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2005-43
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
Final Decision
At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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:
Final Decision Rendered by the Government Records Council On The 9th Day of March, 2006 Vincent 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: March 15, 2006 Supplemental Findings and Recommendations of the Executive DirectorFrances O’Loughlin GRC Complaint No. 2005-43 Complainantv. Ocean Gate Board of Education Custodian of Records Records Relevant to Complaint:
Request Made: December 16, 2004, January 7, 2005, January 20, 2005, and January 30, 2005 Background January 27, 2006 Government Records Council’s (“Council”) Interim Order. At its January 27, 2006 public meeting, the 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, found that:
February 8, 2006 Custodian’s response to the Council’s Interim Order with the following attachments:
The Custodian acknowledges receipt of the Council’s January 27, 2006 Interim Order. She states that she sent the Complainant a copy of the October 20, 2004 Board of Education (“BOE”) meeting minutes without any redactions and states that she has enclosed a copy of the Certified Mail receipt indicating same. She also states that the BOE does not have any closed session minutes dated October 20, 2004. Further, the Custodian asserts that she is providing these documents “in agreement that the totality of the circumstances contributed to the delay in access.”[1] February 21, 2006 E-mail from Complainant to Government Records Council (“GRC”) staff. The Complainant states that she has received a response from the Custodian regarding the Council’s Interim Order. She also states that she has concerns regarding the presentation of the recorded minutes, specifically the page numbers. The Complainant claims that inconsistent page numbers indicate that the minutes were not copied from the minute book and that there is a possibility that changes were made after the preparation and approval of the minutes. Additionally, the Complainant claims that there were two (2) approved Resolutions indicating that the BOE went into closed session, however the minutes do not reflect such. Analysis Whether the Custodian complied with the Council’s January 27, 2006 Interim Order? Based on the Custodian’s February 8, 2006 submission to GRC staff, she has complied with the Council’s January 27, 2006 Interim Order by releasing the BOE’s October 20, 2004 meeting minutes to the Complainant within ten (10) business days of receiving said Order and has included a Certified Mail receipt indicating same. Whether the Government Records Council has authority over the accuracy of records disclosed pursuant to N.J.S.A. 47:1A-7.b.? OPRA provides that “[t]he Government Records Council shall…receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian…” N.J.S.A. 47:1A-7.b. The Complainant has stated that she does not consider the minutes provided in response to the Council’s Interim Order to be accurate. However the Council does not oversee the content of documentation. The Council does oversee the disclosure and non-disclosure of documents. In this case, the Complainant has received the requested documents and the Custodian has indicated that the requested record has been released and no other records responsive to the request exist. Therefore, the Council does not have authority to adjudicate this portion of the complaint pursuant to N.J.S.A. 47:1A-7.b. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that:
Prepared By: Dara Lownie, Case Manager Approved By: [1] As stated in Custodian’s February 8, 2006 letter to the Executive Director. Interim Order
At the January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 2006 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:
Interim Order Rendered by the Decision Distribution Date: February 6, 2006 Findings and Recommendations of the Executive DirectorFrances O’Loughlin GRC Complaint No. 2005-43Complainant v. Ocean Gate Board of Education Custodian of Records Records Requested:
Request Made: December 16, 2004, January 7, 2005, January 20, 2005, and January 30, 2005 Background November 30, 2004 December 16, 2004 January 7, 2005 January 20, 2005 January 21, 2005 January 30, 2005 February 4, 2005 March 12, 2005
The Complainant states that she requested records from the Board of Education on December 16, 2004 to support a letter she received from the district dated November 30, 2004. The Complainant claims that the Custodian did not provide any documents until January 3, 2005, when they provided a Request for Public Records Form for her to complete. The Complainant states that she returned the completed Request for Public Records Form along with a $25.00 check to the Board of Education on January 7, 2005. On January 20, 2005, the Complainant asserts that she resubmitted her request to the Board of Education. The Complainant claims that on January 27, 2005 she received some documents from the district, an unsigned copy of her Request for Public Records Form, and a letter from the Board Attorney requesting that the documents be forwarded to the Complainant. The Complainant states she forwarded another request to the Custodian for additional documents on January 30, 2005 and has not received a response to her request. The Complainant asserts that it has been two (2) months since the initial paperwork was filed and raises the issue of timeliness. In regards to the Complainant’s request for the written opinion of the attorney, the Complainant states that the Board Attorney advised the Superintendent to provide the documentation, and that the documentation was provided to the Complainant. She claims the Custodian informed her that her request for recorded minutes could not be honored because they are not available for public access. In regards to the Complainant’s request for a listing of invoices paid to the Board Attorney regarding this matter, the Complainant asserts she received an incomplete listing of redacted bills. Additionally, the Complainant alleges that she received no response to the following requests: the effective date of termination for dental coverage, the last date of payment made for coverage, and an additional request for recorded minutes of the Ocean Gate Board of Education as per N.J.S.A. 10:4-14. March 14, 2005 March 28, 2005 April 7, 2005 April 11, 2005 April 13, 2005 April 15, 2005
