2005-101

At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 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, accepts the initial decision of the Office of Administrative Law which finds that the Custodian acted in accordance with OPRA when he provided the Complainant with the records made, maintained, kept or received by the Office of the Attorney General, but directed the Complainant to the designated records custodians for the several divisions within the Department of Law & Public Safety (“L&PS”) for the records sought that were made, kept and maintained by the individual divisions. Further, each of these divisions was by statute authorized and by regulation required to have its own designated custodian of records and nothing in OPRA required that there be one, central custodian with total responsibility for all of the records made, kept and maintained throughout the entire principal department of L&PS.

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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.

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

Supplemental Findings and Recommendations of the Executive Director

Records Relevant to Complaint: Records for expenses pertaining to transportation, food, drink, entertainment, travel and lodging for unclassified and senior executive service administrative employees in the NJ Department of Law and Public Safety from January 1, 2003 to present.

Government Records Council’s (“Council”) Interim Order. At its October 28, 2005 public meeting, the Council considered the October 7, 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:

The Initial Decision from the Administrative Law Judge (“ALJ”) at the Office of Administrative Law. The ALJ concluded that the Custodian acted in accordance with OPRA when he provided the Complainant with the records made, maintained, kept or received by the Office of the Attorney General (“OAG”), and directed the Complainant to the designated records custodians for the several divisions within L&PS for records sought that were made, kept and maintained by the individual divisions. Further, the ALJ concluded that these individual divisions was by statute authorized to have its own designated custodian of records, and that nothing in OPRA required that there be one, central custodian with total responsibility for all records made, kept and maintained throughout the principal department.

Complainant’s Exception to the ALJ’s Initial Decision. The Complainant asks the Council to modify or reject the ALJ’s initial decision. Specifically, the Complainant asserts that the ALJ’s conclusion fails to recognize the basic premise of OPRA which is to support and facilitate public access to government records. The Complainant further asserts that OPRA requires each public agency to appoint a records custodian who is responsible for ensuring that all requests for government records are answered pursuant to N.J.S.A. 47:1A-1.1. Accordingly to the Complainant, the law implicitly establishes this requirement upon state departments for a self –evident reason and to determine otherwise undermines the entire basis for which OPRA was enacted. The Complainant also asserted that allowing state departments to avoid designating central records custodians for their agency will result in a requestor without knowledge of a department’s organizational structure to be frustrated in their efforts to obtain access to government records for each department. Finally, the Complainant states that in Asbury Park Press v. Ocean County Prosecutor’s Office, 374 N.J. Super. 312 (Law Div. 2004), the court stated that it is important to “maintain a sharp focus on the purpose of OPRA” and support its goal which is “to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.

Analysis

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added) N.J.S.A. 47:1A-1.

“ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received in the official course of business …” (Emphasis added) N.J.S.A. 47:1A-1.1.

“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.

“Public agency” or “agency” means 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 independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.”

“[a]ny officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.” (Emphasis added.) N.J.S.A. 47:1A-5.h.

The above OPRA provisions have been included in this Analysis in agreement with the Administrative Law Judge’s findings.

The request at issue was filed by Mr. Neff on behalf of the Republican Office of the General Assembly on February 22, 2005. The Republican Office was preparing for budget hearings for the FY 2006 budget. As the Stipulation of Facts agreed to by the parties and adopted herein sets forth, the initial request, identified as Request W13325, included a section that sought

Any and all documents relating to the pre-payment of, payment of, and/or reimbursement for, food, drink, entertainment, transportation, lodging and travel with respect to all unclassified and senior executive service employees, including but not limited to the Attorney General during the period from and including January 1, 2003, until present day.

Such documents should include but not be limited to: reimbursements, direct payment vouchers, pre-payment vouchers, or other vouchers and voucher reimbursements; receipts; requests for reimbursement; purchase or other requisitions; payment approvals and authorizations; supporting financial records; and any and all related correspondence, letters and memoranda. All documents should be in such format as to clearly identify the beneficiaries of such expenditures.

