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2005-36

- Final Decision
- Supplemental Findings and Recommendations of Executive
- Second Interim Order
- In Camera Findings and Recommendations of the Executive Director
- Interim Decision on Access
- Findings and Recommendations of Executive Dir

Final Decision

Philip Boggia
   Complainant
      v.
Borough of Oakland
   Custodian of Record

Complaint No. 2005-36

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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 based on the February 27, 2006 response to the Council’s Interim Order, the Custodian has released the government records in accordance with the Council’s February 17, 2006 Interim Order and has appropriately done so within (10) business days from receipt of the Council’s Order. 

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.  Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. 

Final Decision Rendered by the
Government Records Council
On The 11th Day of April, 2006

Vincent P. Maltese, Chairman
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:  April 21, 2006

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Supplemental Findings and Recommendations of Executive

Philip Boggia                                                      GRC Complaint No. 2005-36
Complainant
v.
Borough of Oakland
Custodian of Records

Records Relevant to Complaint:
1. All records, correspondence, reports, (including appraisal reports), memorandums, notes, and any other documents (including photographs and e-mails) which pertain to Block 3105, Lot 3 (including any documents discussing the Borough’s efforts to purchase said tract of land
2.  An unredacted copy of each “Oakland Report” from the Morris Land Conservancy
Requests Made: October 5, 2004 and January 19, 2005
Response Made: No response[1]
Custodian: Lisa Duncan
GRC Complaint filed: February 25, 2005

Background

February 17, 2006

Government Records Council’s (“Council”) Interim Order.  At its February 17, 2006 public meeting, the Council considered the February 10, 2006 Executive Director’s In Camera Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said in camera findings and recommendations.   Therefore, the Council found that:

  1. The Custodian is to disclose the requested “Oakland Reports” prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners to the Complainant, except that she may redact the following information:
    1. Page 1 Section 2
    2. Page 1 Section 4 second sentence
    3. Page 2 sections two (2) through four (4)
    4. Page three (3) sections two (2) and three (3)
  2. The Custodian shall comply with “1” directly above within ten (10) business days from receipt of this order on the basis of the Council’s determination and provide confirmation to the Executive Director that the Custodian has complied with the Council’s order.

February 27, 2006                                                                               Custodian’s counsel’s response to the Council’s Interim Order. The Custodian’s counsel states that the copies of the “Oakland Reports” prepared by Morris Land Conservancy have been released on behalf of the Custodian pursuant to the Council’s Interim Order. 

Analysis

Whether the Custodian complied with the Council’s February 17, 2006 Interim Order?                                     

Based on the February 27, 2006 response to the Council’s Interim Order, the Custodian’s counsel has released the copies of the “Oakland Reports” prepared by Morris Land Conservancy redacted pursuant to the Council’s Interim Order. Therefore, the Custodian has complied with the Council’s February 17, 2006 Order.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that based on the February 27, 2006 response to the Council’s Interim Order, the Custodian has released the government records in accordance with the Council’s February 27, 2006 Interim Order and has appropriately done so within (10) business days from receipt of the Council’s Order.

Prepared By:Chris Malloy, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

April 4, 2006


[1] As asserted by the Complainant. The Custodian and their counsel have produced letters to the Government Records Council staff dated October 7, 2004, and January 25, 2005 showing two different responses.

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Second Interim Order

Philip Boggia
    Complainant
         v.
Borough of Oakland
    Custodian of Record

   Complaint No. 2005-36

 

At the February 17, 2006 public meeting, the Government Records Council (“Council”) considered the February 10, 2006 Executive Director’s In Camera Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said in camera findings and recommendations.   Therefore, the Council hereby finds that:

  1. The Custodian is todisclose the requested “Oakland Reports” prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners to the Complainant, except that she may redact the following information:
    1. Page 1 Section 2
    2. Page 1 Section 4 second sentence
    3. Page 2 sections two (2) through four (4)
    4. Page three (3) sections two (2) and three (3)
  2. The Custodian shall comply with “1” directly above within ten (10) business days from receipt of this order on the basis of the Council’s determination and provide confirmation to the Executive Director that the Custodian has complied with the Council’s order.

