2005-208

Tina Renna

Complainant

Union County

Custodian of Record

Complaint No. 2005-208

At the June 27, 2007 public meeting, the Government Records Council (“Council”) considered the June 20, 2007 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 as amended. The Council, therefore, finds that:

The Executive Director respectfully recommends that the Council dismiss this complaint because the Complainant has voluntarily withdrawn the complaint in a letter to the Office of Administrative Law dated May 30, 2007.

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.

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

Supplemental Findings and Recommendations of the Executive Director

Records Relevant to Complaint: All expenses associated with mailings to residents dated September 15, 2005 to date, including: postage bills, vendor printing/copying bills, in-house printing/copying bills, and a copy of each mailing.

Background

Government Records Council’s (“Council”) Interim Order. At its August 10, 2006 public meeting, the 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, found that based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine:

Complaint was forwarded to the Office of Administrative Law for a determination of a knowing and willful violation of OPRA under the totality of the circumstances.

Analysis

The Complainant voluntarily withdrew this complaint in a letter to the Office of Administrative Law, therefore no analysis is needed.

[1] No representation listed on record.

[2] Represented by Anthony Orlando, Esq. (Elizabeth, NJ).

[3] The Complainant’s Denial of Access Complaint states “October 27, 2005.”

Interim Order

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 based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine:

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

Findings and Recommendations of the Executive Director

Complainant

All expenses associated with mailings to residents dated September 15, 2005 to date, including: postage bills, vendor printing/copying bills, in-house printing/copying bills, and a copy of each mailing.

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is requesting copies of mailings and the bills associated with the production and distribution of those mailings from a specific time period.

E-mail from the Custodian to the Complainant. The Custodian acknowledges receipt of the Complainant’s OPRA request.

Custodian’s response to the OPRA request. The Custodian responded to the OPRA request four (4) business days after the receipt of the request. The Custodian informs the Complainant that the 4 pages of documents responsive to the OPRA request are available for viewing or pick up. The Custodian indicates that if the Complainant wants to purchase copies, the fee for this request is $3.00.

Custodian’s “Government Records Request Response” form. The Custodian indicates on the Government Records Request Response that the agency is releasing four (4) documents responsive to the request.

Complainant’s fax to the Custodian. The Complainant requests that the Custodian explain the redactions on page 2 of the documents released.[4] The Complainant is requesting clarification of which postage bills apply to which mailings. The Complainant asks why there is no date of mailing on page 2 of the documents released. The Complainant states that she expects a response to this fax no later than Monday morning or she will file another OPRA complaint.

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments[5]:

The Complainant states that she was notified on October 17, 2005 that her request was ready and received the documents on October 27, 2005. The Complainant then sent a follow-up fax to the Custodian on October 28, 2005 requesting further explanation of the documents she received because the bills contained redactions, the other bills did not specify to which mailings they correspond and there is no date of mailing on page 2 of the documents released. The Complainant states that she informed the Custodian in her October 28, 2005 follow-up fax that she expected the further information promptly or she would file another OPRA complaint.

The Complainant states that in Renna v. County of Union, GRC Case No. 2005-180 (November 2005), the County withheld the same information. The Complainant asserts that the Custodian has knowingly and willfully violated OPRA based on the denial of access in this case, the fact that this is the Complainant’s thirteenth (13^th) denial of access complaint filed against the County of Union and the Custodian’s prior violations of OPRA.

Custodian’s signed Agreement to Mediate. The Complainant did not agree to mediate this complaint.

Letter from the GRC to the Custodian. The letter states that the GRC provided the Custodian with a request for a Statement of Information on November 10, 2005 and to date has not received a response. It also states that if no submission is made within three (3) business days of receipt of this letter, this case may proceed to adjudication before the GRC with the documents already on file.

E-mail from the GRC to the Custodian. The GRC informs the Custodian that no Statement of Information has been received from their office.

Custodian’s Statement of Information (“SOI”) with the following attachments[6]:

The Custodian asserts that the Complainant requested these documents on October 11, 2005 and the requested documents were available to the Complainant as of October 17, 2005. The Custodian states that the Complainant was provided with one (1) consolidated postage statement, two (2) USPS bills for postage and two (2) County Vouchers for postage paid to the Elizabeth Postmaster, copies of which were provided as part of the Denial of Access Complaint. Additionally, the Custodian certifies that all requested documents have been provided to the Complainant.

The Custodian states that the documents were made available to the Complainant and provided in the form in which they are maintained. The Custodian states that the Complainant takes issue with the content of the records provided to her rather than access to records. The Custodian contends that the Complainant’s October 28, 2005 facsimile sought clarification of the documents provided and an explanation of redactions. The Custodian asserts that OPRA does not require a public agency to create documents in response to an OPRA request, therefore the October 28, 2005 request does not constitute a valid OPRA request. Additionally, the Custodian states that had the Complainant taken a different tone in the October 28, 2005 request for additional information she may have gotten answers to the questions she posed.

