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2005-227

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Thomas Caggiano
   Complainant
      v.
Borough of Stanhope
   Custodian of Record

Complaint No. 2005-211, 2005-226, 2005-227, 2005-228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235, 2005-250 and 2005-252

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. The Custodian’s response that the records were previously provided to the Complainant on several occasions is not a lawful basis to deny access to the November 1, 2005, November 14, 2005 and December 8, 2005 records requests pursuant to N.J.S.A. 47:1A-6.
  2. Michael Bent v. Stafford Police Department, GRC Complaint No. 2004-78 (October 2004) and Michael Bent v. Stafford Township Police Department, 381 N.J. Super. 30, 884 A.2d 240 (October 21, 2005), there was no unlawful denial of access pursuant to OPRA.

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

Thomas Caggiano
   Complainant
      v.
Borough of Stanhope
   Custodian of Record

Complaint No. 2005-211, 2005-226, 2005-227, 2005-228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235, 2005-250 and 2005-252

Records Requested:The Complainant’s records requests concerning each case are attached to these findings and recommendations[1]
Request Made: November 1, 2005[2], November 14, 2005[3], December 8, 2005[4]
Response Made:  November 2, 2005[5], November 22, 2005[6], December 12, 2005[7] and December 15, 2005[8]
Custodian: Antoinette Battaglia
GRC Complaint filed: November 4, 2005[9], November 28, 2005[10], December 14, 2005[11] and December 16, 2005[12]

Background

All the above referenced cases involve the same Complainant and public agency and are combined for purposes of this finding and recommendations because the records requests and the issue in these cases are similar. 

GRC Case No. 2005-211

November 1, 2005

Complainant hand delivered the attached records request to the Borough of Stanhope’s Custodian.  The request contains thirty-four (34) numbered paragraphs and a request to review and inspect documents regarding properties identified as Block 10902, Lots 10 and 12. 

November 2, 2005

Custodian’s response to the Complainant’s November 1, 2005 request.  The Custodian denied his request for information concerning the properties identified as Block 10902, Lots 10 and 12.  The Custodian stated that the Borough previously provided all information currently sought in his request and would not “honor [his] OPRA[13] Request.”  She further stated that the request contained “rambling statements, accusations and arguments” and was not made in “good faith.”  She informed the Complainant that based on a previous directive from the Borough of Stanhope’s Administrator he was refrained from coming to the Borough and was only to communicate via mail.[14]

November 4, 2205

Denial of Access Complaint filed with the Government Records Council (“GRC”) staff for case number 2005-211.  The Complainant attached the following documents with his complaint:

  • Copy of his records request dated November 1, 2005
  • Copy of the Custodian’s response to his records request dated November 2, 2005
  • Copy of a letter to the Complainant from the Borough of Stanhope Administrator dated October 9, 2003

The Complainant states that he requested letters, drawings, soil erosion and sediment control plans and his police report, which he contends was listed in his November 1, 2005 request.  He asserts that he was denied access to copies of the requested documents and an audiotape of a land use board meeting prepared in “word format.”  He further claims that he was only concerned with the development of the property identified as Block 10902, Lot 10 and asserts that his records request was to obtain data to support complaints made to the Department of Consumer Affairs Board of Engineers against a number of professional engineers and obtain copies of police reports which concerned “a threat to [his] life by the developer Mr. Dawalt.”  He alleges that 95% of his November 1, 2005 records request were not previously requested contrary to the Custodian’s statement. 

November 9, 2005

Offer of mediation sent to the Complainant and Custodian.[15]

November 15, 2005

The GRC Staff sends a request for the Custodian’s statement of information (“SOI”).

November 22, 2005

Custodian’s SOI with the following attachments:

  • Copy of Complainant’s request for records dated November 1, 2005
  • Copy of OPRA requests from the Complainant and his wife identifying records provided to the Complainant in response to the requests made in 2002 and 2003 concerning property Block 10902, lots 10 and 12
  • Copy of letters from various State agencies in response to complaints the Complainant filed concerning the development of Block 10902, lots 10 and 12
  • Copy of Custodian’s November 2, 2005 response to the Complainant’s November 1, 2005 records request
  • October 9, 2003 letter from the Borough of Stanhope Administrator to the Complainant concerning his conduct with the Borough.
  • Copy of Custodian’s November 22, 2005 response to the Complainant’s ten (10) OPRA requests dated November 14, 2005 for information concerning property identified as Block 10902, Lots 10 and 12.  Included with the letter are the ten (10) OPRA requests dated November 14, 2005.