The Custodian shall comply with “1” directly above within ten (10) business days from receipt of this order on the basis of the Council’s determination and provide confirmation to the Executive Director that the Custodian has complied with the Council’s order.

Interim Decision Rendered by the
Government Records Council
On The 17th Day of February, 2006

Vincent P. Maltese, Chairman
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 23, 2006

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In Camera Findings and Recommendations of the Executive Director

Philip Boggia                                                      GRC Complaint No. 2005-36
Complainant 
v.
Borough of Oakland
Custodian of Records

Records Relevant to the Complaint:

1. Reports from the Morris Land Conservancy dated April 14, 2004, June 4, 2004 and July 2, 2004.

2. All records, correspondence, reports, (including appraisal reports), memorandums, notes, and any other documents (including photographs and e-mails) which pertain to Block 3105, Lot 3 (including any documents discussing the Borough’s efforts to purchase said tract of land.[1]

Requests Made:  October 5, 2004 and January 19, 2005
Response Made:  No response according to the Complainant[2]
Custodian: Lisa Duncan
GRC Complaint filed: February 25, 2005

Background

October 28, 2005

At the October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 7, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council found that:

  1. While the custodian has provided facts in support of the legal conclusions asserted, the Council must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders) are properly applied to the redactions.  Therefore, the Council will conduct an in camera inspection of the redacted Morris Land Conservancy reports.
  2. Based on the January 25, 2005 submission from Custodian’s counsel showing a response to the January 19, 2005 letter (stating that the reports are privileged) the Custodian has not violated N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.
  3. Based on the fact that Custodian’s counsel certified that the reason the records were not immediately released is because they were in other Borough files, and, therefore, not able to be located within the files specifically relating to Mr. Boggia’s client’s property. And, in light of the Superior Court’s admonishment of OPRA requests being used as “research tool[s] of litigants” in Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (March 2005), the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and an unreasonable denial of access under the totality of the circumstances.
  4. Based on the fact that the courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not an attorney who is the plaintiff representing himself, the Complainant is not entitled to reasonable attorney’s fees pursuant to OPRA.

December 1, 2005

Letter sent from the GRC to both parties requesting In camera documents.

December 5, 2005

Custodian’s counsel’s certification with the following attachments:

  • Six copies of three reports prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners.
  • Certified index of exemptions to the document provided for the in camera inspection.

Custodian’s counsel certifies that the three (3) reports at issue in this case (dated April 14, 2004, June 4, 2004 and July 6, 2004) were released to the Complainant, albeit redacted with respect to the particular comments concerning the status of negotiations between Morris Land and the third party property owners. Custodian’s counsel goes on to certify that if this information is divulged to other persons or entities such as the Complainant it could have the effect of sabotaging the Borough’s positions in those negotiations and/or could or would give an advantage to the parties with whom the Borough is actively negotiating. They go on to state that N.J.S.A. 47:1A-1.1 specifically contemplates that documents are confidential where “the information, if disclosed, would give an advantage to competitors or bidders.

Analysis

After completing the in camera inspection of the unredacted copy of each “Oakland Report” prepared by Morris Land Conservancy the Council should order that the Custodian disclose the requested “Oakland Reports” from the Morris Land except the information as specifically set forth on page “3” of this document, which is exempt from disclosure as “information which, if disclosed, would give an advantage to competitors or bidders,” pursuant to N.J.S.A. 47:1A-1.1.  

Oakland Reports prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners.

The “Oakland Reports” prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners consist of four (4) pages.

