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2005-159

- Final Decision
- Findings and Recommendations of Executive Dir

Final Decision

John Paff
Complainant
      v.
Cumberland County Sheriff's Office
Custodian of Record

Complaint No. 2005-159

 

At its January 27, 2006 public meeting, the Government Records Council ("Council") considered the January 19, 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:

  1. N.J.S.A. 47:1A-5.i. and resulting in an unlawful denial of access.
  2. Based on the fact that the Complainant was ultimately given access to the records requested, and there is no evidence that the Custodian's actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey courts, 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 pursuant to N.J.S.A. 47:1A-11.a.
  3. The Custodian should not be placed on the time matrix based on the Council's decision in Renna, as well as the fact that the time matrix is no longer in existence.

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 27th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  February 8, 2006

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Findings and Recommendations of Executive Dir

John Paff                                       GRC Complaint No. 2005 - 159
Complainant  
v.
Cumberland County Sheriff's Office
C
ustodian of Records

Records Requested: Any child support warrant or other records related to the execution thereof upon Barbara Ann Boobar, DOB 06/19/61, of Mays Landing Road, Vineland
Request Made:  July 22, 2005
Response Made:  August 11, 2005[1]
Custodian: David Gray
GRC Complaint filed: August 24, 2005

Background

August 24, 2005

Complainant's Denial of Access Complaint with the following attachment:

  • July 22, 2005 - Open Public Records Act (OPRA) request
  • July 23, 2005 - Facsimile transmittal receipt
  • August 11, 2005 - Letter from the Administrative Officer of the Courts to the Complainant

The Complainant states that the August 11, 2005 letter he received from the Administrative Courts was an improper denial (as well as a tardy response pursuant to N.J.S.A. 47:1A-5.i.)  because he submitted his original request to the Cumberland County Sheriff's Office, which is not a branch of the judiciary. The Complainant requests that the Government Records Council (GRC) declare that the Custodian violated OPRA, both for its untimely denial and for its legally insufficient denial. He also requests that the GRC direct the Custodian to provide him with the records, as well as place the Custodian on "the matrix."

August 26, 2005

Mediation agreements sent to both parties[2]

October 27, 2005

Custodian's Statement of Information. The Custodian simply states that the information has been provided.

November 1, 2005

Letter from the Complainant to the GRC. The Complainant states that he is in receipt of the Custodian's Statement of Information, as well as the Custodian's October 27, 2005 fax which contained the three records that are fully responsive to his July 22, 2005 request. The Complainant states that because he has finally received the records, he no longer needs an order directing the Custodian to provide him with same. However, he still requests that the Custodian be declared to have violated the OPRA by both his untimely response and his insufficient denial, as well as be placed on the Council's time matrix.  

Analysis

Whether the Custodian unlawfully denied access to anychild support warrant or other records related to the execution thereof upon Barbara Ann Boobar?

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

The OPRA defines a government record as follows:

" ... 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.

N.J.S.A. 47:1A-5.i. provides that:

"unless 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.)

Also, the OPRA states that the Custodian has to prove that a denial of access is authorized by law. 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.

The Complainant's request was made on July 22, 2005. He received a response to his request on August 11, 2005. However, the response came from the Administrative Courts of New Jersey, not the Cumberland County Sheriff's Office, the agency in which the original request was made. In the Custodian's October 27, 2005 Statement of Information to the GRC, he states that all information has been provided to the Complainant. Also, in a November 1, 2005 letter to the GRC, the Complainant confirms that on October 27, 2005 he received "three records that are fully responsive to my July 22, 2005 request."

The OPRA states that a Custodian should respond to a request for government records as soon as possible, but no later than seven business days. Although the Custodian released the records requested (the Complainant confirms that he received the records on October 27, 2005) the response to the request was not within the seven (7) business days allotted pursuant to the OPRA.

While the Custodian did ultimately grant access to all records requested, the response to the request came after the seven (7) business days allowed for a response pursuant to the OPRA; violating N.J.S.A. 47:1A-5.i., and resulting in an unlawful denial of access.

Whether the delay in access to the requested records rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?        

The OPRA states that:

"[a] public official, officer, employee or custodian who knowingly 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.

The 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.

The Complainant alleges that the Custodian violated OPRA, both for its untimely denial and for its legally insufficient denial. The Complainant's request was made on July 22, 2005 and was responded to on August 11, 2005 by the Administrative Courts of New Jersey, which was not the agency to which the original request was made. On October 27, 2005 the Custodian certifies that the records responsive to the request were sent to the Complainant.

Certain legal standards must be considered when making the determination of whether the Custodian's actions rise to the level of a "knowing and willful" violation of OPRA. The following statements must be true for a determination that the Custodian "knowingly and willfully" violated OPRA: the Custodian's actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian's actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian's actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian's actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).

In this particular case, the Custodian certifies that the Complainant has been provided access to the records requested. And, althoughaccesscame after seven (7) business days, therefore violating N.J.S.A. 47:1A-5.i., as well as the fact that the original response did not come from the agency to which the records were requested, the Complainant was ultimately given access to all records requested.

Therefore, based on the fact that the Complainant was given access to the records requested, and there is no evidence that the Custodian's actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey judiciary, 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 pursuant to N.J.S.A. 47:1A-11.a.

Whether the Custodian should be placed on the GRC's matrix?

The 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.

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

At its November 10, 2005 meeting, the Council voted unanimously to discontinue use of the time matrix. The matrix was originally created to track Custodians who violate the 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 the OPRA allows for penalties based on a Custodian's knowing and willful violation of the 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 or 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 time matrix based on the Council's decision in Renna, as well as the fact that the time matrix is now defunct.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

  1. N.J.S.A. 47:1A-5.i., and resulting in an unlawful denial of access.
  2. Based on the fact that the Complainant was ultimately given access to the records requested, and there is no evidence that the Custodian's actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey judiciary, 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 pursuant to N.J.S.A. 47:1A-11.a.
  3. The Custodian should not be placed on the time matrix based on the Council's decision in Renna, as well as the fact that the time matrix is now defunct.

Prepared By: Chris Malloy, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council

January 19, 2005


[1] The initial response came from another agency (the Administrative Courts of New Jersey)
[2] Neither party agreed to mediation of this Complaint

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