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2005-47

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Deborah Glenn
   Complainant
      v.
NJ Department of Community Affairs,
Division of Housing
   Custodian of Record

Complaint No. 2005-47

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, finds that pursuant to N.J.S.A. 47:1A-5.f. and N.J.S.A. 47:1A-5.g., the Complainant’s records request was not a valid OPRA request and as such the Custodian’s failure to recognize and respond to the records request in a timely manner does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.  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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Findings and Recommendations of the Executive Director

Deborah Glenn                                                  GRC Complaint No. 2005-47
Complainant
           v.
NJ Department of Community Affairs,
Division of Housing
Custodian of Records

Records Relevant to the Complaint:
A payment history for verification. (The Complainant is requesting a payment history for a Mr. Saba, her landlord).
Request Made: January 30, 2004
Response Made: None 
Custodian: Patricia Fowler 
GRC Complaint filed: March 13, 2005

Background

January 30, 2004

Complainant’s written Open Public Records Act (“OPRA”) Request. The Complainant sought a copy of a payment history for her landlord, Mr. Reza Saba. The request was contained in a letter requesting a fair hearing regarding discrimination by her landlord.

February 21, 2004

Letter from the Complainant’s attorney to Ms. Barbara Czarnecki, Payment Supervisor from the Department of Community Affairs, Division of Housing. The Complainant’s attorney requested:

  1. “Copies of all canceled checks that were sent by your department to [the Complainant’s] Landlord, Mr. Saba, to pay rent on her apartment.
  2. An updated “Payment History” as of November 2003.
  3. An accounting of how all overpayments of rent in any given month was handled.
  4. Tangible Proof that rent for all months has been paid to date.”

March 9, 2004

Letter from the Complainant to Ms. Barbara Czarnecki, Payment Supervisor from the Department of Community Affairs, Division of Housing requesting a payment history for “Mr. Reza Saba.” The Complainant stated that she was representing herself in an appeal against her landlord and the requested information was pertinent to the proceedings.

April 2, 2004

Letter from the Complainant to Department of Community Affairs Commissioner Susan Bass Levin “Re: Overpayment of Rect/VBCS05.” The Complainant stated that she requested the payment history from a number of individuals including Leon Richardson, Gloria Stewart, Hector Rivera and Tonika Wilson, all of whom referred her to Barbara Czarnecki for the requested document. The Complainant asserts that much of the contact with Ms. Czarnecki was via telephone. After a number of attempts by the Complainant to verbally obtain the requested documents the Complainant alleged she was told by Ms. Czarnecki that the documents would have to be requested by a lawyer. 

December 23, 2004

Letter from the Complainant to Michelle Richardson, Director from the Department of Community Affairs, Division of Housing. The Complainant is requesting under what law or regulation it was determined that she was not entitled to the requested payment history unless subpoenaed by an attorney.     

December 27, 2004

Letter from the Complainant to Ms. Jill Corwin, Section 8 Housing Program. The Complainant requested to see “the payment history for Mr. Saba since [the Complainant’s] residency in 1995 but more specifically for 2000 to 2004.”    

March 10, 2005

Letter from the Complainant to Jeanette Smith, HUD. The Complainant stated she was seeking “a payment history to the landlord/owner regarding a previous address in which [the Complainant] was the tenant” and would like to know how to go about obtaining that information.

March 13, 2005

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

  • January 30, 2004, Complainant’s written OPRA Request
  • February 21, 2004, Letter from the Complainant’s attorney to Ms. Barbara Czarnecki, Payment Supervisor
  • March 9, 2004, Letter from the Complainant to Ms. Barbara Czarnecki, Payment Supervisor requesting a payment history for “Mr. Reza Saba”
  • April 2, 2004, Letter from the Complainant to Department of Community Affairs Commissioner Susan Bass Levin “Re: Overpayment of Rect/VBCS05”
  • December 27, 2004, Letter from the Complainant to Ms. Jill Corwin, Section 8 Housing Program
  • March 10, 2005, Letter from the Complainant to Jeanette Smith, HUD.

The Complainant stated that she made many phone calls prior to requesting the documents in writing but was referred to a number of employees and was not properly informed about how to obtain the documents she was requesting. The Complainant alleged that the letters sent on January 30, 2004, February 21, 2004, March 9, 2004 and December 27, 2004 received no response. The Complainant stated that the April 2, 2004, Letter from the Complainant to Department of Community Affairs Commissioner Susan Bass Levin was responded to by a Ms. Richardson stating that Ms. Czarnecki had indicated that the Complainant was not entitled to the information. The Complainant also indicated that a letter was sent on December 23, 2004 to a Michelle Richardson requesting the payment history and no response was given. 

March 16, 2005

Offer of Mediation sent to Complainant and Custodian.