As the Stipulation explains, after some communication between Mr. Neff and Bruce Solomon, who is the custodian of records for the Office of the Attorney General (“OAG”)i and the Department of Law and Public Safety, Office of the Attorney General, the original request W13325, which also demanded significant additional materials, was

reformatted into five separate OPRA requests. Of these, the present matter involves only request W13355, which is the first paragraph, quoted above, of the prior request W13325. Further, as the Stipulation explains, after communication between Messrs. Neff and Solomon, the request was further narrowed, such that Mr. Neff sought only the travel records of the Attorney General, the First Assistant Attorney General, the Department Administrator and the Division Directors of the various divisions of the Department of Law and Public Safety.ii It is the request for the records pertaining to this latter group, the Division Directors, that has resulted in the contested case, for, as stipulated, after some time Mr. Solomon explained to Mr. Neff that while the OAG had access to computer screens containing some information regarding travel by the Attorney General, the First Assistant Attorney General, the Department Administrator and the L&PS Division Directors, the OAG did not make, maintain or keep on file, nor had it received, backup travel documentation for Division Directors outside of OAG. OAG was in possession of detailed backup travel documentation only for employees within OAG; in this case, the Attorney General, the First Assistant Attorney General and the Department Administrator, Mr. Solomon advised Mr. Neff that if he sought the detailed backup records for Division Directors outside of the OAG, “he would have to file OPRA requests directly with those divisions.” Mr. Neff did not agree with this response and pressed his request for the backup travel records for the Division Directors, with the exception of the Director of the Division of Alcoholic Beverage Control, Mr. Fisher. Mr. Solomon then collected, redacted and provided the backup travel documents for the Attorney General, First Assistant Attorney General and the Department Administrator for Fiscal Years (FY) 2003, 2004 and 2005, totaling over 1,700 pages. Finally, Mr. Solomon again informed Mr. Neff that OAG did not make, maintain, or keep the backup travel records for the Division Directors and that he would have to request these from the specific divisions in question. It is noted that at no point did L&PS contend that the records sought either did not exist or were not government records or were not lawfully sought by the requestor. The primary element of the dispute is over who had the responsibility to produce them for the petitioner.

questions to be determined.iii However, when the parties conferenced the case with the administrative law judge, they agreed that the three issues in dispute were

1. What records are made, maintained or kept on file, or received by the L&PS and are under the responsibility of the Custodian?

2. What fees, if any, should be assessed for records still outstanding and not already provided in response to the request pursuant to N.J.S.A.

3. If all requested records were not provided, what is the basis for not providing access to OPRA or any other law?

It is important to note that the petitioner has specifically waived any issue regarding the timeliness of the L&PS response to the OPRA request. Thus, at the present time the parties have focused upon the question of whether Mr. Solomon’s response that Mr. Neff had to seek the backup travel documents from the various divisions through their individual custodians of records was a legally appropriate response under OPRA, or whether the filing of the request with Mr. Solomon was sufficient under the Act to compel him to undertake the task of compiling a full response to the request without any reference of Mr. Neff to any other person or division within L&PS. Pursuant to OPRA the responsibility for proving any claimed exemption by the Custodian for the responsibility to supply the records requested lies with the custodian.

The Open Public Records Act, N.J.S.A. 47:1A-1 .1, contains relevant definitions.

“Public agency” or “agency” means 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,

“Government record” or “record” means any paper, written or printed book. . . that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency, or authority of the State. . . or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State …

