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2005-164
Final DecisionJune 25, 2008 Government Records Council Meeting
At the June 25, 2008 public meeting, the Government Records Council (“Council”) considered the June 18, 2008 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, accepts the Complainant’s request to withdraw this complaint from the Office of Administrative Law. No further adjudication is required.
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 25th Day of June, 2008
Robin Berg Tabakin, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council. David Fleisher, Secretary
Decision Distribution Date: July 2, 2008
Supplemental Findings and Recommendations of the Executive DirectorJune 25, 2008 Council Meeting
Records Relevant to Complaint: Copies of the records showing all the titles held and the length of time held, positions held, salary history and payroll records of Charline Coughlin, Louis Cafiero, Monique Murray, Patricia Douglas, Christopher Frazier, Jennifer Mushinsky, and Dominic Scola, employees of the Division of Taxation.[3]
Request Made: August 24, 2005 Response Made: August 31, 2005Custodian: Michael TygerGRC Complaint Filed: September 1, 2005
Background
February 28, 2007 Government Records Council’s (“Council”) Interim Order. At its February 28, 2007 public meeting, the Council considered the February 21, 2007 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that the Council shall re-transmit this complaint to the Office of Administrative Law since the Complainant asserts not having received notice of a scheduled proceeding and the matter was dismissed for failure by the Complainant to appear. The Complainant’s explanation for his failure to appear is acceptable and warrants re-transmission of the complaint to the Office of Administrative Law.
March 6, 2007 Council’s Interim Order distributed to the parties.
June 10, 2008 E-mail from the Complainant to the Custodian’s Counsel. The Complainant withdrew this complaint from the Office of Administrative Law (“OAL”).
June 18, 2008 The complaint is referred back from OAL.
Analysis
Because the Complainant withdrew this complaint from OAL, no legal analysis is required.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council accept the Complainant’s request to withdraw this complaint from the Office of Administrative Law. No further adjudication is required.
Approved By: Catherine Starghill, Esq. Executive Director
June 18, 2008 [1] No representation listed on record. [2] Represented by DAG Kimberly Sked on behalf of the NJ Attorney General. [3] The Complainant included another request as part of this Denial of Access complaint but withdrew that portion of the Complaint in his October 17, 2005 submission to the GRC. Interim Order IIFebruary 28, 2007 Government Records Council Meeting
At the February 28, 2007 public meeting, the Government Records Council ("Council") considered the February 27, 2007 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 this matter shall be re-transmitted to the Office of Administrative Law since the Complainant asserts not having received notice of a scheduled proceeding and the matter was dismissed for failure by the Complainant to appear. The Complainant's explanation for his failure to appear is acceptable and warrants re-transmission of the complaint to the Office of Administrative Law.
Interim Order Rendered by the Government Records Council On The 28th Day of February 2007
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Government Records Council
Decision Distribution Date: March 2, 2007 Supplemental Findings and RecommendationsSupplemental Findings and Recommendations of the Executive Director February 28, 2007 Council Meeting
Records Relevant to Complaint: Copies of the records showing all the titles held and the length of time held, positions held, salary history and payroll records of Charline Coughlin, Louis Cafiero, Monique Murray, Patricia Douglas, Christopher Frazier, Jennifer Mushinsky, and Dominic Scola, employees of the Division of Taxation.[3]
Request Made: August 24, 2005 Response Made: August 31, 2005 Custodian: Michael Tyger GRC Complaint Filed: September 1, 2005
Background
August 10, 2006 Government Records Council's ("Council") Interim Order. At its August 10, 2006 public meeting, the Council considered the August 9, 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:
The Executive Director respectfully recommends the Council find that:
November 20, 2006 GRC transmitted complaint to the Office of Administrative Law.
February 8, 2007 Order of the Office of Administrative Law. The Office of Administrative Law dismissed this matter due to the Complainant's failure to appear to a scheduled proceeding.
February 9, 2007 E-mail from the GRC to the Complainant. The GRC informed the Complainant that the matter had been dismissed due to the Complainant's failure to appear to a scheduled proceeding.
February 9, 2007 E-mail from the Complainant to the Office of Administrative Law. The Complainant asserts that his failure to appear to the scheduled proceeding was only due to his failure to receive notice of same. The Complainant requests that the proceeding be rescheduled.