March 21, 2005

E-mail from the Custodian to the Government Records Council (“GRC”). The Custodian stated she would like to participate in mediation on this Complaint.[1] The Custodian went on to state that the Complainant’s request was treated as confidential as they treat all their requests for information from “Housing Choice Voucher” recipients.

March 28, 2005

Statement of Information sent to Custodian.       

April 13, 2005

Statement of Information submitted by the Custodian’s counsel. The Custodian’s counsel asserted that the “Custodian did not receive an OPRA records request, and did not receive copies of any of the correspondence written by the Complainant until after the OPRA request was filed.” The Custodian’s counsel stated that a payment history was released to the Complainant on April 13, 2005 with redactions to personal information of the landlord.

Additionally, the Custodian’s counsel stated that due to past practice the employees who received and reviewed the request were “trained to consider payment records confidential” and had, for more than 20 years, required a subpoena to release the requested documents. The employees acted in a way that would protect the personal information and right to privacy of the landlord such as his social security number, residential address, bank account number and income, from being released and therefore acted reasonably in denying access to the record.

The Custodian’s counsel asserted that the Complainant never formally made an OPRA request with the department and none of her requests was directed to the Custodian. The Custodian’s counsel goes on to state that the request was made within the context of a dispute between Complainant and her landlord. The Complainant’s attorney did not characterize the request as one under OPRA. The Custodian’s counsel contends that the recipients of the correspondence from the Complainant did not recognize the request as an OPRA request because none of it indicated OPRA and it was made within the context of other matters. As such, the request was never forwarded to the Custodian. The Custodian’s counsel stated that the employees who received correspondence from the Complainant were not trained as Custodians and so did not recognize the OPRA request. The Custodian’s counsel asserted that the Custodian should not be held “responsible for a request she never received or reviewed.”      

June 21, 2005

E-mail from the GRC to the Complainant. The GRC requested confirmation from the Complainant as to what documents were received responsive to the request, the date of they were received and whether the documents released satisfied the request for records.

June 24, 2005

E-mail from the Complainant to the GRC. The Complainant stated that she did receive a payment history.

June 27, 2005

E-mail from the Custodian’s counsel to the GRC. The Custodian’s counsel stated that it was her understanding that the Complainant would be withdrawing the complaint.

June 30, 2005

E-mail from the Complainant to the GRC. The Complainant asserted that she does not intend to withdraw her complaint. The Complainant stated that, while she had no contact with the Custodian, Ms. Barbara Czarnecki, Payment Supervisor and Michelle Richardson, Division of Housing Director both informed her that the documents would have to subpoenaed by an attorney. The Complainant went on to allege that “legal services and a reduced-fee attorney attempted to gather the information, but Ms. Czarnecki changed her story several times on how to [obtain] the information” and by the time it was received it was no longer useful to the Complainant.

June 30, 3005

E-mail from the Custodian’s counsel to the GRC. The Custodian’s counsel wished to point out that the Complainant did not contact the Custodian, Patricia Fowler, for the records requested and it is the position of the agency that this complaint is not an actionable one against Ms. Czarnecki. 

July 1, 2005

E-mail from the Complainant to the GRC. The Complainant asserted that no one that she was in contact with when trying to obtain the records requested ever directed her to speak to the Custodian of Record. The Complainant alleges Ms. Czarnecki “impersonated” the Custodian and changed the process by which she needed to obtain the records. The Complainant contended that this was an “intentional act of diversion and delay.” The Complainant stated that, even after hiring an attorney to represent her the records were not released and the attorney was also never directed to the Custodian. The Complainant asserted that if the Custodian was attempting to protect the privacy interests of the landlord any personal information contained therein should have been redacted and the documents released.

The Complainant asserted that she has not received all records responsive to her request. The Complainant stated that she has not received all documents she requested as she is “in need of the entire payment history to the landlord under the HUD contract under [her] name from July 1995 to present.” The Complainant adds that she believes she has an actionable complaint against Ms. Czarnecki for impersonating the Custodian of record.

July 1, 2005

E-mail from the Custodian’s counsel to the GRC. The Custodian’s counsel asserted that the Complainant was never directed to the Custodian because the employees she contacted regarding her records request did not perceive it as one and had they considered it an OPRA request they would have forwarded it to the Custodian. The Custodian’s counsel considers the accusation that Ms. Czarnecki impersonated the Custodian is baseless. Additionally, the Custodian asserted that the Complainant is in receipt of all the documents held responsive to her request as the Department does not keep those records prior to 2002.

