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2005-20
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
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Administrative Case Disposition |
Final Decision
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 entirety of said findings and recommendations. The Council, therefore, finds that the Custodian has complied with the Council’s Interim Order of July 13, 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.
Interim Order Rendered by the Government Records Council On The 10th Day of August, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Supplemental Findings and Recommendations of the Executive Director
Records Relevant to Complaint
January 21, 2005 request: § All copies of former complaints filed by D’Antonio against Mr. Chorba § Copy of Borough resolution authorizing Winne, Dooley & Bole to institute 1999 litigation against Calm/D’Antonio § Copy of attorney’s report or letter to Borough as to outcome of lawsuit § Copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as witnesses § Copy of Mr. Corriston’s legal papers to attain above decision 3. January 31, 2005 request: § Notice from the DEP regarding the taking of an additional 58,000 sq. feet of my [Michael D’Antonio’s] property in order to credit my [Michael D’Antonio’s] taxable value of the property § Where the municipal funds are coming from for the purchase of the Alvarez property § A resolution of the Mayor and Council authorizing Mr. Shenkler to make such request of the County and the State § Any approved referendum of the taxpayers to pay for the demolition and construction of a new police department at such a high price § Any report or record as to who determined that the building is unsalvageable § Where the municipal funds are coming from and what the yields are on the bonds § A copy of the certification of Mrs. Favata as to the funds being appropriated for the construction of the police building § All other bids for the renovation of DeMecurio Drive along with a copy of the resolution for the approval § A copy of all the applicable municipal government laws as to the employment of employees, full or part time, and if Stiles Thomas is an employee § A copy of the Mandatory Retirement Act for government employees § Access to former complaints filed by D’Antionio § A copy of the resolution that the Mayor and Council signed authorizing Mr. Bole to sue the Northern Highlands School for the removal of the trees that the school cut down § A copy of the summons that was issued to the school by Mr. Wittikind seeking $100,000 in fines as well as a resolution on this issue, if any
Request Made: January 14, 2005, January 21, 2005, and January 31, 2005 Response Made: January 19, 2005, January 21, 2005, and January 27, 2005 Custodian: Gwen Gabbert GRC Complaint Filed: February 1, 2005 BackgroundJuly 13, 2006 Government Records Council’s (“Council”) Interim Order. At its July 13, 2006 public meeting, the 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, found that:
§ copies of former complaints filed by D’Antonio against Mr. Chorba § a copy of Attorney’s report or letter to Borough as to outcome of lawsuit § a copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as witnesses § a copy of Mr. Corriston’s legal papers to attain above decision..
4. The Complainant’s January 31, 2005 records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA. 5. As the Custodian asserts that she provided the Complainant with written responses to his January 14, 2005 and January 21, 2005 OPRA requests, and did not respond to the Complainant’s January 31, 2005 request as it was not a valid OPRA request, it is concluded that the Custodian believed she was acting in good faith and therefore her actions were merely negligent, heedless, or unintentional. 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. 6. The Council does not have authority over the alleged record theft pursuant to N.J.S.A. 47:1A-7.b., therefore, this portion of the complaint should be dismissed with no further action.
July 19, 2006 Council’s Interim Order distributed to the parties. July 26, 2006 Complainant’s Letter to the Executive Director. The Complainant takes exception with the Council’s Interim Order dated July 13, 2006. Specifically, the Complainant asserts that the Custodian’s actions support a finding of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances, contrary to the Findings and Recommendations of the Executive Director that the Custodian did in fact unlawfully deny access. The Complainant further requested a clarification of such Findings and Recommendations. Finally, the Complainant expressed disappointment that this complaint took 18 months to adjudicate.
July 26, 2006 Custodian’s response to the Council’s Interim Order. The Custodian certified that she released the records to the Complainant on July 26, 2006 (within five (5) business days) as order by the Council pursuant to the Council’s Interim Order of July 13, 2006 (distributed to the parties July 19, 2006).
July 31, 2006 Executive Director’s Letter to the Complainant. The Executive Director faxed a letter to the Complainant detailing the requirements for a request for stay of the Council’s Interim Order pursuant to the verbal request of same from the Complainant. Analysis
Whether the Custodian complied with the Council’s July 13, 2006 Interim Order?