February 9, 2007 E-mail from the Office of Administrative Law to the Complainant. The Office of Administrative Law directs the Complainant's explanation for his failure to appear and request that the proceeding be rescheduled to the GRC.
February 13, 2007 E-mail from the Complainant to the GRC. The Complainant requests that this complaint be re-transmitted to the Office of Administrative Law and that the GRC accept his explanation for his failure to appear as stated in previous e-mails. The Complainant asserts that he never received notice of the scheduled proceeding.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council re-transmit this complaint to the Office of Administrative Law since the Complainant asserts not having received notice of a scheduled proceeding and the matter was dismissed for failure by the Complainant to appear. The Complainant's explanation for his failure to appear is acceptable and warrants re-transmission of the complaint to the Office of Administrative Law.
Approved By: Catherine Starghill, Esq. Executive Director
February 27, 2007
[1] No legal representation on record. [2] The Custodian is represented by Deputy Attorney General Sharon Dickerson, Esq. on behalf of the NJ Attorney General. [3] The Complainant included another request as part of this Denial of Access complaint but withdrew that portion of the Complaint in his October 17, 2005 submission to the GRC. Interim Order
At the August 10, 2006 public meeting, the Government Records Council ("Council") considered the August 9, 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 10th Day of August, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Kathryn Forsyth Government Records Council
Supplemental Findings and Recommendations of the Executive DirectorAugust 10, 2006 Council Meeting
John McCormack[1] GRC Complaint No. 2005-164 Complainant
v.
NJ Department of Treasury[2] Custodian of Records
Records Relevant to Complaint: Copies of the records showing all the titles held and the length of time held, positions held, salary history and payroll records of Charline Coughlin, Louis Cafiero, Monique Murray, Patricia Douglas, Christopher Frazier, Jennifer Mushinsky, and Dominic Scola, employees of the Division of Taxation.[3]
Request Made: August 24, 2005 Response Made: August 31, 2005 Custodian: Michael Tyger GRC Complaint filed: September 1, 2005
Background
July 13, 2006 At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 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:
July 19, 2006 Council's Interim Order distributed to the parties.
August 2, 2006 Custodian's response to the Council's Interim Order. The Custodian requests an extension of time to make redactions to the records ordered for disclosure and provide those documents to the Complainant in response to the Council's July 13, 2006 Interim Order.
The Custodian also requests that the Council reconsider its referral of this case to the Office of Administrative Law ("OAL") for a determination of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstance. The Custodian states that in such cases, the burden rests with the Complainant to demonstrate that the Custodian's actions were knowing and willful. The Custodian contends that the Complainant has not provided any evidence that the Custodian's alleged misstatements were knowing and willful. The Custodian states that there are no facts in dispute in this case. The Custodian asserts that the Custodian made his best effort to interpret the controlling law and regulation, amidst numerous requests by this Complainant for records relating to various employees.
August 7, 2006 Complainant's response to the Custodian's August 2, 2006 submission. The Complainant argues that the Custodian did not copy him on the August 2, 2006 response to the Council's Interim Order. The Complainant states that this ex parte communication on the part of the Custodian is further evidence of a knowing and willful violation of OPRA.
The Complainant states that he does not have a problem with the Custodian making redactions to the resumes and TEAMS/PMIS databases as long as the omissions are limited to social security numbers, home addresses and home telephone numbers.
The Complainant disagrees with the Custodian's request to reconsider the Council's referral of this case to OAL for a determination of a knowing and willful violation.
Analysis
Whether the Custodian complied with the Council's July 13, 2006 Interim Order? Pursuant to the Council's Proposed Rules[4]
"[r]equests for a stay of the effective date of a Council's interim decision must be made prior to the last day by which action was to have been taken in accordance with the Council's interim decision." (Emphasis added.) N.J.A.C. 5:105-2.14(c)
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.
On the tenth business day after receiving the Council's July 13, 2006 Interim Order, the Custodian requested an extension of time to make redactions to the records and to provide those documents to the Complainant in response to the Council's July 13, 2006 Interim Order.
The Custodian did not comply within the specific number of days he was given to disclose the records, nor did he request a stay "prior to the last day by which action was to have been taken" (N.J.A.C. 5:105-2.14(c)) and appeal the Interim Order to Superior Court. Therefore, the Custodian did not comply with the Council's July 13, 2006 Interim Order.