July 21, 2005

Letter from the GRC to the Custodian. The GRC requested the following in the form of a legal certification from the Custodian:  

  • The date when a response was provided to the Complainant’s OPRA request.
  • Whether there was a written response to the Complainant’s OPRA request.
  • A reason for any delay in access or untimely response to the Complainant’s OPRA request.
  • Indicate what statute, law or promulgated regulation classifies the requested payment history as confidential, as stated in the Statement of Information.
  • Whether all documents responsive to the request have been disclosed to the Complainant.

July 25, 2005

Certification of the Custodian with the following attachments:

  • April 13, 2005 Custodian counsel’s letter to the Complainant responding to the request
  • May 4, 2005 Custodian counsel’s letter to the Complainant providing additional information responsive to the request.

The Custodian certifies that the Complainant received the records responsive to her request on April 13, 2005 from the Custodian’s counsel. The Custodian asserts that delay in response was a result of the fact that the request from both the Complainant and the Complainant’s attorney were not made as OPRA requests and were not directed to the Custodian. The Custodian certified that she was not in receipt of the request until the Complainant’s Denial of Access Complaint was forwarded to her office. The Custodian contends that the employees have been trained to consider certain information such as the individual’s “social security number, bank accounts and income and home addresses to be confidential under the Federal Privacy Act, since the Housing Voucher is a Federal program.”

The Custodian asserts that she would have provided the same records provided on April 13, 2005 had she received the request earlier. The Custodian certifies that redactions were made concerning address, bank account and social security numbers as set forth in Executive Orders 21 and 26 as well as proposed regulation N.J.A.C. 5:3-3.2. The Custodian certifies that the Complainant has been provided all records that the department has access to in response to her request.  

August 2, 2005

E-mail to the Custodian’s counsel. The GRC requested a specific citation within the Federal Privacy Act that would exempt the records requested, or information contained therein from access.

August 5, 2005

E-mail from the Custodian’s counsel to the GRC. The Custodian’s counsel asserts that the exemptions under the Federal Privacy Act Title 24, Sec. 16.11 apply to the requested records. Additionally, the Custodian’s counsel states that the consent form for the release of documents HUD 9886 also states,

“HUD is required to protect the income information it obtains in accordance with the Privacy Act of 1974, 5 U.S.C. 552a.  HUD may disclose information (other than tax return information) for certain routine uses, such as to other government agencies for law enforcement purposes, to Federal agencies for employment suitability purposes and the HAs for the purpose of determining housing assistance.  The HA is also required to protect the income information it obtains in accordance with any applicable State privacy law.  HUD and HA employees may be subject to penalties for unauthorized disclosures or improper uses of the income information that is obtained based on the consent form.  Private owners may not request or receive information authorized by this form…”

The Custodian’s counsel also states that the HUD 9886 allows for penalties for the unauthorized disclosure of income information outside of the purposes sited on the form HUD 9886 which she contends states, “Any person who knowingly or willfully requests, obtains or discloses any information under false pretenses concerning an applicant or participant may be subject to a misdemeanor and fined not more than $5,000.” The Custodian’s counsel contends that the employees of the division to respond to requests like the one in this complaint by following the above guidelines and the Federal Privacy Act and this request was never was treated as an OPRA request because it was never presented as one. The Custodian’s counsel goes on to state that, “had it been presented as an OPRA request, the same personal and financial information would have been considered confidential and would not have been provided based on Executive Orders 21 and 26, and NJAC 5:3-3.2(a)8ii and iv.”

Analysis

What constitutes a valid OPRA records request?

The Complainant alleged that the letters sent on January 30, 2004, February 21, 2004, March 9, 2004 and December 27, 2004 received no response. The Complainant stated that the April 2, 2004, letter from the Complainant to Department of Community Affairs Commissioner Susan Bass Levin was responded to stating that Ms. Czarnecki had indicated that the Complainant was not entitled to the information. The Complainant also indicated that a letter was sent on December 23, 2004 to a Michelle Richardson requesting the payment history and no response was given. The Custodian asserts the request from both the Complainant and the Complainant’s attorney were in the form of letters that did not reference OPRA and were not directed to the Custodian, therefore they were not recognized as OPRA requests.

Review of the OPRA statute and its legislative intent lead the Council to conclude that use of the request form is required for all requestors.  The statute provides that the Custodian “shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.”  N.J.S.A. 47:1A-5.f.  The statute specifically prescribes what must be on the form:

  1. space for the name, address and phone number of the requestor and a brief description of the government record sought;
  2. space for the Custodian to indicate which record will be made available, when the record will be available, and the fees to be charged;
  3. specific directions and procedures for requesting a record;
  4. a statement as to whether prepayment of fees for a deposit is required;
  5. the time period in which the public agency is required by OPRA to make the record available;
  6. a statement of the requestor’s right to challenge a decision by the public agency to deny access and the procedure for filing an appeal;
  7. space for the Custodian to list reasons if a request is denied in whole or in part;
  8. space for the requestor to sign and date the form;
  9. space for the Custodian to sign and date the form if the request is fulfilled or denied.
    Id.

