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2005-205
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its 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:
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 20th 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. Approvals for the administrative vacation days after August 15, 2005 2. Administrative attendance records – August 2005[1] Request Made: August 26, 2005 Response Made: September 29, 2005 Custodian: Joseph Passiment GRC Complaint filed: October 27, 2005
Background August 26, 2005 Complainant’s Open Public Records Act (“OPRA”) request asking for the records enumerated above.
October 7, 2005 Complainant’s letter to the Government Records Council (“GRC”). The Complainant states that he is filing a complaint because the Custodian failed to provide the requested records within a reasonable time. The Complainant asserts that he requested records on August 26, 2005 and received them on September 29, 2005. The Complainant also asserts that the Custodian failed to provide all records requested. The Complainant asserts that the School District did not provide administrative approvals for vacation days between August 15 and August 31, 2005. The Complainant goes on to assert that the Custodian failed to provide him with the official form for a records request, thereby denying his legal rights to due process. He states that the district provided him with a district created form; which did not detail his rights. Finally, the Complainant states that the Custodian misrepresented what records he (the Complainant) was to receive.
October 27, 2005 Denial of Access Complaint filed with the GRC with the following attachments:
The Complainant states that he requested the administrative attendance records for those individuals who were approved for vacation days from August 15, 2005 to the start of the school year in September 2005, as well as the vacation day approval forms for those same individuals. He also states that he submitted this request to Mr. Joseph Passiment who he “was led to believe” was the Custodian of Records. The Complainant states that during the two weeks after his request was made he asked Mr. Passiment for the information he requested and was informed that it would not be available until the end of the month as per their reporting cycle for twelve month employees.
The Complainant claims that on September 22, 2005 he spoke to the Assistant Custodian of Records as to the status of his request. The Complainant states that he was informed by the Assistant Custodian of Records that she was waiting for one document, and that he would be receiving all records requested.
The Complainant states that on September 27, 2005 after returning to work for the first day since September 22, 2005, the Assistant Custodian of Records informed him that he was being denied all records. The Complainant states that on September 29, 2005 he was told by the Assistant Custodian of Records that he would receive the attendance records but not the vacation day approval forms signed by the Superintendent. The Complainant states that the Assistant Custodian of Records informed him that he was being denied administrative approvals for vacations because of the decision in Janice Jackson v. Kean University, GRC Case No. 2002-98 (November 2003). The Complainant also claims that he was not given the current officially adopted OPRA request form, and as a result, was denied rights during the complaint process.
October 31, 2005 Mediation offered to both parties. Neither party agreed to mediation of this Complaint.
November 9, 2005 GRC staff sent request for the Statement of Information (SOI).
November 18, 2005 Custodian’s SOI with attachment:
The Custodian states that he received the OPRA request on August 2, 2005. (The Complainant states in the Denial of Access Complaint that he made the request on August 26, 2005, which in fact matches the date on the request form included in the file). The Custodian states that the Complainant was provided attendance calendars (redacted) for the following administrators: Jacqueline Martin, Joseph Miceli, Robert Williams, Ruth Jacobson, Georgianna Petillo and Bruce Mitzak. The Custodian states that these documents were provided on September 29, 2005.
The Custodian states that the Complainant was not given access to approved request for vacation days forms for those administrators who took vacation after August 15, 2005, namely Jacqueline Martin, Joseph Miceli, Robert Williams, Ruth Jacobson and Georgianna Petillo. The Custodian states that these records were not provided to the Complainant because access to the physical documents was not given to Veronica Wolf, Acting Custodian of Records of the Human Resources Department, as per instructions from the Superintendent of Schools. The Custodian claims that the Superintendent’s decision was based upon her review of Jackson. The Custodian includes a blank request for use of vacation days form for GRC information purposes.
Analysis
Whether the Custodian unlawfully denied access to the approvals for the administrative vacation days after August 15, 2005?
OPRA provides that:
“…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.
OPRA defines a government record as follows:
“ … 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-1.1.
OPRA states in part:
"Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:
[a]n individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record.” (Emphasis added.) N.J.S.A. 47:1A-10.
Also, OPRA states that the Custodian has to prove that a denial of access is authorized by law. 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 Custodian states that the Complainant was not given access to approved request for vacation days forms for those administrators who took vacation after August 15, 2005, namely… Georgianna Petillo. The Custodian states that these records were not provided to the Complainant because access to the physical documents was not given to Veronica Wolf, Acting Custodian of Records of the Human Resources Department, as per instructions from the Superintendent of Schools. The Custodian claims that the Superintendent’s decision was based upon her review of Jackson.
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. In Jackson, the Council found that the names of those Kean University employees who were granted paid leaves of absence, the dates of the leaves, the employee’s regular salary and the salary during the leave of absence were disclosable. Said records were found to be disclosable based upon the definition of "payroll" which is defined in Black's Law Dictionary as a list of employees to be paid and the amount due to each of them, as well as N.J.A.C. 12: 16-2.1, which is a Department of Labor regulation entitled "Payroll records." Every employing unit having workers in employment, regardless of whether such unit is or is not an "employer" as defined in the Unemployment Compensation Law, shall keep payroll records that shall show, for each pay period: N.J.A.C. 12: 16-2.1 requires the following:
By simply citing Jackson, as well as saying that the documents were not given to Veronica Wolf, Acting Custodian of Records of the Human Resources Department, as per the instruction of the Superintendent of Schools, the Custodian has failed to bear his burden of proving that the denial of access is authorized by law and is therefore in violation of N.J.S.A. 47:1A-6. Based upon the fact that approvals for administrative vacation days are not clearly defined as being part of a payroll record, pursuant to the GRC’s decision in Jackson, as well as not being defined as being a government record under N.J.S.A. 47:1A-10, there was no unlawful denial of access to said records in the immediate case. Whether the Custodian responded to the August 26, 2005 OPRA request within the statutorily required seven (7) business days? OPRA 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.i. Additionally, OPRA 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 …” N.J.S.A. 47:1A-5.g
The Complainant made his OPRA request on August 26, 2005 and did not receive a response until September 29, 2005.
