2004-96

Final Decision

At its January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 2006 Second 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, adopts the Initial Decision of the Office of Administrative Law and concludes that the Custodian did not knowingly and willfully violate OPRA and unreasonably deny access under the totality of the circumstances.

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 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  February 8, 2006

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Second Supplemental Findings and Recommendations of the Executive Dire

Relevant Records Requested: (summarization of request as written in both cases)[1]

1. All motor vehicle summonses issued during listed periods
2. All personnel transfers under Dir. Joseph Santiago
3. All purchase orders under Dir. Joseph Santiago
4. All statistics on drug arrests
5. All statistics on VCO summonses issued
6. All statistics on Motor vehicle summonses
7. Overtime spending broken down annually during the last ten fiscal years including overtime spending up to June 21, 2004.

Request Made:  June 22, 2004 (2004-96) / July 2, 2004 (2004-107)
Response Made: June 30, 2004 (2004-96) / No response (2004-107)
Custodian:  Mr. Anthony Conti
GRC Complaint Filed:  2004-96 – July 16, 2004 / 2004-107 – August 5, 2004

Background

July 14, 2005 

Interim Decision. At its July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 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 found that:

GRC Complaint Nos. 2004-96 & 2004-107 should be referred to the Office of Administrative Law (OAL) because the Council was unable to make a determination as to access and other issues based on the Complainant and Custodian’s responses. Specifically, the OAL was to determine:

1. The basis for the denial of access and whether a knowing and willful violation of OPRA exists due to the lack of response regarding the below listed requested records:
   1. Statistical Data
   2. Personnel Tranfers
   3. Case #2004-107 in its entirety
2. Whether a knowing and willful violation exists pursuant to OPRA under the totality of the circumstance for the Custodian’s failure to comply with the November 9, 2004 order of the Government Records Council that stated the following:

The Custodian is to obtain the cost of providing copies of the requested purchase orders to the Complainant pursuant to N.J.S.A. 47:1A-5, and inform the Complainant of said costs.  The Custodian is to provide the information to the Complainant and the Executive Director within five (5) business days after receipt of the Council’s decision.  The Complainant is to inform the Custodian within five (5) business days after receipt of the cost information whether or not he still wishes to receive the requested documents.

December 12, 2005

The parties appeared for a hearing on December 5, 2005 where the Administrative Law Judge reached an Initial Decision.  The Office of Administrative Law has found that the city of Trenton did not knowingly and willfully violate OPRA.

Analysis

In accordance with the directive of the GRC Interim Decision on Access of July 24, 2005, the OAL made the following findings:

The basis for the denial of access to the statistical data, personnel transfers and case #2004-107 in its entirety is premised on several factors. First, both petitioner and respondent agreed that there was some confusion created by the short spaced intervals in the separate OPRA requests.  While the OAL found them to be self explanatory, petitioner conceded he understood the confusion the respondent asserts existed at the time.  However, any confusion by the business administrator could have been promptly remedied if she accepted Mr. Osterman’s request to speak to her regarding the more specific information she sought.  Second, and most importantly, the OAL found that the city of Trenton has or had in place at the time, a most cumbersome and confusing methodology in responding to OPRA requests.  For example, bi-monthly meetings with the mayor and his/her cabinet to discuss OPRA requests delays a response. If  adequate training were provided, OPRA requests would be routinely handled and any question as to access would be promptly forwarded to counsel.  In addition, the confusion between the city clerk’s office and the business administrator’s office also led to the delay which led to a finding of a denial of access.  The fact that there was past litigation between these offices is irrelevant.  The city clerk has been designated the custodian of records and yet the business administrator becomes involved because, as Mr. Alacqua testified, “the clerk does not have the information and different departments are involved as necessary.”  It is also apparent that the city never compiled, in anticipation of the enactment of OPRA, an adequate internal directory of the documents compiled and maintained by the various departments.  This is what led Mr. Osterman, after being advised he would be provided a response as to the statistical data request by July 8, 2004, to send another request, this time directed to the municipal court on August 5, 2004.  The city clerk employee should not have referred Mr. Osterman to the police department to obtain the purchase orders because there was no requirement that the departments maintain their purchase orders. Yet had that person in the clerk’s office known the departments were not required to maintain their respective copies of purchase orders, he/she would not have referred Mr. Osterman to make this separate inquiry.  Lack of adequate training also contributed to the denial of access.  It is apparent that the purchasing department staff is unfamiliar with the search capabilities of its own computer software program.  The GRC would later order the custodian of records to obtain the cost of providing Mr. Osterman the purchasing orders.  Mr. Osterman testified that when he finally received the quotation, the price was “unreasonable.”  In essence, a municipal employee would undertake a manual search for the police department purchasing orders.  Yet by searching the database using the known police departments account number or numbers, one could determine the purchase order numbers and then access them in the binders which organize the purchase orders sequentially by purchase order number. 

