.

After careful consideration of all the interests at stake, the Council should find that the name and address of the citizen who brought the zoning violation to the Township’s attention should remain redacted from the requested documentation. The Complainant’s stated need for access does not outweigh the citizen’s expectation of privacy. In arriving at this conclusion, the potential harm of unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives was considered.  In addition, the Legislature provided the Open Public Records Act to allow for the balancing of interests between the public and the citizens of the State of New Jersey.  

The Township offers other defenses in support of its redaction of the name and address of the citizen who reported the zoning violation to the Township. The Council need not consider these unless it votes not to accept this Finding and Recommendations. In that event, the Council should take the Township’s other defenses into consideration.

For the foregoing reasons, the issue of redaction of the Township’s redaction of the name and address of the person who reported the zoning violation to the Township should be dismissed. Further, and also for the foregoing reasons, the allegation that the Township did not provide a timely response to the September 5, 2002 request should also be dismissed.

The Complainant raises several other issues in his Denial of Access Complaint. They will now be addressed.

Non-disclosure of a June 20, 2002 e-mail from WC – GENERAL DELIVERY mail@westcaldwell.com to code-enforcement@westcaldwell.com on the subject “Fw: Locating Children’s Play Equipment.”

Complainant asserts that this document was not among those he received from the Township on September 12, 2002.  Access is now not at issue as the Complainant later obtained a copy during an inspection of a Township Board of Adjustment file. He submitted a copy of the document to the GRC as proof of its existence.  The question here is why did the Township not provide a copy to the Complainant.

Township counsel asserts that since the document, an e-mail from a Township employee to two other Township employees asking that they respond to an e-mail from the Complainant, was in a public file that the Complainant acknowledges having reviewed, there is no violation. Counsel also argues that the request was vague. Further the Complainant stated he sought documents not already in his possession and that is a “cover note” that the Complainant already possessed.

Township counsel’s arguments are not persuasive. The record does not indicate that the Complainant possessed this document at the time of his request. Further, the Complainant’s request is not vague. It is clear from the wording of the Complainant’s September 5, 2002 communication and his September 6, 2002 OPRA request that the June 20, 2002 Township e-mail should have been produced. The Township erred by not providing same.

While the Township erred in not disclosing the subject e-mail to the Complainant along with the other documents disclosed, there is no evidence that the Township knowingly and willfully withheld the document. That position is supported by the Complainant’s statement that he later located same while reviewing a Township file.

This portion of the complaint should be dismissed.

Non-disclosure of an August 20, 2002 memorandum from Gail Marie-Stewart to Jock Watkins and Carl Graziano on the subject “Board of Adjustment.”

Similar to the June 20, 2002 document issue discussed above, the Complainant asserts that this document was not among those he received from the Township on September 12, 2002.  Access is now not at issue, as the Complainant later obtained a copy during an inspection of a Township Board of Adjustment file. He submitted a copy of the document to the GRC as proof of its existence.  Again, the question here is why did the Township not provide a copy to the Complainant.

Township counsel asserts that since the document, an internal Township cover letter regarding transmittal of a specified Board of Adjustment file between Township employees, was in a public file that the Complainant acknowledges having reviewed, there is no violation. Counsel also argues that the request was vague. Further the Complainant stated he sought documents no not already in his possession and that is a “cover note” that the Complainant already possessed.

Township counsel’s arguments are not persuasive. The record does not indicate that the Complainant possessed this document at the time of his request. Further, the Complainant’s request is not vague. It is clear from the wording of the Complainant’s September 5, 2002 communication and his September 6, 2002 OPRA request that the August 20, 2002 Township memorandum should have been produced. The Township erred by not providing same.

While the Township erred in not disclosing the subject memorandum to the Complainant along with the other documents disclosed, there is no evidence that the Township knowingly and willfully withheld the document. That position is supported by the Complainant’s statement that he later located same while reviewing a Township file.

This portion of the complaint should be dismissed.

West Caldwell’s records form does not meet OPRA requirements, as it does not contain “a statement of the requester’s right to challenge a decision by a public agency to deny access and the procedure for filing an appeal.” Further, West Caldwell’s counsel’s September 12, 2002 denial letter did not contain such statements.

Complainant submitted a copy of the Township OPRA form that he completed. Indeed, it does not contain a statement regarding the requestor’s right of appeal.

Township Counsel asserts that the form the Township adopted is one that was downloaded from the New Jersey League of Municipalities’ website. Counsel states that the Township “had every reason to expect that the form complied with OPRA.”