The Custodian certified that she released the records to the Complainant on July 26, 2006 (within five (5) business days) as order by the Council pursuant to the Council’s Interim Order of July 13, 2006 (distributed to the parties July 19, 2006). Therefore, the Custodian has complied with the Council’s Interim Order of July 13, 2006.
While the Complainant takes exception to the Council’s determination that the Custodian did unlawfully deny access but did not knowingly and willfully violate OPRA and unreasonably denied access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11, absent new creditable evidence in support of a finding that the Custodian’s actions meet the legal standard required for a knowing and willful violation of OPRA, the Council must reaffirm its July 13, 2006 Interim Order. The Complainant has not offered any such evidence.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the Custodian has complied with the Council’s Interim Order of July 13, 2006.
Prepared By:
Catherine Starghill, Esq. Executive Director 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[1]:
January 21, 2005 request: § All copies of former complaints filed by D’Antonio against Mr. Chorba § Copy of Borough resolution authorizing Winne, Dooley & Bole to institute 1999 litigation against Calm/D’Antonio § Copy of attorney’s report or letter to Borough as to outcome of lawsuit § Copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as witnesses § Copy of Mr. Corriston’s legal papers to attain above decision 3. January 31, 2005 request: § Notice from the DEP regarding the taking of an additional 58,000 sq. feet of my [Michael D’Antonio’s] property in order to credit my [Michael D’Antonio’s] taxable value of the property § Where the municipal funds are coming from for the purchase of the Alvarez property § A resolution of the Mayor and Council authorizing Mr. Shenkler to make such request of the County and the State § Any approved referendum of the taxpayers to pay for the demolition and construction of a new police department at such a high price § Any report or record as to who determined that the building is unsalvageable § Where the municipal funds are coming from and what the yields are on the bonds § A copy of the certification of Mrs. Favata as to the funds being appropriated for the construction of the police building § All other bids for the renovation of DeMecurio Drive along with a copy of the resolution for the approval § A copy of all the applicable municipal government laws as to the employment of employees, full or part time, and if Stiles Thomas is an employee § A copy of the Mandatory Retirement Act for government employees § Access to former complaints filed by D’Antionio § A copy of the resolution that the Mayor and Council signed authorizing Mr. Bole to sue the Northern Highlands School for the removal of the trees that the school cut down § A copy of the summons that was issued to the school by Mr. Wittikind seeking $100,000 in fines as well as a resolution on this issue, if any Request Made: January 14, 2005, January 21, 2005, and January 31, 2005Response Made: January 19, 2005, January 21, 2005, and January 27, 2005Custodian: Gwen GabbertGRC Complaint Filed: February 1, 2005 BackgroundJanuary 14, 2005 Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is seeking a response in writing as to where the funds are coming from for the purchase of the Thurston Alvarez property, why the Calm/D’Antonio property has not been reduced in assessed value due to increase of wetland buffer, as well as additional records which are not the subject of this complaint. January 19, 2005 Borough Administrator’s response to the Complainant’s OPRA request. The Administrator provided a written response within three (3) business days of receiving the Complainant’s request. The Borough Administrator states that he has received the Complainant’s request for information on the town’s proposal to purchase the Thurston Alvarez property. The Administrator asserts that the Complainant has previously requested and received a copy of the grant application presented to the County of Bergen by the Borough of Allendale. He contends that there are no additional records regarding this issue as the Borough has not decided where the funds will come from or if the project will receive any funding.
January 21, 2005 Custodian’s response to the Complainant’s January 14, 2005 OPRA request, which is five (5) business days following the date of the Complainant’s request. The Custodian states that she has received the Complainant’s request for why there has not been a reduction in the assessed value of the D’Antonio /Calm Development property due to an increase in the wetlands buffer. The Custodian asserts that she has been informed by Mr. Bole, an attorney for the Borough, that the requested information is not a public record and advised the Complainant to contact the Assessor’s Office with any further questions.
