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2005-07
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Final Decision |
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Supplemental Findings and Recommendations of Executive Director |
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Administrative Case Disposition |
Final Decision
At the March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 2006 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, finds 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. Decision Distribution Date: March 15, 2006 Supplemental Findings and Recommendations of Executive DirectorJeffery Sauter, GRC Complaint No. 2005-7Complainant v. Township of Colts Neck, Custodian of Records Records Requested:
Custodian: Robert Bowden Background[3] August 13, 2004 Complainant’s written letter “Re: Open Public Records request.[4] The Complainant is requesting documents relative to the Fire Chief’s vehicle and other budget expenditures allocated from the Township. The Complainant’s letter indicates he is requesting vouchers, purchase orders, invoices and “How-Goes-It” reports for the period of 2001-2004. August 13, 2004 The Complainant’s written Open Public Records Act (OPRA) request.[5] The Complainant asks for “copies of any and all vouchers, purchase orders and invoices for any and all repairs, service, or equipment procured for by or for the CN Fire Chief’s vehicle during the period May 2001 thru February 2004. This includes the monthly ‘How-Goes-It’ report that records all expenditures of township funds for the same period.” August 26, 2004 Custodian’s response to the Complainant’s August 13, 2004 request entitled “RE: Public Records Request.” The Custodian asserts that “township funds appropriated in the Municipal Budget are forwarded in total to the Fire Department” for their expenditure and the request should therefore be forwarded to the Fire Department. Additionally the Custodian states that the Township does not receive the monthly “How-Goes-It” reports. September 1, 2004 Letter from the Complainant to Richard Galinski, Township Fire Chief “Re: Open Public Records Request.” The Complainant is requesting the same information as stated in the August 13, 2004 written letter “Re: Open Public Records request.” September 17, 2004 Letter from Richard Golden, Township counsel in response to the Complainant’s September 1, 2005 letter from the Complainant to the Township Fire Chief “Re: Open Public Records Request.” The Custodian’s counsel references the Custodian’s response to the Complainant’s August 13, 2004 request and adds that he has been provided documents relating to the Fire Chief’s motor vehicle accident and repair from 2001. The Custodian’s counsel goes on to state that the request has been forwarded to the “Executive Fire Council and Fire Company #2” for review and that “the documents will be delivered to you shortly.” October 1, 2004 Letter from Richard Golden, Township counsel to the Complainant. The Custodian’s counsel released the “invoices related to the Fire Chief’s vehicle and the ‘How-Goes-It’ Reports for the period 2002-2004.” October 15, 2004 Letter from the Complainant to Richard Galinski, Township Fire Chief “Re: Open Public Records Request.” The Complainant states he has not received any documents relative to the request and submits “another request for copies of any and all documents the Fire Department may have concerning Mr. Piotrowski’s motor vehicle accident with the Fire Chief’s vehicle.” October 17, 2004 Letter from the Complainant to Richard Galinski, Township Fire Chief. The Complainant states that only some documents had been released beginning with June of 2002 and he is missing all documents for the period of May 2001 through May 2002. Additionally he states that he has been informed that the requested monthly “How-Goes-It” reports are a “‘rough monthly information report…’ and ‘… are not necessarily entirely accurate and should not be released as a true financial statement.’” The Complainant contends that he was not aware that this was the case and would now like to request copies of the accurate reports for the period of May 2001 through February 2004. The Complainant also attaches a spreadsheet of the documents given to him by the Township counsel, indicating which invoices were and were not provided and requests that those that were missing be provided. The Complainant asserts that “pending receipt of the actual financial reporting ledgers, it is yet to be determined if other invoices are missing at this stage other than those listed on the spreadsheet” and if it has found that there are others missing he will advise the Township at that time. December 8, 2004 Letter from Richard Golden, Township counsel to the Complainant “RE: Public Records Request.” The Township counsel indicates that the Township heard that the Complainant did not receive the records forwarded on October 1, 2004 and are attaching the documents with this correspondence. January 11, 2005 Offer of Mediation sent to both parties. January 12, 2005 Agreement to Mediate signed by the Custodian. January 17, 2005 Letter from the Township counsel, Richard Golden to the Government Records Council (GRC) staff. The Township’s counsel states that the August request[6] was a supplement to one that was made in February of 2004, which is subject of Sauter v. Township of Colts Neck, GRC Case No. 2004-68 (January 2006). Based on this and the “overwhelming similarity of the two complaints,” the Township’s counsel feels that these complaints should be combined. January 30, 2005 Complainant’s signed Agreement to Mediate. February 4, 2005 Letter from the Township counsel, Richard Golden to the Complainant “RE: Township of Colts Neck Public Records Request.” The Custodian’s counsel states that the enclosed financial reports should “fulfill any outstanding components of [the Complainant’s] public records request” and goes on to state that the documents being provided do not represent an official financial statement. February 9, 2005 Statement of Information sent to the Custodian.