The Custodian's failure to comply with the Council's July 13, 2006 Interim Order is further evidence to be considered by the OAL in its hearing on the issue of whether the Custodian has knowingly and willfully violated OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By: Colleen C. McGann Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation listed. [2]Represented by Deputy Attorney General Sharon Dickerson, Esq. from the Office of the Attorney General. [3] The Complainant included another request as part of this Denial of Access complaint but withdrew that portion of the Complaint in his October 17, 2005 submission to the GRC. [4] Copy provided on the GRC website and previously published in the New Jersey Register Interim Order
At the July 13, 2006 public meeting, the Government Records Council ("Council") considered the July 6, 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 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 Findings and Recommendations of the Executive Director
Records Relevant to Complaint: Copies of the records showing all the titles held and the length of time held, positions held, salary history and payroll records of Charline Coughlin, Louis Cafiero, Monique Murray, Patricia Douglas, Christopher Frazier, Jennifer Mushinsky, and Dominic Scola, employees of the Division of Taxation.[1] Request Made: August 24, 2005 Response Made: August 31, 2005 Custodian: Michael Tyger GRC Complaint filed: September 1, 2005 Background August 24, 2005 Complainant's Open Public Records Act ("OPRA") request. The Complainant is requesting copies of employment history records for certain named employees of the Division of Taxation. August 31, 2005 Custodian's response to the OPRA request. The Custodian informs the Complainant that the requested records cannot be released because they are personnel records pursuant to N.J.S.A. 47:1A-10. Additionally, the Custodian informs the Complainant that the Department of Treasury ("Treasury") interprets the OPRA allowance for the release of payroll records to mean whether an employee is active or inactive on the payroll and states that all employees mentioned in the request are active on the payroll.
September 1, 2005 Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachment:
The Complainant takes issue with the Custodian's denial of access to his OPRA request. The Complainant states that the Custodian has knowingly and willfully denied access in not fully citing the text of N.J.S.A. 47:1A-10 indicating the specific basis for denying access. The Complainant asserts that the Custodian has not provided that personnel information which is disclosable pursuant to N.J.S.A. 47:1A-10. Specifically, the Complainant states that the Custodian has failed to provide the name, title, position, salary, payroll record and length of service for the individuals requested. The Complainant contends that the Custodian has knowingly and willfully violated OPRA by unreasonably denying access to the requested records and asks that the Custodian be assessed the maximum penalty. September 7, 2005 Offer of mediation sent to both parties. Neither party agreed to mediation. September 13, 2005 Request for Statement of Information ("SOI") sent to the Custodian. September 21, 2006 Custodian's SOI[2] with the following attachments:
The Custodian certifies that with regard to the OPRA request the Complainant was informed that the documents requested were for individual personnel records which are not disclosable under N.J.S.A. 47:1A-10. The Custodian states that the Complainant was advised that all employees subject of this request are active on Treasury payroll. The Custodian contends that while the Complainant asserts that the Custodian knowingly and willfully denied access because the Custodian did not cite the full text of the N.J.S.A. 47:1A-10 when denying access to the requested records, the Custodian certifies that the letter sent addressed the records requested in the OPRA request. The Custodian goes on to state that the Complainant had submitted a number of requests for personnel records to Treasury. The Custodian states that he believed that the Complainant was already familiar with the OPRA statutory language and with a second request already in progress that addressed the issue of the release of name, salary, title, etc., he chose not to quote the entire section of the act in this response letter.
Statement of Fact submitted as part of the Statement of Information on behalf of the Custodian by Deputy Attorney General, Sharon Dickerson
The Custodian's counsel states that the Custodian's decision to deny the records requested should be upheld and the complaint dismissed. The Custodian's counsel asserts that this request was an improper and overly broad request that would require the Custodian to undertake research to compile information. The Custodian's counsel states that the Custodian is being asked to research and compile the employment history of seven named employees; information which is contained in various personnel files. The Custodian's counsel contends that OPRA only requires agencies to disclose identifiable government records and not those that require agencies to analyze, collate and compile general information pursuant to the court decision in MAG Entertainment, LLC v. Division of Alcohol Beverage Control, 275 N.J. Super. 534, 549 (App. Div. 2005). The Custodian's counsel contends "OPRA does not countenance open-ended searches of an agency's files." Id.