The Custodian asserts that the OPRA requests were received on December 16, 2004 and January 16, 2005. The Custodian claims that copies of Board minutes were not made available to the Complainant because of “the possible litigation factor involving [the] contract of an ex-employee.”[4] Additionally, the Custodian claims that before closed session discussion notes could become available to the public, they needed to be Board approved. The Custodian raises the issue that the BOE had turnover in the Business Office, rotating through two (2) Business Administrators prior to the individual currently in the position. The Custodian states that the Board Attorney’s written opinion on this matter was forwarded to the Complainant. The Custodian also states that BOE minutes are currently available, however the notes are brief and do not name any individual or contract matter. The Custodian claims there is no factual basis for the complaint because the Complainant was “apprised of her rights to Dental Benefits. The District informed her of their contractual obligation.”[5] September 23, 2005 October 5, 2005 October 6, 2005 October 7, 2005 Regarding the Complainant’s January 7, 2005 and January 30, 2005 OPRA requests for the date of termination of dental coverage as well as the last date of payment, the Custodian states she complied with these requests in a letter dated March 8, 2005. The Custodian also states that she included a redacted bill dated February 10, 2005 in her March 8, 2005 letter to the Complainant, which the Complainant requested on January 30, 2005. Further, the Custodian states that in response to the Complainant’s January 30, 2005 request for Board minutes, she referenced these minutes in the March 8, 2005 letter. The Custodian claims that she has been unable to determine which Board minutes are being requested because of the high turnover in office since the retirement of the Complainant. October 9, 2005
October 17, 2005 October 17, 2005 October 17, 2005 Additionally, the Complainant states that she received a letter from the Custodian dated March 8, 2005 in which the Custodian disclosed the effective date of termination of benefits, the date of last premium payment, February 10, 2005 redacted Board Attorney bill for January 2005, and a draft response to OPRA requests from the Board Attorney. Also in the Custodian’s March 8, 2005 letter the Complainant claims she was informed that Board minutes would be released upon Board approval. Further, the Complainant states that on April 30, 2005, she received the Custodian’s Statement of Information with the requested Board minutes attached. October 19, 2005 The Custodian certifies that she took over the office in February 2005 and on March 8, 2005 she advised the Complainant that Board minutes would be provided upon Board approval. Further, the Custodian certifies that she released the date of termination of coverage and the last date of payment in her March 8, 2005 letter. The Custodian certifies that she also provided the Complainant with a redacted attorney bill dated February 10, 2005, and that the redactions were made regarding services for other school related matters. Regarding the requested Board minutes, the Custodian certifies that these minutes were provided to the GRC on October 7, 2005 and that they were not provided to the Complainant because the Board believed all correspondence relating to this matter should be provided “directly to the Council in light if its involvement in the request.”[7] The Custodian states that in accordance with the Open Public Meetings Act, the closed session minutes are general in nature. Because the Complainant’s request for Board minutes was prompted by a letter from the Interim Business Administrator dated November 30, 2004, the Custodian believes that the minutes responsive to the request are from meetings held on October 20, 2004 and November 3, 2004. The Custodian certifies that there wasn’t a Board meeting on October 13, 2005. Further, the Custodian certifies that no information was redacted from the closed session minutes. Regarding delays in access to records, the Custodian certifies to the best of her knowledge that this was caused by personnel turnovers, which in turn also caused the delay in the approval of Board minutes. The Custodian certifies that as of this date, October 19, 2005, she has provided the Complainant and the Council with all documents requested. October 21, 2005 October 25, 2005 October 31, 2005 November 1, 2005 Further, the Complainant states that the Board is required to have a certified accountant perform an Annual School Audit, which should be completed by this time of year or in progress since it involves all school activities from July 1, 2004 to June 30, 2005. The Complainant asserts that review of meeting minutes is a large portion of the audit, and any abnormalities are reported to the Board and the State. November 2, 2005 November 7, 2005 Regarding the initial OPRA requests, the Custodian certifies that she was not employed with the Board at that time, and that a staff member compiled the list of documents submitted to the Council with the Custodian’s April 15, 2005 Statement of Information. The Custodian states that this staff member is no longer employed by the Board. In response to the GRC’s request for information, the Custodian certifies that the Board has never supplied the Complainant with copies of closed session minutes since they were not available until after the GRC complaint was filed. The Custodian also certifies that that the Board staff who compiled the documents sent to the Council was not aware of the Custodian’s search and discovery of the October 20, 2004 minutes and included the only copy of the October 13, 2004 work session minutes with the Statement of Information. The Custodian wishes to meet with the Complainant to explain that the delay in access was due to the turnover in office. Additionally, the Custodian encloses the October 20, 2004 meeting minutes. Analysis WHETHER the Custodian’s response that Board of Education minutes could not be released due to closed session constitutes a lawful denial of access? 