OPRA forms should include a statement of the requester’s right to challenge a decision by a public agency to deny access and the procedure for filing an appeal. N.J.S.A. 47:1A-5(f). If the Township has not already incorporated that wording into its form, it should do so immediately.

This portion of the complaint should be dismissed following the Council’s advisement to the Township of its duty to incorporate the proper appeal wording into its OPRA request form.

The Custodian did not properly respond to Complainant’s request as the Custodian did not sign, date and provide a copy of the form submitted by the Complainant, as is required by OPRA. Rather, Complainant received West Caldwell’s counsel’s September 12, 2002 denial letter.

The Council’s role in such matters is limited to adjudicating issues surrounding denial of access to government records. N.J.S.A. 47:1A-7(b).  The issue here is whether the Township’s actions resulted in, or contributed to, a denial of access to records.

In this situation, the Complainant’s access to the requested records was not hindered by the Township’s lack of conformity with the section of OPRA stating the Custodian’s duty to sign and date the OPRA form and provide the requestor with a copy of same [N.J.S.A. 47:1A-5(g)] given that the Complainant’s September 5, 2002 was responded to in a timely manner.

This portion of the complaint should be dismissed following the Council’s advisement to the Township of its duty under N.J.S.A. 47:1A-5(g).

The Township’s records request form fails to meet OPRA requirements as it does not have a space for the Custodian to list reasons for denying requests, in whole or in part.

Like the form signing issue, the Council’s role in such matters is limited to adjudicating issues surrounding denial of access to government records. N.J.S.A. 47:1A-7(b).  The issue here is whether the Township’s actions resulted in, or contributed to, a denial of access to records, or lack of explanation why access was denied.

In this situation, the Township explained its reasoning for redacting the name and address of the citizen who informed the Township of the zoning violation. The Township complied with OPRA’s intent that people denied access to records are due an explanation for same [N.J.S.A. 47:1A-5(g)] when its counsel wrote to the Complainant on September 12, 2002. The Township satisfied its duties in this regard given its counsel’s written advisement to the Complainant. To argue to the contrary is form over function.

This portion of the complaint should be dismissed for the foregoing reasons.

Summary of Documents Considered

I.       Complainant’s submissions

2. March 12, 2004 Denial of Access Complaint with attachments.
3. Complainant’s “Exhibit A15” – June 20, 2002 internal e-mail West Caldwell regarding a response to Complainant June 20, 2002 questions regarding zoning restrictions.
4. Complainant’s “Exhibit A1” – August 2, 2002 “Notice of Violation and Order to Abate” sent to Mr. And Mrs. Richard Wilcox by the Township of West Caldwell’s Zoning Office. It outlines violations of the West Caldwell Zoning Ordinance at the complainant’s residence – 18 Memorial Road, West Caldwell, NJ – and actions to be taken by Mr. Wilcox.
5. Complainant’s “Exhibit A2” –Complainant’s August 15, 2002 e-mail request to West Milford stating, “Councilman Norgard has informed us that the complaint against our play equipment is public record. Please inform us who made the complaint and who in town Government received the complaint…”
6. Complainant’s “Exhibit A3” – August 16, 2002 e-mail from West Milford to Complainant stating, “As required by the State’s new Freedom of Information Act, both of your requests for information are being reviewed. You will be contacted as soon as the review has been completed.”
7. Complainant’s “Exhibit A4” – Counsel for West Caldwell’s August 16, 2002 e-mail response to Complainant’s August 15, 2002 e-mail stating that the Township of West Milford is the complainant in the zoning issue.
8. Complainant’s “Exhibit A16” – August 20, 2002 West Caldwell cover letter regarding a Board of Adjustment application.
9. Complainant’s “Exhibit A5” – Complainant’s August 28, 2002 e-mail to West Caldwell stating that Counsel for West Caldwell’s August 16, 2002 e-mail response to Complainant’s August 15, 2002 e-mail does not answer his question. Complainant requests to know “Who brought the play equipment to the attention of the West Caldwell government? Who in the West Caldwell government received the communication?”
10. Complainant’s “Exhibit A6” – West Caldwell’s August 29, 2002 response to Complainant’s August 28, 2002 e-mail to West Caldwell stating that West Caldwell will have their attorney review Complainant’s statement that his requests for information have not been satisfactorily answered.
11. Complainant’s “Exhibit A7” – Complainant’s September 5, 2002 follow-up to his August 8, 2002 and August 28, 2002 e-mails to West Caldwell regarding his questions of who made the zoning complaint and who at West Caldwell received same.
12. Complainant’s “Exhibit A8” – Complainant’s September 5, 2002 e-mail request to West Caldwell stating “Please make paper copies for me to pick up at Town Hall of all records maintained by West Caldwell and all its public officials, officers, employees and subcontractors relating to the matter of my son’s play fort. You do not need to copy those records of which I already have copies. That is, records which have been sent from West Caldwell to me, from me to West Caldwell, and substantially unaltered copies of these. This request is made und NJ Statue 47:A-1 et seq…”
13. Complainant’s “Exhibit A9” – West Caldwell’s September 5, 2002 response to “7)” above stating that West Caldwell has developed a form for requesting public information. Further, all public information requests should be directed to West Caldwell’s deputy clerk. West Caldwell’s Business Administrator will ask the deputy clerk to send Complainant a request form.
14. Complainant’s “Exhibit A10” – Complainant’s September 6, 2002 OPRA request on West Caldwell’s OPRA form stating “Please make paper copies for me to pick up at Town Hall of all records maintained by West Caldwell and all its public officials, officers, employees and subcontractors relating to the matter of my son’s play fort. You do not need to copy those records of which I already have copies. That is, records which have been sent from West Caldwell to me, from me to West Caldwell, and substantially unaltered copies of these.”
15. Complainant’s “Exhibit B1” – Complainant’s September 6, 2002 to West Caldwell’s Deputy Clerk who, according to the Complainant, allegedly stated that she was unfamiliar with zoning situation surrounding Complainant’s play fort or who within West Caldwell would have such records. Complainant directs the clerk to Ben Marturano.
16. Complainant’s “Exhibit A11” – Complainant’s September 10, 2002 follow-up to West Caldwell’s August 29, 2002 e-mail.
17. Complainant’s “Exhibit B2” – Complainant’s September 11, 2002 clarification of his September 6, 2002 request for records.
18. Complainant’s “Exhibit A12” – West Caldwell’s attorney’s September 12, 2002 e-mail response to Complainant stating:

1.      Carl Graziano, the zoning officer received the zoning complaint.

2.      West Caldwell will not reveal the identity of the complainant. The name was redacted because:

a.      Title 47 of the New Jersey Statutes Annotated states that a government record does not include certain information deemed to be confidential, including “any information that might be used by any law enforcement agency of the State. A law enforcement agency is generally defined as public agency, which has law enforcement responsibilities. The zoning officer, in my opinion, falls under this categorization”

b.      An Administrative Code Regulation [not specified] states that government records shall not include addresses of individuals.

c.      The New Jersey Supreme Court has rule requiring a balancing of interest between an individual’s right to information against the public interest in confidentiality.

d.      It is important to withhold the identity of the individual because of “policy perspective” reasons.

e.      The complainant can pick up the records he requested on September 6, 2002 at town hall at no charge.

f.        Future correspondence should go through the attorney’s office.

18. Complainant’s “Exhibit A13” – Documents Complainant states he picked up at the Town Hall on September 12, 2002. Complainant numbered the pages “1/11” through “11/11.”

1.      July 29, 2002 Zoning Enforcement report from Township of West Caldwell with the entries for “Complainant” and “Address” redacted. (1/11)

2.      August 2, 2002 “Notice of Violation and Order to Abate” sent to Mr. And Mrs. Richard Wilcox by the Township of West Caldwell’s Zoning Office. It outlines violations of the West Caldwell Zoning Ordinance at the complainant’s residence – 18 Memorial Road, West Caldwell, NJ – and actions to be taken by Mr. Wilcox. (2/11 through 4/11 inclusive)

3.      Counsel for West Caldwell’s August 16, 2002 e-mail to Complainant’s stating that the Township of West Milford is the complainant in the zoning issue. (5/11)

4.      August 8, 2002 letter from Complainant and Elizabeth Dean to requesting a reinterpretation of the zoning officer’s determination regarding complainant’s play fort. (6/11)

5.      Diagram of the property and structures at 18 Memorial Road – Complainant’s residence. (7/11)

6.      Document titled “Accessory Structures on Corner Lots” with the indication “SL-7/31/02” at the bottom-right corner. (8/11)

7.      August 16, 2002 internal West Caldwell e-mail from Ben Marturano to Mayor Joseph Tempesta and Richard Norgard stating that Attorney Robert Podvey will be responding to Complainant’s August 15, 2002 request for information. (9/11)

8.      August 16, 2002 internal West Caldwell memorandum from Carl Graziano to Mayor Tempesta stating that Attorney Robert Podvey would respond to Complainant’s e-mails [no dates specified]. (10/11)

9.      September 10, 2002 internal West Caldwell memorandum from Judy Edwards to Jock Watson stating that she does not have records “pertinent” to Complainant’s request. (11/11)

