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2005-196
Final Decision
At the October 19, 2006 public meeting, the Government Records Council ("Council") considered the October 5, 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 the Custodian has complied with the Council's Interim Order of August 15, 2006.
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 19th Day of October, 2006
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: October 23, 2006 Supplemental Findings and Recommendations of the Executive DirectorDavid Lyons[1] GRC Complaint No. 2005-196Complainant
v. Irvington Board of Education[2] Custodian of Records
Records Relevant to the Complaint:
Requests Made: May 19, 2005, June 14, 2005, September 9, 2005 and September 29, 2005 Response Made: June 3, 2005 and September 27, 2005 Custodian: Dr. Ernest Smith, Former Superintendent and Ethel Davion, Current Interim Superintendent GRC Complaint filed: October 17, 2005
Background
August 10, 2006 At the August 10, 2006 public meeting, the Government Records Council ("Council") considered the August 3, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the Executive Director's analysis, but adopted a different conclusion. The Council, therefore, found that:
August 15, 2006 Council's Interim Order distributed to the parties.
September 7, 2006 Custodian's response to the Council's August 15, 2006 Interim Order. The Custodian states that as indicated in her previous certifications, the Complainant seeks information regarding detailed billing records from the Board of Education's outside counsel. The Custodian certifies that the law firm provides legal representation via a flat contract fee. The Custodian further reiterates that there are no monthly bills responsive to the request.
Also, in accordance with the August 10, 2006 Interim Order, the Custodian provided the GRC a copy of the engagement letter between the law firm and the Board of Education for the year 2005. The engagement letter does not maintain periodic billing, based instead requires a flat contract fee for all legal services rendered.
Custodian's Counsel also certifies that the law firm does not and is not required to provide monthly itemized billing to the Board of Education. Lastly, the Custodian certifies that no one from the law firm receives or has received any pension benefits or any other benefit from the Board of Education. Analysis Whether the Custodian complied with the Council's August 15, 2006 Interim Order?
The Custodian certified that no one from the law firm receives or has received any pension benefits or any other benefit from the Board of Education. Also, Custodian's Counsel certified that the law firm does not and is not required to provide monthly itemized billing to the Board of Education. Finally, the Custodian included in her certification a copy of the engagement letter between the law firm and the Board of Education for the year 2005. The engagement letter does not maintain periodic billing, based instead requires a flat contract fee for all legal services rendered. Therefore, the Custodian has complied with the Council's Interim Order of August 15, 2006.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the Custodian has complied with the Council's Interim Order of August 15, 2006.
Prepared By: Christopher Malloy Case Manager
Approved By: Catherine Starghill, Esq. Executive Director
October 5, 2006 [1] No legal representation [2] Represented by Raymond Hamilton, Esq. from the law firm of Hunt, Hamlin & Ridley, Newark, NJ. [3] Complainant's clarification of his May 19, 2005 request. [4] As stated by the Complainant in his letters, as well as the Denial of Access Complaint Form. [5] As stated by the Complainant in his letters, as well as the Denial of Access Complaint Form. Interim Order
At the August 10, 2006 public meeting, the Government Records Council ("Council") considered the August 3, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the Executive Director's analysis, but adopted a different conclusion. The Council, therefore, finds that:
Supplemental Findings and Recommendations of the Executive DirectorAugust 10, 2006 Council Meeting
Complainant
v.
Custodian of Records
Records Relevant to the Complaint:
Requests Made: May 19, 2005, June 14, 2005, September 9, 2005 and September 29, 2005 Response Made: June 3, 2005 and September 27, 2005 Custodian: Dr. Ernest Smith, Former Superintendent and Ethel Davion, Current Interim Superintendent GRC Complaint filed: October 17, 2005
Background
February 17, 2006
The Council therefore found that while the Custodian did respond to the Complainant's request on June 3, 2005 and September 27, 2005, the Custodian, however, did not provide the requested records and did not respond to requests from the Government Records Council for the agency's position in this complaint. Pursuant to N.J.S.A. 47:1A-6, the public agency has the burden of proving that the denial of access is authorized by law. Therefore, in accordance with OPRA, the Custodian was to provide the Complainant access to the requested records, or submit a legal certification with legal justification as to why the records should not be disclosed within ten (10) business days of receipt of the Council's order to the Complainant and Executive Director.