The designation of a custodian of records for L&PS is required both by OPRA and the proposed L&PS regulations, which provides at N.J.A.C. 13:1E-2.2 that the “Attorney General shall designate a custodian of records for the Department of Law and Public Safety, who shall be responsible for requests for access to government records of the Office of the Attorney General.” The same proposed regulation provides that “each Division director, agency director or governing body, as the case may be, shall designate a custodian of records or designee who shall be responsible for requests for access to records held or controlled by that division or agency.” [Department of Law and Public Safety/Office of the Attorney General Jointly Proposed New Rules: N.J.A.C. 13:1E-2 and 3, PRN 2002-227, July 1, 2002]. Thus, the proposed rules contemplate an arrangement regarding the custody of and responsibility for records of the OAG and the divisions which mirrors the response provided by Mr. Solomon, that is; as the designated custodian of records for L&PS, he was responsible only for supplying the records kept, held and maintained by OAG and not for those kept, held and maintained by the divisions, each of whom was responsible, through the designated custodian of records or designee of each division, for the custody of all records kept, held and maintained by such division and for the provision of such records in response to an OPRA request. As this proposed regulation established his role, Mr. Solomon’s designation as the custodian of records for L&PS was then something less than it might seem from the title, for his responsibility for responding to requests for government records was limited to those at OAG. L&PS argues that this arrangement is clearly permissible under OPRA, for in defining a public agency the law does not limit that term as applying, on the State level, to only the principal departments of the executive branch such as L&PS, but also includes within its definition specific reference to “any division, board, bureau, office, commission or other instrumentality within or created by such [principal] department ....“ Further, the definition of a custodian of records for a public agency other than a municipal government provides for such an official as “the officer officially designated by formal action of that agency’s director or governing body, as the case may be.” Since by definition an “agency” may include the divisions within a principal department of the executive branch, as well as the principal department itself, there is no impropriety in designating individual custodians for any of the individual divisions within L&PS. While L&PS could have presumably chosen to name only one custodian of records for the entire department, it chose instead to follow a different arrangement, one which is perfectly permissible under OPRA.iv And to the extent that it has published proposed regulations governing its choice as to how to arrange for custodians for its records, it argues that the proposal, published well before the onset of this controversy, has the force of law, citing Executive Order 26 (McGreevey), paragraph 6. The Executive Order provides that a department or agency may

adopt rules and regulations prior to its final adoption. Therefore, pursuant to Paragraph 4 of EO 21, public “agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published [Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law Division-Mercer County, Docket No. MER-L-1090-05 (Decided July 5,2005) at page 11].

decision, Amy Vasguez v. Burlington County Custodian of Record, Complaint N. 2005-

In summary, L&PS argues that Mr. Neff and the Republican Office cannot dictate to it how exactly it should structure its process for receiving and responding to OPRA requests, so long as the procedures it has chosen to adopt comply with the Act, While, at oral argument the deputy attorney general and Mr. Solomon, who was present, appeared to agree that the designation he bears as custodian of records for L&PS and OAC may create some confusion, nevertheless they see no problem as far as compliance with the Act in the fact that his responsibility is limited by the regulation to OAG records and does not include responsibility for the records kept, held and maintained by the separate divisions of L&PS. L&PS contends that it fosters efficiency by the arrangement it has adopted, as the individual custodians of records for its various divisions can more readily respond to requests for the records requested relevant to the specific division, where they are maintained. Indeed, L&PS goes so far as to argue that, given the size of L&PS and the diverse nature of its many constituent divisions, were Mr. Solomon responsible for the records of the entire department, such an arrangement would run counter to the express intent of OPRA to foster rapid response to requests for government records.

The petitioner argues that the “balkanized” arrangement adopted by L&PS is not in conformance with the goals or the requirements of OPRA. OPRA’s declared intent is to establish “the public policy of this State that government records shall be readily accessible for inspection, copying or examination by the citizens of this State; with certain exceptions, for the protection of the public interest, and any limitation on the right of access accorded by [the statute], shall be construed in favor of the public’s right of access.” N.J.S.A. 47:1A-1, It is this “ready access” requirement that petitioner sees as suffering interference by the respondent’s conduct in response to petitioner’s request for records. In its brief, the petitioner first focuses on the argument that “there should be one central records custodian to handle and distribute OPRA requests for the Department.” It is simply too cumbersome a task for the citizen requesting information from government to have to deal with multiple custodians for the ten divisions and four agencies housed under the L&PS umbrella, Implicit in OPRA is the requirement for one central custodian “to review, facilitate and forward, if necessary, OPRA requests . . .

