2005-50

Joseph Haelig

Complainant

Seaside Heights Business Improvement District

Custodian of Record

Complaint No. 2005-50

At the December 14, 2006 public meeting, the Government Records Council (“Council”) considered the December 7, 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, accepts the initial decision of the Administrative Law Judge (“ALJ”) in which the ALJ concludes that the Complainant failed to produce any evidence from which a reasonable finder of fact could conclude that the failure of the Custodian to respond to the several requests for records was a knowing and willful violation of the statute warranting the imposition of civil monetary penalties. As such, the ALJ granted a summary decision in favor of the Custodian to the extent the Complainant seeks the imposition of statutory penalties.

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.

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

Supplemental Findings and Recommendations of the Executive Director

Records Requested: Commission documentation, payment records, and resolutions.

Background

Government Records Council’s (“Council”) Interim Order. At its October 28, 2005 public meeting, the Council considered the October 21, 2005 Revised 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:

The Initial Decision from the Administrative Law Judge (“ALJ”) at the OAL received by the GRC on November 2, 2006. The ALJ concluded that a summary decision is warranted and that the record could not reasonably support a determination that the Custodian acted “knowingly and willfully.” Therefore, there is no basis upon which to impose the fines authorized for such conduct by the Open Public Records Act (“OPRA”).

Analysis

Conclusions and Recommendations

The Executive Director respectfully recommends the Council accept the initial decision of the Administrative Law Judge (“ALJ”) in which the ALJ concludes that the Complainant failed to produce any evidence from which a reasonable finder of fact could conclude that the failure of the Custodian to respond to the several requests for records was a knowing and willful violation of the statute warranting the imposition of civil monetary penalties. As such, the ALJ granted a summary decision in favor of the Custodian to the extent the Complainant seeks the imposition of statutory penalties.

Robert Beckelman, Esq., for respondent (Greenbaum, Rowe, Smith and Davis, attorneys)

The Government Records Council (“GRC”) transferred this contested case concerning the Open Public Records Act, NJ.S.A. 47:1A-1 et seq. (“OPRA”) to the Office of Administrative Law (“OAL”) with the direction to decide one issue: whether the records custodian of the Seaside Heights Business Improvement District (‘District”) “knowingly and willfully violated” N.J.S.A, 47:1A-7e, Both parties to the dispute have supported deciding this case on the basis of the record as presented by the GRC, without the necessity of any additional hearing. Each believes that the case is properly decided in its behalf as a matter of law, and each apparently believes that there is no genuine dispute as to any material facts, thus permitting a summary decision in its favor, pursuant to N.J.A.C. 1:1-12,5, As will be explained, in advance of deciding the case, I have attempted to provide the petitioner with the opportunity to develop a record with which to argue that the custodian acted “knowingly and willfully” However, it is apparent that petitioner’s conception of the nature of the conduct required in order to

impose the statutory penalties differs from my assessment of the law, and as will be detailed, he has declined that opportunity. While summary decision is generally not the procedure for deciding matters involving issues of intent and state of mind, the case law does recognize that in some instances a case wherein state of mind is a material issue can be determined by summary decision. Under the scheme established by OPRA, the burden to defend a failure to answer a request for public documents rests with the custodian, who must respond to the request and indicate the specific basis for denying access to any documents that she will not produce, Here, as the custodian has supported her failure to respond in a timely fashion as having been ultimately based upon a legal position asserted through counsel that the District is not a “Public agency” and is therefore not subject to OPRA, the burden of establishing that her actions in regard to this request (made on multiple occasions) constituted a “knowing and willful” violation despite the asserted defense, rests with the complainant. For the following reasons, I CONCLUDE that summary decision is warranted here and that the record could not reasonably support a determination that the custodian acted “knowingly and willfully.” Therefore, there is no basis upon which to impose the fines authorized for such conduct by the Open Public Records Act.