January 21, 2005 Complainant’s second OPRA request. The Complainant is seeking the following: all copies of former complaints filed by D’Antonio against Mr. Chorba; a copy of the Borough resolution authorizing Winne, Dooley & Bole to institute 1999 litigation against Calm/D’Antonio; a copy of attorney’s report or letter to Borough as to outcome of lawsuit; a copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as witnesses; and a copy of Mr. Corriston’s legal papers to attain the above decision.
January 21, 2005 Letter from Complainant to Custodian. The Complainant states that he has received the Custodian’s response to his first OPRA request. He claims to have spoken with Ms. Mattice of the Assessor’s Office who informed him that she has no record of the wetlands buffer or DEP regulatory taking nearly 2/3 of the Complainant’s land. The Complainant requests a legal determination or clarification from Mr. Bole, the Borough’s attorney, as to what he means by indicating that this information is not a public record and why the town has no record of such information. Additionally, the Complainant requests a certification from Ms. Favata, Chief Financial Officer, or the Borough’s accountant as to the validity of the bank balances previously released. He also asks why the town has 26 accounts, and for Ms. Favata to explain the source of the funds and the time period for the existence of each account. The Complainant also requests that the Finance Division explain what type of Borough investments the funds are in, and what MBIA means in lines 18 and 19. The Complainant also inquires as to the time period over which the balances accumulated and how the town accounts for the current tax receivable versus the bank balances. Further, the Complainant requests the following: a copy of all municipal employee records showing anyone over the age of 70; a copy of the Mandatory Retirement Act for any municipal employee over the age of 70; a determination as to whether the Mayor is an employee; and a legal determination by Mr. Bole if Mr. Warner, Mr. Stiles Thomas, and/or any member of the Mayor’s Council, Planning Board, Board of Adjustment, or any other non-compensated individual is an employee of the municipality.
January 27, 2005 Custodian’s response to the Complainant’s second OPRA request and letter dated January 21, 2005, four (4) business days following the date of said request. The Custodian states that the Complainant has previously been provided with records on file with the Borough, or if no records exist, he had been advised of such. The Custodian also states that the Municipal Attorney has advised her that the Complainant’s latest requests seek “additional information, explanations, and/or opinions which are not records within the scope of OPRA.”[2] January 31, 2005 Letter from Complainant to Custodian. The Complainant states that he is in receipt of the Custodian’s letter dated January 27, 2005. The Complainant also states that if Mr. Bole, an attorney for the Borough, has an opinion as to what is and isn’t a public record, he should put it in writing. The Complainant asserts that Municipal Clerk, i.e. the Custodian, is the one responsible for accessing requested records, not Mr. Bole. The Complainant requests again the following items from his previous requests that have been unanswered: notice from the DEP regarding the taking of an additional 58,000 sq. feet of my property in order to credit my taxable value of the property; where the municipal funds are coming from for the purchase of the Alvarez property; a resolution of the Mayor and Council authorizing Mr. Shenkler, Borough Administrator, to make such request of the County and the State; any approved referendum of the taxpayers to pay for the demolition and construction of a new police department at such a high price; any report or record as to who determined that the building is unsalvageable; where the municipal funds are coming from and what the yields are on the bonds; a copy of the certification of Ms. Favata as to the funds being appropriated for the construction of the police building; all other bids for the renovation of DeMecurio Drive along with a copy of the resolution for the approval; a copy of all the applicable municipal government laws as to the employment of employees, full or part time, and if Stiles Thomas is an employee; a copy of the Mandatory Retirement Act for government employees; access to former complaints filed by D’Antonio; a copy of the resolution that the Mayor and Council signed authorizing Mr. Bole to sue the Northern Highlands School for the removal of the trees that the school cut down; and a copy of the summons that was issued to the school by Mr. Wittikind seeking $100,000 in fines as well as a resolution on this issue, if any. February 1, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant asserts submitting his OPRA requests on January 14, 2005, January 21, 2005, and January 31, 2005. The Complainant claims that the unanswered portions of his January 14, 2005 request involve the questions of: 1. Where the municipal portion of the funds are coming from; and 2. Why the Calm/D’Antonio property has not been reduced in tax assessment due to the DEP taking the property. Additionally, regarding the Complainant’s January 21, 2005 request, the Complainant asserts that the following record requests were unanswered:
Further, the following are the Complainant’s January 31, 2005 requests which he claims have also gone unanswered:
February 7, 2005 Offer of Mediation sent to both parties. February 9, 2005 Custodian’s Agreement to Mediate along with a Letter of Representation from counsel.