March 6, 2006 The Custodian states that on June 14, 2005, the Complainant made another request to the then Superintendent of Schools. The Custodian states that it is unclear whether or not that letter was responded to because on or about September 9, 2005, the Complainant sent a request to her attention. The Custodian states that contained in that request were copies of previous correspondence that the Complainant submitted to Dr. Smith, as well as the response from Dr. Smith. The Custodian states that on or about September 27, 2005, she provided the Complainant with a response of her own. She states that in her response was a specific explanation regarding the Board of Education's relationship with the firm, which she considered responsive to the Complainant's request. The Custodian states that her explanation included the types of matters that the firm handles on behalf of the district, the amount of their contract, and the nature of their billing relationship. The Custodian goes on to state however, that it appeared to her that the Complainant was seeking copies of hourly billing records. The Custodian states that, as she advised the Complainant, the firm's contract with the district includes a yearly retainer to provide all of the legal work in the district, including all types of litigation, drafting and review of contracts, investigations, attendance at committee meetings and regular board meetings, collective bargaining negotiations, general advice and counsel and other related matters without the necessity of an hourly rate or periodic detailed billings. The Custodian states that her recollection is that the Complainant also requested additional information from the school district regarding other information. The Custodian states that this request included names of certain cases in which the firm provided representation to the school district, information regarding projects between the school district and the Schools Construction Corporation, as well as any other construction projects that the district was involved in. To that end, the Custodian states that she provided the Complainant with a letter she prepared on or about November 4, 2005, indicating that his (the Complainant's) request for information regarding the law firm should be directed directly to the firm since she (the Custodian) had some concerns that the information he was requesting was attorney client privilege. The Custodian states that on or about November 21, 2005, the Complainant responded with another letter indicating that he would not correspond with the firm, but rather indicated that he wanted the information directly from her. The Custodian states that she responded with a letter on or about December 12, 2005, reiterating once again the relationship that the firm has with the Board, as well as listing the active files that the firm was involved in at that time. The Custodian states that, therefore, it does not appear that there is any other information that the Complainant is entitled to by law. And, the Custodian states that with respect to the other inquiries, it is unclear what information the Complainant is seeking since the other information regarding schools construction has been provided to him. The Custodian states that in the event the Council is desirous of obtaining the responses referred to above, said information can be forwarded under separate cover. May 18, 2006 Government Records Council staff's letter to the Custodian. The staff asked the Custodian, in the form of a certification, for an itemized list of all records responsive to the Complainant's OPRA requests that were made, maintained, received or kept on file by the Irvington Board of Education on May 29, 2005, September 9, 2005, June 14, 2005, and September 29, 2005, regardless of whether the Custodian deems the records disclosable. The staff also asked the Custodian to certify which documents the Custodian provided to the Complainant that are responsive to the request. Finally, the staff asked the Custodian to certify which documents the Custodian did not provide to the Complainant, and the legal explanation for same. June 1,2006 The Custodian states that on February 24, 2006 she received a request for information related to the Complainant's request for a complete explanation as to why the information requested should not be produced. The Custodian states that as indicated in her previous certification, the Complainant is seeking information regarding detailed billing records of the district's attorneys. The Custodian states that the law firm provides representation for an annual retainer. She states that there are no monthly bills. The Custodian goes on to state that as she understands, based on discussions with her board counsel, itemized bills often contain attorney client privileged information because of the nature of the bills, sometimes setting forth research strategies, names of students who are entitled to privacy, and other non-public information. The Custodian states that in this instance, it appears as though the Complainant is seeking information concerning the exact nature of work performed by the firm. The Custodian cites Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534 (App. Div. 2005) and states that the Complainant's request for information is not permissible pursuant to OPRA. She states that the Complainant has not requested specific documents but rather makes reference to information related to the work that the district's law firm conducts. The Custodian goes on to state that notwithstanding the vague and over broad nature of the request, she attempted to provide the Complainant with a response as indicated in her March 6, 2006 certification. The Custodian states that after further review of the Complainant's letters of May 19, 2005, June 14, 2005, September 9, 2005 and September 29, 2005, it is clear that there has been no specific request for any identifiable government record as contemplated by Mag, supra. 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…" UN.J.S.A.U 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.) UN.J.S.A.U 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…" UN.J.S.A.U 47:1A-6.