This matter began innocently enough, when on November 16, 2004, Joseph Haelig, who apparently operates or is associated with a website entitled “OceanCountyPolitics.com” wrote to Elizabeth C. King, an employee of the District, He noted that he had received a letter from Ms. King regarding his public interest request and advised her that he wanted a “complete breakdown of the commissions paid to the BID. director from 2001 until 2004, a detail of the sources of the commissions, and how the commissions were calculated. Also, please provide copies of the payment records for commissions paid to the Seaside Heights B.I.D. director from 2001 until 2004. Also, please provide a copy of the resolutions authorizing commissions to be paid to the Seaside Heights BID. director,” On January 11, 2005, Mr. Haelig wrote again to Ms. King. Stating that he had received no reply to his November 16, letter, he enclosed a copy of that correspondence and noted that OPRA rules “specify that a reply is expected in a timely fashion. Please respond to our inquiry without further delay. We are not interested in filing OPRA complaints, but we would like the information we requested.” On January 21, he faxed King, enclosing copies of the

November 16 and January 11 letters and asking for a ‘timely response,” On February 3, he wrote to John Camera, the Administrator of the Borough of Seaside Heights, enclosing the letters of November 16 and January 11 and the fax of January 21. He wrote, “[ajIl of our telephone inquiries have resulted in the advice that Elizabeth King has a very heavy schedule of meetings and would return our calls when she had time. We would appreciate a constructive response to our request without further delay.” On February 22, 2005, Mary K. Gethard, apparently also associated with the website, wrote to Maria Maruca, Director of the District. She noted that the letter was in regard to the requests of November 16, January 11, 21 and February 3. She also referred to a telephone conversation with Ms. Maruca wherein Maruca apparently told Gethard that the attorney for the District had advised Maruca that the District “had disclosed all it was going to disclose regarding the commissions which were apparently paid to the BID. director.” She also noted that Maruca told her that ‘your attorney said his opinion might be that theB.I.D. was not covered by the OPRA statute,” Gethard referred again to the several requests for the information requested in the original November letter and iterated that Ms. King had not been available to talk and had “never got back to us.” She concluded, “You will recall that I asked for confirmation of your attorney’s position on this matter be provided in writing. You said that your attorney was to get back to you in a couple of days. I have yet to hear from you and now another week has passed.”

On February 22, 2005, Ms. Gethard wrote to Administrator Camera of the Borough of Seaside Heights, referring once again to the numerous prior letters and stating that in a prior telephone conversation “you told me the B.I.D. attorney would not, in your opinion, be able to contend that theB.I.D. was not covered by the OPRA statute. This will also confirm that we were told by Ms. Maruca that her attorney at first told her the BID. gave us all they were going to give us. Ms. Maruca then represented that her attorney also said he was looking at the issue and his opinion might be that the BID. was not covered by the OPRA law.” She also noted that in the past the BID. had complied with several requests before the “current issues surfaced, at which time it was never suggested that the BID. might be exempt from the OPRA regulations.” She requested any assistance that Mr. Camera could provide in letting the District know that it was obligated to comply with the OPRA request.

On March 18, 2005, Ms. Gethard wrote to Ms. Maruca. She noted that in a telephone call with Maruca, Maruca told her that the attorney had advised “that your agency is not subject to the OPRA law,” a position that Maruca had apparently shared with Erin Knoedler “of the OPRA Council.” Gethard advised that “we” did not agree with this position and that the records requested should be provided. She also wrote, “we still do not have an acknowledgement of our requests or even a written confirmation of your lawyer’s misguided opinion confirming that you are not a public agency.”

On April 7, 2005, the BID. responded to the request. It did provide some records and asserted that certain other requested records had been destroyed during a snowstorm on President’s weekend 2002 when a pipe burst.