[7] February 14, 2005 Complaint forwarded to mediation. February 14, 2005 Custodian’s Statement of Information with the following attachments:
The Custodian asserts that all documents responsive to the request including, “monthly financial statements… referred to as “How-Goes-It” – all purchase orders, invoices and other documents related to repairs and service of the Fire Chief’s vehicle” were released to the Complainant on October 1, 2005, December 8, 2005 and February 4, 2005. The Custodian contends that the delay in access was due to the documents being archived and goes on to state that the request was directed to the Township who was not in possession of the Fire Company’s financial statements. The Custodian believes it is questionable whether or not the Fire Company is subject to OPRA since they are a “private, non-profit association.” Additionally the Custodian alleges the request was duplicative of an earlier request, subject of Sauter v. Township of Colts Neck, GRC Case No. 2004-68 (January 2006). August 4, 2005 E-mail from Fran Snyder, Mediator referring the case back to the GRC for adjudication of “timeliness issue only.” September 28, 2005 Custodian’s Statement of Information[8] with the following attachments:
The Custodian asserts that all documents responsive to the request have been provided to the Complainant however, it is the Custodian’s understanding that the Complainant “was not satisfied with the time frame under which they were provided.” The Custodian asserts that he responded in a timely fashion and provided everything he thought was responsive to the request. The Custodian states that due to a prior request, filed on February 14, 2004 that he asserts were similar in nature, there was confusion with respect to this request. The Custodian certifies that the Complainant was provided with all documents responsive to the request.[9] October 15, 2005 Letter from the Complainant to the GRC staff, “Re: Sauter v. Township of Colts Neck (GRC Complaint No. 2005-7)” [10] with the following attachments:
The Complainant states that his request was received by the Custodian on August 16, 2004 and not responded to until August 26, 2004 when he was notified to forward his request to the Fire Department. The Complainant states that he then submitted his request to the Fire Department on September 1, 2004. The Complainant states he received a letter from the Custodian’s counsel on September 17, 2004 stating that documents responsive to his request would be delivered shortly. Documents were delivered to him on October 1, 2004 but were incomplete, which he noted in a letter to the Fire Chief on October 17, 2004 in which he indicated missing documents in a detailed spread sheet. The Complainant asserts that only 13 of 109 documents had been forwarded to him at that time. The Complainant states that he has received all documents responsive to the request as of July 24, 2005. The Complainant asserts that he should have been provided immediate access to the requested documents and was instead made to wait 11 months for his request to be completely satisfied which could not have been the intent of the OPRA. The Complainant feels that this disrespect for the intent of the law is evidence of a knowing and willful violation of the OPRA and “simply can’t be trivialized as ‘confusion’ on their part.” Analysis WHETHER the Fire Department is a public agency pursuant to OPRA? OPRA defines a public agency as: “Any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department. The Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and Any independent State authority, commission, instrumentality or agency The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.” (Emphasis added.) N.J.S.A. 47:1A-1.1. The Complainant requested documents of the Fire Company. While a response was made to the Complainant’s OPRA request and all documents responsive were eventually released to the Complainant, the Custodian believes it is questionable whether or not the Fire Company is subject to OPRA since they are a “private, non-profit association.” Most definitions of "public agency" under NJ statutes and the Administrative Code resemble that contained in OPRA. However, the definition of "public body" under the Open Public Meetings Act (“OPMA”) requires that an entity, "... (1) consist of 'two or more persons' and (2) be 'collectively empowered as a voting body' (3) 'to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds.' N.J.S.A. 10:4-8a..." The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 