Having made these determinations as to the basis for the denial of access as to statistical data, personnel transfers and case number 2004-107, the OAL however found no evidence of a knowing and willful violation of OPRA.  Although Ms. Feigenbaum should have spoken with Mr. Osterman when he offered to clear her confusion with regard to his OPRA request, her lack of courtesy does not rise to the level of a knowing and willful violation of OPRA.  Similarly, the cumbersome methodology the city employs in responding to OPRA requests coupled with the lack of training and lack of full responsibility being vested in the designated custodian of record does not rise to the level of a knowing and willfull violation of OPRA.  While N.J.S.A. 47:1A et seq. does not define “knowing and willful,” terms and phrases such as “willful,” lend themselves to easy comprehension by the reasonable person.  Leonen v Johns-Manville Corp., 717 F Supp 272, 280 (D. N.J. 1989). By definition, the terms imply an intentional deliberate act.  The OAL does not find that to have occurred.  What is evident here however, is an embarrassing exposure of this city’s inablility to have adequately prepared itself upon the enactment of OPRA to respond in an organized, timely and efficient manner to appropriate requests pursuant to the Act.

Under the totality of the circumstances, a knowing and willful violation did not exist pursuant to OPRA for the Custodian’s failure to comply with the November 9, 2004, Order of the GRC with regard to obtaining the cost of providing copies of the purchase orders.  Mr. Alacqua testified he had already made an appearance by virtue of his previous correspondences with the GRC, and the Order should have thus been directed to him rather than the custodian. Due to the timing of the League of Municipalities convention followed shortly thereafter by a two day closure of municipal offices for Thanksgiving, and a response occurring on the first available business day thereafter, the OAL found that a willful and knowing violation of the GRC’s Order did not exist.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council adopt the Initial Decision of the Office of Administrative Law and conclude that the Custodian did not knowingly and willfully violate OPRA and unreasonably deny access under the totality of the circumstances.

Prepared by:  Kimberly Gardner, Case Manager

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

January 19, 2006

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Interim Decision on Access

At the July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 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 referred to the Office of Administrative Law to determine the following:

1. The basis for the denial of access and whether a knowing and willful violation of OPRA exists due to the lack of response regarding the below listed requested records:
   1. Statistical Data
   2. Personnel Tranfers
   3. Case #2004-107 in its entirety
2. Whether a knowing and willful violation exists pursuant to OPRA under the totality of the circumstance for the Custodian’s failure to comply with the November 9, 2004 order of the Government Records Council that stated the following:

The Custodian is to obtain the cost of providing copies of the requested purchase orders to the Complainant pursuant to N.J.S.A. 47:1A-5, and inform the Complainant of said costs.  The Custodian is to provide the information to the Complainant and the Executive Director within five (5) business days after receipt of the Council’s decision.  The Complainant is to inform the Custodian within five (5) business days after receipt of the cost information whether or not he still wishes to receive the requested documents.

Interim Decision Rendered by the
Government Records Council
On The 14^th Day of July, 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:  July 21, 2005

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: (summarization of request as written in both cases)[1]

1. All motor vehicle summonses issued during listed periods
2. All personnel transfers under Dir. Joseph Santiago
3. All purchase orders under Dir. Joseph Santiago
4. All statistics on drug arrests
5. All statistics on VCO summonses issued
6. All statistics on Motor vehicle summonses
7. Overtime spending broken down annually during the last ten fiscal years including overtime spending up to June 21, 2004.