The Custodian states that as indicated in her previous certification, the Complainant is seeking information regarding detailed billing records of the district's attorneys. The Custodian states that the law firm provides representation for an annual retainer. She states that there are no monthly bills.
The Custodian goes on to state that in this instance, it appears as though the Complainant is seeking information concerning the exact nature of work performed by the firm. The Custodian cites Mag and states that the Complainant's request for information is not permissible pursuant to OPRA. The Custodian states that the Complainant has not requested specific documents but rather makes reference to information related to the work that the district's law firm conducts.
Finally, the Custodian states that after further review of the Complainant's letters of May 19, 2005, June 14, 2005, September 9, 2005 and September 29, 2005, it is clear that there has been no specific request for any identifiable government record as contemplated by Mag.
In Mag, the New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1." (Emphasis added). The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short; OPRA does not countenance open-ended searches of an agency's files." (Emphasis added.) Id. at 549.
Further, in Bent v. Stafford Police Department, 381 N.J. Super 30, 37 (October 2005), the Superior Court references Mag in that the Court held that a requestor must specifically describe the document sought because OPRA operates to make identifiable government records "accessible." "As such, a proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents."
The Council requires additional information to make a determination in this matter. Specifically, the Council requires the following information:
Whether the Custodians responded to the Complainant's multiple OPRA requests within the statutorily required seven (7) business days?
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.) UN.J.S.A.U 47:1A-5.g.
OPRA indicates that if there is no response to the request within the statutorily required response time of seven (7) business days, the request is considered denied. Specifically, 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.) UN.J.S.A.U 47:1A-5.i.
The Custodian states that upon information and belief, on or about May 14, 2005, Dr. Ernest Smith, Jr., former Superintendent of Schools, received a letter from the Complainant requesting information regarding the "monthly-reimbursement" for the firm of Hunt, Hamlin & Ridley for the previous four (4) years. The Custodian states that Dr. Smith responded to the Complainant on June 3, 2005, regarding his (the Complainant) request and the information he was seeking, specifically indicating the relationship that the firm has had with the Irvington Board of Education. (The firm provides representation for an annual retainer.)
The Custodian states that on June 14, 2005, the Complainant made another request to the then Superintendent of Schools. The Custodian states that it is unclear whether or not that letter was responded to because on or about September 9, 2005, the Complainant sent a request to her attention. The Custodian states that contained in that request were copies of previous correspondence that the Complainant submitted to Dr. Smith, as well as the response from Dr. Smith. The Custodian states that on or about September 27, 2005, she provided the Complainant with a response of her own.
Based on the parties' submissions, the original Custodian as well as the current Custodian failed to respond to the Complainant's OPRA request within the statutorily mandated seven (7) business days, therefore creating a "deemed" denial of access pursuant to N.J.S.A. 47:1A-5.i.
OPRA allows the Custodian to deny access to records under those circumstances in which the records requested are exempt from access under OPRA or any other law. If a Custodian asserts an exemption from disclosure under the law, the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. In the case at hand, the Custodian did not notify the Complainant in writing until over a month after the request was made.
Also, OPRA mandates that a custodian must either grant or deny access to requested records within seven (7) business days from receipt of said request. As also prescribed under N.J.S.A. 47:1A-5.i., a custodian's failure to respond within the required seven (7) business days results in a "deemed" denial.
Pursuant to the fact that the Custodian has certified that there are no documents responsive to the request based on Mag, there would not have been a denial of access had the Custodians' responded within the seven (7) business days allotted under OPRA. However, as stated above, neither of the Custodians responded in a timely manner pursuant to OPRA, thus resulting in a "deemed" denial. Therefore, both Custodians are in violation of N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.
