2005-137

At its December 8, 2005 public meeting, the Government Records Council ("Council") considered the December 2, 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, 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 8^th Day of December, 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:
List the dates of paid days off in 2003 & 2004 for the following employees and any other employee who performed duties for the Public Information Department (which falls under the umbrella of the Clerk of the Board office). Including vacation, personal, sick and floating holidays.

Request Made: May 20, 2005
Response Made: May 27, 2005
Custodian: Nicole Tedeschi
GRC Complaint filed: July 22, 2005

Written Open Public Records Act (OPRA) Request - Complainant seeks information pertaining to the sick days, vacation, paid days off, personal, and floating holidays for specific employees of the Public Information Department for the years 2003 and 2004.

Denial of Access Complaint filed with the Government Records Council (GRC) - The Complainant asserts that she was denied access to the requested record because she only received part of the requested records. She also stated that the records she received had a statement from the county explaining that there were errors in the report, however that is the way the records exist in the system. The Complainant further asserts that a record that is missing data or contains errors should not be considered a record.

In summary the Complainant asserts that because the County of Union delayed their response, provided a record with errors or missing data, and the record had a disclaimer[1], she would like the County of Union found guilty of a knowing and willful violation of the OPRA and unreasonable denial of access.

Custodian's legal Counsel submitted the Statement of Information - The Custodian and Counsel certified that all records responsive to the Complainant's May 20, 2005 OPRA request were given to her. The Custodian and Counsel certified that some records were released on May 27, 2005, in a timely manner, and that the only records withheld were the records for which the Custodian sought clarification of the request. The Custodian and Counsel went on to assert that the errors contained in the requested records were explained to the Complainant and were only minor data entry errors.

The Custodian and Counsel further certified that the May 27, 2005 response and release of records was inclusive of a request for clarification regarding the original May 20, 2005 OPRA request. The Complainant did not respond to that letter until June 3, 2005 and therefore, the remainder of the records were not released until June 6, 2005.

The Custodian and Counsel did provide the following attachments to their certifications for reference regarding the complaint:

Supplemental certification of the Records Custodian affirming that the information in the Statement of Information was correct.

WHETHER the Custodian unlawfully denied access to the requested personnel records pursuant to OPRA?

"...government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions..." N.J.S.A. 47:1A-1.

"[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.

"...[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 and Counsel have certified that all records responsive to the request have been given to the Complainant and the only delay in access resulted from the Custodian's request for additional clarification of the requested records.

The Custodian and Counsel have certified that some of the records responsive to the request were released within the statutorily mandated time of seven business days. They further certified that the only records that were not released were those for which they were seeking clarification of the request. Upon getting the clarification of the request from the Complainant, the Custodian did release the record.

The Council has previously held that the Custodian is justified in seeking clarification to requests that were too broad to fulfill. The Council further held that in stating specific reasons for the denial of access and offering alternatives to clarify the request, the Custodian had met the burden of proving that the denial of access was proper under OPRA. Karen Leibel v. Manalapan Englishtown Regional Board of Education, GRC Case No. 2004-50 & 53, (October 14, 2004).

Given the fact that the Custodian did release part of the records and requested clarification of the request, within the statutorily mandated time of seven business days and the Council's previous decision in Leibel, the Custodian did not violate N.J.S.A. 47:1A-5.i.

WHETHER the content of the records provided by the Custodian to the Complainant was correct?

"...receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian..." N.J.S.A. 47:1A-7.b.

The Complainant has stated that the contents of the records provided were not accurate. However, it is not the duty of the Council to determine whether the contents of documents provided to the Complainant are accurate. Specifically, the Council's duties are as defined in N.J.S.A. 47:1A-7.b. And, in accordance with its' statutorily mandated duties, the Council does not have the authority to adjudicate this matter. The Council may only adjudicates access to government records as was determined by the Council in Gillespie v. Newark Public Schools, GRC Case No. 2004-105, (November 9, 2004).

WHETHER the Custodian knowingly and willfully violated the OPRA and unreasonably denied 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 alleges that the Custodian delayed access to the requested records. The Custodian certified that some of the requested records were released within seven business days. She further certified that the Complainant was asked to clarify part of the request, and the remaining records that were not supplied within the seven business days was due to the Complainant's delay in responding to the request for clarification.

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 in this case certified that some of the records were released within the seven business day statutory time. She further certified that the records that were not released was because she needed clarification of the request from the Complainant. The Custodian has certified that all records responsive to the request were ultimately released to the Complainant.

In view of the facts that the Custodian did request clarification of the OPRA request within seven business days, released some of the requested records within the statutory time period, and released the remaining portion of requested records upon receipt of the clarification, it is concluded that 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.

[1] The cover letter attached to the released records contained a sentence explaining that the document may contain a few minor data entry errors, however this is the record as it is maintained by the County of Union.
[2] Mediation information was sent to the Custodian twice. She did not receive the first fax. Neither party responded to the offer of mediation.