Complainant’s response to the Custodian’s SOI. The Complainant states that her statements in the October 28, 2005 correspondence regarding response time were meant to avoid having to file another OPRA request. The Complainant takes issues with the redactions made to the requested bills. The Complainant states that she is dissatisfied with the County’s response to her OPRA request because she was given records without anything indicating what the records applied to and contends that providing a bill with no date is equivalent to providing no information at all. The Complainant states she has not received any answers from the Custodian regarding this complaint.

Letter from the GRC to the Custodian’s Counsel. The GRC requests that the Custodian submit a legally certified index of all documents responsive to the request with indication of the exemption being claimed for each document or redaction and an explanation of how the claimed exemption applies to each. Additionally, the GRC is requesting an explanation of the delay in access to the requested bills.

Custodian’s certified response to the June 7, 2006 letter from the GRC with the following attachments:

The Custodian states that the five (5) documents listed above were released, in whole, to the Complainant. The Custodian certifies that all documents were made available to the Complainant on October 17, 2005 and the documents were provided to the Complainant on October 27, 2005. The Custodian asserts that all documents responsive to the request, in possession of the County at the time of the request were provided in whole to the Complainant on that date. The Custodian certifies that the documents were not immediately provided to the Complainant because they were not on file in their customary location as they were in use by County staff and needed to be located.

E-mail from the GRC to the Complainant. Based on the Custodian’s assertion that the requested documents were released in their entirety on October 27, 2005, the GRC is asking that the Complainant provide a statement as to whether or not the documents released on October 27, 2005 were redacted.

E-mail from the Complainant to the GRC. The Complainant states that the documents released to her on October 27, 2005 were redacted; copies of which were included with the Denial of Access Complaint. The Complainant states that it was not until after filing the Denial of Access Complaint with the GRC that she received the documents without redaction. The Complainant asserts that she believes the Custodian has knowingly and willfully violated OPRA.

“…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.)

“[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.” (Emphasis added) N.J.S.A. 47:1A-5.e.

“[i]f the Custodian is unable to comply with a request for access, the Custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The Custodian shall sign and date the form and provide the requestor with a copy therefore …If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record.” N.J.S.A. 47:1A-5.g.

The Custodian certifies that all documents were made available to the Complainant on October 17, 2005 and the documents were provided to the Complainant on October 27, 2005. The Custodian certifies that all documents responsive to the request, in possession of the County at the time of the request, were provided in whole to the Complainant on that date. The Complainant states that the documents released to her on October 27, 2005 were redacted; copies of which were included with the Denial of Access Complaint. The Complainant states that it was not until after filing the Denial of Access Complaint with the GRC that she received the documents without redaction.

Based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine whether there was a denial of access to government records pursuant to N.J.S.A. 47:1A-1 et. seq.

WHETHER the Custodian’s actions rise to the level of a knowing and willful violation of the OPRA and unreasonable denial of access under the totality of the circumstances?

“[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 asserts that the Custodian has knowingly and willfully violated OPRA based on the denial of access in this case, the fact that this is the Complainant’s thirteenth (13^th) denial of access complaint filed against the County of Union and the Custodian’s prior violations of OPRA.

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 Complainant indicates that the fact that this is the Complainant’s thirteenth (13^th) denial of access complaint filed against the County of Union should be a basis for a finding of a knowing and willful violation of the of OPRA. However, OPRA allows for the finding of a knowing and willful violation of OPRA under the totality of the circumstances in each case. Therefore, Complainant’s assertion that there have been thirteen (13) denial of access complaints filed against the Custodian has no bearing on the matter at hand.

The Complainant states that it was not until after filing the Denial of Access Complaint with the GRC that she received the documents without redaction. The Custodian asserts that all documents responsive to the request, in possession of the County at the time of the request, were provided in whole to the Complainant on that date. Based on the contested facts in this case it is possible that the Custodian’s actions may have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional.

The Executive Director respectfully recommends the Council find that based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine:

[1] No representation listed.

[2] Represented by County Counsel Anthony Orlando, Esq., also of the Office of Anthony Orlando Attorney at Law located in Linden, NJ.

[3] The Complainant’s Denial of Access Complaint states “October 27, 2005.”

[4] The Complainant has not specified to which document she is referring.

[5] Documents relating to an OPRA request made on October 20, 2005 were also submitted but are not listed as that OPRA request was not included in the Denial of Access Complaint form.

[6] Documents relating to an OPRA request made on October 20, 2005 were also submitted but are not listed as that OPRA request was not included in the Denial of Access complaint.

2005-208

Final Decision

Supplemental Findings and Recommendations of the Executive Director

Background

Analysis

Interim Order

Findings and Recommendations of the Executive Director

Complainant