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2005-204

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Danielle DeMaio
   Complainant
      v.
Jackson Township
   Custodian of Record

Complaint No. 2005-204

 

At its January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 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:

  1. Pursuant to the fact that the plans requested did not exist at the time of the request, there would not have been an unlawful denial of access except that the Custodian’s delay in properly responding to the Complainant’s request resulted in a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.
  2. 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.

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

Final Decision Rendered by the
Government Records Council
On The 27th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  February 8, 2006

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Findings and Recommendations of the Executive Director

Danielle DeMaio                                            GRC Complaint No. 2005-204
Complainant
          v.
Jackson Township
Custodian of Records

Records Requested:  Any and all documents relating to the construction of the home located at 5 Francesca Lane, including any and all building permits, inspections, and plans.  
Request Made:  July 13, 2005
Response Made: July 21, 2005, July 25, 2005, October 11, 2005
Custodian:  Ann Marie Eden
GRC Complaint filed: October 25, 2005

Background

July 13, 2005

The Complainant’s written Open Public Records Act (OPRA) request.  The Complainant seeks any and all documents relating to the construction of her home located at 5 Francesca Lane, including any and all building permits, inspections, and plans.

(All documents except for the building plans were made available to the Complainant as of July 21, 2005.)

October 11, 2005

Letter from Custodian to Complainant.  The Custodian claims that she has exhausted all avenues in search of the Complainant’s requested construction plans and is unable to locate them.  The Custodian recommends that the Complainant contact the contractor and enclosed the contractor’s contact information. 

October 25, 2005

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

  • Complainant’s July 13, 2005 OPRA request
  • Custodian’s October 11, 2005 written response
  • October 16, 2005 e-mail from Complainant to GRC staff
  • October 18, 2005 e-mail from GRC staff to Complainant

The Complainant claims that after filing her July 13, 2005 request, she spoke with the Custodian via telephone on August 9, 2005.  The Complainant claims that during this conversation, the Custodian informed her that she has been unable to locate the requested plans and that she will check with the Construction Code Official to see when someone will look again.  The Complainant states she informed the Custodian that it has been three (3) weeks since she filed her request.  Again, on August 9, 2005 the Complainant claims she spoke to the Custodian via telephone and that the Custodian informed her that on August 15, 2005 an inspector can search for her requested plans, however, after three (3) attempts the plans will be assumed lost. 

The Complainant asserts that on August 18, 2005, she contacted the Custodian by phone to inquire about the status of the requested plans.  The Custodian allegedly told the Complainant that they were unable to locate the plans, suggested that she contact the builder, and asked if she would like to speak to the Code Official.  The Complainant states that she left a detailed message for the Code Official and as of October 25, 2005, she has not received a response. 

At the suggestion of the Township, the Complainant claims that she requested the plans from the builder on September 13, 2005 and also on September 30, 2005.  The Complainant states that a letter was sent to the Construction Code Official indicating that she had requested the plans from the builder.  Soon after, the Complainant asserts that she received a response from the builder indicating that his files were “purged and consolidated by former employees, are now archived into storage and are not easily accessible.”[1]  Additionally, the Complainant claims that the builder advised that the plans should be on file with the Township unless they have been archived as well. 

October 31, 2005

Offer of Mediation sent to both parties.

November 1, 2005

E-mail from Complainant to GRC staff.  The Complainant advises that she does not wish to participate in mediation, and that she would like a formal investigation. 

November 2, 2005

GRC staff sends request for Statement of Information to Custodian.

November 10, 2005

Letter of representation from Custodian’s counsel to GRC staff.  Counsel submits the Township’s Agreement to Mediate.

November 10, 2005

GRC staff sends request for Statement of Information to Custodian’s counsel. 

November 17, 2005

GRC staff resends request for Statement of Information.

December 1, 2005

GRC staff resends request for Statement of Information. 

