2005-220

At the October 19, 2006 public meeting, the Government Records Council (“Council”) considered the October 12, 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 it will not reconsider this complaint and find that this complaint is moot since the Complainant voluntarily withdrew the complaint pursuant to a letter submitted to the Council dated October 4, 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.

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

Supplemental Findings and Recommendations of the Executive Director

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 due to the inconsistencies in the submissions of the parties, GRC staff is unable to make a recommendation as to whether the Custodian acknowledged the Complainant’s records request as an OPRA request. If it is determined that the Custodian acknowledged the Complainant’s request (whether it was on the form or not) as an OPRA request, than the Custodian was responsible (and still is) for responding properly pursuant to OPRA. 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 acknowledged the Complainant’s records request as an OPRA request.

Complainant’s Request for Reconsideration and Voluntary Withdrawal of the Complaint if Reconsideration Not Granted. The Complainant specifically requested (1) that the GRC review and reconsider the legal issues raised in this complaint and (2) withdraw this complaint from consideration by the Office of Administrative Law. Additionally, the Complainant states that “[i]f the GRC declines to review this complaint, I hereby withdraw it completely.”

The Complainant states that the request for reconsideration is based on her belief that the legal analysis by the GRC underlying this complaint is erroneous and that a factual hearing is not necessary. The Complainant further asserts that she believes the facts were absolutely clear in the documentation originally provided to the GRC. Additionally, the Complaint asserts that the GRC sought on its own to obtain an unnecessary certification regarding additional information it [the GRC] deemed necessary to properly adjudicate this complaint from the District and this additional information “manufactured” an issue of fact that did not exist at the time the complaint was submitted to the GRC. Specifically, the Complainant questions why it was necessary to get a certification from the Custodian if the GRC already had contemporaneous document that was “more reliable” and indicated that the request had been discussed previously at the June 22^nd meeting.

The Complainant also asserts that the request (not on an official OPRA records request form as is required pursuant to GRC Advisory Opinion 2006-01, (February 2006)) was valid per the GRC’s own website published guidelines. The Complainant acknowledges that the GRC’s Findings and Recommendations dated July 7, 2006 state that the Attorney General’s Office had advised the GRC that the Advisory Opinion requiring the use of the official OPRA records request form applied retroactively to complaints filed before the issuance of the Advisory Opinion, but not adjudicated before such date (February 2006). The Complainant questions whether the Attorney General’s Office was aware that the Advisory Opinion completely reversed the GRC’s own website published guidelines that the public had been relying upon.

Analysis

“[t]he 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 …” (Emphasis added.) N.J.S.A. 47:1A-7.b.

“[t]he Council, acting through its Executive Director, may require custodians to submit, within prescribed time limits, additional information deemed necessary for the Council to adjudicate the complaint.” (N.J.A.C. 5:105-2.6(m)) 38 N.J.R. 1265 (March 6, 2006).

“[t]he Office of Administrative Law shall acquire jurisdiction over a matter only after it has been determined to be a contested case by an agency head and has been filed with the Office of Administrative Law …” N.J.A.C. 1:1-3.2(a).

The Complainant asserts that she submitted to the Custodian a letter requesting government records on June 26, 2005. The GRC staff could not determine whether the Custodian acknowledged this letter as an OPRA request based on the Custodian’s Statement of Information. This uncertainty was bolstered by the Custodian’s response to the Complainant after the denial of access complaint was filed that the Complainant submit any request for records on the agency’s official OPRA records request form. The Custodian asserts that she did not recognize this letter as an official OPRA records request and thus did not process such request in accordance with the provisions of OPRA.

