2005-176

Final Decision

At its December 8, 2005 public meeting, the Government Records Council ("Council") considered the December 2, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, finds that:

1. The Complainant provided written correspondence to the Government Records Council staff confirming that he was able to view the requested records. Therefore, access is no longer at issue in this Complaint and this portion of the Complaint requires no further action by the Council.
2. The Custodian did violate N.J.S.A. 47:1A-5.e. Immediate access shall ordinarily be granted to contracts and the Custodian did delay the release of the requested contract records.
3. The Custodian did provide a written response to the Complainant within the statutorily required seven (7) business days, therefore the Custodian did not violate N.J.S.A. 47:1A-5.i.
4. The Custodian did violate N.J.S.A. 47:1A-6 by not providing a lawful basis for the delay in access, however the Custodian's actions do not meet the legal standard of a knowing and willful violation of the OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk's Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 8^th Day of December, 2005

Diane Schonyers, Vice-Chair
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  December 14, 2005

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Findings and Recommendations of the Executive Director

Records Requested: (As stated by the Complainant)

1. Superintendent's Employment Contract and Stipends
2. Principal's Contract and Stipends
3. Business Administrator's Contract and Stipends

Request Made:  August 25, 2005
Response Made: September 2, 2005
Custodian:  Ralph Radisch
GRC Complaint filed: September 19, 2005

Background

August 25, 2005

Written Open Public Records Act (OPRA) Request - Complainant seeks the Superintendent's Employment Contract and Stipends, Principal's Contract and Stipends, and the Business Administrator's Contract and Stipends.

September 19, 2005

Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant stated that he received a letter from the Business Administrator that stated that the requested records were under review by Counsel.  He deemed this action to be a denial of access to the requested records.

The Complainant further states that the board was in violation of the OPRA because they delayed access to records that are defined as being immediate access records pursuant to N.J.S.A. 47:1A-5.e. The Complainant stated that since the contracts were approved at the July 26, 2005 meeting, he should have been granted access. He requested that the GRC intervene for him to receive access to the requested records.

The Complainant attached the following documents to the Denial of Access Complaint:

1. August 25, 2005 Open Public Records Request.
2. August 25, 2005 signed acknowledgment of receipt of the request from a secretary with the Board of Education.
3. September 2, 2004 letter from the Custodian advising the Complainant the request was under review by the Board attorney.
4. A copy of Board Meeting Minutes dated July 26, 2005. These minutes contain the approval of the requested contracts.
5. A copy of N.J.S.A. 47:1A-5.e., which states in part that contracts are immediate access records.

September 21, 2005

GRC staff sent an offer of mediation to both parties.

September 21, 2005

The Complainant responded to the offer of mediation. He declined the offer of mediation.

September 27, 2005

GRC staff requested a Statement of Information from the Records Custodian.

September 27, 2005

The Complainant submitted additional information to the GRC staff regarding his complaint. He stated that he received a September 23, 2005 letter from the Records Custodian informing him that the requested records were available for him to view.  The Complainant sent a September 27, 2005 letter to the Custodian stating that he did not only request to view documents, but wanted to scan the documents with his personal scanner. The Complainant stated that this was on his August 25, 2005 records request, but was not acknowledged in the response letter sent to him by the Records Custodian.  He requested that the Custodian reply to his request to not only view, but also scan the requested records.

The Complainant attached the following documents to this correspondence:

1. September 23, 2005 letter from the Custodian advising him that he may view the requested records.
2. September 27, 2005 letter from the Complainant to the Custodian requesting clarification on whether he may scan the documents.
3. September 2, 2005 – Records Custodian's original response to the August 25, 2005 OPRA request.
4. A copy of the July 26, 2005 meeting minutes.

September 30, 2005

Records Custodian submitted the Statement of Information to the GRC staff. The Custodian stated that the records responsive to the request were released to the Complainant.  The Custodian further asserted that the status and availability of the records was done in a timely manner. The Custodian stated that the requested legal document (contract) was provided for the Complainant after the document was reviewed and approved by both parties.

The Custodian attached the following documents to his Statement of Information:

1. August 25, 2005 Open Public Records Request.
2. September 2, 2005 original written response from the Records Custodian to the Complainant regarding the August 25, 2005 OPRA request.
3. September 23, 2005 letter from the Records Custodian to the Complainant advising him that the records were available.
4. September 27, 2005 letter from the Complainant to the Custodian requesting clarification on whether he may scan the documents.
5. September 27, 2005 letter from the Complainant to the Custodian providing further clarification of what records he wants to view and scan.

October 5, 2005

Written correspondence from the Complainant to GRC staff in response to the Custodian's Statement of Information. The Complainant asserts that while he was provided with access to the requested records, he was not provided immediate access to the contracts pursuant to N.J.S.A. 47:1A-5.e.  He also asserts that the Custodian was in violation of the OPRA because he delayed access to the requested records. The Complainant stated that since action regarding the contracts occurred during the July 26, 2005 meeting, he should have been given the opportunity to view and scan the documents upon submitting his OPRA request on August 25, 2005.