While in the present instance petitioner does not suggest that Mr. Solomon was personally responsible to actually perform all of the labor required to gather all of the records sought and concedes that he could lawfully delegate that task to others, nevertheless, the law required that he “review that request and ensure that the appropriate documents were provided.” If the respondent’s position is accepted, that is, if departments such as L&PS are not required to designate one “central” custodian, then the public’s ability to obtain “ready access” will be frustrated. They will be forced to “navigate the bureaucracy of the department on [their] own, theoretically being directed to dozens or even hundreds of records custodians for each department of State government.

The problem with this argument is that while the Legislature could have written the definition of a State-level public agency as including only the principal departments and thus required that each principal department designate a single custodian of records for that department, the Legislature did not do so. Instead, it very specifically defined the term “public agency” so as to include both the principal departments andthe divisions thereof, and the definition of “custodian of records” is written so as to require that each “public agency” may designate its own custodian. This is not to say that in the exercise of discretion the head of a principal department, such as the Attorney General for L&PS, could not decide that there would be only one “department-wide” custodian with total responsibility for OPRA requests for the entire department, but nothing in the legislation dictates such a decision. It may be presumed that the legislation provided discretion to the agencies to decide exactly how to structure their ability to respond to OPRA requests in a timely manner because each principal department is different and the agency heads have a far more intimate knowledge of the internal structures and personnel of their respective agencies than the Legislature had. While time and experience might suggest that a structure first adopted need be changed to deal with problems that might develop in meeting OPRA’s demands in a timely and effective manner commensurate with the goals of the statute, the legislation itself did not mandate the exact pattern to be followed by each principal department. Thus, as written, OPRA allows the L&PS to have separate custodians of records for each division and while Mr. Solomon’s title may imply total responsibility for the records of the entire LP&S, the stated limitation of his actual sphere of responsibility in the proposed regulations does not violate OPRA, so long as the Department has also provided for custodians responsible for its several divisions. Further, despite implications in the petitioner’s brief, there is no evidence in the record of any intent by the Department to purposely interfere with the rights afforded under OPRA, and whether the structure presently in place at L&PS or the department-wide, singleresponsible-custodian structure advocated by the petitioner actually presents a better opportunity for prompt response in the best interests of the public cannot be determined from this one instance and from the record in this case.

The petitioner also argues that OPRA recognizes that at times requests for records will be filed with the wrong person at a public agency, someone who is not designated as the custodian of records for that agency. In such instances the Act provides two options to be followed. “Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.” N.J.S.A. 47:1A-5h. In this case, on April ₂₇th Mr. Solomon, claiming that he was not the custodian of the records for the backup travel documents kept, held and maintained not by OAG, but instead by the several other divisions of L&PS, advised Mr. Neff that he would have to file OPRA requests with the separate divisions to obtain the travel records. Thus, to the extent that Mr. Solomon disclaimed responsibility under OPRA for supplying the division directors’ backup travel records, which he asserted were neither made, maintained, kept or received by the OAG for whose records he was responsible, he chose the second option allowed under OPRA, that is, he directed the requestor to the persons who L&PS contends were the appropriate custodians of the records requested, the designated custodians of each of the divisions for whose directors such information was sought. Initially, if petitioner’s contention that Mr. Solomon was the sole responsible custodian for the records of all LP&S divisions is correct, then certainly his referral of Mr. Neff to other persons to obtain the records was legally unsupportable under OPRA. However, if L&PS is correct and there is no flaw in its limiting of Mr. Solomon’s responsibility and its designation of “other” as the separate divisions’ records custodians, then Mr. Solomon’s choice to refer Mr. Neff to the proper custodians rather than to personally forward the requests appears to be permitted under the Act, which provides for alternative solutions to the problem of a request given to the wrong official or employee and does not require that the official or employee who mistakenly receives the OPRJA request must himself forward the request to the proper custodian. Yet, the petitioner argues that Mr. Solomon’s failure to himself facilitate the response by forwarding the OPRA request to the proper custodians clearly violated OPRA, for it “delayed” and “frustrated” the prompt response expected by the Act, placing an “unreasonable burden” on the public’s access to government records. Additionally, to the extent that Mr. Solomon did supply some travel data for division directors that he did have computer screen access to, petitioner argues he should not then be permitted to rely on a claim that the remaining backup records sought were not accessible to him. “Such circular reasoning places an undue burden on the public’s right to access to government records pursuant to OPRA, in clear violation of the law’s provisions.”