February 16, 2005 Complainant’s Agreement to Mediate.
August 22, 2005 Complaint returned from Mediation to GRC for adjudication.
August 24, 2005 Request for Statement of Information sent to the Custodian.
September 2, 2005 Custodian’s Statement of Information (“SOI”) with the following attachments:
The Custodian states that the Complainant’s initial request was received on January 14, 2005. The Custodian asserts providing a response to the Complainant in that she released the requested resolution and bank account list. She also states that the Complainant received a written response from the Borough Administrator dated January 19, 2005. The Custodian states that the Complainant’s next request was dated January 21, 2005 and asserts that she provided the Complainant with a written response dated January 27, 2005. The Custodian contends that the Complainant’s January 21, 2005 request contained questions rather than requests for documents, as well as requests for documents that had previously been provided to the Complainant in response to his January 14, 2005 request. Additionally, the Custodian states that she received a letter from the Complainant dated January 31, 2005 in which the Complainant made additional requests. The Custodian notes that the Complainant’s requests listed in his January 31, 2005 letter were not submitted on the Borough’s OPRA request form, and therefore she did not respond. She also claims that at that time, the Borough was notified that the Complainant had filed a Denial of Access Complaint with the GRC.
September 7, 2005 Letter from Custodian’s counsel as a supplement to the Custodian’s SOI. Counsel states that in item 11 of the SOI, the Custodian stated that the Complainant removed an original file containing COAH/Mt. Laurel papers from the Borough Hall without permission from any Borough employee. Counsel asserts that the Borough Attorney requested that the Complainant return said file, however, to date he has not done so. Counsel requests that the GRC direct the Complainant, in the Council’s decision regarding this complaint, to return the file to the Borough of Allendale by a specific date, or be subject to an appropriate penalty. Analysis
Whether the Custodian unlawfully denied access to the records requested on January 14, 2005 and January 21, 2005?
OPRA 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.
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 …” (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.
The Complainant states that he submitted his first OPRA request on January 14, 2005. He claims that in response to his request for where the funds are coming from for the purchase of the Thurston Alvarez property, the Borough Administrator indicated in a letter dated January 19, 2005 that the grant application had previously been provided to him and that no other records exist. The Complainant also claims that he received a response from the Custodian dated January 21, 2005 regarding his request for why the Calm/D’Antonio property has not been reduced in assessed value due to increase of wetland buffer. He claims that the Custodian informed him that she had been advised by the Municipal Attorney that the requested information is not a public record and that if the Complainant had any further questions, he should contact the Assessor’s Office. Additionally, the Complainant asserts that the following items went unanswered from his January 21, 2005 request: former complaints filed by D’Antonio against Thomas Chorba, Borough Zoning Officer; Borough resolution authorizing Borough Attorney to sue the Northern Highlands High School for tree removal; copy of attorney’s report or letters to Borough as to the outcome of the lawsuit; copy of Judge Sparks’ court order barring Mr. Bole and Mrs. Favata to appear as witnesses; and a copy of Mr. Corriston’s legal papers to attain above decision. The Custodian contends that in response to the Complainant’s January 14, 2005 request, the Borough Administrator responded via letter dated January 19, 2005 as well as the Custodian in a letter dated January 21, 2005. The Custodian states that she provided the Complainant with a response to his January 21, 2005 request in a letter dated January 27, 2005. She asserts that the Complainant’s January 21, 2005 request was either for questions and not actual records, or for records that had previously been provided in response to his January 14, 2005 OPRA request. In summary, the Complainant’s requests, subject of this complaint, and the Custodian’s responses are outlined in the table below.
OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt. Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.