The Custodian states that the documents sought in the Complainant’s November 1, 2005 request were previously provided to the Complainant in response to numerous OPRA requests made in 2002 and 2003 and she included copies in attachments to the SOI of what she was able to locate in the Borough’s files regarding said requests.  She further states that the prior Custodian, Audrey Dressel, responded to the 2002 and 2003 OPRA requests made by the Complainant.  She contends that the November 1, 2005 request is a lengthy digression of opinions concerning an alleged conspiracy over the development of the properties Block 10902, Lots 10 and 12, which are adjacent to the Complainant’s home.  The Custodian explains that the numerous records requests filed with the Borough of Stanhope were also filed with Sussex County Soil Conservation District.  The Custodian explains further that all documents were previously provided in response to numerous records requests filed in 2002 and 2003 concerning the property Block 10902, lots 10 and 12. The Custodian contends that the Complainant continues to make “frivolous requests” for the same information that was provided to him in 2002 and 2003 with the intent of harassing the Borough of Stanhope.[16]  The Custodian references her November 2, 2005 response to the Complainant’s records request in which she states that “[t]he attachment to your OPRA request contains 34 numbered paragraphs. Although you occasionally request documents, most of your attachment contains rambling statements, accusations and arguments.  From the nature of your attachment your OPRA Request has not been made in good faith.”  The Custodian claims that all documents regarding the properties Block 10902, Lots 10 and 12 development was previously provided to the Complainant in 2003 and that nothing had changed regarding this property since that time. 

GRC Case Nos. 2005-226, 2005-227, 2005-228, 2005-229, 2005-230, 2005-231,

2005-232, 2005-233, 2005-234, and 2005-235

November 14, 2005

Complainant submitted the attached ten (10) records requests to the Borough of Stanhope’s Custodian.[17] 

November 22, 2005

Custodian’s response to the Complainant’s ten (10) records requests dated November 14, 2005.  The Custodian states that the information sought in the November 14, 2005 requests was previously provided to the Complainant on “numerous prior occasions” and references a Denial of Access Complaint already filed with the GRC concerning the same records request. 

November 28, 2005

Denial of Access Complaint filed with the GRC staff for case numbers 2005-226 through 2005-235.  A copy of the records request is attached with each complaint.  In each complaint, the Complainant contends that he was denied access to a copy of the records sought in each of his requests. 

December 1, 2005

Offer of mediation sent to the Complainant and Custodian.[18]

December 1, 2005

The GRC Staff sends a request for the Custodian’s SOI.

December 2, 2005

Custodian’s SOI with the following attachments:

In the SOI, the Custodian references her response made in the SOI for GRC Case No. 2005-211.   

December 5, 2005

Supplemental information submitted by the Complainant in response to the SOI.  The Complainant claims that the SOI does not provide an adequate response to his complaints numbered 2005-226 through 2005-235 and the response made by the Custodian is “fraudulent.”  He contends that he had not previously requested documents “such as police records, minutes of meetings, Word document formatted records, copies of variance meetings, copies of designs, copies of approved and certified E.N.F. Development Co. LLC soil Erosion and Sediment Control plans, et al.”  He further claims that the Custodian did not respond to his specific request for documents. 

GRC Case No. 2005-250

December 8 and 9, 2005

Complainant submitted the attached two (2) records request to the Custodian of Stanhope.[19]

December 12, 2005

Custodian’s response to the Complainant’s December 8, 2005 records requests.   The Custodian denied the Complainant’s request for information concerning the properties identified as Block 10902, Lots 10 and 12.  The Custodian stated that the Borough previously provided all information currently sought in his request.  She further stated that the Complainant’s request was opinions and arguments and requests for specific records pursuant to OPRA. 

December 14, 2005

Denial of Access Complaint filed with the GRC staff.  A copy of the records requests dated December 8 and 9, 2005 are attached with the complaint. The Complainant contends that he was denied access to a copy of the records sought in each of his requests.