December 5, 2005

Custodian’s Statement of Information with the following attachments:

  • Complainant’s July 13, 2005 OPRA request
  • Handwritten notes pertaining to phone messages left for the Complainant from the Custodian dated July 21, 2005, July 25, 2005, and August 8, 2005
  • November 22, 2005 Memorandum from Custodian to Barry Olejarz, Construction Code Official
  • December 5, 2005 letter from Barry Olejarz, Construction Code Official to GRC staff
  • Permit #9902618 for Block 82.01 Lot 60.03
  • August 3, 2000 letter from Complainant’s counsel to Greg Valesi, CME Associates Consulting and Municipal Engineers
  • July 28, 2000 letter from Complainant’s counsel to John Sodi, Jr., Construction Code Official
  • August 3, 2000 Final Engineering Plans for Block 82.01 Lot 60.03
  • Construction Permit Application and permits for Block 82.01 Lot 60.03
  • Fireplace and furnace installation instructions
  • September 17, 1999 “Items To Be Corrected Before Permit Release” for Block 82.01 Lot 60.03
  • Application for Preliminary Engineering Review dated October 17, 1999
  • Application to install a septic system dated August 17, 1999
  • NJDEP Well Permit dated July 27, 1999
  • Application for Review to Construct/Alter/Repair an Individual Subsurface Disposal System dated July 30, 1999
  • Construction plans dated September 17, 1998
  • December 1, 2005 facsimile from GRC staff to Barry Olejarz, Construction Code Official

The Custodian indicates in a handwritten note for herself dated July 21, 2005 that she left a message for the Complainant that a copy fee of $24.00 is charged upfront before the copies will be made and that she is still trying to locate the requested plans.  She also indicates in another handwritten note for herself dated July 25, 2005 that she left a message for the Complainant that the copies have been made and are ready for pickup, and that she is still looking for the requested plans.  In an August 8, 2005 handwritten note, the Custodian states that she spoke to the Complainant and notified her that the inspector can go out on Monday to search and the Complainant claimed that she would call the Custodian on Tuesday. 

In a December 5, 2005 letter to GRC staff enclosed with the Custodian’s Statement of Information, Barry Olejarz, the Construction Code Official acknowledges that on July 13, 2005 the Building Department received the Complainant’s request for any and all documents relating to construction of 5 Francesca Lane, Block 82.01 – Lot 60.03 including any and all building permits, inspections, and plans.  Mr. Olejarz states that the Building Department released all requested documents to the Complainant on July 27, 2005, except for the building plans.  He claims that after providing the Complainant with the requested documents, the Building Department continued to search for the plans and noted that as the home at issue was built as a prototype, the plans may have been given to another homeowner. 

Mr. Olejarz asserts that on November 18, 2005, the Custodian received a copy of the plans from the Architect of Record, and notified the Complainant that they were available for pick up.  He further states that the Custodian notified the Complainant of same on November 29, 2005 and November 30, 2005.  He states that as of December 5, 2005, the Complainant has not picked up the plans.  Mr. Olejarz notes that all documents released and made available to the Complainant are attached to the Custodian’s Statement of Information.  The Custodian certifies that all of these statements are true.

December 9, 2005

Letter from GRC staff to Custodian.  Staff requests a legal certification addressing the following: the date(s) on which she responded to the Complainant’s July 13, 2005 OPRA request, as well as the manner in which the response was made; and copies of any written responses and/or correspondence with the Complainant regarding the request. 

December 14, 2005

Letter from Barry Olejarz, Construction Official to GRC staff.  Mr. Olejarz acknowledges receipt of the Complainant’s OPRA request on July 13, 2005.  He states that on July 21, 2005 his office left a voice message for the Complainant notifying her that the requested documents were available for pickup except for the plans, as the office is still searching for them, and the copy charge is $24.00.  He states that again on July 25, 2005, his office called the Complainant to inform her that her request was ready and they were still looking for the plans. 

On July 27, 2005, Mr. Olejarz claims that the Complainant picked up her request and was advised that they still could not locate the requested plans.  Additionally, on August 8, 2005, Mr. Olejarz asserts that someone from his office spoke to the Complainant and notified her that an inspector will be searching for her plans on Monday and the Complainant stated that she would follow up on Tuesday.  Further, Mr. Olejarz states that on October 11, 2005 a letter was sent to the Complainant notifying her that they were unable to locate the requested plans of her home. 

