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2005-31

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Interim Decision on Access
- Interim Decision on Access
- Findings and Recommendations of the Executive Director

Final Decision

Martin O’Shea
   Complainant
      v.
Township of West Milford
  Custodian of Record

Complaint No. 2004-207 and 2005-31

 

At its September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 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:

  1. The Custodian provided a copy of the unredacted invoice to the Complainant on August 9, 2005 and has complied with the Council’s July 14, 2005 Interim Decision in this matter. 
  2. The May 12, 2005 Interim Decision is reaffirmed and that the delay in providing access to the unredacted copy of the invoice pursuant to the Council’s July 14, 2005 Interim Decision did not knowingly and willfully violate OPRA 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 8th Day of September, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  September 19, 2005

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Supplemental Findings and Recommendations of the Executive Director

Martin O’Shea                            GRC Complaint Nos. 2004-207 & 2005-31
Complainant
            v.
Township of West Milford
Custodian of Records

Records Requested:

  1. All correspondence, memoranda and other documents related to Paff v. Byrnes, Docket No. PAS-L-1830-04 sent or received by any Township officer or employee.  Without limiting the general nature of this request, correspondence and memoranda to or from the Township’s Joint Insurance Fund are specifically requested. 
  2. All bills and invoice arising out of legal services rendered in Paff v. Byrnes, Docket No. PAS-L-1830-04 that are in the custody of any Township officer or employee.
  3. All written retainer or legal services agreements that relate to Paff v. Byrnes, Docket No. PAS-L-1830-04.
  4. All correspondence, memoranda, bills, vouchers and other documents submitted by the Weiner Lesniak law firm in connection with the O’Shea lawsuit that appeared on the most recent list of bills that was presented to the Township Council. 

Request Made:  November 16, 2004
Response Made: November 22, 2004
Custodian:  Kevin Byrnes
GRC Complaint filed: December 4, 2004

Background

July 14, 2005

Government Records Council’s (“Council”) Interim Decision rendered at its July 14, 2005 public meeting.  The Council conducted an in camera inspection of the un-redacted invoice for legal services rendered in Paff v. Byrnes for a determination on access as concluded in their May 12, 2005 Interim Decision and pursuant to the provisions of N.J.S.A. 47:1A-7(c).

After completing the in camera review of the un-redacted invoice in closed session, the Council concluded by a unanimous vote that the Custodian had not met the burden of proof for the redactions made to said invoice pursuant to N.J.S.A. 47:1A-6 and that the Custodian shall disclose the requested document in its entirety within five (5) business days from receipt of the Council’s decision and to confirm to the Executive Director that said document was released to the Complainant within the specified time period. 

July 25, 2005

A letter submitted to the Government Records Council (GRC) staff  from Weiner Lesniak LLP advising Council that Ronald D. Cucchairo, Esq. of Weiner Lesniak was the legal representative for the Township of West Milford in this case. Mr. Cucchario states that the Township “appeal[s]” the Council’s Interim Decision and states that a “brief regarding the issue of redaction of vouchers concerning ongoing litigation” would follow.  Mr. Cucchario states further that he understood that “this appeal stays the council’s action until final disposition.”

July 26, 2005

The Complainant submitted a response to Mr. Cucchario’s July 25, 2005 letter.  The Complainant contends that since a final decision has not been issued in the case, the Township incorrectly asserts an action to appeal the interim decision and therefore, the Council should not consider the Weiner Lesniak LLP’s request for a stay on behalf of the Township.  The Complainant further challenges whether Weiner Lesniak LLP is authorized to represent the Township. 

July 28, 2005

The Complainant submitted a supplemental letter to the GRC staff to advise that the deadline of July 27, 2005 for the Township to provide the record determined to be disclosable in its entirety by the Council had expired and the document had not been released to him.  The Complainant enclosed copies of the July 25, 2005 letter from Ronald D. Cucchiaro of Weiner Lesniak to the Council members and a July 26, 2005 letter from Fred Semrau to Ronald Cucchairo.  In referencing the two enclosed letters, the Complainant asserts that the Township had not decided whether or not to appeal the Council’s decision.  The Complainant restates his position that the Council should not grant the Township’s request for a stay because (1) there was no final decision of the Council, (2) no reasons presented by Weiner Lesniak for a stay, and (3) the Township had not determined whether it would be appealing the Council’s decision since Township needed to meet to discuss the matter at their February 3, 2005 meeting.   The Complainant further states that should the GRC grant a stay, he would be “deprived of records it [he] should have.”