Request Made:  June 22, 2004 (2004-96) / July 2, 2004 (2004-107)
Response Made: June 30, 2004 (2004-96) / No response (2004-107)
Custodian:  Mr. Anthony Conti
GRC Complaint Filed:  2004-96 – July 16, 2004 / 2004-107 – August 5, 2004

Background

The Government Records Council heard this case at its November 9, 2004 meeting. The Council voted to hold a hearing to determine whether there was a knowing and willful violation of OPRA under the totality of the circumstances and what the basis was for the denial of access to statistical data, personnel transfers, and Case #2004-107 in its entirety. 

The Council also ordered the Custodian to obtain the cost of providing copies of the requested purchase orders to the Complainant pursuant to N.J.S.A. 47:1A-5, and to provide the information to the Complainant and the Executive Director within five (5) business days after receipt of the Council’s November 9, 2004 decision.  The Complainant was to inform the Custodian within five (5) business days after receipt of the cost information whether or not he still wished to receive the requested documents The Custodian has not submitted this information to the Complainant or the Executive Director. Therefore, this matter should be referred to the Office of Administrative Law to determine whether there is a knowing and willful violation of OPRA under the totality of the circumstances as it pertains to the issue of non-compliance with the order of the Council, the basis for the denial of access, and whether a knowing and willful violation of OPRA exists due to the lack of response regarding the statistical data, personnel transfers, and Case #2004-107 in its entirety.

Analysis

There is no analysis needed at this time.

Conclusion

The Executive Director respectfully recommends that the Council refer the case to the Office of Administrative Law to determine the following:

1. The basis for the denial of access and whether a knowing and willful violation of OPRA exists due to the lack of response regarding the below listed requested records:
   1. Statistical Data
   2. Personnel Tranfers
   3. Case #2004-107 in its entirety
2. Whether a knowing and willful violation exists pursuant to OPRA under the totality of the circumstance for the Custodian’s failure to comply with the November 9, 2004 order of the Government Records Council that stated the following:

The Custodian is to obtain the cost of providing copies of the requested purchase orders to the Complainant pursuant to N.J.S.A. 47:1A-5, and inform the Complainant of said costs.  The Custodian is to provide the information to the Complainant and the Executive Director within five (5) business days after receipt of the Council’s decision.  The Complainant is to inform the Custodian within five (5) business days after receipt of the cost information whether or not he still wishes to receive the requested documents.

Prepared by: Kimberly Gardner, Case Manager

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

July 8, 2005

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Interim Decision on Access

At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 1, 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 an amendment to #1 of the Executive Director’s recommendations to state: “The Council will hold a hearing on January 13, 2005.”  Therefore, the Council hereby finds that:

1. The Council will hold a hearing on January 13, 2005 for a determination of whether a knowing and willful violation exists pursuant to OPRA under the totality of the circumstances, and the basis for the denial of access to the following records request as addressed in the complaints:
   1. Statistical Data
   2. Personnel Transfers
   3. Case #2004-107 in its entirety
2. The Custodian is to obtain the cost of providing copies of the requested purchase orders to the Complainant pursuant to N.J.S.A. 47:1A-5, and inform the Complainant of said costs.  The Custodian is to provide the information to the Complainant and the Executive Director within five (5) business days after receipt of the Council’s decision.  The Complainant is to inform the Custodian within five (5) business days after receipt of the cost information whether or not he still wishes to receive the requested documents.

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

Relevant Records Requested: (summarization of request as written in both cases)[1]

1. All motor vehicle summonses issued during listed periods
2. All personnel transfers under Dir. Joseph Santiago
3. All purchase orders under Dir. Joseph Santiago
4. All statistics on drug arrests
5. All statistics on VCO summonses issued
6. All statistics on Motor vehicle summonses
7. Overtime spending broken down annually during the last ten fiscal years including overtime spending up to June 21, 2004.