Once again, had the Legislature determined that each employee or official of any public agency should be personally responsible for facilitating OPRA requests by personally forwarding the request that the employee or official received to the custodian of records the Legislature could have provided for that to be the only acceptable response for an employee or official to take. It did not do so. Instead, it provided a choice, and here Mr. Solomon exercised his choice and chose to direct Mr. Neff to the individual division custodians. In doing so, he acted within the allowable range of conduct permitted by the Legislature. That he did have some limited capacity to obtain and provide computer stored material summarizing the travel reimbursements for the division directors to which he had ready access from OAG Fiscal does not vitiate the fact that the backup documents sought by Mr. Neff were not themselves within OAG’s possession, nor kept by OAC.

The petitioner cites Meyers v. Borough of Fair Lawn, GRC Case No. 2005-1 27, decided December 8, 2005, in support of the proposition that the location of records sought is not a factor that excuses the custodian of records from the responsibility to provide records legitimately sought under OPRA. In Meyers, the records sought from the custodian were in part stored on the mayor’s personal computer. The court concluded that to the extent that these were records that were “government records” under the statutory definition, the custodian was responsible for their production. But Meyers does not address the fundamental issue herein, for in that case, there was no dispute that if the e-mails stored on the mayor’s personal computer were government records, the request for their production had been filed with the appropriate custodian. In the present matter, as previously stated, if Mr. Solomon is deemed the custodian for all records of L&PS, then the location of the backup documents is not a factor in the need for him to provide them, but if Mr. Solomon is not the custodian for all of L&PS, but only for OAG, then to the extent that there are other appropriate custodians responsible for the production of these backup documents kept and maintained by the separate divisions the request filed with Mr. Solomon is not the proper vehicle for obtaining their production and Meyers is not a relevant precedent.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council accept the initial decision of the OAL which finds that the Custodian acted in accordance with OPRA when he provided the Complainant with the records made, maintained, kept or received by OAG, but directed him to the designated records custodians for the several divisions within L&PS for the records sought that were made, kept and maintained by the individual divisions. Further, each of these divisions was by statute authorized and by regulation required to have its own designated custodian of records and nothing in OPRA required that there be one, central custodian with total responsibility for all of the records made, kept and maintained throughout the entire principal department of L&PS.

[1] Represented by Mary Beaumont, Chief Counsel, NJ General Assembly Republican Office.

i The respondent identifies the OAG as providing administrative support to the Attorney General and coordinating the administration of the divisions and agencies of the department. N.J.A.C. 13:1E-1.2.

ii According to its brief, L&PS has ten divisions. These are Division of Alcoholic Beverage control, Division on Civil Rights, Division of Consumer Affairs, Division of Gaming Enforcement, Division of Criminal Justice, Division of Elections, Division of Highway Traffic Safety, Division of Law, Racing commission, and the Division of State Police. It also includes five independent agencies. These are Victims of Crime Compensation Board, Election Law Enforcement Commission, Executive Commission on Ethical Standards, Juvenile Justice Commission and Office of the Child Advocate.

iii a. What records are being sought in the February 22, 2005 OPRA request?