December 15, 2005

Offer of mediation sent to the Complainant and Custodian.[20]

GRC Case No. 2005-252

December 8, 2005

Complainant submitted the attached records request to the Custodian of Stanhope.[21]

December 12, 2005

Custodian’s response to the Complainant’s December 8, 2005 records requests.   The Custodian denied his request for information concerning the properties identified as Block 10902, Lots 10 and 12.  The Custodian stated that the Borough previously provided all information currently sought in his request.  She further stated that the Complainant’s request was opinions and arguments and requests for specific records pursuant to OPRA. 

December 16, 2005

Denial of Access Complaint filed with the GRC staff with the following attachments:

  • Copy of Complainant’s records request dated December 8, 2005.
  • Copy of Complainant’s letter dated December 16, 2005 to the Custodian concerning the response that he received to his December 8, 2005 records request.

The Complainant contends that he was denied access to numbers 1, 3, 5 and 8 of his records request. 

December 19, 2005

Offer of mediation sent to the Complainant and Custodian.[22]

Analysis

Whether there was an unlawful denial of access to the Complainant’s fourteen (14) records requests dated November 1, 2005, November 14, 2005, December 8, 2005 and December 9, 2005 pursuant to OPRA? 

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-5.g. requires that the Custodian provide access or explain the reason access is being denied.  Specifically, OPRA provides that:

“…. [a] custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor…”

N.J.S.A. 47:1A-6 places the onus on the Custodian to prove that a denial of access is lawful and states in relevant part:

 “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…”

The Complainant submitted fourteen (14) records requests to the Borough of Stanhope’s Custodian.  The initial request was made on November 1, 2005, which consists of twelve (12) pages and thirty-four (34) numbered paragraphs.  The other thirteen (13) requests were made on November 14, 2005, December 8, 2005 and December 9, 2005 and contain excerpts from the November 1, 2005 records request.[23] 

The Complainant claims in GRC Case No. 2005-211 that he was denied access to copies of the requested documents and an audiotape of a land use board meeting prepared in “word format.”  He further disputes the Custodian’s claim that he had previously received all the documents sought in his November 1, 2005 request.  In the other twelve (12) cases, the Complainant generally claims that he was denied access to requested records. 

Although the Custodian asserts that all the requested documents concerning the properties identified as Block 10902, Lots 10 and 12 sought in the twelve (12) records requests[24] were previously provided on repeated occasions to the Complainant in 2002 and 2003 and submitted copies of these earlier requests and the corresponding responses in the attachments to the SOI, OPRA does not limit the number of times a requestor may ask for the same record even when the record was previously provided.  N.J.S.A. 47:1A-5.g. requires that the Custodian must comply with a request or provide a lawful basis for denying access pursuant to N.J.S.A. 47:1A-6.  In these cases the Custodian provided a response, however, the fact that the records were previously provided to the Complainant on several occasions is not a lawful basis to deny access to the records requests of November 1, 2005, November 14, 2005 and December 8, 2005.   

Additionally, the Custodian contends that although the November 1, 2005 records request occasionally requested a document, most of the requests were “rambling statements, accusations and arguments” which were not made in “good faith.”  The Custodian makes the same defense regarding the twelve (12) records requests made on November 14, 2005 and December 8, 2005.  In the GRC’s review of the Complainant’s November 1, 2005 records request, the Complainant makes broad and unclear requests for information.  In virtually all instances, the Complainant requests, in a general way, “any” and “all” documents without providing sufficient specificity to identify the record or records he seeks and which would necessitate some form of research or searching on the part of the Custodian.   All twelve (12) of the November 14, 2005 and December 8, 2005 records requests are excerpts of the November 1, 2005 records request and provide no further specificity in identifying the records being sought. 

The New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful informationRather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination."  N.J.S.A. 47:1A-1."  (Emphasis added.)  Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March 2005).  The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files."  (Emphasis added.)  Id. at 549.

In the GRC case Phillip Boggia v. Borough of Oakland, 2005-36 (October 2005), the Council found that OPRA was not intended to require a custodian to do research in providing access to government records.  Also, in Michael Bent v. Stafford Township Police Department, 381 N.J. Super. 30, 884 A.2d 240 (October 21, 2005)[25], the Court found that the general request for information neither identified nor described with any specificity the records sought.  Therefore, there was no unlawful denial of access. 

