2005-180

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 10^th Day of November, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council

Findings and Recommendations of the Executive Director

Request Made: September 6, 2005, September 20, 2005, September 21, 2005
Response Made: September 15, 2005, September 21, 2005
Custodian: Nicole Tedechi
GRC Complaint filed: September 17, 2005

Complainant's written Open Public Records Act (OPRA) Request. The Complainant seeks "a copy of each freeholder campaign season kickoff letter addressed to each municipality dated July 2005, all bills for postage, all bills for printing and copying, and a document showing the taxes that each municipality was assessed by the County for the year 2005."[2]

Letter from Custodian's counsel to Complainant. Counsel acknowledges the Custodian's receipt of the Complainant's September 6, 2005 OPRA request. Counsel claims that the Complainant's request for 2005 tax information has been previously provided to her. Counsel also claims that the County of Union has never sent out any campaign mailings therefore there are no records responsive to her request. Additionally, counsel states that the County sends out informational mailings and if the Complainant is interested in obtaining copies of these, the Custodian would be happy to assist her. Counsel states that in regards to the request for letters addressed to each municipality, the Custodian cannot respond at this time because she is unsure about the timeframe of the letters requested. Further, counsel states that if the Complainant wishes to view copies of informational mailings pertaining to a specific municipality, she may notify the Clerk's office citing the specific timeframe of the letter.

Denial of Access filed with the Government Records Council (GRC) staff.[3] Complaint included the following attachments:

The Complainant claims that she submitted a written OPRA request to the County of Union on September 6, 2005. She asserts that she requested letters addressed to each municipality and mailed to homeowners dated July 2005, bills for postage, and bills for copying and printing. The Complainant states that on the seventh business day after her request, the Custodian's counsel responded in writing and denied her request and/or was seeking more clarification. The Complainant asks that the Council find that the Custodian committed a knowing and willful violation under OPRA and that the Council compels the Custodian to comply with her request.

Complainant's second written OPRA request. The Complainant requests copies of mailings to residents dated August 2005 through September 2005 to date, including bills for postage, printing and copying.

E-mail from Custodian to Complainant. The Custodian states she has attached seven (7) files to the e-mail responsive to the Complainant's request for copies of mailings dated August 2005 through September 2005 to date. Responding to the request for postage and print/copy bills, the Custodian claims that these are not available in an electronic format, but that the Complainant may go to the Clerk's office to view the paper copies or she can mail them upon receiving a payment of $6.75 from the Complainant. The Custodian claims that there are nine (9) billing pages, eight (8) of which are for postage, and the other for printing.

E-mail from Complainant to Custodian. The Complainant claims that the Custodian has failed to provide letters addressed to Cranford and Garwood residents, and requests that they be disclosed immediately.

E-mail from Custodian to Complainant. The Custodian states she has attached letters addressed to Cranford, Mountainside, and Springfield and that no such letter addressed to Garwood during August or September exists. The Custodian states that if the Complainant is still interested in viewing the bills for postage and printing, they are available at the Clerk's office.

Denial of Access Complaint filed with GRC staff.[6] Complaint included the following attachments:

The Complainant asserts that on September 20, 2005 she submitted a second OPRA request to the County of Union. The Complainant states that she is requesting copies of all mailings to residents dated August 2005 through September 2005 to date, including postage and copying bills. She further states that on September 26, 2005, she viewed her request at the Clerk's office, and claims she was presented with nine (9) letters and only seven (7) postage bills. The Complainant states that the bills do not indicate which letter they pertain to. The Complainant claims she questioned the Clerk Intern regarding the bills and the Intern told her to write down her questions and fax them to the Clerk. Additionally, the Complainant alleges that the Intern informed her that there were no printing or copying bills for the disclosed letters. When asked why, the Complainant claims she received no response from the Intern. The Complainant states that under OPRA, immediate access shall be granted to budgets, bills, vouchers, etc. Stating that this is her eleventh OPRA complaint against the County of Union, the Complainant requests that the Custodian be found guilty of a knowing and willful violation.

Government Records Council (GRC) staff sends request for Statement of Information to Custodian.[8]

E-mail from Custodian to GRC staff. The Custodian inquires about the status of mediation and the Statement of Information.

E-mail from GRC staff to Custodian. GRC staff states that the Complainant has declined mediation. Staff advises the Custodian to fill out the Statement of Information and return it no later than October 6, 2005.