July 29, 2005

The Complainant submitted a letter to the Executive Director to reiterate his issues presented in his July 26 and 28, 2005 letters to the GRC staff.  The Complainant states that an order rendered by the Council “is being ignored by the Township” and he is being denied access to the record and questioned what the Council will do to enforce the order. 

August 4, 2005

The Township’s Municipal Attorney, Fred Semrau of Dorsey & Semrau, responds to the GRC staff in reference to this case.  The Township’s counsel states that at the August 3, 2005 Township meeting, the Council decided not to pursue any appeal of the interim decision and to release the requested record to the Complainant.  Counsel stated that by copy of this letter to the Complainant, they were making the requested record immediately available to the Complainant at the Office of the Township Clerk. 

August 9, 2005

Fax from Complainant to the Executive Director with an attached letter from the Complainant to the Township’s attorney.  In the letter attachment, the Complainant states that when he went to pick a copy of the un-redacted pages of the document sought in his request pursuant to the Council’s decision, he was charged $3.00 for them.  He states “I [he] already had paid $4.50 for the pages that included the incorrect redactions. I should not be charged for the corrected pages. I expect a refund of $3.00.”  The Complainant requests the Council to “consider making a ruling” regarding whether it was proper to charge a copying fee under this circumstance. 

The Complainant submitted a faxed memo to the Executive Director with an attached letter from the Complainant to Fred Semrau, the West Milford Township Attorney.  In the letter to the Executive Director, the Complainant restates his issues as presented in his July 26, 28 and 29, 2005 letters.  Further, he contends that a penalty should be imposed on the Custodian for the delay in providing the un-redacted documents and requests that the GRC reconsider the “entire complaint” for a “possible finding” of a “knowing and willful” violation.  The Complainant asserts the following for the Council’s consideration: 

  1. Access should have been provided on the same day for the requested records.
  2. The delay for review of the record resulted in a “lengthy – I contend possibly even illegal – delay.”
  3. The Custodian delayed the process further by “attempting to charge [him] twice for the documents.”
  4. He asserts a belief that the Township did not address the Council’s interim decision “until five business days after the Custodian should have given me [Complainant] the records.”

August 9, 2005

Township’s submission to the Executive Director of a memorandum from the Custodian to the Complainant concerning access to the un-redacted invoice dated September 3, 2005 in response to the OPRA request and the Council’s interim decision.  The Custodian’s memorandum states that the document was provided to the Complainant August 8, 2005, but the Complainant objected to paying for a copy of all pages of the invoice and not just paying for a copy of the pages that were previously redacted.  The Custodian states that the Complainant was charged $3.00 for only four pages of the invoice, which previously contained the redactions and received the documents on August 9, 2005.      

Analysis

Whether the Custodian complied with the Council’s July 14, 2005 Interim Decision order to provide access to an un-redacted copy of the September 3, 2005 invoice for legal services rendered by Weiner Lesniak LLP in Paff v. Brynes?

As stated in the written submissions from the Custodian dated August 9, 2005 and the Complainant dated August 9, 2005, a copy of the un-redacted invoice was provided to the Complainant on August 9, 2005.  Therefore, the Custodian has complied with the Council’s July 14, 2005 Interim Decision in this matter. 

Whether the Custodian’s delay in providing the un-redacted documents to the Complainant pursuant to the July 14, 2005 Interim Decision alters the Council’s May 12, 2005 decision and findings that there was not a knowing and willful violation of OPRA?

