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2005-145
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Final Decision |
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Interim Order |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
Final DecisionFINAL DECISION ADOPTING IN PART John Bart, Esq. OAL Docket No. GRC-09423-06 Complainant-Petitioner, GRC Complaint No. 2005-145
v. City of Paterson Housing Authority Decided: May 30, 2007 Respondent, ------------------------------------------------------------ John Bart, Esq., pro se Christopher Frick, Esq., for Respondent[1]
On August 24, 2006, the Government Records Council ("Council" or "GRC") filed this matter with the Office of Administrative Law ("OAL") as a contested case under N.J.S.A. 52:14B-2 for a hearing to determine whether the Custodian of the City of Paterson Housing Authority knowingly and willfully violated the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., and unreasonably denied access to requested records under the totality of the circumstances. A hearing was held at the Office of Administrative Law on January 31, 2007 before Administrative Law Judge ("ALJ") Barry E. Moscowitz. On April 23, 2007, following the hearing and the submission of briefs, ALJ Moscowitz issued an Initial Decision on these matters which found that the City of Paterson Housing Authority did knowingly and willfully violate OPRA and unreasonably denied access to the requested records under the totality of the circumstances. ALJ Moscowitz ordered the Housing Authority to pay a civil penalty in the amount of $1,000.00. This matter is now before the Council for review and consideration of the Initial Decision and entry of a final agency order in accordance with N.J.S.A. 52:14B-10(c). Respondent has submitted exceptions to the Initial Decision and Complainant has submitted reply exceptions. After careful consideration of the record, the Initial Decision, the exceptions and reply exceptions, and for the reasons set forth below, the Council hereby ADOPTS in part and MODIFIES in part the Initial Decision. STATEMENT OF THE CASE Complainant, John Bart, Esquire ("Complainant"), filed a Denial of Access Complaint with the Council on August 4, 2005, alleging that the Custodian of the City of Paterson Housing Authority unreasonably denied Complainant access under OPRA to certain government records, i.e., a Spanish language sign posted in the Paterson Housing Authority lobby concerning a requirement that Spanish language clients bring interpreters and all Paterson Housing Authority forms, correspondence and directives which reference the Housing Authority's requirement or preference that Spanish speakers bring an interpreter in order to be served. Gwendolyn Morrison, the Custodian of the City of Paterson Housing Authority ("Custodian"), filed a Statement of Information with the Council on September 2, 2005, certifying that the requested sign was faxed to the Complainant on August 23, 2005 and mailed to him on September 1, 2005. The Custodian further certified that Complainant "already has a copy of the only documents, other than the sign, that references the PHA's desire for Spanish-speaking tenants to bring their own interpreter" in order to be served. Therefore, the Custodian asserted that the Complainant had all of the records responsive to the request and the complaint should be dismissed.
The Council first considered Bart's Denial of Access Complaint at its May 11, 2006 public meeting. The Council considered the May 4, 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 and issued an Interim Order dated May 11, 2006, finding in pertinent part:
1. Regardless of whether the Complainant was already in possession of the cover letter or that the Complainant had seen the sign and knew it "verbatim," the requested sign and cover letter that requests that individuals please bring their own interpreter should have been provided to the Complainant in response to his request provided there was no lawful exemption to same because there is no provision under OPRA that states a requestor may not request copies of documents already in their possession.
2. Although the Custodian responded in writing within the statutory time period under OPRA, the Custodian's response to the request for the Spanish language sign that references the PHA's desire for Spanish-speaking tenants to bring their own interpreter was so vague that it could not be determined if the requested sign did not exist, or if it was being denied. Therefore, the request is deemed denied and the Custodian has violatedN.J.S.A.U 47:1A-5.i.
3. The cover letter that requests that individuals please bring their own interpreter does, in fact, reference the PHA's requirement or preference that individuals bring an interpreter, which would include those that speak Spanish. Therefore, this document is responsive to the Complainant's request.
4. The Custodian has not provided a lawful basis for denying access to the cover letter that requests individuals to please bring their own interpreter pursuant toN.J.S.A. U 47:1A-5.g. Therefore, the Custodian shall disclose the cover letter with appropriate redactions as necessary. The legal basis for any redactions must be explained pursuant toN.J.S.A.U 47:1A-5.g.
5. Due to the contested facts surrounding this case, the case shall be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act and unreasonable denial of access under the totality of the circumstances.
6. The Custodian shall comply with "4." above within ten (10) business days from receipt of this Interim Order and simultaneously provide confirmation of compliance to the Executive Director.
At the July 13, 2006 public meeting, the Council considered the July 6, 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, found that: 1. Based on the Custodian counsel's June 1, 2006 submission to GRC staff, the Custodian has complied with the Council's Interim Order by providing the Complainant with an unredacted copy of the cover letter that requests individuals to please bring their own interpreter within ten (10) business days from receipt of the Council's order. 2. Due to the contested facts surrounding this case, the case shall be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act and unreasonable denial of access under the totality of the circumstances.
On August 24, 2006, the GRC transmitted the matter to the OAL for a contested hearing under N.J.S.A. 52:14B-2 on the issue of whether the Custodian knowingly and willfully violated OPRA and unreasonably denied access to the requested records under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.
On January 31, 2007, a hearing was held at the OAL before ALJ Moscowitz. Complainant represented himself and testified on his own behalf. The City of Paterson Housing Authority ("PHA") was represented by counsel. Gwendolyn Morrison, the Custodian of Records, appeared as the sole witness for the PHA. The record was closed on March 6, 2007. An Initial Decision was issued on April 23, 2007. The record includes fifteen (15) Exhibits and the testimony of two (2) witnesses.
The facts found by the ALJ are set out in the Initial Decision ("ID") at ID 2 through ID 8 and will not be repeated at length herein. The ALJ found that as the Director of leasing and occupancy for the PHA, the Custodian was familiar with both the sign and the cover letter and understood what each of them meant. As the custodian of records for the PHA, the Custodian was also familiar with OPRA and understood the Complainant's requests. In these capacities, the Custodian understood that she had to provide the Complainant with copies of both the sign and the cover letter. The ALJ found, moreover, that the Custodian had a contentious relationship with the Complainant. Indeed, the Complainant had had success against the PHA over the years and had affected the way the Custodian administered its programs. In addition, the Custodian did not like the Complainant, which the ALJ found was apparent from her demeanor. The ALJ rejected the Custodian's assertion that the PHA had misplaced the sign and specifically found that the PHA properly understood the request for the sign but intentionally denied the Complainant access to it. The ALJ also rejected the Custodian's testimony that the PHA thought that the cover letter was unresponsive to the Complainant's OPRA request for "a copy of all Paterson PHA forms, correspondence and directives which reference the PHA's requirement or preference that Spanish speakers bring an interpreter in order to be served." The ALJ noted that the Custodian stated in her certification that she knew the cover letter existed and she knew it referenced interpreters. The ALJ found that the PHA's continued refusal to produce the letter was "simply gamesmanship." ID at 8. As a result, the ALJ specifically found that the Housing Authority properly understood the request for the cover letter but intentionally denied Complainant access to it. The ALJ concluded that the Housing Authority properly understood Bart's OPRA request and intentionally denied access to the records. ID 8. ALJ Moscowitz further concluded that the Housing Authority did so knowingly and willfully in violation of OPRA. Id. at 9. The ALJ therefore ordered that the Housing Authority shall be subject to civil penalties in the amount of $1,000 under N.J.S.A. 47:1A-11 for knowingly and willfully violating OPRA. Id.