According to the GRC, the complaint in this case was filed with it on May 13, 2005. In the Executive Director’s “Revised Findings” Executive Director Dice noted that in his Statement of Information (“801”), filed in response to the complaint on May 13, 2005, the custodian, arguing that the BID. was not a “public agency” under OPRA, “cites court decisions, but then offers no clarification whatsoever as to how the cases apply to her defense.” (The Executive Director notes her statement, “[t]here is case law Gonzales v. Borough of Freehold and Roc-Jersey v. Town of Morristown that would support this claim.”) At its October 28, 2005, meeting the GRC reviewed the “Revised Findings and Recommendations of Executive Director.” It determined that theB.I.D. was in fact a “public body” and was subject to OPRA. It ordered that the Custodian was to provide a detailed and complete list to it and to the complainant itemizing the records it maintained that were responsive to the November 16 request and it was to provide access to any records that were responsive to the request that had not already been provided. Finally, it determined that “[biased on the facts that the Custodian responded to the Complainant’s OPRA request more than four months late, and that the response remains incomplete, the Council will refer this case to the Office of Administrative Law once all matters regarding access have been adjudicated to determine if the Custodian knowingly and willfully violated OPRA and unreasonably denied access under the totality of the circumstances.”

The matter was received at the OAL and assigned to Judge Joseph Martone. With a hearing date scheduled for March 31, on March 23, 2006, counsel for the B.I.D. filed with the Judge its legal position that “any failure to provide records was not a willful or knowing violation of the OPRA, but based upon good-faith reliance upon sound legal advice that BIDs are not public bodies subject to the provisions of the OPRA. Accordingly, it cannot reasonably be found that the Custodian willfully violated the OPRA.” The March 31 date was adjourned due to a death in petitioner’s family. A telephone conference was held on May 17. During that conference, Mr. Beckelman expressed his view that the case could be decided on the papers because in his view theB.I.D.’s position presented an essentially legal, rather than a factual, defense. A hearing was scheduled for September 18, but prior to that date the case was reassigned to this judge. On September 8, Mr. Haelig wrote to Judge Martone, advising that he had relieved his attorney of responsibility for the case, expressing his view that the case could be decided on the papers and waiving any hearing. Given the expressed positions of both parties, on September 12, I wrote to these gentlemen, advising that I would review the file and determine if a decision could be rendered on the papers, but noting my concern that testimony might be needed to appropriately deal with the “knowing and willful” issue. Thereafter, on October 3, I wrote again. I noted that as the sole issue before me was the “knowing and willful” issue and the asserted defense to such a conclusion was that Ms. King had acted pursuant to advice of counsel that the BID. was not a “public agency” covered by the statute, it appeared very difficult to determine “on the papers” that she acted “knowingly and willfully” to violate the statute. However, I suggested that I would afford Mr. Haelig the opportunity to engage in discovery to try to elicit information that might assist him in demonstrating that in fact Ms. King had violated the law “knowingly and willfully.” “[ljf the custodian could be shown to have independently known that the statute applied or that the advice received from counsel was not provided in good faith, then it might be possible to establish that there was a knowing and willful violation.” I provided Mr. Haelig with thirty days to issue interrogatories, requests for admissions, etc., and thirty days for Mr. Beckelman to provide responses to such requests. I also noted that

Mr. Haelig will of course have to choose how he wishes to pursue the opportunity provided. To the extent that he may feel that the burden is being placed upon him, I can only respond that given the high standard

necessary proof wise to establish that here is a knowing and willful violation of the act and given the fact that at least on the face of the papers the respondent was acting on the advice of counsel, this is the only way that I see to allow him his best opportunity to prove that the penalties are warranted. In the absence of any additional proofs, I will have to rely solely on the nature of the reasons put forth by the custodian for not replying, and while that legal opinion may have been rejected, a finding that it was provided in bad faith and that the custodian was not reasonably relying upon it (again despite the fact that ultimately the legal analysis was rejected by the GRC) would be very, very difficult to reach.

Mr. Haelig responded to this letter on October 20, 2006. Essentially, he argued that Ms. Maruca only mentioned an attorney’s opinion in March, months after the original and repeated requests for the information, He sees it as an essential point that Ms. Maruca failed to respond to the “seven” letters from OceanCountyPolitics.com. No reply even suggested that there was a legal opinion “imminent, or the documents were lost in a flood, an excuse that was also used for a short time later.”