The Complainant also asserts that the Custodian violated N.J.S.A. 47:1A-5.a., which states that the Custodian of a government record shall permit the record to be inspected, because he was not allowed to inspect the requested record. The Complainant further asserted that the Custodian violated N.J.S.A. 47:1A-5.e., which states in part that records requested by the Complainant are immediate access records.  The Complainant requested that the GRC adjudicate this matter regarding a knowing and willful violation of the OPRA and unreasonable denial of access pursuant to N.J.S.A. 47:1A-11.   

The Complainant attached the following information to this correspondence:

1. August 25, 2005 Open Public Records Request.
2. August 25, 2005 signed acknowledgment of receipt of the request from a secretary with the Board of Education.
3. A copy of N.J.S.A. 47:1A-5.e., which states in part that contracts are immediate access records.
4. A copy of N.J.S.A. 47:1A-5.i., which states in part that a Custodian should grant access as soon as possible, but no later than seven business days.
5. September 2, 2005 original written response from the Records Custodian to the Complainant regarding the August 25, 2005 OPRA request.
6. September 21, 2005 e-mail correspondence from the GRC staff to the Complainant offering him mediation regarding his case.
7. September 23, 2005 letter from the Records Custodian to the Complainant advising him that the records were available.
8. September 27, 2005 letter from the Complainant to the Custodian requesting clarification on whether he may scan the documents.
9. September 27, 2005 letter from the Complainant to the Custodian providing further clarification of which records he wants to view and scan.
10. September 27, 2005 meeting agenda for the Mount Arlington Board of Education.
11. A copy of N.J.S.A. 47:1A-1, which states in part that records shall be readily accessible for copying and that access to those records pursuant to the OPRA should be in favor of the public.
12. A copy of N.J.S.A. 47:1A-5.a., which states in part that the Custodian of a government record should permit the record to be inspected or copied by any person during regular business hours.
13. A copy of N.J.S.A. 47:1A-11.a., which states in part that the Custodian of a government record can be fined for knowingly and willfully violated the OPRA and unreasonably denied access under the totality of the circumstances.
14. A copy of the Records Custodians Statement of Information.

November 15, 2005

E-mail from the Complainant to GRC staff stating that he has received access to the requested records.

Analysis

WHETHER the Custodian unlawfully denied access to the requested records?

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.

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..." N.J.S.A. 47:1A-1.1.

OPRA provides that:

"...[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information..." N.J.S.A. 47:1A-5.e.

"...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor..." N.J.S.A. 47:1A-5.g.

"...[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..." N.J.S.A. 47:1A-5.i.

OPRA further provides that:

 "...[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 was allowed to review and scan the records as acknowledged in his November 15, 2005 e-mail to GRC staff. However, the Custodian did violate N.J.S.A. 47:1A-5.e. by not providing immediate access to the contracts. The Custodian did not provide access to the records until approximately one month after the request was filed.

The Custodian did provide a written response to the records request pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. The written response was given within seven business days as pursuant to N.J.S.A. 47:1A-5.i. However, the Custodian did not provide a lawful explanation for the delay in access, therefore he violated N.J.S.A. 47:1A-6. Pursuant to N.J.S.A. 47:1A-6, the Custodian has to provide a lawful explanation for not providing access to the requested record.  While the Custodian did provide a written response informing the Complainant of the delay in providing the records and advised him that information would be forthcoming regarding access to the contracts, it is unlawful for the Custodian to delay access to the requested records because the contracts were under review by the parties to the contracts.

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

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

OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states:

"... If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]..." N.J.S.A. 47:1A-7.e.

The Complainant alleges that the Custodian delayed access to the requested records.  The Custodian certified that the reason for the delay in access was that the requested contracts were under review by the parties of the contract. Once the contracts were approved by the parties, the Custodian released the requested contracts 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).

The Custodian certified that the records were not immediately released because the requested records were under review by both parties.  The Custodian further certified that after the contracts were approved by the parties he released them to the Complainant. The Complainant has sent written correspondence to the GRC staff stating that he has gained access to the contracts.

In view of the facts that the Complainant was informed of the reason for the delay (although the reason for the delay was unlawful) and the records were ultimately released to the Complainant, it is concluded that the Custodian's actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

1. The Complainant has provided written correspondence to GRC staff that confirms that he was able to view the records. Therefore, access is no longer at issue in this Complaint and that portion of the Complaint requires no further action of the Council.
2. The Custodian did violate N.J.S.A. 47:1A-5.e. Contracts are considered immediate access records and the Custodian did delay the release of those records.
3. The Custodian did supply a written response to the Complainant within seven business days, therefore the Custodian did not violate N.J.S.A. 47:1A-5.i.
4. The Custodian did violate N.J.S.A. 47:1A-6 by not providing a lawful basis for the delay in access, however the Custodian's actions do not rise to the level of a knowing and willful violation of the OPRA under the totality of the circumstances.

Prepared By: Kimberly Gardner, Case Manager

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

December 2, 2005

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