EXCEPTIONS AND REPLIES TO EXCEPTIONS
The Custodian filed eleven (11) exceptions to the Initial Decision of ALJ Moscowitz. The Complainant filed opposition to the Custodian's exceptions. The exceptions and responses thereto have been carefully considered and are detailed below.
The Exceptions of The Custodian of the Paterson Housing Authority, Gwendolyn Morrison and Replies to Exceptions of The Complainant, John Bart, Esq.
Exception I The Custodian takes exception to the finding of ALJ Moscowitz that Daniel J. McCarthy, Esq., appeared on behalf of the respondent. The Custodian contends that Christopher H. Frick, Esq. of Rogut McCarthy Troy LLC, appeared on behalf of the respondent. See, Initial Decision dated April 19, 2007, Bart v. City of Paterson Housing Auth., OAL Docket No. OAL Docket No. 09423-06, GRC # 2005-145, at p. 1. The Complainant counters that while Christopher Frick, Esq. appeared at the hearing before Judge Moscowitz on behalf of the Custodian, Daniel J. McCarthy did appear on behalf of the Custodian in this case via his January 12, 2006 submission to the GRC wherein he states that there is "no factual basis" for this "frivolous" OPRA complaint. A review of the Transcript in this matter discloses that Christopher H. Frick from the firm of Rogut McCarthy Troy entered an appearance at the hearing on January 31, 2007, on behalf of the Paterson Housing Authority. (Transcript, p. 4) The Council, therefore, MODIFIES the Initial Decision to reflect this fact. Exception II The respondent takes exception to the finding of the ALJ that in the Complainant's OPRA request, the Complainant "also requested a copy of the cover letter to the housing application requiring Spanish-speaking applicants to bring their own interpreters to appointments" and asserts that this finding is incorrect. ID at 2. The respondent alleges that Mr. Bart's OPRA request sought "[a]ll PHA forms, correspondence and directives which reference the PHA's requirement or preference that Spanish speakers bring an interpreter to be served." The respondent contends that as such, Mr. Bart did not specify any particular documents outside of the Spanish-language sign, so the court is incorrect in this statement. Finally, the respondent asserts that the fact that Mr. Bart did not specifically request the cover letter in his initial OPRA request is consistent with Ms. Morrison's testimony, "If you had asked me for the letter, John, I would have given it to you." See ID 6. The Complainant responds that hedid request a copy of the cover letter and asserts that neither the Custodian nor her counsel can feign ignorance on that point. The Complainant states that his request included the cover letter and that the Custodian knew that he wanted the cover letter, at the latest, as of the August 4, 2005 OPRA complaint which included a copy of the cover letter. Further, the Complainant contends that the PHA and the Custodian acknowledged that the Complainant wanted the cover letter in 1) the PHA's September 2, 2005 Statement of Information at #10, 2) Daniel McCarthy, Esq.'s January 12, 2006 letter to Ms. Colleen McGann, and 3) the Custodian's February 2, 2006 and March 2006 certifications. Lastly, the Complainant states that the PHA did not turn over the cover letter until the tenth (10th) business day after the May 11, 2006 GRC order to turn over the cover letter and asserts that this is evidence of "gamesmanship." The Complainant argues that "the thrust of the Custodian's quote at the end of this objection appears to be that she would turn over the document if I asked her (nicely) informally but not if I made a formal request." A review of the record in this matter discloses that the Custodian testified she received the Complainant's July 22 letter (submitted as Exhibit P-1) by fax. P-1 is a two (2) page letter on the letterhead of Northeast New Jersey Legal Services, Inc., dated July 22, 2005, addressed to Irma Gorman, Executive Director, Paterson Housing Authority and signed by the Complainant. The second of two (2) reference lines indicates "Open Public Records Act Request." Among other things, the author of the letter requests that the letter be accepted as an OPRA request for a copy of the Spanish language sign referenced in the letter, and also requests "a copy of all Paterson Housing Authority forms, correspondence and directives which reference the Housing Authority's requirement or preference that Spanish speakers bring an interpreter in order to be served." Exhibit P-1 is clear on its face that Complainant requested several types of records pursuant to OPRA, not merely the sign, i.e., 1) "the Spanish language notice referred to above that is currently posted in the lobby of 60 Van Houten Street;" and 2) "a copy of all Paterson Housing Authority forms, correspondence and directives which reference the Housing Authority's requirement or preference that Spanish speakers bring an interpreter in order to be served." Moreover, on cross-examination the Custodian admitted that "at some point [prior to the submission of her certification]...[the Custodian] realized [Complainant] wanted the [Housing Authority] form" in addition to the Spanish language sign. Transcript at p. 55, 57. The respondent's exception in this regard is, therefore, not supported by the weight of the credible evidence in this matter. Sufficient credible evidence exists in the record, therefore, to support ALJ Moscowitz's finding that, in addition to the Spanish language sign posted in the lobby of the PHA, the Complainant "also requested a copy of the cover letter to the housing application requiring Spanish-speaking applicants to bring their own interpreters to appointments" and asserts that this finding is incorrect. ID 2. Based on the substantial credible evidence in the record, the Council FINDS that the ALJ's finding in this regard was correct and reasonable. Exception III The Custodian excepts to the ALJ's characterization at ID 5 of the GRC findings as to the Spanish language sign and contends that the ALJ's characterization is not fully accurate. ID 5. The Custodian asserts that the GRC found that although the sign was ultimately provided, it was not provided in a timely manner. In response, the Complainant contends that ALJ Moscowitz's Findings of Fact were accurate and asserts that the GRC's May 11 Findings and Recommendations and Interim Order found that due to Custodian's actions the Complainant's OPRA request for a copy of the sign was deemed denied. A review of the Council's May 11, 2006 Interim Order (submitted as Exhibit P-13) discloses that in paragraph 2 the Council found: "2) Although the Custodian responded in writing within the statutory time period under OPRA, the Custodian's response to the request for the Spanish language sign that references the PHA's desire for Spanish-speaking tenants to bring their own interpreter was so vague that it could not be determined if the requested sign did not exist, or if it was being denied. Therefore, the request is deemed denied and the Custodian has violated N.J.S.A.47:1A-5.i." This language is repeated verbatim from the May 11, 2006 Findings and Recommendations of the Executive Director in the matter. The respondent's exception in this regard is, therefore, not supported by the weight of the credible evidence in this matter. The weight of the credible evidence in this matter discloses that the Council found that the Custodian violated OPRA when she responded to the Complainant's OPRA request in a manner that was so vague as to prevent determination as to whether the document existed or was being denied. Therefore, the Initial Decision of ALJ Moscowitz is MODIFIED to reflect that the Council, in its May 11, 2006 Findings and Recommendations, found that the Custodian unlawfully denied access to the cover letter to Complainant and violated N.J.S.A. 47:1A-5.i by submitting an unreasonably vague response to Complainant's July 22, 2005 OPRA request. Exception IV The Custodian excepts to the ALJ's characterization of the Custodian's testimony and asserts that Mrs. Morrison did not testify that Bart's advocacy has been "a direct challenge to the way Mrs. Morrison administers the Housing Authority's programs." ID 6. Moreover, the Custodian states that Mrs. Morrison's testimony that she does not like the Complainant could not possibly be linked to any such alleged acknowledgement, yet the court, sua sponte, improperly linked those two distinct areas of testimony as if they were one statement. ID at 6. The Custodian contends that when asked the question, "you don't like me, do you?" (paraphrasing), Mrs. Morrison replied "No," and asserts that this was a distinct question: Mrs. Morrison testified that whether or not she liked Bart had nothing to do with whether or not the sign was provided. In response, the Complainant asserts that ALJ Moscowitz, as the finder of fact, was well within his authority in assessing the Custodian's demeanor, credibility and motives. As the finder of fact, his findings in these areas are due deference from the GRC. The Complainant states that the facts adduced during cross examination support the ALJ's findings, specifically, the Custodian testified that the Complainant's office, through various litigation, has had an impact on how the PHA does business; that the Complainant is generally successful in his litigation against the PHA; and that when asked the question "Do you like me?" by Complainant, the Custodian answered "No." The ALJ's credibility determination is entitled to the Council's deference. "The reason for the rule is that the administrative law judge, as a finder of fact, has the greatest opportunity to observe the demeanor of the involved witnesses and, consequently, is better qualified to judge their credibility." In the Matter of the Tenure Hearing of Tyler, 236 N.J. Super. 