OPRA allows the Council to determine a knowing and willful violation of the law 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], as amended and supplemented, 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 since the Custodian delayed in providing the un-redacted copy of the invoice pursuant to the Council’s decision, the Council should now reconsider the “entire complaint” and make a determination on a knowing and willful violation. He asserts further that the Custodian delayed the process further by “attempting to charge [him] twice for the documents.”  The Complainant states in his August 9, 2005 written submission to the Council that he received the un-redacted document and that he would be refunded the $3.00 for the copies.   

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 the August 4, 2005 written submission from the Township’s counsel to the GRC staff, he states that the Township decided at their August 3, 2005 meeting not to pursue any appeal of the interim decision and to release the un-redacted document to the Complainant. The Complainant was notified of the Township’s decision by copy of the August 4, 2005 written submission to the GRC staff.  

The Custodian delayed in providing access to the un-redacted copy of the invoice pursuant to the Council’s July 14, 2005 Interim Decision.  However, in applying the standard for determining a knowing and willful violation, the Council should find that the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.  Additionally, in the May 12, 2005 Interim Decision the Council found that the Custodian did not knowingly and willfully violate OPRA under the totality of the circumstances.  Therefore, the Council should reaffirm its May 12, 2005 decision and find that the delay in providing access to the un-redacted copy of the invoice pursuant to the Council’s July 14, 2005 Interim Decision did not knowingly and willfully violate OPRA under the totality of the circumstances. 

Conclusions and Recommendation of the Executive Director

The Executive Director respectfully recommends that the Council find that:

  1. The Custodian provided a copy of the un-redacted invoice to the Complainant on August 9, 2005 and has complied with the Council’s July 14, 2005 Interim Decision in this matter. 
  2. The Council should reaffirm its May 12, 2005 decision and find that the delay in providing access to the un-redacted copy of the invoice pursuant to the Council’s July 14, 2005 Interim Decision did not knowingly and willfully violate OPRA under the totality of the circumstances. 

Prepared By: Gloria Luzzatto, Assistant Executive Director

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

September 2, 2005

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Interim Decision on Access

Martin O’Shea 
Complainant
         v.
Township of West Milford
Custodian of Record

Complaint No. 2004-207 and 2005-31

 

At its July 14, 2005 public meeting, the Government Records Council (Council) conducted an in camera inspection of the un-redacted invoice for legal services rendered in Paff v. Byrnes for a determination on access in the Complainant’s OPRA request.  The Council conducted said review as concluded in their May 12, 2005 Interim Decision and pursuant to the provisions of N.J.S.A. 47:1A-7(c).  Present during the in camera review were: 

Council Members:                         Vincent Maltese
                                                Mitchell Fishman
                                                DeAnna Minus-Vincent
                                                Diane Schonyers

Government Records Staff:            Paul Dice, Executive Director
                                                Gloria Luzzatto, Assistant Executive Director
                                                Catherine Starghill, In-House Counsel

Deputy Attorney General:              Debra Allen

After completing the in camera review of the un-redacted invoice in closed session, the Council concluded by a unanimous vote that the Custodian had not met the burden of proof for the redactions made to said invoice pursuant to N.J.S.A. 47:1A-6 and that the Custodian shall disclose the requested document in its entirety within five (5) business days from receipt of the Council’s decision.  The Custodian is to confirm to Executive Director Paul Dice that said document was released to the Complainant within the specified time period. 

Interim Decision Rendered by the
Government Records Council
On The 14th Day of July, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  July 20, 2005

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Interim Decision on Access

Martin O’Shea,
Complainant
v.
Township of West Milford,
Custodian of Record

Complaint No. 2004-207 & 2005-31

 

At the May 12, 2005 public meeting, the Government Records Council (Council) considered the May 9, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted by a majority to adopt Nos. 1, 2 3, 4, 6 and 7 of said findings and recommendations and amended No. 5 for the Council to conduct an in camera inspection of the invoice arising out of the legal services rendered in Paff v. Byrnes and any other documents not provided in whole or in part in response to the request. Therefore, the Council finds that:

  1. The Custodian did not violate N.J.S.A. 47:1A-5(e) since the vouchers and bills could not be disclosed immediately as no personnel were available to comply with the request and further legal review was required by the Planning Board and Township Attorneys. 
  2. The Custodian did not violate the statutory seven-business day deadline as he clearly responded to the Complainant’s November 16, 2005 OPRA request in writing on November 22, 2005 pursuant to N.J.S.A. 47:1A-5(i). 
  3. The Custodian violated N.J.S.A. 47:1A-5(i) by not providing a time frame, in writing, in which items one (1) and four (4) of the OPRA request would be available to the Complainant. 
  4. The Custodian violated N.J.S.A. 47:1A-5(g) by not providing a written explanation to the Complainant with the specific reasons for the redactions of the invoice and the OPRA or other provision allowing for the exemption.  However, after the filing of the Denial of Access Complaint, the Complainant was informed of the reasons for the redactions and the asserted OPRA provision allowing the exemption. 
  5. The Council shall conduct an in camera inspection of the invoice arising out of the legal services rendered in Paff v. Byrnes and any other redacted documents released to the Complainant as part of this order.  The in camera inspection will be conducted at the July 14, 2005 meeting at which time the Custodian is to provide said records without redactions to the Council in a sealed envelope with an index identifying each document in the form of a certification.    
  6. The Custodian did not meet his burden of proving the denial of access is warranted by not providing a written response to the Complainant as to when items one (1) and four (4) would be available to him.  If additional responsive records exist, the Custodian shall provide the remaining records responsive to items one (1) and four (4) of the OPRA request within ten (10) business days after receipt of the Council’s decision and inform the Executive Director when and what documents were released to the Complainant.  
  7. The Custodian did not knowingly and willfully violate OPRA under the totality of the circumstances. 

Interim Decision Rendered by the
Government Records Council
On The 12th Day of May, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  June 8, 2005

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Findings and Recommendations of the Executive Director

Martin O’Shea                             GRC Complaint Nos. 2004-207 & 2005-31
Complainant
            v.
Township of West Milford
Custodian of Records

Records Requested:

  1. All correspondence, memoranda and other documents related to Paff v. Byrnes, Docket No. PAS-L-1830-04 sent or received by any Township officer or employee.  Without limiting the general nature of this request, correspondence and memoranda to or from the Township’s Joint Insurance Fund are specifically requested. 
  2. All bills and invoice arising out of legal services rendered in Paff v. Byrnes, Docket No. PAS-L-1830-04 that are in the custody of any Township officer or employee.
  3. All written retainer or legal services agreements that relate to Paff v. Byrnes, Docket No. PAS-L-1830-04.
  4. All correspondence, memoranda, bills, vouchers and other documents submitted by the Weiner Lesniak law firm in connection with the O’Shea lawsuit that appeared on the most recent list of bills that was presented to the Township Council. 

Request Made:   November 16, 2004
Response Made: November 22, 2004
Custodian:   Kevin Byrnes
GRC Complaint filed: December 4, 2004

Background

November 16, 2004
The Complainant filed an Open Public Records Act (“OPRA”) request in which he sought all records regarding Paff v. Byrnes and all records that appeared on the Township Council’s most recent bill list regarding the O’Shea lawsuit. 

November 16, 2004
The Assistant Municipal Clerk acknowledged the receipt of the Complainant’s request and notified him that she was not able to take the responsibility to determine OPRA requests; therefore, the request would be forwarded to the Custodian.    

November 22, 2004
The Custodian responded to the Complainant’s November 16, 2004 request.  In response to item one (1), the Custodian indicated that the transmittal form for the Joint Insurance Fund, the Notice of Claim, the Summons and Complaint, the Coverage Determination and the Reservation of Rights notice were all available for the Complainant’s review.  In response to item two (2), the Custodian indicated that a copy of the request for reimbursement arising from legal services rendered in Paff v. Byrnes was available for the Complainant’s review.  In response to item three (3), the Custodian informed the Complainant that the Township does not have a retainer or legal services agreement that relate to Paff v. Byrnes.  In response to item four (4), the Custodian asserted that the voucher from the Weiner Lesniak law firm relating to the O’Shea lawsuit was on the November 10th, 2004 List of Bills.  The Custodian further indicated that the request for “all correspondence, memoranda and other documents…” relating to Paff v. Byrnes and the O’Shea lawsuit were referred to the Township Attorney and the Planning Board Attorney for legal advice as to what documents can or cannot be released.  The Custodian maintained that this response is not a denial of access and that as soon as the review is complete, the records will be available to the Complainant. 