Therefore it may be concluded that when a complainant's request is overbroad and unclear, the burden is on the complainant to clarify the request because "agencies are required to disclose only "identifiable" government records."

Thus, the November 1, 2005, November 14, 2005, December 8, 2005 and December 9, 2005 records requests were broad and unclear requests for information by seeking “any” and “all” documents without identifying the record or records with sufficient specificity and which would necessitate some form of research or searching on the part of the Custodian.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

  1. The Custodian’s response that the records were previously provided to the Complainant on several occasions is not a lawful basis to deny access to the November 1, 2005, November 14, 2005 and December 8, 2005 records requests pursuant to N.J.S.A. 47:1A-6.
  2. The November 1, 2005, November 14, 2005, December 8, 2005 and December 9, 2005 records requests were broad and unclear requests for information that sought “any” and “all” documents without identifying the record or records with sufficient specificity and which would necessitate some form of research or searching on the part of the Custodian.  Therefore, on the basis of Mag and the GRC decision and the Court ruling in Bent, there was no unlawful denial of access pursuant to OPRA.

Prepared By:  Gloria Luzzatto, Assistant Executive Director

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

Date: January 19, 2006


[1] The Government Records Council was unable to identify the specific records in the requests.
[2] Stated in the Denial of Access Complaint for GRC Case No. 2005-211.
[3] Stated in the Denial of Access Complaint for GRC Case Nos. 2005-226, 2005-227, 2005, 228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235.
[4] Stated in the Denial of Access Complaints for GRC Case Nos. 2005-250 and 2005-252. The Complainant also references a December 9, 2005 request attached to his complaint.
[5] Stated in the Denial of Access Complaint for GRC Case No. 2005-211.
[6] Stated in the Denial of Access Complaint for GRC Case Nos. 2005-226, 2005-227, 2005, 228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235.
[7] Stated in the Denial of Access Complaint for GRC Case No. 2005-250.
[8] Stated in the Denial of Access Complaint for GRC Case No. 2005-252.
[9] GRC Case No. 2005-211
[10] GRC Case Nos. 2005-226, 2005-227, 2005, 228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235
[11] GRC Case No. 2005-250
[12] GRC Case No. 2005-252
[13] Open Public Records Act (“OPRA”)
[14] Attached to the November 2, 2005 response is a copy of the October 9, 2003 letter from the Borough Administrator to the Complainant.
[15] Complainant declined mediation.
[16] The Custodian states in the SOI that the Complainant was warned about his harassing, threatening and disruptive behavior with Borough of Stanhope and Sussex County Soil conservation District employees, however the harassment continued under the “pretext of making OPRA requests.”  The Custodian further states that the Complainant was found guilty of harassment under  N.J.S.A. 2C:33-4 against the Sussex County Soil Conservation District by the Hampton-Stillwater Municipal Court and ordered to comply with the conditions of his sentencing which included medical evaluation to address his obsession with the development of Block 10902, Lots 10 and 12.  
[17] The GRC compared November 14, 2005 record requests to the November 1, 2005 request.  Each of the ten requests contains an excerpt from the November 1, 2005 request.
[18] Complainant declined mediation.
[19] The GRC staff compared the December 8, 2005 records request with the November 1 and 14, 2005 requests.  The December 8, 2005 request appears to contain excerpts from the November 1 and 14, 2005 requests.  The December 9, 2005 records request seeks a document from the Custodian that states that Stanhope does not accept OPRA requests by facsimile.
[20] Complainant declined mediation. 
[21] The December 8, 2005 records request referenced in this complaint is also the subject of the GRC Case No. 2005-250. 
[22] There was no response from the Complainant or the Custodian to the offer of mediation. 
[23] The December 9, 2005 records request seeks a document from the Custodian that states that Stanhope does not accept OPRA requests by facsimile. 
[24] The December 8, 2005 records request is duplicated in GRC Case Nos. 2005-250 and 2005-252.
[25] The Court affirmed the GRC decision in Michael Bent v. Stafford Police Department, Complaint No. 2004-78 (October 2004).

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