What records are made, maintained or kept on file, or received by the L&PS and are under the responsibility of the Custodian?
Whether the request was too broad in scope that it required clarification pursuant to Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (March 2005). If the request was sufficiently clarified by the Complainant for the Custodian to fulfill the request and were the requested records provided based on the clarified request?
What records were provided to the Complainant in response to the OPRA request and of the records provided were these all the records responsive to the OPRA request and under the responsibility of the L&PS Custodian?
What fees, if any, should be assessed for records still outstanding and not already provided in response to the request pursuant to N.J.S.A. 47:1A-5?
If all requested records were not provided, what is the lawful basis for not providing access pursuant to OPRA or any other law?

iv This arrangement defines the responsibility of the custodian such that while OAG “provides administrative support to the Attorney General and coordinates the administration of the divisions and agencies in the Department,” its custodians role is specifically limited and placed in a context of other custodians with responsibility for those divisions and agencies. Whether Mr. Solomon acts in any department-wide manner to coordinate the understanding of the law and of responsibilities thereunder by the several custodians is not part of the record.

Interim Decision on Access

At the October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 7, 2005 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. Therefore, the Council hereby finds that:

Interim Decision Rendered by the
Government Records Council
On The 28^th Day of October, 2005

Diane Schonyers, Vice-Chair
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

Findings and Recommendations of the Executive Director

Records Requested: “Any and all documents relating to the pre-payment of, payment of, and/or reimbursement for, food, drink, entertainment, transportation, lodging and travel with respect to all unclassified and senior executive service administrative employees in the department, including, but not limited, to the Attorney General during the period from and including January 1, 2003, until present day. Such documents should include but not be limited to: reimbursements, direct payment vouchers, pre-payment vouchers, or other vouchers and voucher reimbursements; receipts; requests for reimbursement; purchase or other requisitions, payment approvals and authorizations; supporting financial records; and any and all related correspondence, letters, and memoranda. All documents should be in such format as to clearly identify the beneficiaries of such expenditures.”[1]
Request Made: February 22, 2005
Response Made: May 5, 2005
Custodian: Bruce Solomon
GRC Complaint filed: May 23, 2005

Complainant’s written Open Public Records Act (OPRA) Request WI3355[2]. The Complainant is seeking documents for expenses pertaining to transportation, food, drink, entertainment, travel and lodging for unclassified and senior executive service administrative employees in the L&PS from January 1, 2003 to present.

Denial of Access Complaint filed with the Government Records Council (GRC). In the complaint, the Complainant states that he submitted an OPRA request through the States OPRA Central website and received an electronic verification of receipt that the request was forwarded to the Department of Law and Public Safety with the confirmation number W13355. He states that he had verbal communication with the Custodian, Bruce Solomon, to clarify his request and in March he verbally communicated to the Custodian that he was only seeking the travel records of “certain top level administrators of the department and all directors of divisions and agencies.” He states further that in his April 13, 2005 e-mail to the Custodian, he inquired on the status of getting the requested documents and setting a time to review them and would consider “how to refine [the] request with respect to legal billings.” He asserts that the Custodian verbally responded to his e-mail and offered to provide a spreadsheet in place of the actual documents. The Complainant states that he informed the Custodian the spreadsheet would be acceptable to “narrow the request,” but that he still needed the actual documents as stated in his request. On May 5, 2005, he states that he received the spreadsheet from the Custodian in an e-mail attachment, which stated further that the department satisfied the Complainant’s OPRA request. In an e-mail response the same day, the Complainant informed the Custodian that he did not accept the spreadsheet in place of the actual documents and requested a date to review them and wanted to specifically review the expense records for Peter Harvey, Roberto Rodriguez and Fransesco Zanzucki for fiscal year 2003, in addition to all other employees appearing on the spreadsheet for the fiscal years 2004 and 2005. He also advised the Custodian that he planned to bring his own copier to avoid copying fees.[3]

The Complainant states that he spoke to the Custodian during the week of May 9, 2005 to confirm May 16, 2005 as the date for review of the documents.[4] He states that the Custodian did not provide access to the documents until May 18, 2005 and was only provided the “travel documents” for Peter Harvey, Thomas O’Reilly and Mariellen Dugan. He states further that the Custodian asked that he complete another OPRA request for the other names that appeared on the spreadsheet, which the Complainant declined to do because he felt his February 22, 2005 request was inclusive of all the names appearing on the spreadsheet.