478, 485 (App. Div.), certif. denied 121 N.J. 615 (1990). The Appellate Division affirmed this principle, underscoring that, "under existing law, the [reviewing agency] must recognize and give due weight to the ALJ's unique position and ability to make demeanor-based judgments." Whasun Lee v. Board of Education of the Township of Holmdel, Docket No. A-5978-98T2 (App. Div. 2000), slip op. at 14. "When such a record, involving lay witnesses, can support more than one factual finding, it is the ALJ's credibility findings that control, unless they are arbitrary or not based on sufficient credible evidence in the record as a whole." Cavalieri v. Board of Trustees of Public Employees Retirement System, 368 N.J. Super. 527, 537 (App. Div. 2004). The ultimate determination of the agency and the ALJ's recommendations must be accompanied by basic findings of fact sufficient to support them. State, Dep't of Health v. Tegnazian, 194 N.J. Super. 435 , 442-43 (App. Div. 1984). The purpose of such findings "is to enable a reviewing court to conduct an intelligent review of the administrative decision and determine if the facts upon which the order is grounded afford a reasonable basis therefor. Id. at 443. Additionally, the sufficiency of evidence "must take into account whatever in the record fairly detracts from its weight"; the test is not for the courts to read only one side of the case and, if they find any evidence there, the action is to be sustained and the record to the contrary is to be ignored (citation omitted). St. Vincent's Hospital v. Finley, 154 N.J. Super. 24, 31 (App. Div. 1977). Here, the ALJ fairly summarized the testimony and evidence on both sides, explaining how he weighed the proofs before him and explaining why he credited, or discredited, certain testimony. Each of the ALJ's conclusions is clearly aligned and consistent with those credibility determinations. As such, the Council finds that it can ascertain which testimony the ALJ accepted as fact and further determines that these facts provide a reasonable basis for the ALJ's conclusions. Based on the substantial credible evidence in the record, including the testimony of the Custodian on cross-examination, the Council FINDS that the ALJ's characterization of the Custodian's testimony was correct and reasonable and supported by the substantial credible evidence of record. Exception V The Custodian excepts to the court's finding that "[i]ndeed, Morrison explained that counsel even drafted her certifications in the underlying proceeding, which she merely read and signed." ID 7 (emphasis added). The Custodian contends that this finding suggests that Ms. Morrison and/or counsel acted somehow improperly in so doing when, in fact, this is common and accepted practice. The Complainant responds that ALJ Moscowitz's finding was based on facts adduced through testimony at the hearing and is therefore supported by substantial credible evidence in the record. The Complainant contends that the Custodian cannot escape responsibility by delegating decision-making authority to her counsel. A review of the Hearing Transcript discloses that it was reasonable for ALJ Moscowitz to conclude from the Custodian's testimony that the PHA Legal Department drafted her certification to the Council. Transcript at 53-57. The Custodian testified that her legal counsel drafted the Custodian's August 2, 2006 response to the Complainant's July 22, 2006 OPRA request. Transcript at 32. The Custodian testified that the Complainant's July 22, 2006 letter was forwarded to the legal counsel. Transcript at 27. The Custodian testified that once the Spanish language sign was found, it was turned over to legal counsel for handling. Transcript at 52. The Custodian further testified that she would have given the Complainant the sign "when legal has instructed [her] to give it to [the Complainant]." Transcript at 55. Based on the substantial credible evidence in the record, including the testimony of the Custodian on cross-examination, the Council FINDS that the ALJ's characterization of the Custodian's testimony and the conclusions drawn therefrom were correct and reasonable and supported by the substantial credible evidence of record. Exception VI The Custodian excepts to the ALJ's conclusion that "Morrison was familiar with both the sign and the cover letter and understood what each of them meant. As custodian of records for the PHA, Morrison was also familiar with OPRA and understood Bart's requests. In these capacities, Morrison understood that she had to provide Bart with copies of both the sign and the cover letter." ID 7. The Custodian argues that this is not an accurate conclusion drawn from the testimony. The Custodian asserts that testimony established that the Custodian thought the cover letter was not responsive; therefore, it is impossible that she "understood that she had to provide Bart with copies" of the cover letter. In response, the Complainant asserts that the evidence of record supports the ALJ's conclusion that the Custodian willfully and intentionally refused to turn over the cover letter until ordered to do so and knowingly and willingly delayed in providing the me the sign. As previously discussed, the ALJ's credibility determination is entitled to the Council's deference. "The reason for the rule is that the administrative law judge, as a finder of fact, has the greatest opportunity to observe the demeanor of the involved witnesses and, consequently, is better qualified to judge their credibility." Tyler, supra, 236 N.J. Super. at 485. A review of the Hearing Transcript discloses that the Custodian was aware that the Complainant wanted to obtain a copy of the cover letter as well as the Spanish language sign. Transcript pp. 53-57. On two (2) separate occasions during cross-examination the Custodian specifically admitted that "at some point [prior to the submission of her certification to the Council]...[the Custodian] realized [Complainant] wanted the [Housing Authority] form" in addition to the Spanish language sign. Transcript at p. 55, 57. Moreover, on cross-examination the Custodian agreed with the Complainant's assertion that the Custodian was aware as of February 2006 that the Complainant wanted to obtain a copy of the cover letter as well as the sign. Transcript at 57. Based on the weight of the credible evidence of record, including the testimony adduced at the hearing, it is simply not credible that the Custodian was unaware that the Complainant sought a copy of the cover letter which specified that Spanish-speaking tenants were to bring an interpreter with them. It is similarly not credible that the Custodian believed that the cover letter was not responsive to the Complainant's July 22, 2006 request for "a copy of all Paterson Housing Authority forms, correspondence and directives which reference the Housing Authority's requirement or preference that Spanish speakers bring an interpreter in order to be served." Based on the substantial credible evidence in the record, including the testimony of the Custodian on cross-examination, the Council FINDS that ALJ Moscowitz's characterization of the Custodian's testimony was correct and reasonable and supported by the substantial credible evidence of record. Exception VII