2005-203

At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 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 this complaint is no longer ripe for adjudication since the Complainant voluntarily withdrew the complaint pursuant to a letter to the Council dated August 18, 2006. This is the final administrative determination in this matter.

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

Supplemental Findings and Recommendations of the Executive Director

All legal costs related to DT [parent name] on behalf of AT [student name] v. Rockaway Board of Education regarding the July 19^th due process hearing, including attorney fees, salary of witnesses, and any related expenses.

Government Records Council’s (“Council”) Interim Order. At its August 10, 2006 public meeting, the Council considered the July 27, 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 given the inconsistencies in the submissions by the parties, this complaint should be referred to the Office of Administrative Law for fact finding and legal conclusions consistent with the law outlined in the Findings and Recommendations on the following issues:

Complainant’s Letter to the Council. The Complainant voluntarily withdrew the complaint because of the cooperation received from the new superintendent of schools.

Analysis

The Executive Director respectfully recommends the Council find that this complaint is no longer ripe for adjudication since the Complainant voluntarily withdrew the complaint pursuant to a letter to the Council dated August 18, 2006.

[1] No attorney on record.

[2] The Custodian is represented by Anthony Sciarrillo, Esq. (Westfield, NJ).

Interim Order

D.T.

Complainant

Rockaway Township Board of Education

Custodian of Record

Complaint No. 2005-203

At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 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 given the inconsistencies in the submissions by the parties, this complaint should be referred to the Office of Administrative Law for fact finding and legal conclusions consistent with the law outlined in the Findings and Recommendations on the following issues:

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

Findings and Recommendations of the Executive Director

Complainant

Records Relevant to Complaint: All legal costs related to DT [parent name] on behalf of AT [student name] v. Rockaway Board of Education regarding the July 19^th due process hearing, including attorney fees, salary of witnesses, and any related expenses.

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is requesting to review all legal costs related to DT [parent name] on behalf of AT [student name] v. Rockaway Board of Education regarding the July 19^th due process hearing, including attorney fees, salary of witnesses, and any related expenses.

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachment:

The Complainant asserts that the Rockaway Township Board of Education (“BOE”) failed to respond to her October 13, 2005 OPRA request within seven (7) business days and did not notify her that any time extension was needed. The Complainant contends that the BOE “acted unreasonably”[1] by advising her that the Board Attorney was away on vacation when she claims to have called the Board Attorney’s office and was advised that the attorney was there.

The Complainant states that her OPRA request was hand delivered to the Custodian’s office and was signed for by the Secretary. The Complainant claims that she contacted the Custodian by phone on October 25, 2005 to schedule an appointment to view the requested records and alleges that she was advised that the attorney would not be back from vacation until November 1, 2005.

Offer of Mediation sent to both parties. Neither party agreed to mediate this case.

Custodian’s unsigned Statement of Information (“SOI”) with the following attachments:

The Custodian claims that the BOE attempted to provide the Complainant with the requested records within two (2) business days of receiving the request. He also states that the BOE did not act unreasonably or falsely advise the Complainant that the Board Attorney was on vacation. The Custodian asserts that the Complainant was advised that the Board Attorney and the Custodian would be attending the New Jersey School Board’s Fall Workshop from October 25, 2005 to October 28, 2005 and would be available on October 31, 2005.

Additionally, the Custodian states that he attempted to contact the Complainant by phone on October 17, 2005 and that she failed to respond until October 25, 2005. He states that he set up an appointment with the Complainant for November 1, 2005 to view the requested documents. He claims that this date was made with the verbal approval of the Complainant to provide the District with an opportunity to verify all expenses related to her request.

Further, the Custodian requests that this complaint be dismissed as frivolous as the District made the requested records available in a timely manner and the Complainant failed to respond to the Custodian in a timely manner.

E-mail from Complainant to GRC staff. The Complainant submits her response to the Custodian’s Statement of Information. She asserts that the District never contacted her on October 17, 2005. She claims that on said date, her husband and her au pair were home all day and claim that they did not receive any phone calls from the District. Additionally, the Complainant states that no calls from the District show on her Caller ID box. The Complainant also states that she did not receive any calls from the District at her work number or on her cell phone.

The Complainant also contends that the Custodian advised her that the Board Attorney was on vacation until November 1, 2005. She claims that the Custodian made no mention of attending any workshops. She states that the Custodian advised her that he was not currently in possession of the requested attorney bills as the Board Attorney was in the process of switching law firms and there had been some confusion with the billing. The Complainant also states that the Custodian advised her that she would not be able to receive the detailed information she requested regarding witnesses and related expenses as he is not required to create documents.