Page 1:[3]

Section 1) Disclosable

Section 2) Not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Section 3) Already disclosed to the Complainant

Section 4) Disclose the first sentence. Sentence two (2) not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Page 2:

Section 1) Already disclosed to the Complainant

Section 2) Not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Section 3) Not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Section 4) Not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Page 3:

Section 1) Already disclosed to the Complainant

Section 2) Not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Section 3) Not disclosable pursuant to N.J.S.A. 47:1A-1.1 “advantage to bidders”

Section 4) Disclosable

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

  1. The Custodian should disclose the requested “Oakland Reports” prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners, except; Page 1 Section 2, Page 1 Section 4 second sentence, Page 2 sections two (2) through four (4), and Page three (3) sections two (2) and three (3).
  2. The Custodian shall comply with “1” within ten (10) business days from receipt of this order on the basis of the Council’s above determination and provide confirmation to the Executive Director that the Custodian has complied with the Council’s order.

Prepared By:  Chris Malloy, Case Manager

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

February 10, 2006


[1] These records were originally requested and mentioned in the Denial of Access Complaint form. However, the only records in question in this Complaint are those listed after number one (1).
[2] The Custodian and their counsel have produced letters to the Government Records Council staff dated October 7, 2004, and January 25, 2005 showing two different responses.
[3] Pages and Sections established and indicated by the GRC staff on the in camera document. 

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Interim Decision on Access

Philip Boggia
    Complainant
         v.
Borough of Oakland
    Custodian of Record

Complaint No. 2005-36

 

At the October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 7, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:

  1. While the custodian has provided facts in support of the legal conclusions asserted, the Council must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders) are properly applied to the redactions.  Therefore, the Council will conduct an in camera inspection of the redacted Morris Land Conservancy reports.
  2. Based on the January 25, 2005 submission from Custodian’s counsel showing a response to the January 19, 2005 letter (stating that the reports are privileged) the Custodian has not violated N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.
  3. Based on the fact that Custodian’s counsel certified that the reason the records were not immediately released is because they were in other Borough files, and, therefore, not able to be located within the files specifically relating to Mr. Boggia’s client’s property. And, in light of the Superior Court’s admonishment of OPRA requests being used as “research tool[s] of litigants” in Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (March 2005), the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and an unreasonable denial of access under the totality of the circumstances.
  4. Based on the fact that the courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not an attorney who is the plaintiff representing himself, the Complainant is not entitled to reasonable attorney’s fees pursuant to OPRA.

Interim Decision Rendered by the
Government Records Council
On The 28th Day of October, 2005

Diane Schonyers, Vice-Chair
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:  November 3, 2005

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Findings and Recommendations of Executive Dir

Philip Boggia                                                      GRC Complaint No. 2005-36
Complainant
v.
Borough of Oakland
Custodian of Records

Records Requested:

1. All records, correspondence, reports, (including appraisal reports), memorandums, notes, and any other documents (including photographs and e-mails) which pertain to Block 3105, Lot 3 (including any documents discussing the Borough’s efforts to purchase said tract of land

2.  An unredacted copy of each “Oakland Report” from the Morris Land Conservancy

Requests Made:  October 5, 2004 and January 19, 2005
Response Made:  no response[1]
Custodian: Lisa Duncan
GRC Complaint filed: February 25, 2005

Background

February 25, 2005

Complainant’s Denial of Access Complaint with the following attachments:

  • Letter to the Custodian dated October 5, 2004
  • OPRA request dated October 5, 2004
  • Letter to the Custodian dated January 19, 2005

The Complainant states that on October 5, 2004 he made an Open Public Records Act (OPRA) request for the records listed in number one above. He states that the Clerk provided him with a series of documents that did not include any reports from the Morris Land Conservancy. Months after receiving what he believed were all the documents in his OPRA request, he states that he discovered that the Borough had in its possession several reports from Morris Land Conservancy. He also states that although these reports were heavily redacted, they are public records, and they directly discuss the Borough’s efforts to acquire Block 3105, Lot 3 and should have been turned over pursuant to his October 5, 2004 OPRA request.