The original Custodian, as well as the current Custodian, violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. by failing to provide the Complainant with written responses to any of the requests within the statutorily mandated seven (7) business days therefore creating a "deemed" denial. 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]…" UN.J.S.A.U 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 Custodian states that in this instance, it appears as though the Complainant is seeking information concerning the exact nature of work performed by the firm. The Custodian cites Mag and states that the Complainant's request for information is not permissible pursuant to OPRA. She states that the Complainant has not requested specific documents but rather makes reference to information related to the work that the district's law firm conducts. The Custodian included a document index detailing her explanation in reference to the records requested.
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). Although neither the original Custodian nor the current Custodian responded in a timely manner, which resulted in a "deemed" denial, both Custodian's did respond (on separate occasions) to the Complainant; seemingly attempting to answer the Complainant to the best of their knowledge. In view of the above, as well as the fact that the Custodian has certified that no records responsive to the requests exist, there is no evidence that either Custodian's actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey courts. Therefore, the Custodians' 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. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Christopher Malloy Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation [2] Represented by Raymond Hamilton, Esq. from the law firm of Hunt, Hamlin & Ridley, Newark, NJ. [3] Complainant's clarification of his May 19, 2005 request. [4] As stated by the Complainant in his letters, as well as the Denial of Access Complaint Form. [5] As stated by the Complainant in his letters, as well as the Denial of Access Complaint Form. Interim Order
At the February 17, 2006 public meeting, the Government Records Council ("Council") considered the February 10, 2006 Executive Director's Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council hereby finds that while the Custodian did respond to the Complainant's request on June 3, 2005, and September 27, 2005, the Custodian, however, has not provided the requested records and has not responded to requests from the Government Records Council for the agency's position in this complaint. Pursuant to N.J.S.A. 47:1A-6 the public agency has the burden of proving that the denial of access is authorized by law. Therefore, in accordance with OPRA, the Custodian is to provide the Complainant access to the requested records, or submit a legal certification with legal justification as to why the records should not be disclosed within ten (10) business days of receipt of the Council's order to the Complainant and Executive Director. Decision Distribution Date: February 24, 2006 Findings and Recommendations of the Executive DirectorDavid Lyons GRC Complaint No. 2005-196Complainant v. Irvington Board of Education Custodian of Records Records Relevant to the Complaint: Background May 19, 2005 Complainant's letter to the Custodian asking for back up data to support the monthly reimbursements to the Board Attorneys; Hunt, Hamlin and Ridley for the past four (4) years. June 3, 2005 Letter from the Custodian (Ernest H. Smith Jr.) to the Complainant. The Custodian states that it is unclear what the Complainant is seeking and he asks the Complainant to define what he means by "back-up data" and "re-imbursement." The Custodian also states that the board attorneys are paid through an annual retainer which requires the firm to provide legal services for legal matters that may arise in the district. He also states that to his knowledge the firm has not sought re-imbursement from the district for litigation related matters. June 14, 2005 Letter from the Complainant to the Custodian. The Complainant states that if the Custodian did not understand what he wanted it seems he would have responded in a more timely fashion. The Complainant also states, "By requesting the back-up data to support the monthly reimbursement to the board counsel, I meant please send me the records of any services performed by Hunt, Hamlin, and Ridley to justify their contract with the board." September 9, 2005 Letter from the Complainant to the Custodian (Ethel Davion). The Complainant reiterates what he asked for in his June 14, 2005 request. He also requests information concerning any school projects that were part of the contract with Schools Construction Corporation, and also any other company that had any part or contract with the construction of University Six School, Augusta Street School and Mount Vernon Avenue School. September 27, 2005 Letter from the Custodian to the Complainant. The Custodian states that the Board of Education (BOE) entered into an agreement with the firm of Hunt, Hamlin and Ridley for purposes of representing the district in all legal matters involving the district. She goes on to state that it is her understanding that the firm represents the district in all matters including; litigation matters in the Superior Court, the