19. Complainant’s “Exhibit B3” – Complainant’s September 13, 2002 e-mail to West Caldwell’s attorney stating that his questions remain unanswered.
20. Complainant’s “Exhibit B4” – Complainant’s September 13, 2002 e-mail to West Caldwell’s attorney. It is in response to the attorney’s request for all correspondence to go through his office. Complainant asserts that based on OPRA’s definition of a “Custodian,” he must keep West Caldwell’s Clerk, Ben Marturano, copied on OPRA matters.
21. Complainant’s “Exhibit B5” – September 13, 2002 follow-up on “2.e” above.
22. Complainant’s “Exhibit B6” – West Caldwell’s attorney’s September 13, 2002 correspondenc.
23.   Complainant’s “Exhibit B7” – Two September 13, 2002 e-mails between Complainant and West Caldwell’s attorney regarding the Complainant’s allegation that the response to his request has been untimely and the attorney’s position that the response was timely.
24. Complainant’s “Exhibit A14” – This exhibit includes a September 13, 2002 letter from Complainant to West Caldwell’s attorney confirming what records the Complainant picked up from town hall on September 12, 2002. The Complainant has the cover letter and the attachments (copies of records received) marked as “1/12” through “12/12.” “1/12” is the cover letter. “2/12” through “12/12,” inclusive.
25. Complainant’s “Exhibit B8” – Complainant’s November 14, 2002 e-mail to West Caldwell regarding an alleged incomplete transmittal of files from the zoning officer to the board of adjustment. Complainant alleges that a “zoning enforcement report” is missing. Complainant states his particular interest in having the field labeled “complainant” is complete. That field, according to the Complainant, contains the name of the person who brought the zoning issue to West Caldwell’s attention.
26. Complainant’s “Exhibit B9” – West Caldwell’s November 14, 2002 response to Complainant advising him that the “zoning enforcement report” was not forwarded to the board of adjustment because it has no bearing on the matters before the board.
27. Complainant’s “Exhibit B10” – Complainant’s November 15, 2002 e-mail to West Caldwell re-stating his position that the “zoning enforcement report” should be transmitted to the board of adjustment.

BB.      Complainant’s “Exhibit B11” – Complainant’s November 15, 2002 e-mail to West Caldwell’s attorney requesting a copy of the “zoning enforcement report.” Complainant also disputes the attorney’s position that zoning officers are in a law enforcement category. He also states that the attorney should consider this request an OPRA request and independent of the zoning action.

CC.     Complainant’s “Exhibit B12” – November 19, 2002 letter from West Caldwells’ attorney to Complainant reiterating his September 12, 2002 position that the name of the complainant would not be released.

DD.     Complainant’s “Exhibit B13” – West Caldwell’s December 2, 2002 letter to Complainant regarding the Zoning Board of Adjustment’s hearing procedures.

EE. Complainant’s “Exhibit B14” – Complainant’s December 10, 2002 response to a West Caldwell letter. This document covers zoning and OPRA issues. Complainant asserts that his OPRA requests are independent of his zoning appeal to the board of adjustment. Further, he states that:

Anyone bringing to the Township’s attention an alleged zoning violation has the expectation that their name and address will be recorded on the ZER [zoning enforcement report] and if the zoning decision is appealed to the BOA [Board of adjustment] then that information will be copied to the BOA’s files, which the ROP [rules of procedure] states are public records. Therefore, anyone bringing to the Township’s attention an alleged zoning violation has the expectation that their name and address will become public.

FF. Complainant’s “Exhibit B15” – West Caldwell’s December 11, 2002 response to Complainant stating that West Caldwell stands behind their letter of December 2, 2002 regarding the board of adjustment’s hearing procedure.

II.     Public Agency’s Submissions

A.     April 1, 2004 Statement of Information with the following attachments:

1.      Rider to Statement of Information by records custodian responding to points “8,” “10A,” “10B,” and “11” of the Statement of Information.

2.      Certification of Robert L. Podvey responding to Complainant’s allegation that the West Caldwell OPRA form does not comply with OPRA requirements.

3.      Certification of Jock H. Watkins outlining West Caldwell’s rationale for keeping the name of person who brought the zoning violation to West Caldwell’s attention confidential.

4.      Certification of Marianne C. Tolomeo stating that Jock Watkins acknowledged the genuineness of his faxed signature to her.