December 4, 2004
The Complainant filed a Denial of Access Complaint with the Government Records Council (“Council”), in which he claimed that the Custodian improperly denied him immediate access to vouchers and bills and that the records that were to be reviewed by the Township Attorney and the Planning Board Attorney were not released to him.
The Complainant referred to the Custodian’s Handbook, as created by the Council, in that the vouchers and bills that he requested should have been immediately provided to him pursuant to OPRA.  The Complainant maintained that the Custodian should make these types of records available as soon as possible and further, it is the Custodian’s responsibility to train the other office personnel to handle requests in his absence. 

The Complainant also contended that he should have received a response to the request for additional records regarding Paff v. Byrnes and the O’Shea lawsuit.  The Complainant argued that the need for legal advice does not extend the seven business-day time period that a response is needed.  The Complainant cited N.J.S.A. 47:1A-5(i) in that no response after the seven-business day deadline, the request is deemed a denial of access.  The Complainant argued that the Legislature had not intended the seven-business day deadline extended for the purposes of seeking legal advice, as this would not make government records readily accessible.  

The Complainant asserted that the Custodian has a history of untimely responses as indicated in O’Shea v. Township of West Milford, GRC case 2004-17 and Kushner v. Township of West Milford, GRC case 2004-111.  The Complainant further contended that these cases should be taken into consideration in this complaint in determining that the Custodian’s actions are a knowing and willful violation of OPRA. 

The Complainant noted that he feels that the Council should determine if a Custodian is required to train another employee to handle requests in his absence.  The Complainant further asserted that the Council should grant him a response to the additional records he is seeking or the reason for the denial of these records.  The Complainant lastly asserted that he is seeking a knowing and willful violation from the Council regarding the Custodian’s actions. 

December 30, 2004
The Custodian filed a Statement of Information stating that the Assistant Municipal Clerk was not at ease with immediately releasing the vouchers and bills concerning the Weiner Lesniak law firm due the to pending litigation involving the Complainant.  The Custodian noted that the Assistant Municipal Clerk notified the Complainant that his request would be forwarded to the Custodian.  The Custodian asserted that in his response on November 22, 2004, he notified the Complainant that much of his request was available for review, however, the records responsive to “all correspondence, memoranda and other documents” related to Paff v. Byrnes and O’Shea v. West Milford Planning Board were referred to the appropriate attorneys for possible redactions.  The Custodian indicated that the vouchers from the Weiner Lesniak law firm were submitted to the attorney to redact information that is not disclosable due to litigation, however the other records requested were not released due to ongoing litigation. 

January 3, 2005
The Complainant responded to the Custodian’s Statement of Information by indicating that he still has not received part of his request in item one (1) relating to “all correspondence, memoranda and other documents relating to Paff v. Byrnes” and item four (4) in its entirety relating to the O’Shea lawsuit.  The Complainant has indicated that it may be helpful for the Council to know that the Paff lawsuit was decided in October of 2004 and that the Township Council authorized the payment of bills submitted by the Weiner Lesniak firm during its meeting on November 15, 2004.  The Complainant asserted that the Custodian’s actions should be considered a denial of access since the request has been open for 33-business days. 

January 10, 2005
The Custodian provided a memorandum to the Complainant indicating the records he reviewed and received and indicating that invoice concerning item four (4) of his request were attached.  The Custodian further asserted that another invoice from the Planning Board attorney is also available for review. 

January 19, 2005
The Custodian informed the Council’s staff that on January 18, 2005 the Complainant received a copy of an invoice from the Planning Board Attorney with redactions and a copy of a letter dated January 4, 2005 and invoice with redactions from Glenn Kienz, the Planning Board Attorney.  The Planning Board Attorney indicated in his letter that the redactions were made pursuant to OPRA, as the information redacted is attorney-client privilege due to ongoing litigation and not subject to disclosure. 