30, 2004), at 433, 664. In this case, the court held that: (1) A private, non-profit corporation created for the express purpose of redeveloping property donated to it by the city of Trenton, (2) Having a Board of Trustees appointed by the Mayor and City Council, (3) With the mandated reversion of the donated property after the completion of the project and repayment of the debt, (4) Having corporate bylaws requiring the distribution of all assets to the city upon the dissolution or liquidation of the corporation, (5) Having a Disposition Agreement with the city that designates the city as the "agency" and the corporation as the "redeveloper" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, and (6) Having the authority to issue tax-exempt bonds for the financing of the project qualified the corporation as a "public body" under the OPMA. The court further held that the corporation was "an 'instrumentality' created by the City and a 'public agency' under the OPRA for essentially the same reasons that it is a 'public body' under the OPMA." Id. at 442, 670. Further investigation into Sauter v. Township of Colts Neck, GRC Case No. 2004-68 (January 2006) which involved a request by the same Complainant for records from the Fire Company of the same municipality revealed that Chapter 28 of the Colts Neck Code created the Fire Department and their budgets are submitted to and paid for by the Township. Thus, the Fire Department is part of the municipality. Based on the foregoing discussion of the Fire Company’s funding and organizational structure, and the judicial precedent of Lafayette Yard defining public agency under OPRA, the Colts Neck Fire Department is a “Public Agency” as defined in N.J.S.A. 47:1A-1.1 and is, therefore, subject to OPRA. WHETHER the Custodian is responsible for the records of the Colts Neck Fire Department? The OPRA designates the municipal clerk as the Custodian for a municipality. The OPRA provides: "Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be.” N.J.S.A. 47:1A-1.1. The Complainant submitted a request for records of the Colt’s Neck Fire Company to the Custodian of Records for the Township. The Custodian directed the Complainant to contact the Executive Fire Council, the Fire Department or the individual fire companies for the records he was seeking. Upon further questioning in Sauter v. Township of Colts Neck, GRC Case No. 2004-68 (January 2006) the Custodian’s counsel indicated that Chapter 28 of the Colts Neck Code created the Fire Department and their budgets are submitted to and paid for by the Township. Thus, the Fire Department is part of the municipality. Unless another records Custodian has been appointed by the Fire Department, which, according to the Custodian’s counsel it has not; the municipal clerk is the Records Custodian for the Fire Department. In Calogero v. Borough of Emerson, GRC Case No. 2003-119 (April 2004), it was found that the municipal clerk, as Custodian for the Borough, is responsible for responding to OPRA requests and/or coordinating responses to said requests. The Custodian shall not place the burden of a request back on the Complainant to contact an individual for their records. In Sauter v. Township of Colts Neck, GRC Case No. 2004-68 (January 2006), the GRC found that the municipal clerk is responsible for the records held by the Fire Company. That being said, the Council should reaffirm it’s decision in Sauter v. Township of Colts Neck, GRC Case No. 2004-68 (January 2006) and find that it is the responsibility of the municipal clerk, pursuant to N.J.S.A. 47:1A-1.1 to respond to the request and obtain any records responsive held by the Fire Department necessary to fulfill the records request. WHETHER the Custodian properly responded to the Complainant’s August 13, 2004 OPRA request for vouchers pursuant to N.J.S.A. 47:1A-5.e.? “Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts…” (Emphasis added.) N.J.S.A. 47:1A-5.e. “…If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor…” N.J.S.A. 47:1A-5.g. The Complainant requested vouchers on August 13, 2004 regarding the repair of the Township Fire Chief’s vehicle and vouchers for services and equipment from the Fire Chief’s budget. The Custodian did not respond to this request for records until August 26, 2005 when it was stated that “township funds appropriated in the Municipal Budget are forwarded in total to the Fire Department” for their expenditure and the request should therefore be forwarded to the Fire Department. Based on the forgoing conclusion it is the responsibility of the municipal clerk to respond to the request and obtain any records responsive held by the Fire Department necessary to fulfill the records request. The request was for documents, specifically vouchers, which should ordinarily be available for immediate access. The Custodian did not present any reason in writing to the Complainant as to why these documents were not immediately available to the Complainant. The Custodian has since asserted that the reason for the delay was due to the records being archived. The Custodian did incorrectly inform the Complainant that the request should be directed to the Fire Company as they are who holds the records requested. However, in light of the fact that the Custodian is responsible