5.      Public Agency “Exhibit A”

a.      Complainant’s September 6, 2002 OPRA request on West Caldwell’s OPRA form stating “Please make paper copies for me to pick up at Town Hall of all records maintained by West Caldwell and all its public officials, officers, employees and subcontractors relating to the matter of my son’s play fort. You do not need to copy those records of which I already have copies. That is, records which have been sent from West Caldwell to me, from me to West Caldwell, and substantially unaltered copies of these.”

b.      Complainant’s “Exhibit B1”

c.      Complainant’s “Exhibit B2”

6.      Public Agency “Exhibit B”

a.      Complainant’s “Exhibit A12”

b.      Complainant’s “Exhibit A14” (all pages)

7.      Public Agency “Exhibit C” – West Caldwell’s May 8, 2003 communication to complainant that his request for public information is not specific enough.

8.      Public Agency “Exhibit D”

a.      This is a duplicate submission of “II.A.6.b.” above and corresponds to Complainant’s “Exhibit A13,” page “11/11”

b.      This is a duplicate submission of “II.A.5.c.” above and corresponds to Complainant’s “Exhibit B2”

B.     May 10, 2004 letter from West Caldwell’s counsel amending page six in the Rider to Statement of Information dated April 1, 2002. The last sentence in the section starting with “Sixth” should read: “Finally, as is clear from Exhibit A, Ms. Edwards did (emphasis added) have follow up contact with Mr. Wilcox.”

C.     July 13, 2004 e-mail from West Caldwell’s counsel responding to the question posed to West Caldwell’s counsel by the GRC staff on July 9, 2004: “[P]lease explain how the Township of West Caldwell received this complaint (zoning) from the individual whose name is redacted on the Zoning Enforcement Report.” Counsel responds that to the zoning officer’s best recollection, the complaint was received over the phone.

Recommendations of the Executive Director

The executive director respectfully recommends that the Council find the following:

1. The August 15, 2002 request for information is not a valid OPRA request. This portion of the complaint should be dismissed.
2. Complainant’s September 5, 2002 e-mail request for copies of documents is a valid OPRA request. This portion of the complaint should be dismissed.
3. The Township violated N.J.S.A. 47:1A-5(g) by not accepting the Complainant’s September 5, 2002 e-mail as a valid OPRA request. This portion of the complaint should be dismissed.
4. Complainant’s September 6, 2002 request is a restatement of the September 5, 2002 request, this time on the Township’s OPRA request form. This portion of the complaint should be dismissed.
5. The Township effectively responded to the Complainant’s September 5, 2002 via a proper and timely response from its attorney on September 12, 2002. This portion of the complaint should be dismissed.
6. Complainant received records responsive to his request on September 12, 2002. This portion of the complaint should be dismissed.
7. The Township properly redacted the name and address of the citizen who informed the Township of a zoning violation relating to the OPRA Complainant’s property. The Complainant’s stated need for access does not outweigh the citizen’s expectation of privacy.  Disclosure of said information could result in unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives.  This portion of the complaint should be dismissed.
8. The Township should have disclosed the June 20, 2002 e-mail titled “WC – GENERAL DELIVERY mail@westcaldwell.com to code-nforcement@westcaldwell.com on the subject “Fw: Locating Children’s Play Equipment.” However, there is no evidence that the Township knowingly and willfully withheld the document. Access is not currently at issue as the Complainant has since gained access to the document. This portion of the complaint should be dismissed.
9. The Township should have disclosed the August 20, 2002 memo from Gail Marie-Stewart to Jock Watkins and Carl Graziano on the subject “Board of Adjustment.” However, there is no evidence that the Township knowingly and willfully withheld the document. Access is not currently at issue as the Complainant has since gained access to the document. This portion of the complaint should be dismissed.
10. The Township’s OPRA request form should include a statement of the requester’s right to challenge a decision by a public agency to deny access and the procedure for filing an appeal. N.J.S.A. 47:1A-5(f). If the Township has not already incorporated that wording into its form, it should do so immediately. This portion of the complaint should be dismissed following the Council’s advisement to the Township of its duty to incorporate the proper appeal wording into its OPRA request form.
11. The Complainant’s access to the requested records was not hindered by the Township’s lack of conformity with the section of OPRA stating the Custodian’s duty to sign and date the OPRA form and provide the requestor with a copy of same [N.J.S.A. 47:1A-5(g)] given that the Complainant’s September 5, 2002 was responded to in a timely manner. This portion of the complaint should be dismissed following the Council’s advisement to the Township of its duty under N.J.S.A. 47:1A-5(g).
12. Regarding the Township’s records request form not having a space for the Custodian to list reasons for denying requests, in whole or in part, the Township properly responded to the request. This portion of the complaint should be dismissed.

October 6, 2004

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