The Custodian's counsel states that there was no time period specified in the OPRA request. Therefore, Custodian's counsel contends that the Custodian would have to research the entire employment history of seven (7) employees, including titles and positions that may have been held in outside agencies and collect this information over an infinite period of time. The Custodian's counsel asserts that in Mag Entertainment, LLC, the court held that "[w]hile OPRA may provide access to governmental records otherwise unavailable; MAG's request was not a proper one for specific documents within OPRA's reach, but rather a broad-based demand for research and analysis, decidedly outside the statutory ambit." Id. at 550. The Custodian contends that Custodians are not required to conduct research, create records, or analyze and gather data and information for the public pursuant to the decision in MAG Entertainment, LLC, and asserts that fulfilling the request would require the Custodian to perform these functions; therefore this request was properly denied.
Additionally the Custodian's counsel states that the records requested are personnel records which are not disclosable pursuant to N.J.S.A. 47:1A-10. The Custodian's counsel asserts that the statutory language limits the disclosure of personnel records to include only those listed above and the Complainant's request is for much more than what is permitted under OPRA. Specifically, the Custodian's counsel notes that "information" of all past positions held, length of time held, salary histories, etc. does not fall within the limited exceptions to the personnel exemption listed in OPRA and so are considered a personnel record exempt from access. The Custodian's counsel also claims that N.J.A.C. 4A:1-2.1(b) supports the assertion that personnel records are confidential in nature. Therefore, the Custodian's counsel asserts that the information sought is deemed confidential by rules promulgated by the DOP under Title 11 and the Custodian acted properly in denying access.
October 17, 2006 Complainant's response to the SOI. The Complainant argues that the Custodian would not have to do research to fulfill his request because there are two (2) databases that contain the information requested: "Treasury Executive Administrative Management System" ("TEAMS") and "Personnel Management Information System" ("PMIS") which contain the "employee master record" in the "employee history record." The Complainant asserts that while the Custodian states that the records responsive to the request are personnel records that cannot be disclosed to him, Treasury has provided the same documentation to the media in the past and his request should be treated no differently. The Complainant is requesting that the GRC conduct an in camera inspection of the information contained in these databases to determine what exemptions, if any, apply.
April 3, 2006 Letter from the GRC to the Custodian. The GRC requested a certification of the Custodian that would provide a definitive statement as to whether or not TEAMS and PMIS exist, and whether or not the information contained in these databases would be responsive to the Complainant's OPRA request.
Undated Certification Certification of the Custodian. The Custodian states that TEAMS and PMIS do exist and contain master and history data for each employee, including social security numbers, home addresses, home phone numbers, disciplinary records, leave of absence records and other information protected under OPRA and other laws. The Custodian certifies that while the information contained in these databases may be responsive to this request the information is not always comprehensive and some long-term employees have additional records maintained in hard copy from before these systems were created in the late 1980s.
May 1, 2006 E-mail from the Complainant to the GRC. The Complainant states that he only requested employees' education and the dates that the employees held their different state titles. The Complainant goes on to state that because most of the named individuals have only been employees since the inception of TEAMS and PMIS, he is revising his request to only include that information contained in these databases and not what is held in hard copy. The Complainant states that given this clarification the OPRA request for these records cannot be categorized as overly broad or one that requires research to fulfill. Analysis
Whether the Custodian unlawfully denied access to the requested titles held, the length of time held, positions held, salary history and payroll records of specifically named individuals?
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 …" (Emphasis added.) N.J.S.A. 47:1A-1.1.
OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:
"…[t]he public agency shall have the burden of proving that the denial of access is authorized by law…" N.J.S.A. 47:1A-6.
OPRA states that:
"[n]otwithstanding the provisions of [OPRA]… the personnel or pension records of any individual in the possession of a public agency… shall not be considered a government record and shall not be made available for public access, except that: an individual's name, title, position, salary, payroll record, length of service… shall be a government record;… and… data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment… shall be a government record." (Emphasis added.) N.J.S.A. 47:1A-10.
The Complainant states that the Custodian has unlawfully denied access to the requested records in citing N.J.S.A. 47:1A-10 as a basis for denying access. The Complainant contends that the Custodian has not provided that personnel information which is disclosable under that portion of OPRA. Specifically, the Complainant states that the Custodian has failed to provide the name, title, position, salary, payroll record and length of service for the individuals requested. The Custodian certifies that with regard to the OPRA request, the Complainant was informed that the documents requested were for individual personnel records which are not disclosable under N.J.S.A. 47:1A-10 and that Treasury interprets the OPRA allowance for the release of payroll records to mean whether an employee is active or inactive on the payroll.