Request Made:    6/22/2004 (2004-96) / 7/2/2004 (2004-107)
Response Made: 6/30/2004 (2004-96) / No response (2004-107)
Custodian: City of Trenton – Mr. Anthony Conti
GRC Complaint Filed:  2004-96 – July 16, 2004 / 2004-107 – August 5, 2004

Background

Due to the similarity of the cases and the issues addressed in the complaint, they have been combined for adjudication.

Complainant’s Case Position

The Complainants position regarding the above referenced records request in case #2004-96 and case #2004-107 is as follows:

Case #2004-96 – (served to City Clerks office)

1. Copies of all purchase orders of the Trenton Police Department under Dir. Joseph Santiago – Permission given to examine over 32,000 documents.
   Copies of all purchase orders pertaining to striping decals under Jim Golden’s tenure – Permission given to view over 32,000 documents.
   With regard to the purchase orders, “ 7/1/2004 – Received a call from Allison who informed me that her office received updated response from Ms. Feigenbaum.  In part it states that I can now make an appointment with Karen Marut of the Purchasing Dept. and Alphonso Jones of the Business Admins Office and “Inspect” the documents I requested.
   I spoke with Marut and advised her that this is not what I requested but in the interim I will take the opportunity to inspect the files.  Marut advised there were approx. 32,000 files I would be able to review and were in order by date and not broken down by department.
   I was able to get Marut to admit that all the departments throughout the city should have copies of all purchase orders relating to their own department. I then asked why I couldn’t just get the copies from the police dept. and she didn’t have an answer.
   I then spoke with Alphonso and he advised he was in the process of compiling the overtime records and should have them available in the following week.”
   7/2/2004 – “Reviewed purchase orders dated March 04-June 04. This process took almost two hours. Was given the option of coming back and reviewing more.”
   
2. Statistical data pertaining to drug arrests, motor vehicles summonses issued and VCO summonses issues from 1/95 through present.
   The “city would get back to me by July 7, 2004. No further response after the letter dated 6/30/2004.”
3. All personnel transfers under Joseph Santiago.
   The Complainant contends that this request “never addressed, nothing received.”
4. Not subject to the complaint are items number one and seven of the “Relevant Records Requested” above. 

Case #2004-107 – (served to the City’s Police Department)

            The same Open Public Records Request (“OPRA”) was submitted to the City’s Police Department.  A response to this request was not provided.

Public Agency’s Position

Case #2004-96

1. Purchase orders under Joseph Santiago – Complainant spent approximately 1 and 1/1/2 hours in the Purchasing office on July 2, 2004. He did not indicate any dissatisfaction regarding the procedure for inspection of the Purchase Orders. It appeared that his examination of the Purchase Orders was a reasonable solution.
   For the City to conduct a manual search of the approximately 32,000 purchase orders would substantially disrupt operations since limited staff exists and a search such as this would probably take many days. The Purchasing Department has a total for 5 people processing approximately 10,000 purchase orders per year. To conduct a manual search without additional personnel would prevent timely processing of purchase orders for much needed goods and services.
2. Statistical Data – No documents exist containing the statistical data requested by Mr. Osterman. The City is not required to do research to calculate statistics in response to a request for information. Unfortunately, no response was given to Mr. Osterman since the documents do not exist.
3. Personnel transfers were not addressed by the Public Agency.

Case # 2004-107

The Custodian’s Counsel in response to the subject complaint provided the following statement:

“This request was not filed with the Municipal Clerk who, at this time, is the official custodian of all records for the City of Trenton. Lt. Donald Fillinger discovered it on his desk and was not sure how it got there. Mr. Osterman’s requests were discussed at a meeting with the Mayor’s cabinet on August 6, 2004.  At that meeting it was assumed that Mr. Osterman has filed duplicate requests and for that reason no separate written response was given.  A written response had been given to a request for essentially the same information. In addition, a written response was given to a subsequent duplicate request.

At this time it is our belief that the City has responded to all of Mr. Osterman’s request.”