There is no possible way these violations COULDN’T have been “knowing and willful” because, according to Ms. Maruca, they were still wanting for a legal opinion three months after the fact of the first violation of the most important part of the OPRA law.

It is apparent that if Ms. Maruca was telling us the truth on March 18, 2005, the legal opinion was trumped up at the eleventh hour to provide cover for Ms. Maruca with respect to the OPRA violations, all obviously willful and knowing violations of the law,

Mr. Haelig argues that the failure to respond to each of the several letters sent by his organization to theB.I.D. constituted a separate violation of the statute and therefore the penalties for second, third and subsequent offenses should be imposed. Tellingly, he says that

These folks were in willful violation of the law shortly after the 11/16/04 letter ($1000); they violated the law again shortly after the 1/11/05 letter ($2500); and they violated the law a third time shortly after the 1/21/05 letter ($5000) with additional $5000 penalties for the fourth, fifth, sixth and seventh violations. . .

The “totality” of these circumstances is that we did not receive these answers on a timely basis. In fact, we did not receive any answers at all until the BID began waiving their ex post facto legal opinion which, of course, turned out to be nonsense,

Ms. Maruca declined to answer our inquiries until it became apparent three months after the fact that we were serious about looking into the legality of her “commissions.” Then she and the Republican County Chairman (who is also the attorney for the Borough of Seaside Heights) apparently decided to obtain the legal opinion you are so concerned about. By the time she got the legal opinion, the law had already been knowingly and willfully violated at least seven times over a three month period.

No serious investigation could convolute the record to the point where Ms. Maruca’s motives in repeatedly failing to answer our inquiries about her “commissions” can be accurately portrayed as “unintentional.”

Mr. Haelig apparently declined the opportunity to conduct any discovery. He asserts that

Timely compliance with the law is the key to everything here, and that is no longer possible. You told us in your first letter that you were going to operate on a ‘highly expedited basis;” and now you tell us you are adding another 75 or 80 days to the process. Is this a joke or are we expected to take it seriously?

In view of Mr. Haelig’s position regarding discovery and the general agreement of the parties that the issue of “knowing and willful” can be determined on the basis of the written record, I will proceed to analyze the applicable law and the proofs.

The Open Public Records Act, N.J.S.A. 47:1A-1, know as “OPRA,” provides that

1. The Legislature finds and declares it to be the public policy of this State that:

government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public’s right of access;

all government records shall be subject to public access unless exempt from such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order;

g. A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian, A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record, If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor 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. If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record. If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record. If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.

h. Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the

i. Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. 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, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. . . . If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.

A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

institute a proceeding to challenge the custodian’s decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge’s knowledge and expertise in matters relating to access to government records; or

in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of

a. A public official, officer, employee or custodian who knowingly and willfully violates PL.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation, This penalty shall be collected and enforced in proceedings in accordance with the “Penalty Enforcement Law of 1999,” P.L1999, c.274 (C.2A:58-10 et seq.,), and the rules of court governing actions for the collection of civil penalties. The Superior Court shall have jurisdiction of proceedings for the collection and

Appropriate disciplinary proceedings may be initiated against a public official, officer, employee or custodian against whom a penalty has been imposed.

Thus, the Legislature determined that where a public official did not respond appropriately to a request for a public record made in accordance with OPRA, that official may be liable to civil monetary penalties. However, it did not make the mere violation of the Act’s provisions the basis for the imposition of these penalties. Only where the official acted “knowingly and willfully” and “unreasonably” denied access does the legislation authorize the penalties set forth in 11 a. Thus, the evidence in the case must be tested to determine if the custodian’s conduct was sufficiently egregious as to warrant the label “knowing and willful.”

