2005-115

At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 2006 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.

Final Decision Rendered by the
Government Records Council
On The 9^th Day of March, 2006

Robin Berg Tabakin, Vice Chair
Government Records Council

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

Catherine Starghill
Executive Director
Government Records Council

Findings and Recommendations of the Executive Director

Request Made: May 9, 2005
Response Made: May 31, 2005
Custodian: John Carino
GRC Complaint filed: May 28, 2005

The Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant seeks any log or other document indicating receipt of a letter from New Jersey Citizens for Justice, Inc. dated July 28, 2004 as well as any correspondence including e-mails or any other records on file that relate or refer to the above-mentioned July 28, 2004 letter, including any investigative report file.

Denial of Access Complaint filed with the Government Records Council (“GRC”) staff. Complaint included the following attachments:

The Complainant claims that he faxed his OPRA request to the Custodian on May 9, 2005 and received a fax receipt indicating same. He contends that the fax number used is the same fax number advertised on the Custodian’s website.

Further, he cites N.J.S.A. 47:1A-5.i. regarding a custodian’s seven (7) business day time period to respond to record requests. He argues that following this statute, a response to his May 9, 2005 request would have been due no later than May 18, 2005, and should be deemed denied as of May 19, 2005 since he had not received a response from the Custodian.

The Complainant asks the Council to place this Custodian on the matrix and to order the Custodian to either grant him access to the records requested, or provide a legal reason for nondisclosure. He states that on May 28, 2005 he provided the Custodian with a copy of this complaint as well as all attachments.

Letter from Complainant to GRC staff. The Complainant declines mediation and requests that a formal investigation begin regarding his complaint.[1] He states that enclosed is a response from the Custodian dated May 31, 2005. The Complainant argues that said response is late, as OPRA requires a response within seven (7) business days from receipt of the request.

Additionally, the Complainant contends that a Custodian is required to identify whether or not a requested record exists even if the Custodian asserts that the category that the requested record falls within is exempt from disclosure. The Complainant notes that in the Custodian’s May 31, 2005 letter, he states that he is denying the request for an investigatory file, should any file exist. The Complainant argues that if the Custodian never received his July 28, 2004 letter, then he should be able to deny the request based on the fact that no records relating or referring to said letter exist. Further, he contends that if the record does exist, the Custodian is required to identify it, redact any exempt information, and promptly disclose it to the requestor pursuant to N.J.S.A. 47:1A-5.g. The Complainant states that even if the entire document was redacted, the Custodian would still have to admit that it exists.

The Custodian states that he received the Complainant’s OPRA request on May 11, 2005. He further states that consistent with the May 31, 2005 letter to the Complainant, the agency does not maintain any investigatory records relative to the receipt of the July 28, 2004 letter from New Jersey Citizens for Justice, Inc.

Letter from GRC staff to Custodian. Staff requests that the Custodian provide a legal certification addressing whether the agency had, at the time of the request, documentation on file responsive to the Complainant’s request for correspondence or any other records relating or referring to his July 28, 2004 letter.

Letter from Assistant County Counsel to GRC staff. Counsel submits his response to staff’s July 27, 2005 letter. Counsel states that the Bergen County Prosecutor’s Office does not maintain any records responsive to the Complainant’s request for correspondence relating to his July 28, 2004 letter.

Letter from GRC staff to Custodian’s counsel. Staff requests a legal certification signed by the Custodian explaining the following: why the Custodian’s response to the Complainant’s May 9, 2005 OPRA request was made beyond the seven (7) business day timeframe provided under N.J.S.A. 47:1A-5.i.; why the Council should not consider a knowing and willful violation of OPRA due to the delay in response from the Custodian; and why the Custodian did not provide the Complainant with the information provided to the GRC in counsel’s August 22, 2005 letter – that the Bergen County Prosecutor’s Office does not possess any documents responsive to the Complainant’s request. Staff states that the Custodian’s May 31, 2005 response to the Complainant asserts an unsubstantiated defense that “an unidentified group of documents would not be disclosable pursuant to what the Custodian contends is OPRA’s ‘Investigatory File’ exemption.”[2]

Letter from Custodian’s counsel to GRC staff. Counsel states he is submitting his response to staff’s August 24, 2005 letter. He also states that he is enclosing a certification of Frank Puccio, Executive Assistant Prosecutor for Bergen County. Counsel asserts that the Bergen County Prosecutor’s Office will rely upon said certification in further support of its defense regarding the complaint at issue.