In response to the Custodian’s Statement of Information, the Complainant specifically requested that the GRC provide addition information concerning when she learned from Mr. Zeglarski that he [Mr. Zeglarski] was not responsible for fulfilling OPRA requests and why the Custodian was not aware of the correct procedure if the Custodian was indeed the records custodian of the agency.[4] Additionally, the Complainat requested that the Custodian be asked to certify when the OPRA procedure and official records request form were adopted by the agency.[5]

The Complainant now objects to the GRC’s request for additional information submitted to the Custodian on May 8, 2006. In response to such request for additional information and in further support of the Custodian’s assertion that she did not acknowledge the Complainant’s letter as an official OPRA records request, the Custodian certified that the Complainant did not advise the Custodian at a meeting mutually attended by both the Custodian and Complainant four (4) days before the Complainant submitted the records request that the Complainant would be submitting an OPRA request in the near future. Based on the fact that the Complainant asserts that the Custodian had to have acknowledged the letter request as an official OPRA request because the Complainant informed the Custodian that she [the Complainant] would be submitting an OPRA request in the near future at the June 22, 2005 meeting that the parties attended and the Custodian’s certified statement submitted to the GRC on May 19, 2006 that the Complainant did not advise her [the Custodian] that the Complainant would be submitting an official OPRA request in the near future, the GRC staff determined that there were contested facts requiring a fact-finding hearing. The Complainant now objects to the GRC’s request for additional information submitted to the Custodian on May 8, 2006.

OPRA provides that the GRC 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 pursuant to N.J.S.A. 47:1A-7.b. In its effort to “review and adjudicate” this denial of access complaint, the GRC asked the Custodian for additional information to clarify the facts presented by the parties. GRC staff routinely asks parties to a denial of access complaint for additional information as needed to clarify the facts presented by the parties pursuant to the GRC Proposed Rules N.J.A.C. 2:105-2.6(m) which provides that the Council, acting through its Executive Director, may require custodians to submit, within prescribed time limits, additional information deemed necessary for the Council to adjudicate the complaint..

Additionally, OPRA provides that if the council is unable to make a determination as to a record’s accessibility based upon the complaint and the custodian’s response thereto, the council shall conduct a hearing on the matter in conformity with the rules and regulations provided for hearings by a state agency in contested cases under the Administrative Procedure Act (“APA”) pursuant to N.J.S.A. 47:1A-7.e. All contested denial of access complaints are referred by the GRC to the Office of Administrative Law for fact-finding hearings in accordance with the APA. After the Executive Director of the GRC determines that a denial of access complaint is a contested case, such complaint is transferred to the Office of Administrative Law pursuant to N.J.A.C. 1:1-3.2(a). The New Jersey Superior Court (Appellate Division) held in Division of State Police v. Maguire, 368 N.J. Super. 564 (Appellate Division 2004), that contested cases under the APA includes those disputes where by statute or constitutional provision a hearing is required before a State agency to determine rights, duties, obligations, privileges, benefits, or other legal relations of specific parties. Thus, this complaint was properly transmitted to the Office of Administrative Law for a fact-finding hearing given the contested nature of the facts presented by the parties and the need for determination of the rights of the Complainant and the duties and obligations of the Custodian under OPRA.

For the foregoing reasons, the Council should not reconsider this complaint and accept the Complainant’s voluntary withdrawal of the same as resolution of this matter.

The Executive Director respectfully recommends the Council not reconsider this complaint and find that this complaint is no longer ripe for adjudication since the Complainant voluntarily withdrew the complaint pursuant to a letter submitted to the Council dated October 4, 2006.

[1] No legal representation on record.

[2] Custodian represented by Paul Barger, Esq. (Chatham, NJ).

[3] However, there was no response regarding access.

[4] Complainant’s response dated January 7, 2006 to the Custodian’s Statement of Information.

[5] Complainant’s response dated January 7, 2006 to the Custodian’s Statement of Information.

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 due to the inconsistencies in the submissions of the parties, GRC staff is unable to make a recommendation as to whether the Custodian acknowledged the Complainant’s records request as an OPRA request. If it is determined that the Custodian acknowledged the Complainant’s request (whether it was on the form or not) as an OPRA request, than the Custodian was responsible (and still is) for responding properly pursuant to OPRA. 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 acknowledged the Complainant’s records request as an OPRA request.

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

Findings and Recommendations of the Executive Director

Complainant’s written Open Public Records Act (“OPRA”) request. She requested the records stated above.

Letter from the Custodian to the Complainant. The Custodian states that she is in receipt of the June 26, 2005 letter, and has forwarded her request to the District’s Superintendent for Business, whose office processes requests for public records.