As the Complainant claims she did not receive any response from the Custodian, she states that she waited until the eighth business day, or October 25, 2005, to contact the Custodian regarding her request. She states that she is currently in the process of obtaining her cell phone records to show proof of the phone call. The Complainant states that during her October 25, 2005 call to the Custodian, the Custodian indicated that the attorney was away and that he hoped to get back to the Complainant by November 1, 2005, and that once the Board Attorney returned, he might be able to schedule an appointment for November 2, 2005 or November 3, 2005. She also claims that the Custodian stated that he did not know whether he maintained the salary paid to witnesses and related expenses and that he would not create documents. The Complainant contends that at no point during her phone conversation did the Custodian request or did she agree to a time extension.

Further, the Complainant states that November 1, 2005 was a Tuesday and as she works on Mondays and Tuesdays, it would have been impossible for her to set up an appointment on said date. She requests that the complaint not be dismissed. She also notes that according to the Records Custodian’s Handbook, a custodian should prepare a written agreement for a time extension.

Letter from Custodian to GRC staff in response to the Complainant’s November 7, 2005 e-mail. The Custodian states that he is reluctant to respond to the Complainant’s comments as the BOE is involved in multiple litigations with the Complainant. He also states that under prevailing statutes, the BOE is not required to provide the District’s phone bills. The Custodian claims that during his phone conversation with the Complainant, he advised her that as of that date, he did not maintain any documents responsive to her request for witness expenses. He also claims that he advised the Complainant that as of that date the BOE had not spent any funds for incurred expenses but that the BOE would provide the expense information when it became available. The Custodian additionally claims that the Complainant has misrepresented the dialogue that took place regarding the Board Attorney’s whereabouts.

Further, the Custodian asserts that he provided a response to the Complainant within the seven (7) business day period and that the Complainant failed to respond to the Custodian’s request for additional information. The Custodian cites N.J.S.A. 47:1A-5.g.[2] in that a custodian shall promptly comply with a request. He claims that statue along with N.J.S.A. 47:1A-5.i.[3] does not specifically indicate the method of compliance, such as phone, fax, e-mail, etc.

Regarding the dates the requested information would become available, the Custodian states that he notified the Complainant that the information would be available for her review on November 1, 2005. He also states that he notified the Complainant that the attorney bills normally arrive between the second and the fifth day of the month and that at that time, any new fees, if any, would become available. The Custodian additionally states that no financial records regarding the payment to witnesses exist.

The Custodian states that the Complainant takes issue with the November 1, 2005 date as the date the information became available since she claims to have worked on said date. The Custodian contends that OPRA requires that when records become available they be provided to the Complainant. He states that it is then up to the Complainant to decide when to pick up the requested documents within the normal business hours of the agency.

Again, the Custodian requests that this complaint be dismissed as the Complainant received the requested documents from GRC staff [when staff forwarded the Custodian’s SOI and attachments to the Complainant.] He claims that this settles the complaint and that pursuant to N.J.S.A. 47:1A-1[4], the BOE has complied with the Complainant’s request. The Custodian claims that any further action would be a waste of taxpayer money as the statute has been satisfied and verified by the GRC.

Letter from Complainant to GRC staff in response to the Custodian’s November 11, 2005 letter. The Complainant claims that the Board is not involved in any litigation with her. She states that the due process proceeding which she filed on June 28, 2005 was decided by an Administrative Law Judge on September 6, 2005. She also states that neither party has appealed the decision. The Complainant also states that the US Department of Education’s Office for Civil Rights is investigating her son’s Individual Education Plan (“IEP”). She claims that she agreed to mediate this matter, however the District did not. Also, the Complainant notes that she could have filed action in Superior Court regarding her OPRA request, however she chose to avoid litigation and filed a complaint with the GRC.

The Complainant asserts that the District’s phone bills are public records. She states that the BOE has not provided any bills that provide evidence to support its claims of an October 17, 2005 phone call. She states that she is providing copies of her cell phone and work phone bills to support her claim that she contacted the Custodian on October 25, 2005.