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-6 provides that “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…” The Complainant asserts submitting OPRA requests on December 16, 2004, January 7, 2005, and January 20, 2005 for Board minutes in which the legal opinion, inquiry and action of her dental benefits contract were discussed. The Custodian certifies that on January 21, 2005 the Interim Business Administrator informed the Complainant that Board minutes could not be released because they were closed session minutes. Further, the Custodian certifies in her Statement of Information that the minutes were not made available due to possible litigation regarding the contract of an ex-employee. On January 30, 2005, the Complainant claims that she submitted an additional OPRA request for copies of the Board minutes and referred to the Open Public Meetings Act, N.J.S.A. 10:4-14, in that all meeting minutes, public or executive session, should eventually be disclosed to the public unless the disclosure conflicts with the legislative purpose of the executive session. Additionally, the Complainant contends that the reason for privacy no longer exists and that the minutes should be released. The Custodian certifies that in a letter dated March 8, 2005, she informed the Complainant that the requested minutes would be provided upon Board approval. Further, the Complainant states that she received the Custodian’s Statement of Information with the requested Board minutes attached. The Custodian certifies that the Board has never supplied the Complainant with copies of minutes, as they became available after the complaint was filed. The Custodian also certifies that a staff member, who is no longer employed by the Board, compiled the documents attached to the Statement of Information. Further, the Custodian certifies that the October 20, 2004 minutes were not included and that by clerical error the October 13, 2004 Board work session minutes were misfiled in the Complainant’s file and never Board approved. Taped or written minutes of meetings held by public agencies are made in the course of official business and are “government records” pursuant to N.J.S.A. 47:1A-1.1. OPRA provides that government records are subject to public access unless exempt from access by statute. N.J.S.A. 47:1A-1. In Davis v. Rumson-Fair Haven Board of Education, GRC Case No. 2003-56 (December 2003), the Council found that meeting minutes that are made, maintained, kept or received by public agencies are government records pursuant to OPRA and are therefore releasable unless confidential by statute. The Open Public Meetings Act, N.J.S.A. 10:4-12.a. provides, "[e]xcept as provided by subsection b. of this section, all meetings of public bodies shall be open to the public at all times." N.J.S.A.10:4-12.b.(7) provides that a public body may exclude the public only from that portion of a meeting at which the public body discusses “[a]ny pending or anticipated litigation or contract negotiation… in which the public body is, or may become a party.” To invoke this exception, the subject under discussion must be the 'pending or anticipated litigation' itself, i.e., the public body must be discussing its strategy in the litigation, the position it will take, the strengths and weaknesses of that position with respect to the litigation, possible settlements of the litigation or some other facet of the litigation itself. Attorney General's Formal Opinion 30-1976, 100 N.J.L.J. 31; Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J.Super. 129, 145 (Law Div. 1977). In this case, the Custodian does not provide evidence of a pending litigation regarding the subject matter of the closed session minutes. Nor does she cite any statute that would prohibit the disclosure of said minutes. Therefore, the requested minutes are considered government records under OPRA and should have been released pursuant to N.J.S.A. 47:1A-1.1. As the Complainant asserts that she has received most of the requested minutes included in the Custodian’s Statement of Information, the Custodian should disclose the minutes from the October 20, 2004 Board meeting with appropriate redactions, if any. OPRA mandates that a public agency shall bear the burden of proving that a denial of access to records is authorized by law. In this matter, the Custodian certifies that the requested minutes were not provided due to the possible litigation factor regarding the contract of an ex-employee, but does not substantiate the claim. She also certifies that she informed the Complainant that the minutes would not be released until they were Board approved. Under OPRA, awaiting Board approval of meeting minutes is not a lawful reason for nondisclosure. Therefore, the Custodian violated N.J.S.A. 47:1A-6 by failing to prove that the denial of access to meeting minutes was authorized by law. WHETHER the Custodian responded to the December 16, 2004, January 7, 2005, January 20, 2005, and January 30, 2005 OPRA requests within the statutorily required seven (7) business days? 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.) 