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

The Complainant states that with respect to the contract between the District and Lovaas Institute for early Intervention, her family had expressed an interest for their disabled daughter to be given equal opportunity to participate in a program for therapeutic services outlined in the contract. The Complainant asserts that by blocking access to information about the program, the District decreased her family’s ability to show how the program was appropriate for her daughter. She also states that her family has had severe difficulty accessing their daughter’s personal education records, and believes that this is part of a pattern of behavior on the part of the District.

Letter from the Custodian to the Complainant. The Custodian states that a formal OPRA request was never made. She includes the necessary OPRA request form with the letter, and states that directions regarding the filing of a record request are printed at the bottom of the form.

The Custodian states that a formal OPRA request has never been filed. She states that a letter of request was sent to her on June 22, 2005 (the actual date of the letter is June 26, 2005) to which she forwarded a letter of response on June 29, 2005.

The Custodian claims that she spoke to Mr. Zeglarski regarding this matter (the District’s Superintendent for Business) not realizing that the Complainant did not follow appropriate procedures by filing an OPRA request form with the District through the Superintendent’s office. She states that in the absence of a request utilizing the appropriate form and submission through the appropriate channels, the request could not be processed in a timely manner. She states that the District was never again contacted in any way in reference to this request until six months later when the complaint was filed. The Custodian states that the District has subsequently sent the Complainant a letter delineating the procedure for an OPRA request, as well as the forms necessary to effectuate such a request.

The Complainant’s response to the Custodian’s SOI. The Complainant states that as the Custodian of Records, Ms. Kusz was responsible for responding to her request and not merely forwarding it to someone who does not have the responsibility for complying with OPRA requests. The Complainant believes that she (the Custodian) had no idea how such requests were to be processed as of June 26, 2005, when the request was submitted, so she ignored it. The Complainant requests that the Custodian provide additional information concerning when she learned from Mr. Zeglarski that he was not responsible for fulfilling OPRA requests and why she was not aware of the correct procedure if she is indeed the Custodian of Records.

The Complainant states that she has never received a letter delineating the District’s procedure for an OPRA request, nor the forms necessary to effectuate such a request. The Complainant believes that the reason she did not receive a follow up letter with the procedure and form is because none existed at the time the complaint was filed, even though OPRA requires every agency to produce an OPRA form. The Complainant requests that the Custodian be asked to certify when the OPRA procedure and form were adopted by the District.

The Complainant disputes the fact that she must make her request on a form and references the Custodian’s Handbook in doing so. She also alleges that the Custodian’s failure to respond to her June 26, 2005 request for copies of documents was a denial of access to records under OPRA.

Custodian’s letter to the Complainant. The Custodian encloses the letter sent December 8, 2005 and states that it was sent to the Complainant and her husband via certified mail, and was returned to her office today marked unclaimed. She also encloses a copy of the Certified Mail envelope.

The Complainant states that she received a fax of the December 8, 2005 letter, but states that she is only required to make one proper request to receive access to the records sought.

Letter from the Complainant to the GRC staff. The Complainant references Advisory Opinion 2006-01 issued on February 17, 2006. The Complainant hopes that the Council’s determination of this matter will be based on the stated interpretation of the law published by the GRC as of the date the request was made. The Complainant believes that a new interpretation or procedure must be phased in over time to be equitably implemented, in the manner usually adopted by other regulatory agencies.

The Complainant states that with respect to their Complaint, four days before filing the written request for public records with the Custodian of Records (Ms. Julianna Kusz), the Complainant discussed with the Custodian at a meeting that the Complainant would be filing a request under OPRA. The Complainant goes on to reference the fact that upon receipt of the records request, the Custodian replied in writing stating, “[i] have forwarded your request to the District’s Superintendent for Business, Mr. Robert Zeglarski, whose office processes requests for public records.” The Complainant asserts that therefore there was no confusion that this was an OPRA request.

The Complainant again references Advisory Opinion 2006-01 which states, “When an agency has not adopted its own official OPRA records request form, requestors may submit their records request on the Model Request Form located on the Government Records Council website.” The Complainant claims that even under this new opinion, it is not clear if a requestor must use the Model Request Form if an agency has not adopted its own form.