In Jackson v. Kean University, GRC Case No. 2002-98 (November 2003) the GRC found that "[n]either OPRA nor Executive Order #11[3] defines the term "payroll record". Thus, we look to the ordinary meaning of that term, and are informed by other regulatory provisions defining that phrase. "Payroll" is defined as a list of employees to be paid and the amount due to each of them. Black's Law Dictionary (7th Ed., 1999). It is also clear that documents included within the payroll record exception are, in part, records required by law to be maintained or reported in connection with payment of salary to employees and is adjunct to salary information required to be disclosed. In this regard, N.J.A.C. 12: 16-2.1, a Department of Labor regulation entitled "Payroll records," requires the following:
Every employing unit having workers in employment, regardless of whether such unit is or is not an "employer" as defined in the Unemployment Compensation Law, shall keep payroll records that shall show, for each pay period:
The Custodian states that the Complainant's request is for personnel records that are not disclosable pursuant to N.J.S.A. 47:1A-10. However, based on the language of N.J.S.A. 47:1A-10, "name, title, position, salary, payroll record, and length of service" are all explicitly considered a government record. The Complainant's request essentially mirrors the language in the statute, specifically requesting titles and positions held, the length of time the positions were held, salary history and payroll records for certain individuals. Therefore, the requested personnel records are a government record subject to disclosure pursuant to N.J.S.A. 47:1A-10.
Additionally, the Custodian's counsel asserts that this request was an improper and overly broad request that would require the Custodian to undertake research to compile information and contends that OPRA only requires agencies to disclose identifiable government records and not those that require agencies to analyze, collate and compile general information pursuant to the court decision in MAG Entertainment, LLC v. Division of Alcohol Beverage Control, 275 N.J. Super. 534, 549 (App. Div. 2005).
The Complainant argues that the Custodian would not have to do research to fulfill his request because there are two (2) databases that contain the information requested: TEAMS and PMIS which contain the "employee master record" in the "employee history record." The Custodian states that TEAMS and PMIS do exist and contain master and history data for each employee, including social security numbers, home addresses, home phone numbers, disciplinary records, leave of absence records and other information protected under OPRA and other laws. The Custodian certifies that while the information contained in these databases may be responsive to this request the information is not always comprehensive and some long-term employees have additional records maintained in hard copy from before these systems were created in the late 1980s.
In light of the certification of the Custodian indicating that PMIS and TEAMS do exist and do contain a compilation of the information requested by the Complainant, the Custodian is incorrect in asserting that the request requires research to compile the information.
Given that the records requested by the Complainant fall squarely within the definition of a government record subject to disclosure pursuant to N.J.S.A. 47:1A-10 and that the Custodian does not have to do research to fulfill the request, the Custodian has unlawfully denied access to the requested personnel records. Therefore, the Custodian should disclose the requested records pursuant to OPRA.
WHETHER the Custodian's actions rise to the level of a knowing and willful violation of the 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 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.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:
"…[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 Custodian states that the Complainant's request is for personnel records that are not disclosable pursuant to N.J.S.A. 47:1A-10. The Complainant's request is specifically for titles and positions held, the length of time the positions were held, salary history and payroll records for certain individuals. Also, the Custodian's counsel asserts that this request was an improper and overly broad request that would require the Custodian to undertake research to compile information. However, the Custodian later certifies that there are databases which contain information that may be responsive to this request.
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).
Based on the explicit wording of the request, which mirrors the language found in N.J.S.A. 47:1A-10, the existence of databases that contain information responsive to the request and the Custodian's denial of access to the requested records, 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 the Council find that:
Prepared By: _______________________ Colleen C. McGann Case Manager
Approved By: _______________________ Catherine Starghill Executive Director [1] The Complainant included another request as part of this Denial of Access complaint but withdrew that portion of the Complaint in his October 17, 2005 submission to the GRC. [2] SOI was submitted outside of the five (5) business day time period requested, however an extension of time for submission of this document was requested by Custodian's counsel and granted by the GRC. [3]Executive Order #11 exempted personnel records from disclosure under the Right to Know Law but provided that payroll records are disclosable.
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