The standard for imposing a monetary penalty upon a public official who violates OPRA by unreasonably denying access to government records requires a finding that such violation was both “knowing and willful,” OPRA contains no definition of these terms. Thus, in order to understand their import, and the burden they place upon one seeking to justify the imposition of such penalties, we must look to case law that has sought to understand these terms in the context of other legislation. Thus, in Executive Comm’n on Ethical Stds. v. Salmon, 295 N.J. Super. 86, (App.Div. 1996) (“Executive Comm’n”), an ethics case brought against a sitting Commissioner of the Board of Public Utilities, the Executive Commission on Ethical Standards sought Commissioner Salmon’s removal on the grounds that he had acted in “willful and continuous disregard of his ethical obligations.” The Appellate Division spoke about the subject of “willful” misconduct.

Finally, we address count eight of the amended complaint which charges Salmon with a “willful and continuous disregard” of his ethical obligations as a State officer, The ECES rejected the ALJ’s recommendation that there was no basis in the factual findings for a determination that Salmon was guilty of a willful and continuous “pattern of violations which bespeak some callous and knowing disregard of the ethical obligations. . .“ We note that the ALJ’s conclusion of non-willfulness was based upon his recommendation of guilt with respect to the charges in counts one, two, and three of the amended complaint. The ECES’ conclusion of a “willful

and continuous disregard” was based upon its finding of guilt with respect to counts one, two, three, four, five, and seven. Having reversed the ECES on count seven, our determination will be confined to whether counts one through five reasonably may be deemed to support the conclusion of “willful and continuous disregard” of the Conflicts of Interest Law and the BPU Code of Ethics.

Any State officer or employee . . . found guilty by the commission of violating any provision of this act or of a code of ethics promulgated pursuant to the provisions of this act shall be fined not less than $ 100.00 nor more than $ 500.00

and may be suspended from his office or employment by order of the commission for a period of not in excess of 1 year. If the commission finds that the conduct of such officer or employee constitutes a willful and continuous disregard of the provisions of this act or of a code of ethics promulgated pursuant to the provisions of this act, it may order such person removed from his office or employment and may further bar such person from holding any public office or employment in this State in any capacity whatsoever for a period of not exceeding 5 years from the date on which he was found guilty by the commission.

In the absence of a definition of the term “willful” contained in the Conflicts of Interest Law or the BPU Code of Ethics, the ECES looked to cases arising under section 255 of the Federal Fair Labor Standards Act (FUSA), 29 U.S.C.A. § 255(a), particularly Coleman v. Jiffy June Farms, Inc., 458 E2d 1139, 1142 (5th Cir.1971),cert. denied, 409 U.S. 948, 93S. Ct. 292, 34 L. Ed. 2d 219 (1972). In Jiffy June, an infraction of the FUSA was deemed to be willful when the employer changed employees’ rates of pay with knowledge that the FLSA was applicable to its operations. The final order of the ECES failed to recognize that the Jiffy June standard of willful conduct was specifically rejected by the United States Supreme Court in McLaughlin v. Richiand Shoe Co., 486 LJ.~ 128, 134, 108 S. Ct. 1677, 1682, 100 L. Ed. 2d 115, 123 (1988), where the Court said the Jiffy June standard “is not supported by the plain language of the statute (FUSA), we readily reject it.”

The Jiffy June standard was criticized by the United States Supreme Court as permitting “a finding of willfulness to be based on nothing more than negligence, or, perhaps, on a completely good faith but incorrect assumption” that the challenged conduct was lawful, at 135, 108 S. Ct. at 1682, 100 L,E2d at 124.

In common usage the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional”.,,. The word “willful” is widely used in the law, and although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent.

In Fielder v. Stonack, 141 N.J. 101, 125, 661 A.2d 231 (1995), the New Jersey Supreme Court dealt with the meaning of the phrase “willful misconduct” in the context of a police pursuit. The police officer who collided with an innocent motorist could not be exonerated under the applicable statute if his conduct constituted “willful misconduct.” In holding that willful misconduct in the context of a police pursuit means “the knowing failure [of a police officer] to follow specific orders[,]” id. at 126, 661 &2d 231, the Court noted that the phrase “willful misconduct” is not immutably fixed but takes its meaning from the context and purpose of its use. Id. at 125, 661 A.2d 231. The Court further said:

Although willful misconduct need not involve the actual intent to cause harm . . . there must be some knowledge that the act is wrongful. . . . ‘Willful misconduct” is the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden, [Fielder, supra, 141 N.J. at 124, 661 A2d 231.]