In the Executive Assistant Prosecutor’s certification, he states that one of his job duties is to supervise the receipt of and the response to OPRA requests. He certifies that the proper procedure for handling OPRA requests within the Bergen County Prosecutor’s Office is for the Paralegal Specialist to log the request into the OPRA database and begin the process of responding to the request.

Counsel states that on the Bergen County Prosecutor’s Office website, which he claims is how the Complainant found the fax number as he provided a copy of the homepage with his Denial of Access Complaint, there is a link to the OPRA form as well as instructions for submitting requests. Counsel notes that the Complainant did not utilize the request form and certifies that this may have caused a two (2) day delay in recognizing the Complainant’s May 9, 2005 letter as an OPRA request. Further, counsel certifies that although the Complainant’s fax receipt indicates a successful transmittal on May 9, 2005, the Paralegal Specialist states that he did not personally receive the request until May 11, 2005. Counsel states that he raises the issue of the Complainant not using the OPRA request form to prove that the delay in recognizing his May 9, 2005 request as an OPRA request was “not the result of any willful misconduct on the part of any Bergen County Prosecutor’s Office personnel.”[3]

Counsel certifies that after the Paralegal Specialist received the Complainant’s request on May 11, 2005 and logged it in, he sought assistance from counsel on how to proceed. He states that the next step was for the Prosecutor’s Office to determine if it had received the Complainant’s July 28, 2004 correspondence and if so, what action, if any was taken in response. Counsel certifies that based on the content of the Complainant’s July 28, 2004 letter, it would have been directed to the Chief of the Confidential Investigations Unit, so he advised the Paralegal Specialist to check with this individual to determine if the correspondence had been received. Counsel certifies that the Chief informed him that he had no record of ever receiving the Complainant’s July 28, 2004 correspondence.

Further, counsel certifies that the Complainant’s May 9, 2005 request can be divided into two (2) parts. The first part being the request for any documents relating to the Complainant’s July 28, 2004 letter, which counsel certifies the Prosecutor’s Office never received, therefore there are no documents responsive to the request. Counsel states the second part of the Complainant’s request involved investigative report files. He certifies that this required the Prosecutor’s Office to inquire whether it had ever investigated the person mentioned in the Complainant’s July 28, 2004 letter.

Counsel cites N.J.S.A. 47:1A-3.b. in that after an arrest has been made, only the name of the person subject of a criminal investigation is required to be released. He additionally certifies that as per R.P.C. 3.8, Special Responsibilities of a Prosecutor, a prosecutor shall “…refrain from making extra judicial comments that have a substantial likelihood of heightening public condemnation of the accused…”[4] He states that it would be unusual to read R.P.C. 3.8 as permitting a prosecutor to make statements that subject a person involved in an investigation, but never charged with a crime, to public criticism. Further, counsel certifies that as per Charge of the Grand Jury, Superior Court of New Jersey, County of Bergen by Sybil R. Moses, Assignment Judge, pp. 13-14, a prosecutor may not announce that a person was the subject of a grand jury investigation and not indicted unless the person exonerated requests said announcement. Counsel certifies that the Prosecutor’s Office and all law enforcement agencies that he is aware of respond to inquiries about a person subject of a criminal investigation by indicating that the agency will only comment when the person is formally charged with committing a crime.

For the reasons stated above, counsel certifies that he believed it necessary to discuss the issue with Prosecutor Molinelli prior to responding to the Complainant’s request, however, the Prosecutor was out of the country from May 7, 2005 until May 17, 2005 delaying the agency’s response beyond OPRA’s required seven (7) business days. Counsel certifies that on May 31, 2005 the Assistant Prosecutor informed him that he had discussed the matter with the Prosecutor and decided to respond to the request by neither confirming nor denying whether the person is or was the subject of an investigation. He further certifies that the Assistant Prosecutor sent his written response to the Complainant on May 31, 2005 in which he informed the Complainant that the agency never received his July 28, 2004 correspondence, therefore there were no documents responsive to his request for documents relating to said letter. Counsel also certifies that the response indicated that should the Prosecutor’s Office be in possession of any investigative report file, the reports contained in the file would be exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 as they would pertain to a criminal investigation.