The Complainant states, “Putting aside the Borough’s OPRA violation, I contacted the Borough Clerk in a letter dated January 19, 2005 advising her of her failure to provide the reports, and giving her a chance to provide me with an unredacted copy of each report.” He states that instead of providing a copy of the reports, the Borough Clerk advised him to contact the Borough Attorney. He also states that he was never issued anything in writing to explain the refusal for providing unredacted copies of these reports.

March 1, 2005

Mediation sent to both parties[2]

March 17, 2005

Custodian’s Statement of Information. The Custodian states that on or about October 5, 2004 the Complainant sent a blanket and broad request for all documents concerning his client’s property. She states that the Borough produced various records in this regard. However, certain correspondences from Morris Land Conservancy were not in the files reviewed by the Clerk in connection with the blanket request, and therefore not originally produced. The Custodian also states that during litigation when the Complainant pointed out the existence of the Morris Land Conservancy reports, copies were produced although redacted. And, it is the Borough’s position that, “the redactions constitute exceptions to the Open Public Records Act in that portions of the reports from Morris Land Conservancy deal with ongoing negotiations by the Borough of Oakland in order to acquire certain lands for public purposes. To that extent, portions of those Morris Land Conservancy reports were redacted.” The Custodian states that testimony may be necessary on the issue of whether portions of the Morris Land Conservancy reports to the Mayor and Council are privileged in that they regard ongoing negotiations by and between other parties not related to the Complainant’s client’s litigation.

June 22, 2005

GRC staff’s letter to the Custodian. The staff’s letter asks for an index of all documents (in the form of a legal certification) that the Custodian’s office asserts are exempt from disclosure.

June 29, 2005

Custodian’s counsel’s response to the GRC staff’s June 22, 2005 letter.[3] Custodian’s counsel states that this matter emanates from litigation brought by Mr. Boggia’s client against the Borough of Oakland. He states that discovery was conducted by the plaintiff both through the litigation process and by way of request for documents under OPRA.

He states that one of the documents requested concerns reports received by the Borough from its consultant, Morris Land Conservancy, which was in the process of negotiating the acquisition of open space for the Borough of Oakland. There were three or four properties, including the plaintiff’s, which were involved in discussions between Morris Land Conservancy and those property owners.

Custodian’s counsel states that the documents in issue in this case are three reports prepared by Morris Land Conservancy regarding the status of negotiations between Morris Land and the third party property owners. He states that nothing was redacted with respect to the plaintiff’s discussions with Morris Land. He also states that it is the Borough’s position that the discussions between Morris Land Conservancy and third party property owners, and which involve negotiations between Morris Land and those third parties, are privileged and confidential and constitute exceptions to the Open Public Records Act. And, he states that this position was made known to Mr. Boggia on January 25, 2005.

Custodian’s counsel states that the reports at issue are dated April 14, 2004, June 4, 2004 and July 6, 2004. He states that they are all prepared by Morris Land Conservancy, executed by Jamie Brown, Land Preservation Specialist. Also, these documents list the project being worked on by Morris Land on behalf of Oakland and provide, in one of the columns, “special comments.” It is this column that was redacted with respect to the other properties.

Custodian’s counsel states that “the exemption of the redacted portions of these reports is specifically contemplated by relevant portions of both OPRA, N.J.S.A. 47:1A-1, et seq., common law, and case law construing both entitlement to public documents and by reference to the Open Public Meetings Act. See, e.g., Hartz Mountain Industries, Inc. v. N.J. Sports and exposition Authority, 369 N.J. Super. 175 (App. Div. 2004), wherein, because of ongoing negotiations, the public entity’s assertion of privileged documents was upheld in the Law Division, the Court also citing In re Readoption of N.J.A.C. 10A:23, 367 N.J. Super. 61, 72-75 (App. Div. 2004). In the latter case, our Appellate Division also reaffirmed the proposition that a government agency may withhold (or redact, in this case), any public record where the public interest for confidentiality outweighs the private right to access. Id., at 74.  See, also, Keddie v. Rutgers, 148 N.J. 36, 41 (1991), adopting the balance test.”