Analysis

Whether the Custodian unlawfully denied access to plans concerning the construction of the home located at 5 Francesca Lane Block 82.01 – Lot 60.03 requested on July 13, 2005?

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 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 …”  (Emphasis added.)

N.J.S.A. 47:1A-6 provides that “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…”

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

N.J.S.A. 47:1A-5.g. provides that “.... [i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore 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 …”

The Custodian acknowledges receipt of the Complainant’s July 13, 2005 request for any and all documents relating to the construction of the home located at 5 Francesca Lane, including any and all building permits, inspections, and plans.  She certifies that she notified the Complainant by phone on July 21, 2005 and again on July 25, 2005 that all requested documents were ready for pickup except for the building plans as they had not yet been located.  She further certifies that she contacted the Complainant by phone on August 8, 2005 to inform her that an inspector would be continuing a search for the requested plans. 

On October 11, 2005, the Custodian sent a letter to the Complainant indicating that the office was unable to locate the plans for her home, as they are not maintained on file.  The Construction Official states that as the Complainant’s home is a prototype, the plans may have been given to another homeowner.  He further states that he received the plans from the Architect of Record on November 18, 2005 and notified the Complainant that the plans were available for pickup.  He asserts that on November 29, 2005 and November 30, 2005, the Custodian notified the Complainant of same.  He claims that as of December 5, 2005, the Complainant has not picked up the plans. 

In this case, both the Custodian and the Construction Official state that at the time of the request, they were unable to locate the plans requested by the Complainant, as they were not maintained on file.  In Colby v. Pittsgrove Township, GRC Case No. 2005-88 (November, 2005) the Council held that since the requested records were not “made, maintained, kept on file, or received” at the time of the request, there was no unlawful denial of access.  The same applies in this case as the plans were not maintained on file at the time of the Complainant’s request.

However, pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i., a Custodian must either grant or deny access to the requested records within seven (7) business days because the failure to respond shall be a “deemed” denial.  The Custodian must provide the Complainant with a written response within the statutorily required seven (7) business days.  In this case, the Custodian did respond to the request within the required timeframe, however she did not do so in writing until October 11, 2005.  In Colby v. Pittsgrove Township, GRC Case No. 2005-88 (November, 2005), the Council also found that the Custodian’s delay in responding to the Complainant’s request resulted in a “deemed” denial of access.  The same applies in this matter, as the Custodian did not properly respond to the Complainant’s request in writing within seven (7) business days pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i., therefore resulting in a “deemed” denial of access. 

Therefore, pursuant to the fact that the plans requested did not exist at the time of the request, there would not have been an unlawful denial of access except that the Custodian’s delay in properly responding to the Complainant’s request resulted in a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.

Whether the Custodian’s delay in access to the requested plans 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 Custodian certifies that she responded to the Complainant’s July 13, 2005 OPRA request on July 21, 2005 by phone and notified her that all requested documents were available for pickup except that she was still searching for the building plans to her home.  On October 11, 2005, the Custodian notified the Complainant in writing that after several attempts she was unable to locate the plans, as they are not maintained on file.  The Construction Official asserts that the Custodian received the plans from the Architect of Record on November 18, 2005 and notified the Complainant that the plans were available the same day. 

Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).

In Cole v. Township of Montague, GRC Case No. 2004-33 (May 2004), the Council held that since the Custodian certified that there were no documents in existence responsive to the Complainant’ request at the time of the request, and that although the Custodian did not respond in writing, he did verbally respond to the request, and once the documents became available, he promptly released them to the requester, therefore the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA.  In this case, the facts are similar and the same ruling should apply.  The Custodian certifies that at the time of the request she could not locate the requested plans, however the same day they became available to her, she notified the Complainant of their availability.  Additionally, she did respond to the request within the statutorily mandated seven (7) business days, however she did not do so in writing until October 11, 2005.  Nevertheless, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

  1. Pursuant to the fact that the plans requested did not exist at the time of the request, there would not have been an unlawful denial of access except that the Custodian’s delay in properly responding to the Complainant’s request resulted in a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.
  2. 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

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

January 19, 2006


[1] As stated on Denial of Access Complaint.

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