January 20, 2005
The Complainant responded to the Custodian’s January 19, 2005 letter to the Council’s staff.  The Complainant stated that he has not received a response to the requested records in item one (1) and therefore OPRA stipulates that this is a denial of access.  The Complainant also stated that he did not receive the records he requested and that the vouchers should have been released to him immediately pursuant to OPRA.

February 15, 2005
The Complainant filed an additional Denial of Access Complaint with the Council, in which he restated his position regarding his pending case with the GRC, 2005-31 regarding his OPRA request from November 16, 2004.[1]  The Complainant acknowledged receipt of a memorandum dated January 10, 2005 wherein he was advised that the invoice from the Planning Board attorney was now available for his review.  The Complainant also acknowledged the receipt of eight (8) pages of invoice with redactions.  The Complainant argued that the Custodian redacted information on the records without indicating, in writing to the requestor, the specific basis for the redactions and the OPRA provision exempting the disclosure.  The Complainant cited N.J.S.A. 47:1A-5(g) as indicating that a reason for the redactions must be provided.  The Complainant further asserted that pursuant to OPRA “a government record shall not include…any record within attorney-client privilege.  This paragraph shall not be construed as exempting from access attorney or consultant bills or invoice except that such bills or invoice may be redacted to remove any information protected by the attorney-client privilege…” The Complainant stated that there is no indication as to why the disclosure of this information would violate attorney-client privilege.  The Complainant further indicated that pursuant to N.J.S.A. 47:1A-6, the Custodian has the burden of proving that the denial of access and every redaction is warranted.  The Complainant cited Wilcox v. Township of West Caldwell, GRC case 2003-142, in that the Council ordered the Custodian to indicate the reason why the information was exempt and the nature of the information redacted.  The Complainant further asserted that the Executive Director’s Recommendation in the Wilcox case is flawed when the argument of attorney-client privilege is considered the same for a government agency as it is for an individual client.  The Complainant cited “Government Officials and Attorneys and Clients: Why is Privilege the Privileged?” by Melanie B. Leslie, 77 Ind.L.J. 469 (2002) in explaining that the government agency should receive less protection under attorney-client privilege because of the public’s right to know what is happening with their government.  The Complainant indicated that the Weiner Lesniak firm billed the Planning Board 15 hours in one day and redacted the reason from the public.  The Complainant stated that the Council should determine if the Custodian violated OPRA and order the Custodian to provide a certification fully explaining the redactions. 

March 17, 2005
The Complainant sent a letter to the Council’s staff citing Halper v. Piscataway, GRC case 2004-130, where the Council determined that Piscataway formally appoint an Assistant Records Custodian.  The Complainant argued that the Custodian was not in the office and therefore his request for access could not be addressed.  The Complainant stated that the Council’s decision in the Halper case addresses his problem with the situation in West Milford. 

Analysis
WHETHER the Custodian violated N.J.S.A. 47:1A-5(e) by not providing the Complainant with “immediate” access to bills and vouchers? 

N.J.S.A. 47:1A-5(e) provides that “[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). 

The Complainant argued that he should have been provided immediate access to bills and vouchers at the time of his request.  The Assistant Municipal Clerk indicated in writing that she was not able to comply with the Complainant’s request for bills and vouchers as she “cannot take the responsibility for OPRA requests,” however, she did indicate that she would forward the request to the Custodian when he returns to the office.  The Custodian also indicated in his Statement of Information that the Assistant Municipal Clerk was also not comfortable in disclosing records that may be related to ongoing litigation with the Complainant. 

The Custodian also indicated in his response to the Complainant on November 22, 2004 that some of the records requested specifically the invoice needed to be reviewed by the Township and Planning Board Attorney for redactions and or possible exemptions pursuant to OPRA. 

OPRA provides that vouchers and bills shall ordinarily be granted immediate access.  On November 16, 2004, the Custodian was not available to approve or deny an OPRA request and other personnel in the office did not have the authority to comply with the Complainant’s request. 