The Complainant asserts that she requested legal fees for a hearing held on July 19, 2005. She states that the Administrative Law Judge rendered his decision on September 6, 2005 and claims that the District should have received a legal bill for that matter prior to November 1, 2005. The Complainant also states that the following staff members testified at the July 19, 2005 hearing: Dr. Margaret McClusky, Principal; Dr. Eric Nixon, Director of Pupil Services; Liz Adams, Case Manager; and Pam Wood, Teacher. She alleges that the District’s contract with the teacher’s union requires that teachers are paid for summer hours and therefore claims that Pam Wood was paid for her appearance at the OAL hearing. She additionally claims that as per the April 6, 2005 Board meeting, Liz Adams was approved to receive $362.00 per evaluation, however the Custodian claims she is not receiving any pay for her testimony. The Complainant also states that the Custodian indicated that none of the staff members were receiving compensation for gas or travel costs.

Regarding the issue of the November 1, 2005 date for release of records, the Complainant states that she brings this up because the Custodian claimed that she gave her approval for an appointment on said date. She states that as she worked on November 1, 2005, she would not have agreed to meet on this date. The Complainant additionally points out a discrepancy between the Custodian’s statements regarding the request for the salary paid to witnesses and related expenses. The Complainant states that in the Custodian’s November 1, 2005 correspondence, the Custodian claims that the requested salary information was made available on October 25, 2005 for the Complainant’s review on November 1, 2005. However, in the Custodian’s November 11, 2005 correspondence, the Complainant indicates that the Custodian stated that he notified the Complainant that he had no data to satisfy the portion of her request relating to witness expenses. The Complainant also claims that further in the Custodian’s November 11, 2005 correspondence he states that the witnesses were not paid and therefore there are no financial documents responsive to the request.

Additionally, the Complainant claims that she contacted GRC staff on November 9, 2005 to advise that the Custodian had ordered his secretaries to not sign as proof of receiving her OPRA requests or additional correspondence. She states that the Custodian refused to accept her four (4) typed requests by stating that they must be submitted on the request form. After contacting GRC staff, the Complainant states that staff contacted the Custodian to advise that requests did not have to be submitted on the form, they must only be in writing, and that he must sign for receiving them.

Further, the Complainant states that the Custodian misunderstood her complaint. She asserts that her complaint is that the Custodian did not provide her with the requested documents, although she states she did receive an attorney bill via GRC staff’s Novemebr 1, 2005 fax. She also states that her complaint has to do with the fact that the Custodian did not respond within seven (7) [business] days.

Letter from Custodian to GRC staff. The Custodian submits his response to the Complainant’s November 29, 2005 letter. The Custodian states that the District’s phone records are public records but that the District is not required to submit evidence regarding the Complainant’s GRC complaint. He asserts that the requested legal bill became available when said bill was “received, verified, and approved for payment.”[5] The Custodian also asserts that the District did not have paid witnesses, but rather District personnel who were paid in accordance to their contracts. He also states that he indicated that the requested documents would become available on November 1, 2005, pursuant to GRC regulations requiring custodians to notify requestors when documents will become available. Additionally, the Custodian states that the District had no related or incurred expenses. Further, the Custodian claims that the District provided access to the requested documents and has complied with the Complainant’s original request.

Letter from GRC staff to Custodian. Staff requests that the Custodian provide a document index regarding the Complainant’s October 13, 2005 request. Staff additionally requests the Custodian provide the date on which he initially responded to the Complainant’s request.

Letter from Custodian to GRC staff. The Custodian certifies that at the time of the Complainant’s request, he contacted her by phone seeking clarification of the request. He also certifies that at the time of said request, he was not in possession of the requested attorney bills, and states that they have subsequently been provided to the Complainant by the GRC. Additionally, the Custodian certifies that he notified the Complainant via telephone the date on which the requested documents would become available. He further certifies that the BOE did not utilize any expert witnesses as defined by statute, and that the employees used as witnesses were paid their salaries for any time spent in hearings. The Custodian did not provide a document index as requested by GRC staff on March 7, 2006.

Letter from GRC staff to Custodian. Staff requests that the Custodian provide the date on which the requested attorney bill became available.

Letter from Custodian to GRC staff. The Custodian certifies that on the date of the Complainant’s OPRA request, October 13, 2005, he did not have the requested legal costs in his possession. He also certifies that he advised the Complainant of such. The Custodian did not provide the date on which the requested attorney bill became available as requested by GRC staff on April 5, 2006.

E-mail from Custodian to GRC staff. The Custodian certifies that he received the requested attorney bill on October 17, 2005. He additionally certifies that he notified the Complainant that the requested bill was available and that said bill was being checked for accuracy.

