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2004-87
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore:
Final Decision Rendered by the Government Records Council On The 8th Day of September, 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 Decision Distribution Date: September 19, 2005 Supplemental Findings and Recommendations of the Executive DirectorMartin O’Shea GRC Complaint No. 2004-87Complainant v. Township of West Milford Custodian of Records Records Requested:
Request Made: 6/9/2004 Background At its October 14, 2004 meeting, the Government Records Council (Council) considered the October 7, 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 findings and recommendations. The Council therefore dismissed the case on the basis that:
Thereafter, the below listed correspondence was received from the Complainant by the Executive Director requesting reconsideration of the Council’s decision. May 31, 2005 Fax correspondence from the Complainant to the Executive Director stating that there was a verbal commitment to reconsider this case in late 2004. The Complainant wanted to know when the reconsideration would be completed. August 9, 2005 Fax correspondence from the Complainant to the Executive Director stating that he specifically wanted a reconsideration regarding the imposition of a penalty for what he alleges to be the Custodian’s knowing and willful violation of OPRA pursuant to N.J.S.A. 47:1A-11 Analysis WHETHER the Custodian knowingly and willfully violated the OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11? OPRA provides that: “all government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions…” N.J.S.A. 47:1A-1. OPRA further states: “A public official, officer, employee or custodian who knowingly and willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty …” N.J.S.A. 47:1A-11(a) Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J. Super. 86 (App. Div. 1996) at 107). In the October 7, 2004 analysis of the Findings and Recommendations of the Executive Director, it was stated that, “a response was given within a statutory time frame, the staff does not find that this action rises to a level of a knowing and willful violation of N.J.S.A. 47:1A-1 et seq under the totality of the circumstances.” While this statement was made in the Analysis portion of the Findings and Recommendations, it was not brought forth in the Conclusions and Recommendations section. Therefore, at the request of the Complainant, this matter has been reconsidered, and the Council has not found a basis for a change in its position. After reconsidering the facts of this case and the legal standard for knowing and willful, the Council should find that the Custodian’s actions do not rise to the level of a knowing and willful violation of the OPRA under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends that the Council:
Prepared By: Kimberly Gardner, Case Manager Approved By: September 2, 2005 Final Decision
At its October 14, 2004 public meeting, the Government Records Council (Council) considered the October 7, 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 findings and recommendations. The Council, therefore, dismissed the complaint on the grounds that:
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Final Decision Rendered by the Findings and Recommendations of the Executive DirectorMartin O’Shea GRC Complaint No. 2004-87Complainant v. Township of West Milford Custodian of Records Relevant Records Requested:
Request Made: 6/9/2004 Background Complainant’s Case Position The Complainant filed a denial of access complaint stating that he was wrongfully denied access to the requested records. He also stated that the reason for the denial was vague. The Complainant stated that he believes that some of the requested records should have been released to him pursuant to N.J.S.A. 47:1A-5(g). He states that portions of the records could have been released with appropriate redactions. Newspapers seeking the same information as the Complainant did file in Superior Court. A judgment was rendered that access should be granted to the tort claim. Therefore, the Complainant has stated that he has received the information regarding the tort claim. However, he has not received memos, letters, e-mails, or any other records that in any way relate to the tort claim filed by police officer Carol Stelmach. Public Agency’s Position The Custodian of record did respond to the Complaints request stating, “Due to the nature of the material requested, I referred your request to William DeMarco, Township Attorney to determine if the material requested could be released. Please be advised that the Township Attorney has advised me that the material requested cannot be released.” In his Statement of Information, the Custodian further explained that the denial of access was, “ pursuant to Executive Order No. 26 Section 4(a) as noted in the Handbook for Records Custodians issued August 22, 2002 and as contained on the Government Records Council website…Specifically, Complaints and investigations of discrimination, harassment or hostile environments.” In a supplemental certification to the Government Records Council staff, the Custodian stated, “the newspapers filed an action with the Superior Court of new Jersey in Passaic County for the release of the tort notice. Following a review by the Court the tort notice was ordered to be released to the newspapers.” He went on to state, “The Stelmach tort notice requested by Mr. O’Shea was made available to him to view as the result of a subsequent OPRA request NO. 2004-68. Mr. O’Shea made a request in July to view any correspondence and notices of claims. Coincidently on Tuesday, August 33, 2004, just after the Court’s decision, I had advised Mr. O’Shea that he could review the material made in his subsequent OPRA request. When he came to the office to review those notices, he was offered the Stelmach Tort Notice by my assistant but he declined, saying he had already obtained it.” Analysis In the Custodians original response to the Complainant he responded by advising the Complainant that the records were not disclosable pursuant to legal advice given by the township attorney. The Custodian failed to respond in explicit detail regarding the nature of the denial of access. Because a response was given within the statutory time frame, the staff does not find that this action rises to a level of knowing and willful violation of N.J.S.A. 47:1A-1 et seq. under the totality of the circumstances. Pursuant to Executive Order No. 26 4(a), “Records of complaints and investigations undertaken pursuant to the Model Procedures for Internal Complaints Alleging Discrimination, Harassment or Hostile Environments in accordance with the State Policy Prohibiting Discrimination, Harassment and Hostile Environments in the Workplace adopted by Executive Order No. 106 (Whitman 1999), when open, closed or inactive.” After review of the court transcripts by the Government Records Council staff, it has been determined that the nature of this claim was for sexual harassment, and therefore the denial of access regarding the request for, “memos, letter, e-mails, or any other records that in any way relate to the tort claim filed by police officer Carol Stelmach” was correct pursuant to Executive Order No. 26 4(a). Although not cited yet applicable, N.J.S.A. 47:1A-1.1 states that records that are subject to exemption are inclusive of, “Public employee related, information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer…”. Moreover, N.J.S.A 47:1A-9(a) states that, “The provisions of this act, P.L.2001, c.404 (C.47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.” Once the decision regarding the tort claim was rendered by the Superior Court, the Custodian did attempt to release the tort notice to the Complainant. Documents Reviewed The following documents were reviewed in preparing the Findings and Recommendations for this case:
Conclusion and Recommendations of the Executive Director The Executive Director respectfully recommends that the council dismiss the case on the basis that:
________________________ Paul F. Dice
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