The Complainant argued that based upon the Council’s decision in Halper v. Piscataway, GRC case 2004-130, the Council should order the Township to formally designate a Deputy Custodian to handle requests in the absence of the Custodian.  Although it is deemed an advantageous policy to have another employee handle OPRA requests in the Custodian’s absence, OPRA does not specifically mandate that government agencies designate a Deputy Custodian. 

In Halper, there was only one individual, the Custodian, who was authorized to respond to records request.  That individual was on vacation at the time the records request was received and did not return until after the statutorily required seven-business days response time frame.  Thus, the Custodian's non-responsiveness amounted to a denial of access according to OPRA.  In contrast, the Custodian in this case presently before the Council did respond to the Complainant within the statutorily required seven business days.  Therefore, the Halper case is not analogous to the facts of this case presently before the Council.

Whether the Custodian violated N.J.S.A. 47:1A-5(i) by not responding to the Complainant’s November 16, 2004 request for records?

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 to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.” 

The Complainant has indicated that regarding items one (1) and four (4), specifically, those records related to “all correspondence, memoranda and other documents related to Paff v. Byrnes” and “all correspondence, memoranda, bills, vouchers and other documents submitted by the Weiner Lesniak law firm in connection with the O’Shea lawsuit” he did not receive a written response within the statutory seven-business day time period.  Although the records responsive to his request were not available within the seven-day deadline as provided by OPRA, the Custodian did respond in writing on November 22, 2004 indicating that some of the records were available to be reviewed, however, records responsive to items one (1) and four (4) will have to be reviewed by the appropriate attorney for redactions and exemptions on the basis of ongoing litigation.  The Custodian, therefore, clearly responded within the statutory seven-business day deadline. 

WHETHER the Custodian violated N.J.S.A. 47:1A-5(i) by not providing a time frame in which the records should be available? 

“The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.”  (N.J.S.A. 47:1A-5(i)). 

The Custodian did respond to the Complainant’s request and indicated that the records responsive to item one (1) and item four (4), specifically records relating to “all correspondence, memoranda and other documents related to Paff v. Byrnes” and “all correspondence, memoranda, bills, vouchers and other documents submitted by the Weiner Lesniak law firm in connection with the O’Shea lawsuit,” were not available because the Township Attorney and Planning Board Attorney needed to review the records to indicate items that should be redacted and exempt pursuant to OPRA and based upon ongoing litigation. 

Although the Custodian sent the records to be reviewed by the appropriate attorneys, he should have indicated a time frame to the Complainant as to when the records should be available.  As the Custodian did not provide a time frame for when the records should be available, the request regarding items one (1) and four (4) were denied. 

WHETHER the Custodian violated N.J.S.A. 47:1A-5(g) by not providing a written explanation and OPRA citation for the redactions to the invoice? 

If 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. (N.J.S.A. 47:1A-5(g)). 

N.J.S.A. 47:1A-5 (g) further provides that “[i]f the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47: 1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.”

The Custodian indicated in his November 22, 2004 response that the records being reviewed by the Township Attorney and Planning Board Attorney are involving ongoing litigation and that legal advice is needed to determine possible redactions and exemptions.  The Planning Board Attorney asserted in a letter dated January 4, 2005 and attached to the redacted invoice that the redacted information was done so under OPRA and Common Law in order to protect attorney-client privilege based upon ongoing litigation.  The invoice were redacted, however, the general nature description of the reason for the charges were apparent. 

The Planning Board Attorney indicated the reason for the redactions and the OPRA and Common Law provisions for the redactions, in that the Township was involved in ongoing litigation and the disclosure of the entire description of the charges would jeopardize the attorney-client privilege.  The Custodian should have, however, notified the Complainant, in writing, of the specific reasons for the redactions and the OPRA or other provision that exempts the information.  The Complainant, nonetheless, received the Planning Board Attorney’s letter indicating the reasons for the redactions and legal argument that applies to the exemptions. 