OPRA Does Not Limit the Number of Times Records May Be Requested
Here, in regards to the Complainant’s January 14, 2005 request, the Borough Administrator denied the Complainant access to the responsive record regarding where the funds are coming from for the purchase of Thurston Alvarez property on the basis that the record had been previously provided and claims that no other records responsive exist. Additionally, in the Complainant’s January 21, 2005 request, the Custodian asserts that the requested copy of the Borough resolution authorizing Winne, Dooley, & Bole to institute 1999 litigation against Calm/D’Antonio had been previously provided to the Complainant on January 19, 2005 in response to his January 14, 2005 OPRA request. In Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[3] (January, 2006), the Council held that “OPRA does not limit the number of times a requestor may ask for the same record even when the record was previously provided.” Therefore, regardless of the fact that the Complainant had already received the responsive records, pursuant to OPRA he is not limited in the amount of times he can request said record and the custodian is obligated to provide access to each request as long as the record is not otherwise exempt from disclosure.
OPRA Requires a Written Response Explaining a Lawful Basis for a Denial of Access
In response to the Complainant’s January 14, 2005 request regarding why the Calm/D’Antonio property has not been reduced in assessed value due to increase of wetland buffer, the Custodian states that she denied said request as the request is not for a public record. 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.) Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March 2005). 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. Additionally, in Russomano v. Township of Edison, GRC Case No. 2002-86 (July 2003), the Council held that “[w]hile it is true that the OPRA request sought only information and not specific records, the custodian was still obligated to respond to the request in seven business days, either rejecting the request as defective under OPRA or advising the requestor of the specific date by which a response would be provided.” The same applies here, as the Custodian is not obligated to fulfill the Complainant’s request for information, however she is still obligated under the provisions of OPRA to provide a written response to the request pursuant to N.J.S.A. 47:1A-5.g. Since, the Custodian did properly provide the Complainant a written response to his request within the statutorily mandated seven (7) business days, and denied said request on the basis that it is not a request for records, the Custodian has not unlawfully denied access to the Complainant’s request. However, the Custodian has failed to provide a lawful reason for the denial of access to the following records requested by the Complainant on January 21, 2005 pursuant to N.J.S.A. 47:1A-6: copies of former complaints filed by D’Antonio against Mr. Chorba; a copy of Attorney’s report or letter to Borough as to outcome of lawsuit; a copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as witnesses; and a copy of Mr. Corriston’s legal papers to attain above decision. In the Custodian’s January 27, 2005 response to the Complainant’s request, she states that the Complainant has previously been provided with records on file with the Borough, or if no records exist, the Complainant had been advised of such. The Custodian also states that the Municipal Attorney had advised her that the Complainant’s latest requests seek additional information, explanations, and/or opinions which are not records within the scope of OPRA.
Other Laws May Supersede OPRA’s Access
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 a privilege under the law, the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. In Gober v. City of Burlington, GRC Case 2003-139 (April, 2004), the Council held that “the Custodian’s assertion that certain of the information requested by the Complainant is ‘privileged’ is so vague that the existence of an applicable exemption cannot be ascertained. Because OPRA presumes that a government record is subject to public access unless an exemption exists, it is appropriate to order that access be granted unless an appropriate exemption is clearly identified by the Custodian.” The onus rests on the Custodian to prove that the denial of access is authorized by law. While the Custodian asserts that some records have been provided, some records do not exist, and some requests are for information rather than records, she fails to provide a specific and lawful reason for the denial of access to each individualized request. Thus, the Custodian has failed to bear her burden pursuant to N.J.S.A. 47:1A-6 and has unlawfully denied access to records requested on January 21, 2005. While the Custodian may have provided the Complainant access to the records requested during the mediation process, such disclosure is not at issue in this Findings and Recommendations. As such, the Custodian should release the requested documents to the Complainant.
What constitutes a valid OPRA records request?
The Complainant asserts submitting a request for records on January 31, 2005. He claims that he did not receive any response from the Custodian. The Custodian asserts that she did not respond to the Complainant’s January 31, 2005 requests as they were made via letter and were not presented on the Borough’s OPRA request form. She also contends that at the time of the Complainant’s request, she had been advised that the Complainant had filed a Denial of Access Complaint with the GRC. Review of the OPRA statute and its legislative intent lead the Council to conclude that use of the request form is required for all requestors. The statute provides that the custodian “shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.” N.J.S.A. 47:1A-5.f. The statute specifically prescribes what must be on the form:
(1) space for the name, address and phone number of the requestor and a brief description of the government record sought; (2) space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged; (3) specific directions and procedures for requesting a record; (4) a statement as to whether prepayment of fees for a deposit is required; (5) the time period in which the public agency is required by OPRA to make the record available; (6) a statement of the requestor’s right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (7) space for the custodian to list reasons if a request is denied in whole or in part; (8) space for the requestor to sign and date the form; (9) space for the custodian to sign and date the form if the request is fulfilled or denied. Id.