Counsel certifies that the reason for the delay in responding to the Complainant’s request was because the Prosecutor’s Office was seeking the advice from the Prosecutor, who was out of the county at the time of the request, regarding the policy issue. He further certifies that since the Prosecutor’s Office is not in possession of any documents responsive to the Complainant’s May 9, 2005 request, the delay in responding was not the result of any willing attempt to deny access to government records.

E-mail from GRC staff to Complainant. Staff states that the Custodian’s August 30, 2005 response is attached.

Letter from Complainant to GRC staff in response to counsel’s August 30, 2005 letter. The Complainant asserts that although the Custodian certifies that there are no documents responsive to his request, he still wishes for the Council to adjudicate his complaint on the following points:

Whether the Custodian unlawfully denied access to records requested on May 9, 2005?

“… 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 onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states

“… [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.

“[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

“...[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 …” (Emphasis added.) N.J.S.A. 47:1A-5.g.

The Complainant asserts that he submitted his OPRA request to the Bergen County Prosecutor’s Office on May 9, 2005 and states that he received a fax receipt indicating same. The Custodian’s counsel certifies that the Paralegal Specialist did not receive said request until May 11, 2005 claiming that the Complainant’s failure to use the agency’s official OPRA request form delayed the recognition of the letter as an OPRA records request. Counsel certifies that the Assistant Prosecutor provided the Complainant with a written response on May 31, 2005 in which he stated that the Prosecutor’s Office has no record of receiving the requested July 28, 2004 letter and that should any investigative file exist, it would be exempt under the criminal investigatory exemption under OPRA. Counsel further certifies that none of the requested records exist.

Additionally, counsel certifies that the delay in responding to the Complainant’s request was due, in part, to the Custodian’s confusion in recognizing the Complainant’s letter as an OPRA request for records. Counsel further certifies that the delay was then extended by the Custodian’s attempt to seek advice from the Prosecutor (who was out of the country at the time of the request) on the manner in which to respond to the request. In either case, counsel asserts that the delay in responding to the records request was not caused by any willful misconduct of any staff member.

OPRA mandates that a custodian must either grant or deny access to requested records within seven (7) business days of receipt of said request. As also prescribed under N.J.S.A. 47:1A-5.i., a custodian’s failure to respond within the required seven (7) business days results in a “deemed” denial. In this matter, the Complainant submitted his request on May 9, 2005 and did not receive a written response until May 31, 2005, well beyond the seven (7) business day timeframe. The Custodian’s counsel certifies that as the Complainant’s request was not submitted on an official OPRA request form, it may have caused a two (2) day delay in recognizing the Complainant’s letter as an OPRA records request. Taking into account the two (2) day delay, the Custodian’s May 31, 2005 response still goes well beyond the time period prescribed under OPRA creating a “deemed” denial.

Further, counsel certifies that any additional delay in response was due to the fact that he was seeking legal advice from the Prosecutor who was out of the country at the time of the request. Seeking legal advice does not automatically extend the statutory timeframe allowed to respond to a records request pursuant to OPRA. In Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005), the Council held that the Custodian was in violation of N.J.S.A. 47:1A-5.i. for failing to respond in a timely manner even though the Custodian asserted the delay was caused by his efforts to obtain legal advice. The same applies in this case - while seeking legal advice is reasonable, the Custodian should have sought permission from the Complainant to respond to the request some time beyond the statutory seven (7) business day time period prescribed under OPRA. Therefore the Custodian is in violation of N.J.S.A. 47:1A-5.i. for failing to respond to the Complainant’s request within the statutorily mandated seven (7) business days and such failure results in a “deemed” denial.