Although the statute does not expressly state that OPRA requests must be on the form adopted by the agency pursuant to N.J.S.A. 47:1A-5.f., principles of statutory construction show that the Legislature intended use of this form by all requestors to be mandatory.  In interpreting a statute, it is axiomatic that “each part or section [of the statute] should be construed in connection with every other part or section so as to produce a harmonious whole.”  Matturi v. Bd. of Trustees of JRS, 173 N.J. 368, 383 (2002), quoting In re Passaic Cty. Utilities Auth., 164 N.J. 270, 300 (2000).  In addition, a construction which renders statutory language meaningless must be avoided.  Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204 (1999).  See also G.S. v. Dept. of Human Serv., 157 N.J. 161, 172 (1999). (a statute should be interpreted so as to give effect to all of its provisions, without rendering any language inoperative, superfluous, void, or insignificant).

As noted, N.J.S.A. 47:1A-5.f. requires that Custodians adopt a request form, and sets forth a detailed list of what the form must contain.  The next subsection of the statute provides:

If the Custodian is unable to comply with a request for access, the Custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor.  The Custodian shall sign and date the form and provide the requestor with a copy thereof.  (Emphasis added.)   N.J.S.A. 47:1A-5.g.

The form to which N.J.S.A. 47:1A-5.g. refers is the form required by N.J.S.A. 47:1A-5.f.  In providing, in 5.g., that the Custodian “shall” sign and date the form, indicate the basis for denial on the form, and return the form to the requestor, the Legislature evidenced its clear intent that it is mandatory for the form to be used by requestors.  See Harvey v. Essex Cty. Bd. Of Freeholders, 30 N.J. 381, 391-92 (1959) (the word “shall” in a statute is generally mandatory).  The express requirement that the Custodian use the request form in denying an OPRA request, construed together with the preceding statutory requirement that the Custodian adopt a request form, demonstrates that the Legislature intended that this form would be used for all OPRA requests.  If all requestors are not required to submit requests on the form prescribed by the statute, then the statutory provisions requiring the Custodian to sign and date the form, and return it to the requestor, would be meaningless.  Indeed, a Custodian would be unable to fulfill these express requirements of N.J.S.A. 47:1A-5.g. if the requestor does not use the form in submitting his request.

Accordingly, nothing in OPRA suggests that some requestors may forgo using the official request form.  In enacting the form requirement, the Legislature has expressed its policy that use of the form promotes clarity and efficiency in responding to OPRA requests, consistent with OPRA’s central purpose of making government records “readily accessible” to requestors.  N.J.S.A. 47:1A-1. 

The Appellate Division has indicated that the statute’s form requirement serves the additional purpose of prompting the legislative policy that a requestor must specifically describe identifiable records sought.  See Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534, 546 (App. Div. 2005) (an open-ended request that fails to identify records with particularity is invalid).  In Bent v. Twp. of Stafford Police Dept., 381 N.J. Super. 30, 33 (App. Div. 2005), the Court held that the requestor’s general request for information violated this policy and was therefore invalid.  In reaching this conclusion, the Court noted that OPRA mandates that the request form provide space for a “brief description” of the record request.  Id.  Similarly, in Gannett New Jersey Partners L.P. v. County of Middlesex, 379 N.J. Super. 205, 213 (App. Div. 2005), the Court specifically pointed to the same statutory request form requirement in determining that OPRA does not authorize requestors to make blanket requests for agency records.

Accordingly, based on the language of the statute, as well as judicial recognition of the importance of the statutory request form, it is determined that the statute requires all requestors to submit OPRA requests on an agency’s official OPRA records request form.  OPRA’s provisions come into play only where a request for records is submitted on an agency’s official OPRA records request form.  Therefore, the Complainant’s records request was not a valid OPRA request and as such the Custodian’s failure to recognize and respond to the records request in a timely manner does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

Pursuant to N.J.S.A. 47:1A-5.f. and N.J.S.A. 47:1A-5.g. the Complainant’s records request was not a valid OPRA request and as such the Custodian’s failure to recognize and respond to the records request in a timely manner does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that pursuant to N.J.S.A. 47:1A-5.f. and N.J.S.A. 47:1A-5.g., the Complainant’s records request was not a valid OPRA request and as such the Custodian’s failure to recognize and respond to the records request in a timely manner does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

Prepared By:  Colleen McGann, Case Manager

Approved By:
Catherine Starghill, Esq.
Executive Director
Government Records Council

April 4, 2006


[1] No Agreement to Mediate was received from the Complainant.

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