The Custodian excepts to the ALJ's finding that "Bart has had success against the Housing Authority over the years and had affected the way Morrison administered its programs." ID 8. The Custodian asserts that Complainant provided no credible evidence of success against the Housing Authority. The Custodian further asserts that the Custodian testified that if the Complainant's involvement over the years had any effect, it would have made her more likely to take extra efforts to be compliant with his request for records. The Custodian argues that the ALJ's opinion suggests that the Complainant's history had the opposite effect, making her less likely to comply, which conclusion does not follow from the testimony. In response, the Complainant asserts that the testimony adduced at the hearing established that the Complainant's actions made an impact on the way the PHA does business and that he is generally successful in his litigation against the PHA. The Complainant also asserts that Judge Moscowitz, as the finder of fact was well within his authority in assessing the Custodian's demeanor, credibility and motives. As the finder of fact, his findings in these areas are due deference from the Council. A review of the Hearing Transcript discloses that it was reasonable for ALJ Moscowitz to conclude from the Custodian's testimony that the Complainant's legal successes against PHA had affected the way the Custodian administered the PHA programs. The Custodian admitted on cross-examination that the Complainant's office is the office which PHA faces most frequently when it comes to representing tenants. Transcript at 54. The Custodian also admitted that the Complainant's office, through its litigation, has had an impact on how the PHA does business. Transcript at 65. The Custodian admitted several specific cases which the Complainant handled had affected the way she implemented PHA policies and procedures, including assignment of apartments by lottery, cleaning and maintenance programs, and the manner in which eviction processes were handled. Transcript at 65. This testimony, when viewed in the light of the Custodian's testimony that she did not like the Complainant, and that she "[didn't] know" if the Complainant was a good attorney, leads to the reasonable conclusion, drawn by ALJ Moscowitz, that the Custodian had developed an ill will towards the Complainant which made her less likely, rather than more likely, to comply with the Complainant's OPRA request. Transcript at 64, 66. Based on the substantial credible evidence in the record, including the testimony of the Custodian on cross-examination, the Council FINDS that the ALJ's characterization of the Custodian's testimony and the conclusions drawn therefrom were correct and reasonable and supported by the substantial credible evidence of record. Exception VIII The Custodian excepts to the ALJ's rejection of Ms. Morrison's direct testimony that the Spanish language sign was misplaced. Initial Decision, at p. 8. In response, the Complainant asserts that ALJ Moscowitz, as the finder of fact as within his authority in assessing the Custodian's demeanor, credibility and motives. The Complainant argues that as the finder of fact, ALJ Moscowitz's findings in these areas are due deference from the GRC. As previously discussed, the ALJ's credibility determination is entitled to the Council's deference. "The reason for the rule is that the administrative law judge, as a finder of fact, has the greatest opportunity to observe the demeanor of the involved witnesses and, consequently, is better qualified to judge their credibility." Tyler, supra, 236 N.J. Super. at 485. As the finder of fact, ALJ Moscowitz had the opportunity to observe the demeanor of the Custodian throughout the hearing. As reflected in the Initial Decision, the ALJ's rejection of the Custodian's testimony is based upon the substance of her testimony and the documents submitted, as well as the ALJ's assessment of the parties' credibility and the sufficiency of the documents submitted. The ALJ clearly set forth the facts supporting his conclusions in the Initial Decision. As such, the Council FINDS that the ALJ's conclusion in this regard was correct and reasonable and supported by substantial credible evidence in the record. Exception IX The Custodian excepts to the ALJ's finding that the Housing Authority's continued refusal to produce the cover letter was "simply gamesmanship." ID 8. The Custodian argues that this finding ignores the Custodian's testimony that she had referred this matter to counsel and that she relied on counsel to direct her as to responding to the Complainant's request. The Custodian contends that the decision not to turn over the letter, once counsel was involved, was a decision made upon the advice of counsel and was not "gamesmanship." In response, the Complainant asserts that Judge Moscowitz, as the finder of fact was within his authority in assessing the Custodian's demeanor, credibility and motives. The Complainant argues that as the finder of fact, ALJ Moscowitz's findings in these areas are due deference from the GRC. As previously discussed, the ALJ's credibility determination is entitled to the Council's deference. "The reason for the rule is that the administrative law judge, as a finder of fact, has the greatest opportunity to observe the demeanor of the involved witnesses and, consequently, is better qualified to judge their credibility." Tyler, supra, 236 N.J. Super. at 485. A review of the Hearing Transcript discloses that the Custodian was well aware that the Complainant wanted to obtain a copy of the cover letter as well as the Spanish language sign. Transcript pp. 53-57. On two (2) separate occasions during cross-examination the Custodian specifically admitted that "at some point [prior to the submission of her certification to the Council]...[the Custodian] realized [Complainant] wanted the [Housing Authority] form" in addition to the Spanish language sign. Transcript at p. 55, 57. Moreover, on cross-examination the Custodian agreed with the Complainant's assertion that the Custodian was aware as of February 2006 that the Complainant wanted to obtain a copy of the cover letter as well as the sign. Transcript at 57. Moreover, the fact that a Custodian relies upon legal advice does not relieve that Custodian of the obligation to respond in good faith to an OPRA request. As the finder of fact, ALJ Moscowitz had the opportunity to observe the demeanor of the Custodian throughout the hearing. As reflected in the Initial Decision, the ALJ's rejection of the Custodian's testimony is based upon her testimony and the documents submitted, as well as the ALJ's assessment of the parties' credibility and the sufficiency of the documents submitted. The ALJ set forth the facts supporting his conclusions in the Initial Decision. As such, the Council FINDS that the ALJ's conclusion in this regard was correct and reasonable and supported by substantial credible evidence in the record. Exception X The Custodian excepts to the ALJ's finding that the PHA knowingly and willfully failed to respond to Mr. Bart's OPRA request and asserts that based upon the evidence presented, the finding is incorrect. In response, the Complainant asserts that Judge Moscowitz, as the finder of fact was within his authority in assessing the Custodian's demeanor, credibility and motives and argues that as the finder of fact, his findings in these areas are due deference from the Council. N.J.S.A. 47:1A-11 states that a custodian, public official, officer or employee who knowingly and willfully violates OPRA, and is found to have unreasonably denied access under the totality of the circumstances, is subject to a civil penalty.
OPRA does not contain a definition of what constitutes a "knowing and willful" violation. New Jersey courts have noted that "knowingly" is defined in Black's Law Dictionary (4th ed. 1968) at 1012, as: "[w]ith knowledge; consciously; intelligently, willfully; intentionally." Woodcock v. Calabrese, 148 N.J. Super. 526, 537 (Cty. Ct. 1977), citations omitted.
However, the concept of "willful" misconduct is a familiar one in New Jersey law. The Supreme Court has observed:
Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use. While its general contours, given its language, are similar in all contexts, it may differ depending on the common-law rule or the statute to which it is relevant, and perhaps even within such rule or statute different depending on the facts. Fielder v. Stonack, 141 N.J. 101, 124 (1995).