Government Records Council (GRC) staff sends request for Statement of Information to Custodian.[10]

The Custodian acknowledges receipt of the Complainant's September 6, 2005 OPRA request. The Custodian states she responded in writing on September 15, 2005 indicating that the County does not have any campaign mailings and requesting clarification for letters addressed to each municipality. On September 20, 2005, the Custodian states she received a revised request from the Complainant.

The Custodian certifies that she released The 2005 County of Union Abstract of Ratables on September 7, 2005. Additionally, the Custodian certifies that on September 21, 2005, she disclosed letters addressed to Berkeley Heights, Fanwood, Summit, Roselle, Rahway, Elizabeth, Mountainside, Springfield, and Cranford, as well as the Healthy Families letter. Further, the Custodian certifies that postage bills were made available to the Complainant on September 21, 2005 and were viewed by the Custodian on September 26, 2005.

The Custodian certifies that the County does not have any records that would be considered campaign mailings, as suggested by the Complainant, so no records could be released. In response to the Complainant's request for letters addressed to each municipality, the Custodian certifies that records could not be released due to lack of information provided, specifically, the timeframe of the letter.

The Custodian's counsel states that on the Complainant's September 6, 2005 OPRA request, she is requesting "freeholder campaign season kick off letters"[12] and claims that this mailing was "in violation of the 90 day ELEC laws for political mailings."[13] Counsel states that even if the Custodian could identify the records being sought, disclosing them would "put the County in an untenable position."[14] Further, counsel certifies that the September 15, 2005 clarification letter was sent to the Complainant after a legal determination was made by the Office of County Counsel.

Counsel claims that the Complainant did not assist the Custodian in clarifying her request by submitting a sample of the letter she was seeking. Counsel asserts that the Complainant possessed a copy of the letter being sought because she attached it to her Denial of Access Complaint. According to the Custodian's counsel, the purpose for the September 15, 2005 clarification letter was to work with the Complainant to deliver the records being sought while "preserving the legal rights of the County."[15]

Regarding the time frame of the Custodian's response to the Complainant's September 6, 2005 OPRA request, counsel states that the response was made within the seven (7) business day time frame and therefore does not constitute a violation of OPRA.

E-mail from Complainant to GRC staff. The Complainant states that as of October 11, 2005, the Custodian has not fully complied with her OPRA requests. The Complainant claims that she has only viewed 7 postage bills that do not indicate which of the requested letters they pertain to. Additionally, the Complainant states that she has yet to receive a copy of the County's charge back procedure. The Complainant requests for the Council to compel the Custodian to comply with her OPRA request, and for the Custodian to be found guilty of a knowing and willful violation of OPRA. The Complainant attaches the nine (9) letters released to her by the Custodian as well as postage bills and a sample print bill.

E-mail from GRC staff to Complainant. Staff acknowledges receipt of the Complainant's October 11, 2005 e-mail. GRC staff advises the Complainant that her case must follow the complaint process and be heard by the Council; the GRC staff does not have authority to intervene prior to a Council decision. Staff informs the Complainant that she will be contacted as soon as her case has a scheduled agenda date.

The Custodian acknowledges receipt of the Complainant's revised OPRA request dated September 20, 2005 and states she responded on September 21, 2005 via e-mail releasing letters addressed to Berkeley Heights, Fanwood, Summit, Roselle, Rahway, Elizabeth, Mountainside, Springfield, and Cranford, and the Healthy Families letter as well as advising that the bills for postage and copying were available for inspection at the Clerk's office. The Custodian certifies that the Complainant viewed the postage and copying bills on September 26, 2005.

In response to the Complainant's claim that the County did not provide her with immediate access to bills, counsel for the Custodian certifies that the requested bills were made available to the Complainant on September 21, 2005, one day after her revised request, making the response complete and timely, therefore not violating OPRA.

Counsel also addresses the Complainant's alleged dissatisfaction with being presented with seven (7) postage bills corresponding to nine (9) letters. Counsel certifies that on two (2) occasions, two (2) mailings were sent out at the same time because they were being sent to smaller municipalities, therefore mailings could be combined because of their size. Counsel states that the County acknowledges the fact that the postage bills do not address which letters they correspond to, and certifies that this is due to the procedure for sending bulk mail from the Elizabeth Post Office. Counsel certifies that the bills disclosed to the Complainant represent the records requested, and are the only records responsive to the request maintained by the County.