Although the statute does not expressly state that OPRA requests must be on the form adopted by the agency pursuant to N.J.S.A. 47:1A-5.f., principles of statutory construction show that the Legislature intended use of this form by all requestors to be mandatory. In interpreting a statute, it is axiomatic that “each part or section [of the statute] should be construed in connection with every other part or section so as to produce a harmonious whole.” Matturi v. Bd. of Trustees of JRS, 173 N.J. 368, 383 (2002), quoting In re Passaic Cty. Utilities Auth., 164 N.J. 270, 300 (2000). In addition, a construction which renders statutory language meaningless must be avoided. Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204 (1999). See also G.S. v. Dept. of Human Serv., 157 N.J. 161, 172 (1999). (a statute should be interpreted so as to give effect to all of its provisions, without rendering any language inoperative, superfluous, void, or insignificant). As noted, N.J.S.A. 47:1A-5.f. requires that custodians adopt a request form, and sets forth a detailed list of what the form must contain. The next subsection of the statute provides:
If 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 thereof. (Emphasis added.) N.J.S.A. 47:1A-5.g. The form to which N.J.S.A. 47:1A-5.g. refers is the form required by N.J.S.A. 47:1A-5.f. In providing, in 5.g., that the custodian “shall” sign and date the form, indicate the basis for denial on the form, and return the form to the requestor, the Legislature evidenced its clear intent that it is mandatory for the form to be used by requestors. See Harvey v. Essex Cty. Bd. Of Freeholders, 30 N.J. 381, 391-92 (1959) (the word “shall” in a statute is generally mandatory). The express requirement that the custodian use the request form in denying an OPRA request, construed together with the preceding statutory requirement that the custodian adopt a request form, demonstrates that the Legislature intended that this form would be used for all OPRA requests. If all requestors are not required to submit requests on the form prescribed by the statute, then the statutory provisions requiring the custodian to sign and date the form, and return it to the requestor, would be meaningless. Indeed, a custodian would be unable to fulfill these express requirements of N.J.S.A. 47:1A-5.g. if the requestor does not use the form in submitting his request. Accordingly, nothing in OPRA suggests that some requestors may forgo using the official request form. In enacting the form requirement, the Legislature has expressed its policy that use of the form promotes clarity and efficiency in responding to OPRA requests, consistent with OPRA’s central purpose of making government records “readily accessible” to requestors. N.J.S.A. 47:1A-1. The Appellate Division has indicated that the statute’s form requirement serves the additional purpose of prompting the legislative policy that a requestor must specifically describe identifiable records sought. See Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534, 546 (App. Div. 2005) (an open-ended request that fails to identify records with particularity is invalid). In Bent v. Twp. of Stafford Police Dept., 381 N.J. Super. 30, 33 (App. Div. 2005), the Court held that the requestor’s general request for information violated this policy and was therefore invalid. In reaching this conclusion, the Court noted that OPRA mandates that the request form provide space for a “brief description” of the record request. Id. Similarly, in Gannett New Jersey Partners L.P. v. County of Middlesex, 379 N.J. Super. 205, 213 (App. Div. 2005), the Court specifically pointed to the same statutory request form requirement in determining that OPRA does not authorize requestors to make blanket requests for agency records. Accordingly, based on the language of the statute, as well as judicial recognition of the importance of the statutory request form, it is determined that the statute requires all requestors to submit OPRA requests on an agency’s official OPRA records request form. OPRA’s provisions come into play only where a request for records is submitted on an agency’s official OPRA records request form. Therefore, the Complainant’s January 31, 2005 records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA.