Although the contours of what constitutes willful misconduct may differ depending on the situation, the case law concerning willful misconduct establishes certain basic principles. It is clear that the phrase involves "much more" than negligent conduct. Alston v. City of Camden, 168 N.J. 170, 185 (2001), citing Fielder, supra. It is also settled that "there must be some knowledge that the act is wrongful." Fielder, supra, 141 N.J. at 124. While there need not be the actual intent to cause harm, the action must exhibit a "positive element of conscious wrongdoing." Id., quoting Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962). The Supreme Court in Fielder summarized the definition of willful misconduct as "the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden." Id., citation omitted.
The Supreme Court reaffirmed this definition in Alston, supra. Alston involved a police officer who was entitled to immunity from a tort claim unless his actions constituted willful misconduct. During its deliberations, the jury asked the trial court to clarify the definition of "willful misconduct." The trial court instructed the jury that:
[t]o satisfy the requirement of willfulness, there must be a positive element of conscious wrongdoing and another way of looking at it is willful misconduct is the commission of a forbidden act with actual knowledge that the act is forbidden.... Id. at 184.
The Supreme Court upheld these instructions. Id. at 188.
The Appellate Division also has spoken as to the definition of willful misconduct. In ECES v. Salmon, 295 N.J. Super. 86 (App. Div. 1996), the Appellate Division reviewed the question of what constituted a willful violation of the New Jersey Conflicts of Interest Law. It found the Fielder definition of willfulness to be particularly apt. Fielder concerned the potential tort liability resulting from the failure of a police officer to follow orders in a chase situation. The Appellate Division noted that this scenario, similar to the Conflicts of Interest Law, involved "the possible malfeasance of a personal charged with the protection of the public." Id. at 106. Accordingly, the court relied upon the language in Fielder, discussed above, and determined that willful misconduct under the Conflicts Law's penalty provision "must be intentional and deliberate, with knowledge of its wrongfulness, and not merely negligent, heedless or unintentional." Id. at 107. Nothing suggests that the Legislature, in enacting OPRA, intended to establish a definition of willfulness that is different from that set forth in the foregoing cases. As in Alston, Fielder, and ECES v. Salmon, the OPRA penalty provision is directed at misconduct committed by public employees. ALJ Moscowitz found that on July 22, 2005, the Complainant made an OPRA request in writing for a copy of the Spanish language sign posted in the lobby of the PHA and for a copy of all Paterson Housing Authority forms, correspondence and directives which reference the PHA's requirement or preference that Spanish speakers bring an interpreter in order to be served. ID 3. ALJ Moscowitz also found that on August 2, 2005, Gwen Morrison, the director of leasing and occupancy for the PHA who also served as its Custodian of records, responded in writing to the Complainant's July 22, 2005 OPRA request, stating that the PHA does not have a policy requiring Spanish-speaking tenants to bring an interpreter, and advising that the sign had been removed from the lobby. ID 3. ALJ Moscowitz also found that the Custodian wrote that the PHA had no other documents responsive to the Complainant's OPRA request. ID 3. ALJ Moscowitz found that the Custodian did not provide a copy of the sign. ID 3. ALJ Moscowitz further found that Morrison testified that she did not provide a copy of the sign to Complainant sooner than she did because she could not find it. ID 5. The ALJ also found that Morrison did not think that the cover letter was responsive to the Complainant's request for a copy of all Paterson Housing Authority forms, correspondence and directives which reference the PHA's requirement or preference that Spanish speakers bring an interpreter in order to be served. ID 6 ALJ Moscowitz found that the Custodian stated it was her understanding that the Complainant only wanted a copy of the sign. ID 6. The ALJ, moreover, found that, in her capacities as director of leasing and occupancy and as Custodian of records for the PHA, Morrison understood that she had to provide the Complainant with copies of both the sign and the cover letter. ID 7. However, ALJ Moscowitz found that, in its May 11, 2006 Findings and Recommendations, the GRC "found that the Housing Authority unreasonably denied Bart access to a cover letter under OPRA when it failed to provide him with a copy of that document." ID at 5. A review of the Council's May 11, 2006 Findings and Recommendations, submitted by the Complainant as Exhibit P-12, discloses that the GRC found that the Custodian unlawfully denied access to the cover letter pursuant to N.J.S.A. 47:1A-5.g, and violated N.J.S.A. 47:1A-5.i because her response to the Complainant's July 22, 2005 OPRA request was so vague that it could not be determined if the requested sign did not exist or if it was being denied. Exhibit P-12 at 8, 10. Therefore, the Council hereby MODIFIES the Initial Decision of ALJ Moscowitz to reflect that in its May 11, 2006 Findings and Recommendations, the Council found that the Custodian unlawfully denied access to the cover letter to Complainant and violated NJSA 47:1A-5.i by submitting an unreasonably vague response to Complainant's July 22, 2005 OPRA request. Based on the facts set forth above, the Council FINDS that the Custodian knew that she personally should have provided the Complainant with copies of both the sign and the cover letter and willfully failed to do so. The Council further FINDS that, under the totality of the circumstances as reflected in the facts adduced at the hearing and the documents submitted by the parties, the Custodian, unreasonably denied access to the requested documents. The Council therefore MODIFIES the Initial Decision as set forth above. Exception XI The Custodian requests that the civil penalty of $1,000.00 be reconsidered because N.J.S.A. 47:1A-11 does not prescribe a mandatory civil penalty but instead provides that a person who knowingly and willfully violates OPRA shall be "subject to" a civil penalty in the amount of $1,000.00. In response, the Complainant states that the Custodian earned the fine assessed and notes the lack of contrition on the part of the Custodian and her counsel. The Complainant asserts that to date, nearly two years later and adverse GRC and OAL decisions later, the Custodian and her counsel have not admitted to any wrongdoing. The issue is whether the $1,000.00 civil penalty to which the ALJ subjected the Custodian is appropriate under the law and the facts. The Legislature has found 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 limitations on the right of access accorded by [OPRA] ..., shall be construed in favor of the public's right of access;" N.J.S.A. 47:1A-1. In order to further this important public purpose, the Legislature passed N.J.S.A. 47:1A-11.a, which provides that: "[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 of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation...." N.J.S.A. 47:1A-11.a.
When interpreting a statute, a court must first look at the wording of the statute to ascertain its plain meaning and intent. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999); CamdenCounty Board of Chosen Freeholders v. Keating, 193 N.J.Super. 100, 109 (Law Div.), aff'd, 193 N.J.Super. 111 (App.Div.1983). "Our duty is to apply the legislative intent as expressed in the statute's language." Alston v. City of Camden, 332 N.J.Super. 240, 246 (App.Div.), certif. granted, 165 N.J. 607 (2000).
The clear language of the statute provides that individual penalties for knowingly and willfully violating OPRA and unreasonably denying access to requested records range from $1,000 to $5,000. See Courier News v. Hunterdon County Prosecutor's Office, 378 N.J. Super. 539, 546 (App. Div. 2005).
However, because N.J.S.A. 47:1A-11 states in pertinent part that "a custodian, public official, officer or employee who knowingly and willfully violates OPRA, and is found to have unreasonably denied access under the totality of the circumstances, is subject to a civil penalty," the Council further CONCLUDES that the Administrative Law Judge erred when he determined that the Housing Authority knowingly and willfully violated OPRA, and when he required that the Housing Authority "shall be subject to civil penalties in the amount of $1,000 under N.J.S.A. 47:1A-11 for knowingly and willfully violating OPRA." Initial Decision at 9. The Council, therefore, MODIFIES the Initial Decision of ALJ Moscowitz to require that the Custodian shall personally be subject to civil penalties in the amount of $1,000 under N.J.S.A. 47:1A-11 for knowingly and willfully violating OPRA and unreasonably denying access to the requested records under the totality of the circumstances.