E-mail from Complainant to GRC staff. The Complainant provides her response to the Custodian’s April 5, 2006 letter. She asserts that the Custodian never contacted her by phone and states that the Custodian has not provided any proof of such phone call. The Complainant contends that the first telephone conversation she had with the Custodian was on October 25, 2005, which is the eighth business day after she made her OPRA request. She states that she has previously provided copies to GRC staff of her phone records indicating that she is the one who initiated the October 25, 2005 phone call to the Custodian.

Additionally, the Complainant asserts that if the Custodian was not in possession of the requested bill at the time of her request, he should have requested an extension of time pursuant to the Custodian’s Handbook. The Complainant also claims that the District had teacher witnesses and that according to the teacher contracts, they receive compensation for time worked in the summer.

Analysis

Whether the Custodian unlawfully denied access to the records requested on October 13, 2005?

“…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” N.J.S.A. 47:1A-1.

“… 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.)

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.

“[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 …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

“…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 therefor …”N.J.S.A. 47:1A-5.g.

The Complainant asserts submitting her OPRA request on October 13, 2005 and claims that she not receive any response from the Custodian. She states that on October 25, 2005, she contacted the Custodian by phone and claims that he informed her that the attorney would not be available until November 1, 2005. She additionally claims that the Custodian advised her he was not currently in possession of the attorney bills and that he was not required to create documents in response to her request for witness and related expenses.

The Custodian asserts that he attempted to contact the Complainant via telephone on October 17, 2005 seeking clarification of her request but claims that the Complainant did not respond until October 25, 2005. He certifies that he was not in possession of the attorney bills at the time of the request, as they became available on October 17, 2005, but states that they have been provided to the Complainant by GRC staff [when staff forwarded the Custodian’s SOI and attachments to the Complainant.]. The Custodian also certifies that there are no documents regarding expert witness expenses as the BOE did not use any expert witnesses as defined by statute. He certifies that the District employees at issue were paid their salaries for their participation in the hearing. The Custodian also states that the District had no related or incurred expenses. Additionally, the Custodian takes issue with N.J.S.A. 47:1A-5.g. claiming that it does not specifically mention the manner in which a custodian must comply with a request (i.e. phone, fax, e-mail, etc.)

Due to the inconsistencies in the submissions of the parties, GRC staff is unable to make a recommendation as to whether an unlawful denial of access has occurred in this complaint. As such, this complaint should be referred to the Office of Administrative Law (OAL) for fact finding and a legal conclusion as to whether the Custodian unlawfully denied access to the requested records.

Whether the Custodian’s actions rise 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 she submitted her OPRA request on October 13, 2005. She claims that she did not receive a response from the Custodian. The Complainant asserts contacting the Custodian by phone on October 25, 2005 and states that the Custodian advised her that the attorney would not be available until November 1, 2005. She also claims that the Custodian advised that he was not in possession of the requested attorney bills and that he was not required to create documents.

The Custodian claims that he attempted to contact the Complainant by phone on October 17, 2005 in order to clarify the Complainant’s request. He certifies that at the time of the Complainant’s request, he was not in possession of the requested attorney bills. The Custodian certifies that the requested bill became available on October 17, 2005, and was provided to the Complainant by GRC staff [when staff forwarded the Custodian’s SOI and attachments to the Complainant.] Additionally, the Custodian certifies that the District did not use any expert witnesses as defined by statute. He certifies that the District employees who participated in the hearing were paid their salaries for their participation.

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).

Due to the inconsistencies in the submissions of the parties, GRC staff is unable to make a recommendation as to whether a knowing and willful violation of OPRA has occurred. As such, this complaint should be referred to the Office of Administrative Law (OAL) for fact finding and a legal conclusion as to whether the Custodian’s actions rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances.

The Executive Director respectfully recommends the Council find that given the inconsistencies in the submissions by the parties, this complaint should be referred to the Office of Administrative Law for fact finding and legal conclusions consistent with the law outlined in this Findings and Recommendations on the following issues:

[1] As stated in Complainant’s Denial of Access Complaint.

[2] Actually cited as “C:47:1A-5G.”

[3] Actually cited as “C:47:1A-5I.”

[4] Actually cited as “C:47:1A-1.”

[5] As stated in Custodian’s November 29, 2005 letter.

[6] Additional submissions were provided to GRC staff by the parties; however they are not relevant to this complaint.

2005-203

FINAL DECISION

Supplemental Findings and Recommendations of the Executive Director

Analysis

Interim Order

Findings and Recommendations of the Executive Director

Complainant

Analysis