Custodian’s counsel also states that the information redacted by the Borough consists of information concerning ongoing negotiations by and between the agent of the Borough and third party property owners. Those negotiations, and the information used in the negotiations, if divulged to other persons or entities such as the plaintiff, could have the effect of sabotaging the Borough’s positions in those negotiations and/or could or would give an advantage to the parties with whom the Borough is actively negotiating. Further, he states, “N.J.S.A. 47:1A-1.1 specifically contemplates that documents are confidential where the information if disclosed, would give an advantage to competitors or bidders.”

Finally, Custodian’s counsel states, “the sanctity of the Borough’s negotiating positions with respect to the other properties clearly outweighs the complainant’s right of access, since Complainant’s client merely desires the information for its own private monetary benefit (as opposed to some public interest). For all those reasons, the Borough asters that the reports were properly redacted, and the information cannot be produced until the need for confidentiality has expired. He states that this will take place when all negotiations with third parties have been completed and agreements reached, or when the Borough no longer wishes to pursue the obtainment of those properties.”

August 15, 2005

GRC staff’s letter to Custodian’s counsel. The staff asks that the information submitted to the GRC on June 29, 2005 be in the form of a legal certification.

August 19, 2005

Custodian’s counsel’s certification with the following attachments:

  • June 29, 2005 letter to the GRC
  • January 25, 2005 letter to the Complainant

Custodian’s counsel states that the reason the Morris Land Conservancy reports were not provided during the original OPRA request was because the original request by the Complainant was of a “shotgun” nature, merely requesting all records pertaining to his client’s property.” He states that those documents were in other Borough files, and, therefore, not able to be located within the files specifically relating to Mr. Boggia’s client’s property. Custodian’s counsel goes on to state, “Had the plaintiff specifically requested any correspondence from Morris Land Conservancy as did his litigation request, then the Clerk would have searched those files and found the documents.”

August 31, 2005

Complainant’s response to Custodian’s counsel’s August 19, 2005 certification. The Complainant states that despite his specific (October 5, 2004) request for document’s discussing the Borough’s intent to purchase his client’s property, the Borough failed to produce the Morris Land Conservancy reports. He also states, “The Borough’s statement that my request was of a “shotgun” nature is disingenuous, as I specifically sought all documents “discussing the Borough’s efforts to purchase” that property. Moreover, it is equally disingenuous to assume that an applicant should know in advance the specific document that he or she is requesting.” He also states, “…I am entitled to the fees incurred in filing this complaint before the Council.”

The Complainant goes on to state that it was only by accident that the Borough produced these documents during discovery and that he never would have obtained them had it not been for the discovery process. He also states that if the Borough’s argument is accepted it would undermine the OPRA and leave applicants in a catch-22 because they then could withhold documents either because the request was not specific enough to identify what they were looking for or not broad enough to cover everything..

Analysis

WHETHER the Custodian unlawfully denied access to the redacted portions of the Morris Land Conservancy Reports?

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.)

OPRA defines a government record as follows:

“ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …”  (Emphasis added.) N.J.S.A. 47:1A-1.1.

N.J.S.A. 47:1A-5.g.: provides that “[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy therefor …” 

OPRA states that a government record shall not include the following information which is deemed to be confidential ….

“…information which, if disclosed, would give an advantage to competitors or bidders…” N.J.S.A. 47:1A-1.1.

N.J.S.A. 47:1A-6: provides that “… [t]he public agency shall have the burden or proving that the denial of access is authorized by law…”

Custodian’s counsel asserts that the information redacted by the Borough consists of information concerning ongoing negotiations by and between the agent of the Borough and third party property owners. The Custodian further asserts that, “those negotiations, and the information used in the negotiations, if divulged to other persons or entities such as the plaintiff, could have the effect of sabotaging the Borough’s positions in those negotiations and/or could or would give an advantage to the parties with whom the Borough is actively negotiating.”