The Complainant asserts that the “failure to supply any travel records as requested at all for almost three months, only then to supply documents with respect to three individuals the day before a legislative committee meeting at which time such documents were to be discussed, is simply inexcusable.” He requests that the GRC “take appropriate measures …to reprimand the Department of Law and Public Safety and to order that the outstanding documents be produced for immediate inspection.”

Custodian counsel’s request to the GRC staff for an extension until June 20, 2005 to submit their Statement of Information response.

Complainant acknowledges receipt of the Custodian counsel’s request for extension. He states further that he still awaits receipt of “certain government documents that were requested of the Department of Law and Public Safety more than 100 days ago.”

Statement of Information (SOI) from the Custodian’s counsel with the following attachments:

The Custodian’s counsel states that a printout summarizing travel expenses was provided on May 5, 2005 and “backup documents” of the Attorney General, First Assistant and Department Administrator’s travel expenses were provided to the Complainant on May 18, 2005 in response to the request. The Custodian’s counsel asserts that did not have “backup documents” for travel related expenses of the Division Directors and informed the Complainant that said information needed to be requested from the specific divisions. The Custodian makes the following defenses regarding OPRA request WI3355:

Custodian counsel’s supplemental submission to the GRC. Counsel reiterates the Custodian’s statements submitted in the June 20, 2005 Statement of Information. Counsel contends that the Custodian “fulfilled the request in a reasonable and agreed upon manner, and provided all records in OAG’s possession which were responsive to the request…”

Whether access was unlawfully denied to expense records of payment and/or reimbursement for food, drink, entertainment, transportation, lodging and travel to all unclassified and senior executive administrative employees in the Department of Law and Public Safety, including the Attorney General from January 1, 2003 to present as requested in Complainant’s February 22, 2005 OPRA request WI3355?

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) N.J.S.A. 47:1A-1.

“ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …” (Emphasis added.) N.J.S.A. 47:1A-1.1.

OPRA places the responsibility for proving a claimed exemption on the Custodian. N.J.S.A. 47:1A-6 states in relevant part:

“… [T]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.

The Custodian asserts that the Complainant’s February 22, 2005 OPRA request was overbroad and discussed refining the request with the Complainant at various times during March 2005. The Custodian contends that the Complainant narrowed the request to include the travel records of the Attorney General, First Assistant Attorney General, the Department Administrators and Law and Public Safety (L&PS) Division Directors and that a report summarizing these expenses was provided. The Custodian contends further that the actual “backup” documentation for the expenditures was only provided for the employees identified after the Complainant reviewed the summary report. The summary report was provided to the Complainant on May 5, 2005 by e-mail. The Complainant responded by e-mail on the same day requesting to review the expense “backup” records for Attorney General Peter Harvey, Roberto Rodriquez and Fransesco Zanzuki for fiscal year 2003, and all other employees appearing on the spreadsheet[7] for fiscal year 2004 and 2005. He also stated in the e-mail that he would bring a copier to make the necessary copies.

After receiving the Complainant’s May 5, 2005 e-mail, the Custodian asserts that he compiled and reviewed the documents requested by the Complainant for the Attorney General, Assistant Attorney General and the Department Administrator for the fiscal years 2003, 2004, and 2005 and made redactions of social security numbers, credit card numbers, driver license numbers, home telephone numbers and home addresses contained in said documents which he completed on May 17, 2005. While the Complainant acknowledges receiving hard copies of the travel expense records on May 18, 2005 for the Attorney General, Assistant Attorney General and Department Administrator, he disputes that he received all records responsive to his OPRA request, specifically, the travel documents for the rest of the employees listed on the summary spreadsheet report. The Custodian also contends that the L&PS does not maintain travel records of Division Directors and advised the Complainant that a separate request needed to be filed with the specific Division. The Complainant asserts that he was told to submit a new OPRA request for the other employees documents which he declined to do since he felt his February 22, 2005 OPRA request cover those records.