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 therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy therefor …” 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…” (Emphasis added.) The Complainant asserts that she submitted her first OPRA request on December 16, 2004 and did not receive a response until January 3, 2005 when she received a Request for Public Records Form. The Complainant states that she submitted additional requests on both January 7, 2005 and January 20, 2005. The Custodian certifies that the Interim Business Administrator responded to the Complainant’s December 16, 2004 request on January 21, 2005. The Custodian certifies that the Administrator released all requested records except for Board minutes because he claimed that they were not disclosable since they were closed session minutes. In response, the Complainant states that she submitted another request on January 30, 2005. The Custodian certifies responding to this request on March 8, 2005 when she released the requested date of termination and last date of payment of dental benefits, as well as advised the Complainant that the requested minutes would be provided upon Board approval. The Complainant alleges receiving the requested minutes along with the Custodian’s Statement of Information on April 15, 2005. The Custodian certifies never providing the Complainant with the minutes, however she also certifies that a staff member no longer working for the Board compiled the documents attached to her Statement of Information. Additionally, the Custodian certifies that the reason for any delay in responding to the Complainant’s requests was caused by the high turnover in the Business Office. OPRA requires Custodian’s to either grant or deny access to requested records as soon as possible but not later than seven (7) business days after receiving said request, N.J.S.A. 47:1A-5.i.. In this particular case, the Complainant submitted OPRA requests on four (4) separate dates. The Complainant asserts that she submitted her first request on December 16, 2004 and the Custodian certifies the Interim Business Administrator responded on January 21, 2005, which is beyond the seven (7) business day time period provided by OPRA. The Complainant also asserts submitting subsequent requests on January 7, 2005 and January 20, 2005 to which she maintains that she received no response from the Custodian. The Custodian certifies responding to the Complainant’s January 30, 2005 request on March 8, 2005, also beyond the seven (7) business day time period provided by OPRA. Despite the high turnover in office, as certified by the current Custodian of Records, the Custodian failed to respond to any of the Complainant’s OPRA requests within the statutorily mandated seven (7) business days, and is in violation of N.J.S.A. 47:1A-5.i. OPRA allows the Custodian to deny access to records under those circumstances in which the records requested are exempt from access, under OPRA or any other law. If a Custodian asserts a privilege under the law, the Custodian is required to notify the Complainant in writing of the specific legal basis for the denial. The Custodian states that the Interim Business Administrator responded to the Complainant’s December 16, 2004 request on January 21, 2005 and indicated that the requested Board minutes would not be released since they were closed session minutes. Additionally, the Custodian certifies that she responded to the Complainant’s January 30, 2005 request in a letter dated March 8, 2005, and that she notified the Complainant that the requested minutes would be provided upon Board approval. However, neither the Interim Business Administrator nor the Custodian provided a legal basis for this delay in access. The Complainant asserts that she received no response from the Custodian in regards to her January 7, 2005 and January 20, 2005 requests. Although the Custodian did respond in writing to the December 16, 2004 and January 30, 2005 requests, the Custodian failed to provide a specific and lawful basis for the denial of access and therefore violated N.J.S.A. 47:1A-5.g. The Custodian is also in violation of same for not providing a written response to the Complainant’s January 7, 2005 and January 20, 2005 requests. OPRA provides that immediate access shall ordinarily be granted to bills under N.J.S.A. 47:1A-5.e. The Custodian certifies that on January 21, 2005, the Interim Business Administrator provided the Complainant with copies of attorney billings requested on December 16, 2005. The Custodian further certifies that on March 8, 2005, she provided the Complainant with attorney bills requested on January 30, 2005. As the Complainant was not provided immediate access to the requested attorney bills, the Custodian is in violation of N.J.S.A. 47:1A-5.e. WHETHER the Custodian’s delay in access to the requested minutes rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of 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 and unreasonable denial of access under the totality of the circumstances. Specifically OPRA states: “… If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e. The Custodian certifies that the reason for any delay in access to records was caused by the turnover in the Business Office at the Ocean Gate Board of Education (BOE). She states that she took office in February 2005 and has been following a paper trail from previous Business Administrators. She also certifies that on March 8, 2005, she responded to the Complainant’s January 30, 2005 request releasing all records except for the BOE minutes citing that they would be released after Board approval. The Complainant asserts that she received all minutes with the Custodian’s Statement of Information. The Custodian states that by clerical error, the October 20, 2004 minutes were not included. 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). As the Complainant has been provided with all requested records except the October 20, 2004 minutes, and the Custodian certifies that the high turnover in office caused any delays in access to records, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find:
Prepared By: Dara Lownie, Case Manager Approved By: January 19, 2005 [1] As stated on November 30, 2004 letter. |
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