In Advisory Opinion 2006-01, it states that “nothing in OPRA suggests that some requestors may forgo using the official request form.” The Complainant states that they do not necessarily agree with this. The afore mentioned Advisory Opinion discussed general principles of statutory construction such as the principal that the word “shall” in a statute is generally mandatory. The Complainant states that they feel that it is equally important to consider the section in OPRA on Statutory Construction. The Complainant references N.J.S.A. 47:1A-8 that says, “Nothing contained in [OPRA], as amended and supplemented, shall be construed as limiting the common law right of access to a government record, including investigatory records of a law enforcement agency.” The Complainant states that she does not believe that the common law required use of a specific form to receive access to a government record and questions whether it would be a violation of her common law right of access to a government record to apply a new interpretation on a retroactive basis.

The Complainant claims that it could be argued that the issuance of Advisory Opinion No. 2006-01 was actually a change in the law itself rather than merely a change in the interpretation of the law. The Complainant states that N.J.S.A. 47:1A-7.b. vests the GRC with the responsibility to prepare guidelines and an informational pamphlet for use by records custodians in complying with the law governing access to public records. The Complainant claims that by delegating this authority to the GRC, the legislature may have also delegated to the GRC the right to change the law itself by changing the guidelines. The Complainant claims that she does not object to the delegation of this rule making authority to the GRC rather she asks that it be applied fairly in a manner consistent with how other laws have been revised in the past by other regulatory agencies.

Letter from the GRC Executive Director to the Custodian. The Executive Director asks the Custodian to certify whether she was present at a June 22, 2005 meeting referenced in the Complainant’s April 10, 2006 submission to the GRC. The Custodian is also asked to certify that if she was in fact present at that meeting, whether she was informed by the Complainant that she (the Complainant) would be submitting an OPRA request.

The Custodian’s response to the GRC Executive Director’s request for a certification. The Custodian certifies that she did attend a meeting with the Complainant on June 22, 2005. The Custodian certifies however, that the Complainant did not advise her that she (the Complainant) would be submitting an OPRA request.

Whether the Custodian acknowledged the Complainant’s records request as an OPRA request?

The Complainant wrote a letter on June 26, 2005 asking for the records listed above. The Custodian initially responded on June 29, 2005 stating that the Complainant’s request was being forwarded to the District’s Superintendent for Business. But, the Custodian never responded to the Complainant on the issue of access to the records requested. The Complainant consequently filed a Denial of Access Complaint on November 22, 2005 stating that she has yet to receive a response to her records request. The Custodian states that a formal OPRA request has never been filed and the District has sent the Complainant a letter informing her of the procedure for an OPRA request, as well as the forms necessary to effectuate such a request.

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:

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.

Additionally, the GRC was advised by the Office of the Attorney General that it may apply the Advisory Opinion to all complaints adjudicated after the date the opinion was approved consistent with the application of ever-changing common law.

Due to the inconsistencies in the submissions of the parties, GRC staff is unable to make a recommendation as to whether the Custodian acknowledged the Complainant’s records request as a valid OPRA request. If it is determined that the Custodian acknowledged the Complainant’s request (whether it was on the form or not) as an OPRA request, than the Custodian was responsible (and still is) for responding properly pursuant to OPRA.

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 acknowledged the Complainant’s records request as an OPRA request.

The Executive Director respectfully recommends that the Council find that due to the inconsistencies in the submissions of the parties, GRC staff is unable to make a recommendation as to whether the Custodian acknowledged the Complainant’s records request as an OPRA request. If it is determined that the Custodian acknowledged the Complainant’s request (whether it was on the form or not) as an OPRA request, than the Custodian was responsible (and still is) for responding properly pursuant to OPRA. 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 acknowledged the Complainant’s records request as an OPRA request.

[1] However, there was no response regarding access.

2005-220

Final Decision

Supplemental Findings and Recommendations of the Executive Director

Analysis

Interim Order

Findings and Recommendations of the Executive Director