The Custodian certifies that he received the OPRA request on August 2, 2005. (The Complainant states in the Denial of Access Complaint that he made the request on August 26, 2005, which in fact matches the date on the request form included in the file). The Custodian states that the Complainant was provided attendance calendars (redacted) for the following administrators: Jacqueline Martin, Joseph Miceli, Robert Williams, Ruth Jacobson, Georgianna Petillo and Bruce Mitzak. The Custodian states that these documents were provided on September 29, 2005.
Based on the parties’ submissions, the Custodian failed to respond to the Complainant’s OPRA request within the statutorily mandated seven (7) business days, therefore creating a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.i.
OPRA allows the Custodian to deny access to records under those circumstances in which the records requested are exempt from access under OPRA or any other law. If a Custodian asserts an exemption from disclosure under the law, the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. In the case at hand, the Custodian did not notify the Complainant in writing until over a month after the request was made.
Although the Custodian did eventually respond in writing to the request, the Custodian failed to provide a specific and lawful basis for the denial of access; and therefore violated N.J.S.A. 47:1A-5.g.
The Custodian violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. by failing to provide the Complainant with a written response to his August 26, 2005 request within the statutorily mandated seven (7) business days therefore creating a “deemed” denial.
Whether the delay in access to the requested records 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 under the totality of the circumstances. Specifically OPRA states:
“…[i]f the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e.
The Complainant alleges that the Custodian denied his due process by not providing him with the correct OPRA request form. The Complainant states that the Custodian abused his patience by dragging his feet on his request and flip flopped from one day to the next as to which documents he would be given. The Complainant states that the Custodian provided him with the personnel records for vacation but not the approvals, thereby attempting to cover up who approved the vacation days. The Complainant alleges that the Custodian was derelict in his professional duties as per the timeline outlined on the officially adopted OPRA request form.
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).
The Custodian states that the Complainant was provided attendance calendars for… Bruce Mitzak. The Custodian states that these documents were provided on September 29, 2005. The Custodian goes on to state that the Complainant was not given access to approved request for vacation days forms for those administrators who took vacation after August 15, 2005, because access to the physical documents was not given to Veronica Wolf, Acting Custodian of Records of the Human Resources Department as per the instruction of the Superintendent of Schools. The Custodian claims that the Superintendent’s decision was based upon her review of Jackson. In view of the fact that the Custodian gave a reason (although not legally sufficient pursuant to the standards of OPRA) for denying the approvals for the administrative vacation days after August 15, 2005, there is no evidence that the Custodian’s actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey courts. Therefore, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a. WHETHER the Custodian’s officially adopted records request form complies with OPRA? OPRA explicitly stipulates what must be included in an agency’s OPRA records request form. Specifically OPRA states: “[t]he Custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency. The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought. The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged. The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by [OPRA] as amended and supplemented, to make the record available; (4) 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; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied…” (Emphasis added.) N.J.S.A. 47:1A-5.f. The Complainant takes issue with the Custodian’s OPRA records request form. The Complainant alleges that the Custodian denied his due process by not providing him with the correct OPRA request form. All Custodians are required to adopt a request form which must include at least those components which are mandated in OPRA. Custodians’ who do not have a request form that is compliant with N.J.S.A. 47:1A-5.f. may adopt the model request form located on the GRC website at http://www.nj.gov/grc/modelrequestform.html.[2]
After review of the Manalapan-Englishtown Regional Board of Education’s request for public records form (submitted to the GRC staff with the Complainant’s Denial of Access Complaint), it should be determined that the form does include all of the necessary information as required under N.J.S.A. 47:1A-5.f.
In Perino v. Township of Haddon Heights, GRC Case No. 2004-128 (November 2004) in which the Complainant questioned the compliance of the Custodian’s OPRA request form, the GRC found that pursuant to N.J.S.A. 47:1A-7.b. the GRC’s role is limited to adjudicating issues surrounding denial of access to government records. However, the Appellate Division of the Superior Court found to the contrary, that the GRC too narrowly viewed its authority. See Paff Department of Labor, Board of Review, 379 N.J. Super.346, 350 (App. Div. 2005) (recognizing the GRC’s significant role in the administration of OPRA). Therefore, the Council does have the authority to adjudicate the legal sufficiency of an agency’s OPRA request form when the issue is linked to a denial of access complaint filed with the Council. Therefore, the form adopted by the Custodian in this case is in compliance with N.J.S.A. 47:1A-5.f.
In light of the fact that the form adopted by the Custodian in this case is in compliance with N.J.S.A. 47:1A-5.f., the Custodian is not in violation of N.J.S.A. 47:1A-5.f.
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:
Prepared By: Christopher Malloy Case Manager
Catherine Starghill Executive Director Government Records Council |
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