CONCLUSION AND ORDER For the foregoing reasons, the Initial Decision in this matter is MODIFIED as follows with respect to the errors mentioned herein and ADOPTED in all other respects:
Based upon the foregoing, the Council FINDS that the Custodian knowingly and willfully violated OPRA and unreasonably denied access to the requested records under the totality of the circumstances in connection with her response to Complainant's July 22, 2005 OPRA request. Therefore, the imposition of a civil penalty in the amount of $1,000.00 against the Custodian is warranted pursuant to N.J.S.A. 47:1A-11.
Therefore, the Council hereby MODIFIES the Initial Decision of Administrative Law Judge Moscowitz to find that, under the totality of the circumstances, the Custodian unreasonably denied access to the records requested by Complainant in his July 22, 2005 OPRA request. The Council further MODIFIES the Initial Decision of Administrative Law Judge Moscowitz to reflect that in its May 11, 2006 Findings and Recommendations, the Council found that the Custodian unlawfully denied access to the cover letter to Complainant and violated N.J.S.A. 47:1A-5.i by submitting an unreasonably vague response to Complainant's July 22, 2005 OPRA request. The Council further MODIFIES the Initial Decision of Administrative Law Judge Moscowitz to require that the Custodian shall personally be subject to civil penalties in the amount of $1,000 under N.J.S.A. 47:1A-11 for knowingly and willfully violating OPRA and unreasonably denying access to the requested records under the totality of the circumstances.
The Council further MODIFIES the Initial Decision of Administrative Law Judge Moscowitz to reflect that Christopher H. Frick of the law firm Rogut McCarthy Troy entered an appearance at the hearing on January 31, 2007, on behalf of the Paterson Housing Authority.
It is so ORDERED.
In accordance with the Rules Governing the Superior Court of New Jersey, there is a period of 45 days from the date of this final decision to file an appeal with the Superior Court, Appellate Division.
Final Decision Rendered by the Government Records Council On the 30th Day of May, 2007
Vincent P. Maltese, Chairman Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.
David Fleisher, Secretary Government Records Council
Decision Distribution Date: May 30, 2007
Interim Order
At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 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:
Interim Order Rendered by the Government Records Council On The 19th Day of July, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council. Robin Berg Tabakin, Secretary
Decision Distribution Date: July 19, 2006 Supplemental Findings and Recommendations of the Executive Director
Records Relevant to Complaint:
Request Made: July 22, 2005 Response Made: August 2, 2005 Custodian: Gwendolyn Morrison GRC Complaint filed: August 4, 2005 Background May 11, 2006 Government Records Council's ("Council") Interim Order. At the May 11, 2006 public meeting, the Council considered the May 4, 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, found that:
May 18, 2006 Interim Order sent to both parties. June 1, 2006 Custodian's response to the Council's Interim Order. In response to the Council's May 11, 2006 Interim Order, the Custodian's counsel did release the cover letter that requests individuals please bring their own interpreter without redaction. Analysis
Whether the Custodian complied with the Council's May 11, 2006 Interim Order?
Based on the Custodian counsel's June 1, 2006 submission to GRC staff, the Custodian has complied with the Council's Interim Order by providing the Complainant with an unredacted copy of the cover letter that requests individuals to please bring their own interpreter within ten (10) business days from receipt of the Council's order.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Colleen C. McGann Case Manager
Catherine Starghill Executive Director
July 6, 2006 Interim Order
At the May 11, 2006 public meeting, the Government Records Council ("Council") considered the May 4, 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:
Interim Decision Rendered by the Decision Distribution Date: May 18, 2006 Findings and Recommendations of the Executive DirectorJohn Bart, Esq. GRC Complaint No. 2005-145Complainant v. City of Paterson Housing Authority Custodian of Records Records Relevant to Complaint:
Request Made: July 22, 2005 Background July 22, 2005 Complainant's Open Public Records Act ("OPRA") Request. The Complainant is seeking a copy of a Spanish language notice that was posted in the PHA lobby located at 60 Van Houten St. and a copy of all forms, correspondence and directives which reference the requirements posted in the Spanish language notice. August 2, 2005 Custodian's written response to OPRA request. The Custodian states that the PHA prefers but does not require Spanish-speaking tenants to bring an interpreter in order to be served. The Custodian states that the sign to which the Complainant refers has been removed from the lobby and there are no PHA documents stating that tenants must bring their own interpreters. The Custodian states that because of this the PHA cannot provide the Complainant with any sign or documents. August 3, 2005 Complainant's rebuttal to the Custodian's August 2, 2005 response. The Complainant states that the Custodian has not responded to the Complainant's request for forms, correspondence and directives. The Complainant also states that there is no reason given for why the Spanish language notice has not been provided to him. August 4, 2005 Complainant's Denial of Access Complaint with the following attachments:
The Complainant states that the PHA is a public authority subject to OPRA. The Complainant asserts that he requested copies of documents relating to the requirement or preference that Spanish speakers bring an interpreter in order to be served including a sign posted in their waiting room, which was removed at some point between July 22, 2005 and August 2, 2005. The Complainant states that he was not provided this document. The Complainant states that the PHA admits that the Spanish language sign exists but refuses to provide a copy. The Complainant states that pursuant to the PHA Admissions and Continued Occupancy Policy and its Administrative Plan, the PHA should be providing translation services. The Complainant states that he is requesting the documents as evidence that the PHA discourages those who do not have an interpreter. August 11, 2005 Offer of mediation forwarded to both parties. Neither party agreed to mediation. August 23, 2005 Custodian's letter to the Complainant with attachment of the following:
The Custodian states the requested Spanish language sign is enclosed responsive to the Complainant's OPRA request. August 31, 2005 Request for Statement of Information faxed to the Custodian by the GRC. September 2, 2005 Custodian's Statement of Information with the following attachments:
The Custodian states that, as indicated in the August 2, 2005 letter to the Complainant, the sign had been previously removed from the lobby; was located and faxed to the Complainant on August 23, 2005 and mailed on September 1, 2005. As to the request for forms, correspondence and directives, the Custodian certifies that the Complainant "already has a copy of the only documents, other than the sign, that references the PHA's desire for Spanish-speaking tenants to bring their own interpreter" in order to be served. Therefore, the Custodian asserts that the Complainant has all records responsive to his request and the complaint should be dismissed. September 9, 2005 Complainant's response to the September 2, 2005 Statement of Information. The Complainant states that the requested sign was posted in the office after July 25, 2005 and was removed by August 2, 2005. Additionally, the Complainant contends that the Custodian's certification in the Statement of Information that he "already has a copy of the only documents, other than the sign" is also misleading because the other documents requested were not provided by the PHA in response to the OPRA request and they were unaware that he was in possession of them "until they accessed the content of the GRC complaint." The Complainant states that he was denied access to both the sign and the other documents that were responsive to the request. The Complainant states that the PHA did not comply with OPRA until the agency was notified of a complaint when he was forwarded the requested sign. The Complainant would like the Custodian found guilty of a knowing and willful violation of OPRA based on the willful refusal to comply and the "calculated misstatements of fact" in this case. December 30, 2005 Letter from the Government Records Council ("GRC") to the Custodian's counsel. The GRC requests that the Custodian submit a legally certified index of the documents responsive to the request with an indication of what exemption is being claimed for each and an explanation of how the claimed exemption applies to each document. January 12, 2006 Custodian's counsel's letter and index.