Additionally, OPRA provides that if a Custodian is unable to comply with a records request, he must notify the Complainant in writing indicating a lawful reason for same. N.J.S.A. 47:1A-5.g. Here, the Custodian knew that he needed additional time in order to adequately respond to the Complainant’s request as he was seeking legal advice from the Prosecutor, however he failed to notify the Complainant in writing of same. Although it is reasonable that a custodian would seek legal advice prior to responding to a request for records, the Custodian is still obligated to adhere to the provisions of OPRA. The Custodian could have tried to obtain a written agreement from the Complainant in order to extend the time period required to respond; however he failed to do so. This failure resulted in the Custodian’s delay in a written response to the Complainant beyond the time period prescribed under OPRA.

OPRA places the burden of proving a lawful denial on the Custodian. The Custodian’s counsel certifies that the Prosecutor’s Office does not maintain any records responsive to the Complainant’s request. Therefore, pursuant to N.J.S.A. 47:1A-1.1, the Custodian would not have unlawfully denied access to records, except that his delay in response created a “deemed” denial. Moreover, the Custodian has not borne the burden of providing a lawful reason for the denial of access to the Complainant’s request pursuant to N.J.S.A. 47:1A-6, thus violating N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g.

Whether the Custodian’s delay in responding to the Complainant’s May 9, 2005 request rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?

OPRA states that “[a] public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty …” N.J.S.A. 47:1A-11.a.

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 submitted his OPRA request on May 9, 2005 and states that he has a fax receipt indicating same. The Custodian’s counsel certifies that the Paralegal Specialist did not receive said request until May 11, 2005. He certifies that because the Complainant did not submit his request on an official OPRA form, this may have caused a two (2) day delay in recognizing the request as an OPRA request. Counsel further certifies that the reason for any additional delay in responding to the request was that he was seeking legal advice from the Prosecutor who was, at the time of the request, out of the country. Counsel asserts that any delay caused was not in relation to any willful misconduct on behalf of the prosecutor’s Office.

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).

Additionally, it is a well-established principle that an adjudicatory body is to apply the law in existence at the time of its decision when resolving litigated matters. Baptist Home of South Jersey v. Borough of Riverton, et al., 201 N.J. Super. 226, 237 (Law Div. 1993)(citing Hohl v. Readington, 37 N.J. 271, 279 (1962). The purpose of the principle is to effectuate the current policy declared by the legislative body.

Kruvant v. Cedar Grove, 82 N.J. 435, 440 (1980). Here, it is the GRC's current interpretation of OPRA on requiring a requestor to use an official OPRA request form that impacts this analysis. While the GRC recognizes that its prior interpretation on the use of OPRA request forms differed at the time of the filing of the denial of access complaint, the GRC, nevertheless, is guided by the same legal principles governing the courts to apply the presently effective policy on the use of OPRA request forms. Therefore, in accordance with the GRC's current policy, the complainant's OPRA request is to be made on the official OPRA form provided by the custodian.

Although the Custodian’s failure to respond in a timely manner created a “deemed” denial, the Custodian’s counsel asserts that the delay was caused, in part, by the Custodian’s attempt to seek legal advice from the Prosecutor (who was out of the country at the time of the request) on the manner in which to respond to the request. While seeking legal advice is reasonable, such a reason for delaying the response to an OPRA records request is not lawful under the Act. However, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances.

“[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…” N.J.S.A. 47:1A-11.a.

In his Denial of Access Complaint, the Complainant requests that the Council place the Custodian on the matrix.

At its November 10, 2005 meeting, the Council voted unanimously to discontinue the use of the time matrix. The matrix was originally created to track custodians who violate OPRA multiple times in order to assess a penalty. However, as decided in Renna v. County of Union, GRC Case No. 2005-89 (October, 2005), the statutory language of OPRA allows for penalties based on a custodian’s knowing and willful violation of OPRA “under the totality of the circumstances” for a particular complaint, not multiple complaints. Based on that fact, it was determined that the time matrix could not be used given the statutory language and requirements for assessing penalties for knowing and willful violations of the Act.

The Council should find that the Custodian should not be placed on the matrix based on the Council’s decision in Renna, as well as the fact that the time matrix is now obsolete.

[1] The Custodian also did not agree to mediate this case.
[2] As stated in August 24, 2005 letter.
[3] As stated in August 30, 2005 certification.
[4] As stated in August 30, 2005 certification.