Analysis

Case #2004-96 –

1. Purchase Orders – Pursuant to N.J.S.A. 47:1A-5(g), “if a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.” 
   The counsel stated that a request of this scope would disrupt operations. However, he failed to meet the burden of proving this fact. Counsel failed to identify if the city of Trenton could have utilized an outside source, or other labor, and passed the charges on to the Complainant. Also, pursuant to N.J.S.A. 47:1A-5(c), a special service charge can be made if the agency can meet the burden of proving to the requestor that such a need is necessary. The agency does have the responsibility to notify the requestor of that charge prior to production of those records. The agency did not offer the Complainant the opportunity to pay a “special service charge” as a method to obtain copies of the purchase orders.
   The Complainant verbally stated to an employee of the Purchasing Department that he did not want to view the records, however he wanted copies of the requested records. This was also made apparent on the request form, when the Complainant marked the box to “pick-up” records. Pursuant to N.J.S.A. 47:1A-5(d), “A custodian shall permit access to a government record and provide a copy thereof in the medium requested…” The requestor wanted copies of the document and was only offered to view them, therefore the Custodian violated N.J.S.A. 47:1A-5(d).
   
2. Statistical data – The Clerk and Counsel for the City of Trenton certified that these records do not exist. However, after they initially responded on June 30, 2004, stating that they would provide a response “within 7 days” after further research, they failed to provide a response. Therefore, this portion of the complaint should be scheduled for a hearing with the Council to determine if there was a knowing and willful violation of N.J.S.A. 47:1A-1 et seq. under the totality of the circumstances.
   
3. Personnel Transfers – The Custodian or the Counsel has not addressed this issue to the GRC staff or the Complainant. Therefore, the lack of response regarding this issue is effectively a denial of access and this portion of the complaint should be scheduled for a hearing with the Council to determine whether the Custodian’s  action is a knowing and willful violation of N.J.S.A. 47:1A-1 et. seq. under the totality of the circumstances.

Case #2004-107 –

The City acknowledged that the Trenton Police department did not respond to this request. They have stated that, “it was assumed that Mr. Osterman has filed duplicate requests and for that reason no separate written response was given.”  The city assumed that the request was duplication, but did not take the opportunity to verify this assumption with the Complainant. Therefore, their lack of response may rise to a knowing and willful violation of N.J.S.A. 47:1A-1 et. seq. under the totality of the circumstances. This complaint should be scheduled for a hearing with the Council, where it can be determined if the Custodian and/or the City’s action rises to a level of a knowing and will violation of N.J.S.A. 47:1A-1 et. seq. under the totality of the circumstances.

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

Case # 2004-96

1. July 16, 2004 – Denial Of Access Complaint Form
2. July 22, 2004 – Offer of mediation to the Complainant and Custodian
3. July 23, 2004 – Custodians Agreement to Mediate
4. August 10, 2004 – Statement of Information
5. August 25, 2004 – GRC staff request for certification and more information
6. September 9, 2004 – Certification and response to staff request
7. September 17, 2004 – Submission of supplemental information to staff

  Case # 2004-107

1. August 5, 2004 – Denial Of Access Complaint Form
2. August 6, 2004 – Offer of mediation to the Complainant and Custodian
3. August 10, 2004 – Statement of Information
4. August 25, 2004 – GRC staff advising counsel that the submitted Statement of Information should be clarified with specific responses to the denial of access.
5. September 9, 2004 – Certification and response to staff request
6. September 17, 2004 – Supplemental submission regarding the case

Conclusion

The Executive Director respectfully recommends that the Council find that:

1. A hearing should be scheduled before the Council for a determination of whether a knowing and willful violation exists pursuant to OPRA under the totality of the circumstances, and the basis for the denial of access to the following records request as addressed in the complaints:
   1. Statistical Data
   2. Personnel Tranfers
   3. Case #2004-107 in its entirety
2. The Custodian is to obtain the cost of providing copies of the requested purchase orders to the Complainant pursuant to N.J.S.A. 47:1A-5, and inform the Complainant of said costs.  The Custodian is to provide the information to the Complainant and the Executive Director within five (5) business days after receipt of the Council’s decision.  The Complainant is to inform the Custodian within five (5) business days after receipt of the cost information whether or not he still wishes to receive the requested documents.

Prepared by: 
Approved by: 

Paul F. Dice
Executive Director
Government Records Council

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