Because the parties present differing information regarding the OPRA request, GRC staff is unable to make a determination on access and this case should be referred to the Office of Administrative Law for a hearing to determine:

Whether the Custodian properly responded to the Complainant’s request for travel expense records including vouchers pursuant to N.J.S.A. 47:1A-5.e., N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.?

The (OPRA) provides for “immediate access” to vouchers. Specifically, OPRA states:

Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information. (emphasis added) N.J.S.A. 47:1A-5.e.

“…[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof…”

“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, provided that the record is currently available and not in storage or archived...”

The Complainant asserts that the Custodian failed to provide the requested travel expense records for almost three months and then only received records for three of individuals that he sought in his request. The Custodian contends that there was an agreement between the Complainant and him for an extension of time to prepare a summary report in lieu of producing the documents because the request was overbroad and the documents would be provided, if needed, for the employees specifically identified by the Complainant. The Complainant acknowledges having verbal communication with the Custodian on a number of occasions, however, there is no written submission from the Complainant agreeing to an extension. In the Complainant’s April 13, 2005 e-mail to the Custodian he questions why he has not received any of the requested records. There is no written communication from the Custodian to verify what transpired between the Complainant and himself and the first and only written response from the Custodian to the Complainant regarding the request was May 5, 2005 in which the Custodian provided a prepared spreadsheet to summarize travel expenses of employees in the department.

OPRA provides for immediate access to vouchers and access to other records access is to be provided as soon as possible, but not later than seven business days from receipt of the request. When the Custodian is unable to comply with the request or finds that there will be a delay in providing the requested records, the OPRA requires the Custodian to provide a specific basis in writing to justify a lawful denial of access. In this case the Custodian did not provide the Complainant with a written reason for a denial or delay in access to the requested records within the statutorily required time period pursuant to OPRA.

There is no written verification substantiating that an agreed to extension was made between the parties based on the submissions from the Complainant and the Custodian in this case. Thus, the Custodian violated N.J.S.A. 47:1A-5.e, N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i in not providing the Complainant a written response to the request within the statutorily required time period

WHETHER the Custodian’s delay and failure to provide access to the requested records unreasonably denied access and rises to the level of a knowing and willful violation of OPRA under the totality of the circumstances?

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…

OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states under N.J.S.A. 47:1A-7.e.:

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].

The Complainant alleges that the Custodian delayed almost three months in providing access to the documents which ultimately came the day before the May 19, 2005 Assembly Budget Committee meeting when the requested documents would be discussed and the Complainant had verbally advised the Custodian of his need for them early on in their discussions. However, the Custodian contends that there was an agreement between the Complainant and himself for an extension of time to prepare a summary report lieu of producing the documents because the request was overbroad and that the documents, if needed, would be provided for the employees specifically identified by the Complainant.

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 problem in this case is the fact that there was apparently verbal communication between the parties; however, there are only two submissions in the case verifying written communications on April 13, 2005 and May 5, 2005 concerning the subject request. Thus, the GRC is unable to determine what actually transpired between the parties and make a determination in this matter. Therefore, this case should be referred to the Office of Administrative Law to determine whether the Custodian’s actions regarding the February 22, 2005 OPRA request was an unreasonable denial of access and rise to the level of a “knowing and willful” violation of OPRA under the totality of the circumstances.

[1] As stated in the Complainant’s OPRA request WI3355.
[2] The Complainant submitted other OPRA requests on the same date, however, they are not at issue in this Complaint.
[3] Complainant’s OPRA request indicates “$0 Maximum Authorized Cost.”
[4] The Complainant states that he informed the Custodian early in their conversations that he needed the documents before the May 19, 2005 Assembly Budget Committee meeting.
[5] There was no mutual agreement to mediate.
[6] Only request W13355 is at issue in the subject Complaint.
[7]In reference to the summary report, the Complainant stated in the e-mail that he did not need the records for Edward Neafsey or Jerry Fischer.

2005-101

Final Decision

Supplemental Findings and Recommendations of the Executive Director

Analysis

Conclusions and Recommendations

Interim Decision on Access

Findings and Recommendations of the Executive Director