Further, counsel states that the Complainant claims she was not provided with printing and copying bills for the letters requested. Counsel certifies that the Complainant was provided with all Print Request Forms pertaining to her request on September 26, 2005. Additionally, counsel certifies that the County does not maintain any bills or invoices for in-house printing responsive to the Complainant's request. Counsel states that the County did not receive any charge-backs for printing of requested letters because an outside vendor did not complete the printing.

Additionally, counsel notes that the County's Print Request Form does not include a cost for billing, as does the form submitted to the Council by the Complainant. Counsel certifies that there is no cost to County agencies for printing work completed in-house.

Letter from Custodian's counsel to GRC staff. Counsel states that he is supplementing the County's Statement of Information by enclosing copies of postage bills dated August 11, 2005, August 16, 2005, August 30, 2005, September 12, 2005, September 13, 2005, September 16, 2005, and September 19, 2005.

Letter from Custodian to GRC staff. The Custodian states that this certification is submitted at the request of the GRC. The Custodian certifies that on September 20, 2005, she e-mailed the Complainant and attached the following requested letters: Berkeley Heights, Fanwood, Summit, Roselle, Rahway, Elizabeth, Mountainside, Springfield, Cranford, and the Healthcare Programs Brochure. Additionally, the Custodian certifies that in the September 21, 2005 e-mail, she informed the Complainant that the following documents were available for viewing: the Healthcare Programs Brochure printing invoice and postage invoice, in addition to postage invoices for the municipal mailings dated August 11, 2005, August 16, 2005, August 30, 2005, September 12, 2005, September 13, 2005, September 16, 2005, and September 19, 2005. According to the Custodian, the Complainant viewed these documents on September 26, 2005. Further, the Custodian certifies that the documents released on September 21, 2005 and viewed on September 26, 2005 are all the documents responsive to the Complainant's September 20, 2005 request.

Additionally, the Custodian states that the Complainant was also seeking copies of the printing/copying bills for the municipal letters requested in her September 20, 2005 request. The Custodian certifies that all printing and copying for the letters requested were completed in-house and therefore no printing or copying bills exist. The Custodian states that the Print Request Form submitted by the Complainant to the GRC was provided to the Complainant on August 11, 2005 responsive to another OPRA request separate from the one at issue. Further, the Custodian states that this Print Request Form is not a bill, but a work order, since departments are "not charged for projects that are sent to the Print Shop for duplication."[17] The Custodian certifies that the Print Request Forms at issue were submitted to the GRC with the Statement of Information to clarify that no charge was incurred for the production of the requested mailings.

E-mail from Complainant to GRC staff. Complainant states that the Custodian has not yet identified which postage bills correspond to each municipal letter. She claims the reason for this is that these letters were signed by a freeholder up for re-election and that it is a violation of the ELEC rules.

The Complainant wishes for the County to comply with her request and for the Council to find the Custodian guilty of a knowing and willful violation of OPRA.

WHETHER the Custodian unlawfully denied access to the September 6, 2005 and September 20, 2005 OPRA requests?

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.)

N.J.S.A. 47:1A-1.1 provides that: " ... 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-6 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-5.e. provides that: "Immediate 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." (Emphasis added)

N.J.S.A. 47:1A-5.g. provides 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. The Custodian shall sign and date the form and provide the requestor with a copy therefore ..."

N.J.S.A. 47:1A-5.i. provides that: "[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a Custodian of a government record shall grant access ... or deny a request for access ... as soon as possible, but not later than seven business days after receiving the request... In the event a Custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request..."

The Custodian certifies receiving the Complainant's September 6, 2005 request and providing a written response on September 15, 2005 indicating that there are no records responsive to the request for campaign mailings and seeking clarification of the request for letters addressed to each municipality. The Custodian also certifies receiving the Complainant's September 20, 2005 clarified request and providing a written response releasing records on September 21, 2005 via e-mail and indicating that other requested records were available to view at the Clerk's office. On September 26, 2005, the Custodian certifies that the Complainant viewed the remainder of the requested documents responsive to her request.

The Complainant claims that the Custodian has not provided the requested print/copy bills, however, the Custodian certifies that bills for copying do not exist for the letters requested because the County is not charged for in-house print jobs. The Complainant also argues that the postage bills released do not indicate which municipal letter they correspond to and notes that she received nine (9) letters from the Custodian and only seven (7) postage bills. The Custodian's counsel certifies that only seven (7) bills exists because two (2) mailings were combined on two (2) occasions due to their small size. He further certifies that the postage bills do not reflect their corresponding letters due to the procedure for sending bulk mail from the Elizabeth Post Office.