for the records of the Fire Department and failed to notify the Complainant of the reason for the delay in access it is found that the Custodian has violated the OPRA in not providing immediate access to the requested vouchers. The Custodian’s response to the request for records was inadequate and as such, it is found that the Custodian has not provided a written reason explaining why the documents were not immediately available, in violation of N.J.S.A. 47:1A-5.g. That being said, the Custodian has violated N.J.S.A. 47:1A-5.e in not granting immediate access to the requested vouchers. WHETHER the Custodian properly responded to the Complainant’s August 13, 2004 request for purchase orders and invoices? “…Unless a shorter time period 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 the request…” N.J.S.A. 47:1A-5.i. “…If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor…” N.J.S.A. 47:1A-5.g. The Complainant made a request for purchase orders and invoices on August 13, 2004. The Custodian responded on August 26, 2004 directing the Complainant to contact the Fire Department directly for the records he was seeking. The OPRA states that a response to a request for records must be made “as soon as possible, but not later than seven business days” after receiving the request. The Custodian did inform the Complainant in writing on August 26, 2004, nine (9) days after the request was made, that the records were not maintained by the Township and erroneously directed the Complainant to contact the Fire Department. In light of the fact that the Custodian is responsible for the records of the Fire Department it is found that the Custodian failed to provide access to the requested records within the statutorily required seven business days and did not provide the Complainant with a written reason for a denial or delay in access to the requested records. Therefore, the Custodian violated N.J.S.A. 47:1A-5.i and N.J.S.A. 47:1A-5.g in failing to provide access to the requested record or a specific reason for a denial or delay in access within the statutorily mandated seven business days. WHETHER the untimely response of the Custodian constitutes a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances? The OPRA states that: “…A public official, officer, employee or custodian who knowingly and willfully violates [OPRA], as amended and supplemented, 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. OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states: “…If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e. The Complainant asserts that he should have been provided immediate access to the requested documents and was instead made to wait 11 months for his request to be completely satisfied which could not have been the intent of the OPRA. The Complainant feels that this disrespect for the intent of the law is evidence of a knowing and willful violation of the OPRA and “simply can’t be trivialized as ‘confusion’ on their part.” The Custodian did respond to the Complainant’s OPRA request in writing, albeit late, informing the Complainant that the records requested were in possession of the Fire Company and directed the Complainant to contact the Fire Company directly for the records he was seeking. 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). The Custodian certifies, in the September 28, 2005 Statement of Information, that he felt he responded in a timely fashion and provided everything he thought was responsive to the request. In fact, the Custodian was not timely in the response to the Complainant’s OPRA request; however based on the fact that the delay in response was 2 days and the Custodian certifies that he thought the response was timely there is no evidence that the Custodian’s actions “had a positive element of conscious wrongdoing” as indicated in the legal standard for a knowing and willful violation of the OPRA. The Custodian in this case directed the Complainant to contact the Fire Department for the records; acting under the notion that he was not responsible for the records of the Fire Department. While the Custodian was incorrect in directing the Complainant to contact the Fire Department directly for the records, there is no evidence that the Custodian was aware that this action was not in accordance with the OPRA. Based on the fact that the Custodian believed that the response was timely and was acting under the notion that he was not responsible for the records of the Fire Department the Custodian’s actions do not meet the legal standard for a knowing and willful violation pursuant to N.J.S.A. 47:1A-11.a or unreasonable denial of access under the totality of the circumstances in this case. However, the Custodian’s actions do appear to be at least negligent regarding his knowledge of OPRA. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that:
Prepared By: Colleen McGann, Case Manager Approved By: March 3, 2006 [1] “PO” refers to purchase order. Administrative Case DispositionGRC Complaint No: 2005-7Complainant: Jeffrey Sauter Custodian: Robert Bowden – Township of Colts Neck Case Disposition: Parties mutually agreed to mediation Case forwarded to mediation on 02/14/2005 Date of Disposition: 02/14/2005 Case Manager: Colleen C. McGann |
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