WHETHER the Custodian unlawfully redacted information on the invoice pursuant to N.J.S.A. 47:1A-1.1?

A government record shall not include the following information, which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47: 1A-1 et seq.) as amended and supplemented…any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoice except that such bills or invoice may be redacted to remove any information protected by the attorney-client privilege…” (N.J.S.A. 47:1A-1.1).

The Custodian stated that the redactions provided by the Planning Board Attorney to the invoice were based upon ongoing litigation.  Although this argument is vague, the Planning Board Attorney indicated in a letter to the Custodian, which was distributed to the Complainant, that the redactions were made to information on the invoice that if released would jeopardize attorney-client privilege. 

The Planning Board Attorney’s redactions are valid based upon N.J.S.A. 47:1A-1.1. 

WHETHER the Custodian met his burden of proving denial of access to the requested records pursuant to N.J.S.A. 47:1A-6? 

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. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed.”

The Custodian provided a reason for not disclosing items one (1) and four (4), however, he did not provide a specific time frame for when the records should be available, which, in turn, constitutes a denial of access under OPRA.  The Custodian should have provided a time frame for when the records should be available and therefore would avoid the request being deemed denied. 

The Custodian should have provided a written response to the Complainant indicating the reasons for the redactions to the invoice and the specific OPRA or other provision for the exemption; however, the Township’s Planning Board Attorney subsequently informed the Complainant.  The January 4, 2005 letter, which was received by the Complainant, indicates that the redactions were made due to ongoing litigation as to not breach the attorney-client privilege as provided for in OPRA.  Although the Custodian should have addressed this issue with the Complainant, the denial of this information was indeed warranted under OPRA. 

WHETHER the Custodian’s actions should be considered a knowing and willful violation of OPRA under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11(a)? 

N.J.S.A. 47:1A-11(a) provides that “[a] public official, officer, employee or custodian who knowingly and willfully violates P.L.1963, c.73 (C.47: 1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…”         

The Custodian did not provide the Complainant with a written explanation to the redactions and the OPRA provision or other provision exempting the information from disclosure.  The Custodian also did not provide a time frame for when the remaining records requested should be available for the Complainant.  The Custodian’s actions in this case do not, however, rise to the level of knowing and willful under the totality of the circumstances. 

Conclusions and Recommendations

The Executive Director respectfully recommends that:

  1. The Council should find that the Custodian did not violate N.J.S.A. 47:1A-5(e) as the vouchers and bills could not be disclosed immediately as no personnel were available to comply with the request and further legal review was required by the Planning Board and Township Attorneys. 
  2. The Council should find that the Custodian did not violate the statutory seven-business day deadline as he clearly responded to the Complainant’s November 16, 2005 OPRA request in writing on November 22, 2005 pursuant to N.J.S.A. 47:1A-5(i). 
  3. The Council should find that the Custodian violated N.J.S.A. 47:1A-5(i) by not providing a time frame, in writing, in which items one (1) and four (4) should be available to the Complainant. 
  4. The Council should find that the Custodian violated N.J.S.A. 47:1A-5(g) by not providing the Complainant with the specific reasons for the redactions of the invoice and the OPRA or other provision allowing for the exemption.  It should be noted, however, that the Complainant was informed of the reasons for the redactions and the OPRA provision allowing the exemption in a letter provided to him. 
  5. The Council should find that the Custodian was warranted in redacting the information contained in the invoice due to attorney-client privilege pursuant to N.J.S.A. 47:1A-1.1. 
  6. The Council should find that the Custodian did not meet his burden of proving the denial of access is warranted by not providing a written response to the Complainant as to when items one (1) and four (4) should be available to him.  If additional responsive records exist, the Custodian should provide the remaining records responsive to items one (1) and four (4) within 10 business days or the reason for the records exemption pursuant to OPRA. 
  7. The Council should find that the Custodian did not knowingly and willfully violate OPRA under the totality of the circumstances. 

Prepared By: Erin Knoedler, Case Manager

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

May 9, 2005


[1] GRC case 2004-207 and 2005-31 are combined based on the later complaint being a continuation of the first complaint. 

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