[2] The Custodian's counsel states that the Complainant has filed frivolous legal actions and has "bombarded the PHA with oppressive OPRA requests" and considers this a frivolous complaint. The Custodian's counsel indicates that upon receipt of the initial request from the Complainant it was found that the sign to which the Complainant referred should be removed from the lobby. The Custodian's counsel states that the PHA did so and advised the Complainant of same via letter dated August 2, 2005. The Custodian's counsel goes on to state that a good faith effort was made to locate any other documents responsive to the request and it was determined that there were no "forms, correspondence and directives which reference the PHA's requirement or preference that Spanish speakers bring an interpreter in order to be served" as the Complainant alleges exist. The Custodian's counsel asserts that the one cover page to which the Complainant refers states only "Please Bring Your Own Interpreter" but does not reference any policy or directive or specific language. The Custodian's counsel feels that the allegations in this Complaint are intended to "set up" the PHA. The Custodian's counsel disputes the Complainant's allegation that the "PHA attempted to mislead the GRC by implying that the sign had been removed before July 22, 2005" as no such implication was made. The Custodian's counsel asserts that the request was properly responded to and fully complied with by the PHA. The Custodian's counsel argues that this Complaint and the claim of a knowing and willful violation of OPRA are frivolous. The Custodian's counsel argues with the Complainant's assertion that he did not receive a copy of a sign in a timely manner because the Custodian's counsel claims that the Complainant already knew the content of the sign verbatim. Further, The Custodian's counsel asserts that the Complainant's claim that the PHA did not provide him with a cover letter of an application is frivolous because copies of this document are available at the PHA's front desk upon simple verbal request by any member of the public and this document was already in the Complainant's possession at the time of his request. The index provided by the Custodian's counsel[3] lists two documents; the first, a Spanish language sign which was provided on August 23, 2005 and the second, a cover letter to an application which the Custodian's counsel asserts is not responsive to the request but was available to any member of the public upon request. January 24, 2006 E-mail from the Complainant to the GRC in response to the Custodian's January 12, 2006 submission. The Complainant states that if the sign was taken down as a result of his request then why is it that the Custodian could not provide him with a copy. The Complainant states that he is not attempting to "set up" the PHA as he would not have filed the complaint had he received the requested records in a timely matter. The Complainant states that all communication regarding this request was in writing and while the Custodian's counsel asserts that the Custodian fully complied with the request the Complainant asserts that the facts suggest otherwise. The Complainant disputes the validity of the Custodian's counsel's contention that the Complainant knew the requested sign verbatim as that claim has nothing to do with OPRA. In response to the Custodian's counsel's assertion that "the PHA is relieved of it's obligation to provide a copy of the ‘[p]lease bring your own interpreter' cover letter because [the Complainant] already had a copy of it" the Complainant states that the PHA should have provided the documents in response to his OPRA request, which they did not. The Complainant goes on to assert that the sign and cover letter suggest that there may be other similar documents responsive to his request. The Complainant states that he did not request the cover letter specifically but all documents relating to the requirement or preference that Spanish speakers bring an interpreter in order to be served. The Complainant contends that the fact that he, "not knowing what the PHA had or did not have, was in possession of a copy of a document responsive to his request does not constitute ‘frivolous litigation behavior'" and that he still has a right to receive the cover letter in response to his OPRA request. January 26, 2006 E-mail from the GRC to the Custodian's counsel. The GRC requests the Custodian provide a legally certified index of the documents responsive to the request with an indication of what exemption is being claimed for each, an explanation of how the claimed exemption applies to each document and offers the Custodian an opportunity to respond to the Complainant's January 24, 2006 submission. February 2, 2006 Custodian's response to the January 26, 2005 e-mail from the GRC. Letter From The Custodian's Counsel In Response To The Complainant's January 24, 2006 Submission The Custodian's counsel states that the allegation that the Custodian implied that the sign had been removed before July 22, 2005 is incorrect. The Custodian's counsel asserts that "the August 2, 2005 letter states that a copy of the sign could not be provided simply because it could not be located after it's removal from the lobby" and goes on to state that the document was provided to the Complainant on August 23, 2005, after it had been located. The Custodian asserts that the Complainant's filing of this GRC complaint is frivolous and is meant to harass and not obtain records as he states is evidenced by the statement of the Complainant that "the filing of this complaint has resulted in ‘government agencies increasing their responsiveness to the public.'"[4] The Custodian's counsel objects to the assertion that the PHA knowingly and willfully refused to comply and made calculated misstatement of fact during discussion because, there is no proof of any misconduct and no proof of discussion because "[s]imply put, letters do not constitute discussion." The Custodian's counsel also states that the Complainant's assertion that the events suggest that the PHA did not comply is not enough to assert that the PHA willfully denied the Complainant access. The Custodian's counsel states that the PHA never stated that it had no obligation to provide the Complainant with the requested documents but simply argues that initially there were no available documents responsive to the request and when the requested sign was located it was provided to the Complainant. The Custodian's counsel states that after a review of the files it was found that there are no further documents responsive to the request and the Complainant has received all documents responsive to the request. The Custodian's counsel states "[t]he PHA properly advised [the Complainant] that it had no documents responsive to the request" and so the GRC should dismiss this complaint. Custodian's Certification The Custodian states that after receiving the Complainant's OPRA request the PHA determined that the requested sign should be removed from the lobby and did so. The Custodian states that with respect to the "second vague request" the PHA informed the Complainant in a letter dated August 2, 2005 that there are no documents stating that tenants must bring an interpreter in order to be served as well as informed him that the sign he referred to had been removed and no sign or documents could be provided. The Custodian states that the Complainant alleges in his denial of access complaint that the PHA Application for Housing would have been responsive to the request and provided a copy of same with his complaint which is evidence that the Complainant already had the document in his possession at the time of his request. The Custodian asserts that this document is available to any member of the public that requests an application. The Custodian certifies that the PHA did not believe that the document was responsive to the Complainant's request since it does not reference a policy or directive but just states, "Please bring your own interpreter." The Custodian asserts that on August 23, 2005 the sign was provided to the Complainant after it was located by the staff. The Custodian certifies to the accuracy of the index provided by the Custodian's counsel on January 12, 2006. March 7, 2006 E-mail from the GRC to the Custodian's counsel. The GRC requests the Custodian provide a legal certification stating whether or not the requested records were in the possession of the PHA at the time of the Complainant's OPRA request. March 10, 2006[5] Certification of the Custodian. The Custodian certifies that the cover letter and the sign were in the possession of the PHA, however the PHA did not believe that the cover letter was responsive to the Complainant's request and the PHA could not initially locate the sign after it undertook a review of its files. The Custodian states that the sign was located and was immediately provided to the Complainant on August 23, 2005. Analysis WHETHER the Custodian unlawfully denied access to the requested records pursuant to OPRA? OPRA provides that: "...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. Additionally, OPRA defines a government record as: "...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 course of his or its official business... The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material." (Emphasis added.)N.J.S.A. 47:1A-1.1. OPRA requires that: "[i]f 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... If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to [OPRA] as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record." (Emphasis added.)N.J.S.A. 47:1A-5.g. OPRA indicates that if there is no response to the request it is considered denied. OPRA states: "[u]nless 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. 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. 