2004-70

Final Administrative Action

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Supplemental Findings and Recommendations of the Executive Director

Records Requested:

1. All materials submitted to the sign board prior to the sign permit #98-0112 on Feb 24,1998, 316 S. Dean St.
2. All Certificates of Occupancy (CO’s) and City Resolutions relating to 311 W. Forest Avenue.
3. All CO’s and for the shop and counter-top shop Gibraltor Transmission 81 S. Dean Street.
4. All CO’s for Dream Cars, 107 Dean Street, including site plan approval, permit for sign, parking permits.
5. CO’s, sign permits and plumbing permits for Englewood Auto SPA, 229 S. Dean Street.
6. All CO’s, plumbing permits, and sign permits for KiKi Detail Shop on Forest Avenue.’
7. All CO’s and plumbing permits or Kalid Better Car Care, 311 W. Forest Avenue.
8. CO for Benzel Bush new and used car dealership at Grand Avenue.
9. CO for Silver Mason on Jackson Street.

Request Made:   June 1, 2004
Responses Made:    June 22, 2004, July 1, 2004, August 19, 2004
Custodian:    Lenore Schiavelli
GRC Complaint filed:  June 10, 2004

Background

At the September 9, 2004 public meeting, the Government Records Council (“Council”) referred this case to the Office of Administrative Law to determine whether the Custodian and/or other City of Englewood personnel knowingly and willfully violated OPRA by providing untimely responses and unexplained and staggered document submissions to the Complaint.

By letter to the Office of Administrative Law dated November 15, 2004, the Complainant stated “I would like to withdraw[al] my case. I reserve the right to open this case at a later time.”  The GRC Staff sent a letter to the Complainant confirming his voluntary withdrawal of his complaint. 

Documents Reviewed

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

1. Letter of Withdrawal from Mr. Josef Wodeslavsky to the Office of Administrative Law, Judge Sukovich dated November 15, 2004
2. December 22, 2004 letter to Complainant confirming the withdrawal of his complaint

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis of the Complainant’s voluntary withdrawal of the his complaint.

Prepared By: 
Marion M. Davies
Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council

December 28, 2004

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Interim Decision on Access

At the September 9, 2004 public meeting, the Government Records Council (“Council”) considered the August 31, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations with the amended change under the “Analysis” that states, “However, there is no clear and compelling evidence for this allegation” to read,  “There is no evidence to support this allegation” and to amend said conclusions and recommendations to include “Custodian and/or the City of Englewood Personnel.”

Therefore, the Council finds that the case is to be referred to the Office of Administrative Law to determine whether the Custodian and/or other City of Englewood personnel knowingly and willfully violated OPRA by providing untimely responses and unexplained and staggered document submissions to the Complaint.

Interim Decision Rendered by the
Government Records Council
On The 9^th Day of September, 2004

Vincent P. Maltese, Chairman
Government Records Council

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

Records Requested:

1. All materials submitted to the sign board prior to the sign permit #98-0112 on Feb 24,1998, 316 S. Dean St.
2. All Certificates of Occupancy (CO’s) and City Resolutions relating to 311 W. Forest Avenue.
3. All CO’s and for the shop and counter-top shop Gibraltor Transmission 81 S. Dean Street.
4. All CO’s for Dream Cars, 107 Dean Street, including site plan approval, permit for sign, parking permits.
5. CO’s, sign permits and plumbing permits for Englewood Auto SPA, 229 S. Dean Street.
6. All CO’s, plumbing permits, and sign permits for KiKi Detail Shop on Forest Avenue.’
7. All CO’s and plumbing permits or Kalid Better Car Care, 311 W. Forest Avenue.
8. CO for Benzel Bush new and used car dealership at Grand Avenue.
9. CO for Silver Mason on Jackson Street.

Request Made:   June 1, 2004
Responses Made:    June 22, 2004, July 1, 2004, August 19, 2004
Custodian:    Lenore Schiavelli
GRC Complaint filed:  June 10, 2004

Background

Complainant’s Case Position

The complainant filed a Denial of Access Complain with the Government Records Council on June 10, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. The Complainant acknowledges that he received some records from the Custodian, but contends that he has not received all the information requested.

On July 12, 2004, and among other things, the Complainant submitted the following status of his request to the City of Englewood:

In a letter dated August 24, 2004, the Complainant, amidst allegations against the City of Englewood of hiding and fabricating documents, reasserts his position that his June 1, 2004 OPRA request remains unsatisfied. He also points out that the City of Englewood (City) provided him with documents on August 19, 2004 that he had not received with the City’s July 1, 2004 response.

Public Agency Position

The Custodian submitted a Statement of Information (SOI) to the GRC dated July 13, 2004. It indicates that the Complainant received a response to his June 1, 2004 OPRA request on July 1, 2004. It also states that the following with respect to the documents requested (The following numbers correspond with those in the above table.):

Points 1, 2 and 9 – The documents were destroyed by a flood.

Point 3 – There is no counter top business at 81 S. Dean St.

Points 4, 5, 6, 7 and 8 – Unspecified records were provided to the Complainant on July 1, 2004.