New Jersey Appellate Division, the Administrative Law Court, PERC, Arbitrations, Mediations, Collective Bargaining Negotiations, drafting and/or review of contracts, general advice and consultation, investigations, attendance at Committee Meetings, Board Meetings, Special Board Meetings, and other related matters. She states that the firm is paid a flat fee of five hundred thousand dollars ($500,000) over the course of twelve (12) months for their services. September 29, 2005 Letter from the Complainant to the Custodian. He asks for additional information as to exactly what has been done by this law firm including specifics, as well as any litigation, including current cases that the law firm is involved in relative to the Irvington Board of Education. He also states that the Custodian's response did not address his request for public information concerning any school projects that were part of the contract with the Schools Construction Corporation, and also any other company and also any other company that had any part or contract in relation to the construction of the University Six School, Augusta Street School and Mount Vernon Avenue School. October 17, 2005 Complainant's Denial of Access Complaint with the following attachments:
The Complainant states that he has requested public documents on numerous occasions from both the former Irvington Superintendent of Schools as well as the current interim Superintendent of Schools for five months. He states that he has not received any of the requested documents. The Complainant seeks both an order for the Irvington Board of Education to produce the requested records as well as sanctions, including fines, to be imposed by the Government Records Council (GRC) on those individuals employed by the Irvington BOE whose "blatant disregard of the law has stonewalled his efforts to obtain what he is legally entitled to obtain." October 25, 2005 Mediation agreements sent to both parties.[4] November 4, 2005 Letter from the Custodian to the Complainant. (This letter was faxed to the GRC staff on November 21, 2005) The Custodian states that in response to his most recent letter, the Custodian has been advised by Hunt, Hamlin and Ridley that any information he is seeking regarding legal work being handled by the firm can be directed to the firm's office. November 21, 2005 Letter from the GRC staff to the Custodian. The letter states that the staff provided the Custodian with a Statement of Information on November 3, 2005 and to date have not received a response. It also states, "if this office is not in receipt of your response within three (3) business days of receipt of this letter, this case will proceed to adjudication before the Government Records Council with the documents we have on file at that time." Letter from the Complainant to the GRC Executive Director. The Complainant encloses his November 21, 2005 letter to the Custodian. In the November 21, 2005 letter, the Complainant states that his original request was to the Irvington BOE, and as such, his request is still to the Irvington BOE. He informs the Custodian that if she wishes to retrieve the records from the law firm, that is her call, however, he is still requesting the records from her office as they are the government agency that is the Custodian of these records. The Complainant also informs the Custodian that she seems to have ignored any reference to his requests for information regarding all records pertaining to the Schools Construction Corporation and any other contractors that may have done any work in several schools within the District, or that may have been contracted to do work. Analysis WHETHER the Custodian unlawfully denied access to the records requested? 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..." The Complainant states that he has submitted numerous OPRA requests, and has yet to receive any of the documents pertaining to those requests. While the Custodian did respond on June 3, 2005, and September 27, 2005, the Custodian has not responded to requests from the Government Records Council asking for their position in this complaint. N.J.S.A. 47:1A-6 clearly states that the public agency has the burden of proving that the Denial of Access is authorized by law. The Custodian has not responded to the GRC's request for their Statement of Information, or the GRC's November 21, 2005 letter stating, "If this office is not in receipt of your response within three (3) business days of receipt of this letter, this case will proceed to adjudication before the Government Records Council..." Therefore, in accordance with OPRA the Council should order the Custodian to disclose the document(s) responsive to the request, or submit a legal certification as to why they should not be released. Conclusions and Recommendations The Executive Director respectfully recommends that in accordance with OPRA, the Council should order the Custodian to disclose the records responsive to the request, or submit a legal certification with a legal justification as to why the records should not be disclosed to the Executive Director within ten (10) business days of receipt of the Council's decision. Prepared By: Chris Malloy, Case Manager Approved By: February 10, 2006 [1] Complainant's clarification of his May 19, 2005 request. |
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