While the custodian has provided facts in support of the legal conclusions asserted, the Council must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders) are properly applied to the redactions.  Therefore, the Council must conduct an in camera inspection of the redacted Morris Land Conservancy reports. . 

Whether the Custodian properly responded to the Complainant’s request for the Morris Land Conservancy reports pursuant to N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g.?

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 … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request …  In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …”  (Emphasis added.)

Additionally, N.J.S.A. 47:1A-5.g. provides that: 

“[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy therefor …” 

The Complainant states that on October 5, 2004 he made an Open Public Records Act (OPRA) request for the records listed above. He states that the Clerk provided him with a series of documents that did not include any reports from the Morris Land Conservancy.

Conversely, the Complainant states that he contacted the Borough Clerk in a letter dated January 19, 2005 advising her of her failure to provide the reports, and has yet to receive a written response from the Borough Clerk or the Borough Attorney. Custodian’s counsel has submitted to the Government Records Council staff a copy of a January 25, 2005 letter showing a response to the Complainant’s January 19, 2005 letter stating the reports are privileged.

Based on the January 25, 2005 submission from Custodian’s counsel showing a response to the January 19, 2005 letter, the Custodian has not violated N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.

WHETHER the delay in access to the requested Morris Land Conservancy reports rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?           

OPRA states that “A public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…” N.J.S.A. 47:1A-11.a.

OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states:

“…If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e.

The Complainant alleges that although he specifically asked for document’s discussing the Borough’s intent to purchase his client’s property, the Borough failed to produce the Morris Land Conservancy reports. Custodian’s counsel certifies that the reason those documents were not produced is because they were in other Borough files, and, therefore, not able to be located within the files specifically relating to Mr. Boggia’s client’s property. Custodian’s counsel goes on to state, “Had the plaintiff specifically requested any correspondence from Morris Land Conservancy as did his litigation request, then the Clerk would have searched those files and found the documents.”  

Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107).

The documents at issue in this complaint may not have been provided pursuant to the original request (October 2004) because of the overbroad nature of that request.  Specifically, the Superior Court of New Jersey held in Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super 534 (March 2005), that “while 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 information.”   

Based on the fact that Custodian’s counsel certified that the reason the records were not immediately released is because they were in other Borough files, and, therefore, not able to be located within the files specifically relating to Mr. Boggia’s client’s property, and, in light of the Superior Court’s admonishment of OPRA requests being used as “research tool[s] of litigants in Mag Entertainment, LLC., the Custodian’s actions do not rise to the level of a knowing and willful violation of [OPRA] under the totality of the circumstances.

WHETHER the Complainant is a “prevailing party” pursuant to N.J.S.A. 47:1A-6 and entitled to reasonable attorney’s fees when the complaint has not been completely adjudicated and the Complainant is an attorney representing himself before the Council?           

N.J.S.A. 47:1A-6 provides that “…      A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.”

The Complainant believes that he is entitled to the fees incurred in filing this Complaint before the Council.

In previous cases, the Council has determined that attorney's fees may be awarded only when the requester has obtained a final decision that the record in question must be disclosed.  Fisher v. Essex County Sheriff's Office, GRC Case 2002-08. This interpretation of N.J.S.A. 47:1A-6 was reiterated recently in Teethers v. DYFS, GRC Cases 2002-6 and -15.  In these cases, the parties did not have a hearing but instead voluntarily "settled" the case before holding a hearing.  There was no "enforceable judgment on the merits" determined or "decided" by the Administrative Law Judge (“ALJ”). Thus, no one "prevailed" by reason of the ALJ's decision or judgment and the complainant’s counsel was not entitled to attorney’s fees pursuant to OPRA.