Since the SOI does not itemize the documents discussed therein, GRC staff elicited an itemized breakdown of the Custodian’s response. On August 19, 2004, the Custodian amended the SOI with a certification that contains a breakdown of the City’s position. Attached to the amendment are copies of documents provided to Complainant. The following is a recap of the documents referenced in the amendment and which are responsive to the Complainant’s June 1, 2004 OPRA request:

Documents Reviewed

1. Letter to the City requesting information dated June 1, 2004
2. Denial of Access Complaint dated June 10, 2004.
3. Letter from the Complainant to the City dated July 12, 2004.
4. Letter from the City responding to the receipt of the complainant’s request.
5. Original Statement of Information response dated July 13, 2004.
6. Legal Certification from the Custodian with documents attached dated August 19, 2004.
7. Duplicate information and additional information sent to the GRC by the complainant dated August 31, 2004.

Analysis

The Complainant alleges that City hid documents from him. However, there is no clear and compelling evidence for this allegation.  The custodian certified that the City has provided the Complainant with all records responsive to his June 1, 2004 OPRA request. Based on a lack of evidence to refute the City’s position, the issue of access is satisfied for the purposes of this complaint.

The Complainant’s allegations of fabrication of documents will not be addressed as this issue is outside of the Council’s jurisdiction. N.J.S.A. 47:1A-7(b).

The manner and timing of the City’s responses to the Complainant are problematic. Complainant accurately notes discrepancies in the City’s July 1, 2004 and August 19, 2004 document submissions to the Complainant. Attached hereto is a comparison-contrast of those two responses. “Addendum A” is adopted herewith by reference and, thereby, forms part of this Findings and Recommendations of Executive Director.

Before exploring the document discrepancies illustrated by Addendum A, it is important to note the City’s initial response to the Complainant. June 22, 2004 was the City’s first response to Complainant’s June 1, 2004 request. In the June 22, 2004, the Construction Official/Zoning Officer, someone other than the custodian, advised the Complainant that he had been away on vacation, was in the midst of other work and was unable to address the request at that time. The Construction Official/Zoning Officer then states his belief that the majority of the requested records have been damaged or lost in a number of floods. He agreed to attempt to locate and distribute documentation when he got “settled in.” The City’s custodian of record was copied on the response. Overall, this was an inappropriate response.

OPRA states:

Unless a shorter period of time is otherwise provided by statute, 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 not later than seven business days after receiving a request…If the request is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. N.J.S.A. 47:1A-5(i).

The Construction Official/Zoning Officer acknowledges receipt of the June 1, 2004 OPRA request following his return from vacation on June 17, 2004. He then submitted a response to the Complainant on June 22, 2004, three (3) business days following receipt of the request. However, it is not enough that the Construction Official/Zoning Officer responded to the request within three (3) business days from his receipt of same. Considering that the Statement of Information that was signed by the City Clerk/custodian of record, someone other than the Construction Official/Zoning Officer, states that the City received the request on June 1, 2004, by June 22, 2004, the response was eight days late. Further, it did not state when the Complainant could expect to receive the requested records. The June 22, 2004 response from the Construction Official/Zoning Officer violated N.J.S.A. 47:1A-5(i) as it did not afford the Complainant that which he was due under OPRA.

According to Complainant and the Statement of Information, the City provided records and a response to why certain records would not be forthcoming on July 1, 2004. The City claims to have provided that which is shown on Addendum A under “City of Englewood’s July 1, 2004 Response,” though it provides no hard copy support for same. The City did not memorialize its response to the Complainant, nor did the City itemize what documents were and were not made available and if additional documentation would be forthcoming.

On August 19, 2004, the City again responded to the Complainant’s June 1, 2004 OPRA request and provided additional documentation. The City claims to have provided that which is shown on Addendum A under “City of Englewood’s August 19, 2004 Response.” This time, the City memorialized its position and provided the GRC with the same copies it provided to the Complainant.

A comparison of the City’s July 19, 2004 and August 19, 2004 responses bring the aforementioned discrepancies to light. Documents that the City maintained were destroyed in flooding are now disclosed. The City offers no explanation as to why these documents were not provided along with the July 19, 2004 response.

The records indicate that the Complainant did not receive a final and allegedly complete response to his June 1, 2004 OPRA request from the City of Englewood until August 19, 2004. As such, the Complainant waited 56-days to get his final answer.

While the City of Englewood has clearly violated N.J.S.A. 47:1A-5(i), it is not clear from the records if the violation rises to the level of knowing and willful in the totality of the circumstances. N.J.S.A. 47:1A-11. The Council should refer the case to Office of Administrative Law to determine if City of Englewood personnel committed a knowing and willful violation of OPRA.

Conclusions and Recommendations of the Executive Director

The case should be referred to the Office of Administrative Law to determine if City of Englewood personnel knowingly and willfully violated OPRA by providing untimely responses and unexplained and staggered document submissions to the Complainant.

Prepared By:
Marion M. Davies
Case Manager
Approved By:
Paul F. Dice
Executive Director
Government Records Council

August 31, 2004

Josef Wodeslavsky v. City of Englewood

Addendum A to August 31, 2004 Findings and Recommendations of Executive Director

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