Pursuant to N.J.S.A. 47:1A-6, the public agency bears the burden of proving that the denial of access is authorized by law. In this case, the Custodian certifies that the denial of access is lawful because the County does not maintain any documents that would be described as campaign mailings. Additionally, the Custodian certifies that she could not comply with the request for letters addressed to each municipality because she needed clarification as to the timeframe of the letters requested. Regarding the print/copy bills requested on September 20, 2005, the Custodian certifies that the County is not charged for in-house printing, therefore bills do not exist. Regarding the discrepancy between the amount of letters and postage bills disclosed, the Custodian's counsel certifies that mailings were combined due to their size which resulted in only seven (7) bills.

OPRA provides that immediate access shall ordinarily be granted to bills under N.J.S.A. 47:1A-5.e. The Complainant requested copies of postage and printing bills in her September 6, 2005 and September 20, 2005 requests. The Custodian certifies that she could not comply with the Complainant's September 6, 2005 request for bills because she needed clarification as to which municipal letters the bills pertained to. Regarding the Complainant's September 20, 2005 request, the Custodian certifies making the requested bills available to the complainant on September 21, 2005, one (1) day after the request was made. Further, the Custodian certifies that the bills released to the Complainant are all the bills responsive to her request.

If a Custodian is unable to comply with a request, he/she must notify the Complainant in writing indicting the reason for non-compliance pursuant to N.J.S.A. 47:1A-5.g. In this case, the Custodian certifies that she was unable to comply with the Complainant's September 6, 2005 request because the County does not maintain any documents described as campaign mailings and she needed clarification as to the timeframe of the letters being requested. The Custodian also certifies that the Complainant was notified of this on September 15, 2005 by the Custodian's counsel.

OPRA mandates that a Custodian shall grant or deny access to a request no later than seven (7) business days after receiving the request. In this case, the Custodian certifies providing a written response denying and seeking clarification of the request on September 15, 2005, which falls within the seven (7) business day time period provided by OPRA. Regarding the Complainant's second request dated September 20, 2005, the Custodian certifies releasing all responsive records on September 21, 2005, also within the seven (7) business day time period.

Therefore, since the Custodian certifies releasing all the bills responsive to the request one (1) day after the request was made, the Custodian has provided immediate access to bills pursuant to N.J.S.A. 47:1A-5.e. Additionally, pursuant to N.J.S.A. 47:1A-5.i., the Custodian has granted or denied access to both the September 6, 2005 and September 20, 2005 OPRA requests within the statutorily mandated seven (7) business days. Further, the Custodian has born the burden of proving that the denial of access was lawful as prescribed in N.J.S.A. 47:1A-6.

WHETHER the Custodian committed a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?

N.J.S.A. 47:1A-11.a. provides 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-7.e. provides that: "...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]..."

The Custodian certifies that her counsel responded to the Complainant's September 6, 2005 request on September 15, 2005 and sought clarification of the request. Additionally, the Custodian certifies that she responded to the September 20, 2005 request by e-mail on September 21, 2005 in which she released all records responsive to the 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).

In this case, the Custodian provided immediate access to the requested bills on September 21, 2005. She certifies that all existing documents responsive to the request were released to the Complainant. The Custodian also properly responded to both requests in writing and within the statutorily mandated seven (7) business days provided under N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. Further, the Custodian has born her burden of proving that the denial of access to the Complainant's September 6, 2005 request was lawful because she certifies that no documents exist that could be described as campaign mailings.

Therefore, 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-7.e.

[1] As stated on September 6, 2005 OPRA request
[2] As stated on September 6, 2005 OPRA request
[3] Regarding case 2005-178
[4] Regarding case 2005-178
[5] Complainant declined mediation
[6] Regarding case 2005-180
[7] Regarding case 2005-180
[8] Regarding case 2005-178
[9] Complainant declined mediation
[10] Regarding case 2005-180
[11] Regarding case 2005-178
[12] As stated on September 6, 2005 OPRA request
[13] As stated on September 6, 2005 OPRA request
[14] As stated on Statement of Information
[15] As stated on Statement of Information
[16] Regarding case 2005-180
[17] As stated in October 20, 2005 certification