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. Spanish Language Sign The Complainant asserts that he requested copies of documents relating to the PHA's requirement or preference that Spanish speakers bring an interpreter in order to be served, including a sign posted in their waiting room, which was removed at some point between July 22, 2005 and August 2, 2005. The Complainant states that he was not provided the requested sign until after the Denial of Access Complaint had been filed. The Complainant states that the PHA's August 2, 2005 response to his request admitted that the Spanish language sign existed but the Custodian failed to provide a copy until August 23, 2005. The Custodian's counsel argues with the Complainant's assertion that he did not receive a copy of a sign in a timely manner because the Custodian's counsel claims that the Complainant already knew the content of the sign verbatim. The Custodian certifies that the sign was in the possession of the PHA at the time of the OPRA request however, the PHA could not initially locate the sign after it undertook a good faith review of its files. The Custodian states that the sign was located and was immediately provided to the Complainant on August 23, 2005. The fact that the Complainant had seen the sign and knew it "verbatim" is irrelevant under OPRA as there is no indication under the law that a requestor may not request copies of documents already in their possession. In Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[6] (January, 2006), the Council held that "OPRA does not limit the number of times a requestor may ask for the same record even when the record was previously provided." In this case, the Spanish language sign was requested through OPRA and should have been provided to the Complainant in response to his request assuming there was no lawful exemption to same. The Custodian did respond to the request within the statutorily required seven (7) business days stating that the sign to which the Complainant refers had been previously removed from the lobby and so the PHA could not provide the document. This response made no indication that the requested sign could not be located or was no longer in the possession of the PHA but simply indicates that the sign has been removed and so could not be provided. Although the Custodian responded in writing within the statutory time period under OPRA the Custodian's response to the request for the sign that references the PHA's desire for Spanish-speaking tenants to bring their own interpreter was so vague that it could not be determined if the requested sign did not exist or if the request was being denied. Therefore, even though the sign was eventually released to the Complainant, the request is deemed denied and the Custodian has violatedN.J.S.A. 47:1A-5.i. "Please bring your own interpreter" Cover Letter The Custodian certifies that the PHA did not believe that the cover letter was responsive to the Complainant's request since it is not considered a policy or directive and does not reference a specific language but just states "[p]lease bring your own interpreter." The Custodian's counsel asserts that the Complainant's claim that the PHA did not provide him with a cover letter is frivolous because copies of this document are available at the PHA's front desk upon simple verbal request by any member of the public and this document was already in the Complainant's possession at the time of his request. The Custodian counsel's assertion that the cover letter requests individuals to "[p]lease bring your own interpreter" is not responsive to the request is incorrect. This document does, in fact, reference the PHA's requirement or preference that individuals bring an interpreter, which would include those that speak Spanish. Therefore, this document is responsive to the Complainant's request. Regardless of whether the Complainant was already in possession of the cover letter that indicates that individuals "[p]lease bring your own interpreter" this document should have been provided to the Complainant in response to his request assuming there was no lawful exemption to same because there is no provision under OPRA that states a requestor may not request copies of documents already in their possession. N.J.S.A. 47:1A-1.1 defines a government record as any document that has been made, maintained or kept on file in the course of official business. Based on the Custodian's certification that the responsive cover letter was in possession of the agency at the time of the request and the fact that no specific lawful basis for denying access to the cover letter has been provided, it is found that the Custodian unlawfully denied access to the cover letter pursuant to N.J.S.A. 47:1A-5.g. and the Custodian should release the cover letter with appropriate redactions as necessary. The legal basis for any redactions must be explained pursuant to N.J.S.A. 47:1A-5.g. WHETHER there was a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances? OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states: "[i]f 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. Additionally, OPRA states: "[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. The Complainant would like the Custodian found guilty of a knowing and willful violation of OPRA based on the willful refusal to respond to the OPRA records request and the "calculated misstatements of fact" in this case. 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 states that after receiving the Complainant's OPRA request the PHA determined that the requested sign should be removed from the lobby and did so. However, this sign was not provided to the Complainant until after the Denial of Access Complaint had been filed with the GRC. The Custodian states that PHA informed the Complainant in a letter dated August 2, 2005 that there are no documents stating that tenants must bring an interpreter in order to be served as well as informed him that the sign he referred to had been removed from the lobby and no sign or documents could be provided. The Complainant contends that the Custodian's certification in the Statement of Information that he "already has a copy of the only documents, other than the sign" is misleading because the documents requested were not provided by the PHA in response to the OPRA request and they were unaware that he was in possession of them "until they accessed the content of the GRC complaint." The Complainant asserts that the facts that the Complainant was in possession of the cover letter and that the Complainant had seen the sign and knew it "verbatim" are irrelevant under OPRA as there is no indication under the law that a requestor may not request copies of documents already in their possession. In this case, documents were requested through OPRA and should have been provided to the Complainant in response to his request provided there was no lawful exemption to same. The Custodian has not borne its burden of proving that a lawful basis for denying access to the cover letter that indicates that individuals "[p]lease bring your own interpreter" pursuant to N.J.S.A. 47:1A-6. Due to the contested facts surrounding this case, it is possible that the Custodian's actions were intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional. As such, the case should be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that: Regardless of whether the Complainant was already in possession of the cover letter or that the Complainant had seen the sign and knew it "verbatim," the requested sign and cover letter that indicates that individuals "[p]lease bring your own interpreter" should have been provided to the Complainant in response to his request provided there was no lawful exemption to same because there is no provision under OPRA that states a requestor may not request copies of documents already in their possession. Although the Custodian responded in writing within the statutory time period under OPRA, the Custodian's response to the request for the Spanish language sign that references the PHA's desire for Spanish-speaking tenants to bring their own interpreter was so vague that it could not be determined if the requested sign did not exist or if it was being denied. Therefore the request is deemed denied and the Custodian has violated N.J.S.A. 47:1A-5.i. The cover letter that indicates that individuals "[p]lease bring your own interpreter" does, in fact, reference the PHA's requirement or preference that individuals bring an interpreter, which would include those that speak Spanish. Therefore, this document is responsive to the Complainant's request. The Custodian has not provided a lawful basis for denying access to the cover letter that indicates that individuals "[p]lease bring your own interpreter" pursuant to N.J.S.A. 47:1A-5.g. Therefore, the Custodian should release the cover letter with appropriate redactions as necessary. The legal basis for any redactions must be explained pursuant to N.J.S.A. 47:1A-5.g. Due to the contested facts surrounding this case, the case should be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act and unreasonable denial of access under the totality of the circumstances. The Custodian shall comply with "4." above within ten (10) business days from receipt of this Interim Order and simultaneously provide confirmation of compliance to the Executive Director. Prepared By: Colleen C. McGann, Case Manager Approved By: May 4, 2006 [1] Denial of Access indicates "Irma Gorhman" and "Gwen Morrison." |
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