The Council is scheduled to conduct an in camera inspection of redactions made to several of the requested documents at issue in this complaint. After the Council conducts the in camera inspection, it will do one of two things.  The Council may render an interim decision finding that the Complainant was unlawfully denied access and order the custodian to disclose the document in whole, or in part.  Alternatively, the Council may render a final decision finding that the Complainant was lawfully denied access and uphold the custodian’s redactions.  In any event, the Council will not address the issue of awarding reasonable attorney’s fees to the Complainant until after the complaint has been completely adjudication and a determination that access was unlawfully denied is made. 

The more complicated aspect of this issue is whether the Complainant would qualify for reasonable attorney’s fees if the Council determines that he has been unlawfully denied access.  According to the Supreme Court of New Jersey, the New Jersey Legislature has promulgated a “substantial number of statutes authorizing an award of a reasonable counsel fee to the attorney for the prevailing party.”  (Emphasis added.)  NEW JERSEYANS FOR A DEATH PENALTY MORATORIUM v. NEW JERSEY DEPARTMENT OF CORRECTIONS and DEVON BROWN, 182 N.J. 628; 868 A.2d 1031 (February 2005) (Decision without a published opinion.) cited to 370 N.J. Super. 11; 850 A.2d 530 (June 2004), (quoting Rendine v. Pantzer, 141 N.J. 292 (1995)).  Although the underlying purpose of those statutes may vary, they share a common rationale for incorporating a fee-shifting measure:  to ensure “that plaintiffs with bona fide claims are able to find lawyers to represent them[,]… to attract competent counsel in cases involving statutory rights, … and to ensure justice for all citizens.” NEW JERSEYANS FOR A DEATH PENALTY MORATORIUM v. NEW JERSEY DEPARTMENT OF CORRECTIONS and DEVON BROWN, 182 N.J. 628; 868 A.2d 1031 (February 2005) (Decision without a published opinion.) cited to 370 N.J. Super. 11; 850 A.2d 530 (June 2004),  (quoting Coleman v. Fiore Bros., 113 N.J. 594, 598, 552 A.2d 141 (1989)).  Thus, the courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not an attorney who is the plaintiff representing himself. 

Based on the fact that the courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not an attorney who is the plaintiff representing himself, the Complainant is not entitled to reasonable attorney’s fees pursuant to OPRA. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

  1. While the custodian has provided facts in support of the legal conclusions asserted, the Council must determine whether the legal conclusions asserted by the Custodian (that the information which, if disclosed, would give an advantage to competitors or bidders) are properly applied to the redactions.  Therefore, the Council must conduct an in camera inspection of the redacted Morris Land Conservancy reports.
  2. Based on the January 25, 2005 submission from Custodian’s counsel showing a response to the January 19, 2005 letter (stating that the reports are privileged) the Custodian has not violated N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.
  3. Based on the fact that Custodian’s counsel certified that the reason the records were not immediately released is because they were in other Borough files, and, therefore, not able to be located within the files specifically relating to Mr. Boggia’s client’s property. And, in light of the Superior Court’s admonishment of OPRA requests being used as “research tool[s] of litigants in Mag Entertainment, LLC., the Custodian’s actions do not rise to the level of a knowing and willful violation of [OPRA] under the totality of the circumstances.
  4. Based on the fact that the courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not an attorney who is the plaintiff representing himself, the Complainant is not entitled to reasonable attorney’s fees pursuant to OPRA. 

Prepared By: Chris Malloy, Case Manager

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

October 7, 2005


[1] As asserted by the Complainant. The Custodian and their counsel have produced letters to the Government Records Council staff dated October 7, 2004, and January 25, 2005 showing two different responses.
[2] Neither party agreed to Mediation
[3] In a letter to the Government Records Council the Custodian certifies that the June 29, 2005 letter and the August 19, 2005 certification from their counsel to the GRC staff set forth the Borough’s position in this matter.

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