Whether the Custodian’s failure to respond to each of the Complainant’s individual requests 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 states that he submitted an OPRA request on January 14, 2005. He claims that not all of the requested documents were provided to him. The Custodian asserts that some documents were provided on January 19, 2005 by the Borough Administrator, and some documents were denied on the basis that they had been previously provided to the Complainant. Additionally, in the Custodian’s January 21, 2005 response letter to the Complainant, the Custodian states that one of the Complainant’s requests is denied as it is not a public record. The Complainant also indicates that he submitted another OPRA request on January 21, 2005. The Custodian states in her response to the Complainant dated January 27, 2005, that the Complainant has already been advised that some of the records requested do not exist, has been provided with some of the requested records, and contends that his other requests are requests for information, not records. Further, the Complainant asserts submitting another request on January 31, 2005. The Custodian contends that she did not respond to said request as it was not submitted on the Borough’s request form. She also asserts that at the time of the request, she had been advised that the Complainant had filed a Denial of Access Complaint with the GRC. 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). Here, the Custodian asserts that she responded in a timely manner to the Complainant’s Janaury 14, 2005 and January 21, 2005 requests in writing; however she states that she did not respond to the Complainant’s January 31, 2005 request as it is not a valid OPRA request. While the Custodian believes that she satisfied her obligation to respond to the Complainant’s requests in writing, she failed to respond to each individualized records request, thus unlawfully denying access to the requested records. Moreover, although OPRA does not obligate Custodians to respond to written questions, OPRA does require custodians to respond to each individual records request. Therefore, as the Custodian asserts that she provided the Complainant with written responses to his January 14, 2005 and January 21, 2005 OPRA requests, and did not respond to the Complainant’s January 31, 2005 request as it was not a valid OPRA request, it is concluded that the Custodian believed she was acting in good faith and therefore her actions were merely negligent, heedless, or unintentional. Thus, 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.
Whether the Council should order the Complainant to return the Borough’s original file containing COAH/Mt. Laurel papers that the Complainant allegedly removed from Borough Hall without permission from any Borough employee?
The Government Records Council shall:
“…receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian…” N.J.S.A 47:1A-7.b.
In the Custodian counsel’s September 7, 2005 submission to GRC staff, counsel alleges that the Complainant removed the Borough’s original file containing COAH/Mt. Laurel papers from Borough Hall without permission from any Borough employee. Counsel requests that the GRC direct the Complainant, in the Council’s decision regarding this complaint, to return the file to the Borough of Allendale by a specific date, or be subject to an appropriate penalty. Pursuant to N.J.S.A. 47:1A-7.b., the Council’s responsibility is to adjudicate complaints regarding a denial of access to government records. As counsel’s request does not fall into said category, ordering the Complainant to return the COAH/Mt. Laurel file is outside of the Council’s authority. Therefore, this portion of the complaint should be dismissed with no further action as the Council does not have authority over the alleged record theft pursuant to N.J.S.A. 47:1A-7.b. Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
§ copies of former complaints filed by D’Antonio against Mr. Chorba § a copy of Attorney’s report or letter to Borough as to outcome of lawsuit § a copy of Judge Starks’ order barring Mr. Bole and Mrs. Favata as witnesses § a copy of Mr. Corriston’s legal papers to attain above decision..
4. The Complainant’s January 31, 2005 records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA. 5. As the Custodian asserts that she provided the Complainant with written responses to his January 14, 2005 and January 21, 2005 OPRA requests, and did not respond to the Complainant’s January 31, 2005 request as it was not a valid OPRA request, it is concluded that the Custodian believed she was acting in good faith and therefore her actions were merely negligent, heedless, or unintentional. 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.
Prepared By: Dara Lownie Case Manager
Catherine Starghill Executive Director [1] The Complainant requested additional documents, however, they are not the subject of this complaint. [2] As stated in the Custodian’s January 27, 2005 letter to the Complainant. [3] Caggiano v. Borough of Stanhope, GRC Case No. 2005-211, 2005-226, 2005-227, 2005-228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235, 2005-250, 2005-252 (January, 2006.) Administrative Case DispositionGRC Complaint No: 2005-20Complainant: Michael D’Antonio Custodian: Borough of Allendale Case Disposition: Both parties agreed to mediation on February 16, 2005 Date of Disposition: 2/16/05 Case Manager: Marion Davies |
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