Although the Fielder court formulated its “willful” standard expressly for police-chase scenarios, we find its reasoning to be pertinent in the context of ethics violations. Both scenarios deal with possible malfeasance of a person charged with protection of the public. Cases in the criminal context define the word “willful” as signifying an intentional execution of an unlawful plan which has been conceived and deliberated upon. See, e.g., State v. DiPaolo, 34 N.J. 279, 295, 168 A2d 401 (1961),cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L Ed. 2d 80(1961).

Interpretation of N.J.S.A. 52:13D-21(i) must center upon its structure and plain language. Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128, 527 A.2d 1368 (1987). Our consideration is guided by N.J,S.A. 1:1-1 which provides:

words and phrases shall be read and construed with their context, and shall . . . be given their generally accepted

meaning, according to the approved usage of the language. Technical words and phrases, and words and phrases having a special or accepted meaning in the law, shall be construed in accordance with such technical or special and accepted meaning.

The evident purpose of N.J.S.A. 52:13D-21(i) is to delineate the penalties for those found guilty of violating any provision of the Conflicts of Interest Law or Codes of Ethics promulgated pursuant to such Law. Two levels of penalties are established depending upon the degree of culpability of the ethics offender. The initial or lower level, in addition to fines, permits an offender to “be suspended from his office or employment for a period not in excess of 1 year.” The second or more severe level permits an offender to be removed from his office or employment and barred from holding any public office or employment for a period not exceeding five years after crossing a threshold finding that the conduct of the offender constitutes a “willful and continuous disregard” of the ethics laws.

Thus, the structure and plain language of N.J.S.A. 52:13D-21(i) contemplate that a distinction be made with respect to the degree of culpability of the ethics offender. By reserving the more severe level of punishment for offenders whose conduct constitutes a “willful and continuous disregard” of the ethics laws, the Legislature intended to and did draw a distinction between those offenders whose conduct was merely negligent, heedless, or unintentional even though the offender was aware of the ethics laws. By drawing such distinction, it is clear that the Legislature intended to reject a finding of willfulness for conduct that was merely negligent, heedless, or unintentional. Consequently, the Jiffy June standard, which permits a finding of willfulness based upon nothing more than negligence or, perhaps, upon a completely good faith but incorrect assumption, was not within the contemplation of the Legislature as expressed by the plain language of the statute.

The legislative use of the words “continuous disregard” in conjunction with the word “willful” conveys the intention that something more than mere negligence, inattention, or heedlessness is required for conduct to constitute a “willful and continuous disregard” of the ethics laws. Accordingly, we determine that conduct, to be considered willful under N.J.SA. 52:13D-21(i), must be intentional and deliberate, with knowledge of its wrongfulness, and not merely negligent, heedless, or unintentional.

Plaintiff contends that the trial court erred in instructing the jury that willful misconduct “does not include and is above what you might understand to be gross negligence or recklessness.” Citing Fielder, supra, 141 N.J. at 124, 661 K2d 231, plaintiff argues that this Court has long recognized that one who acts with the knowledge that injury will likely or probably

result from his conduct, and with reckless indifference to the consequences, commits an act of willful misconduct.

In Fielder, supra, this Court held that “in the context of a police officer’s enforcement of the law, including the pursuit of a fleeing vehicle, willful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order, that would subject that officer to discipline.” 141 N.J. at 125, 661 A.2d 231. “More particularly, willful misconduct in a police vehicular chase has two elements: 1) disobeying either a specific lawful command of a superior or a specific lawful standing order and 2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it.” Id. at 126, 661 A.2d 231.

This Court was careful to note that it did “not presume to define willful misconduct in any context other than police vehicular pursuit under 5-2b(2).” Id. at 125, 661 &2d 231. That is because “[l]ike many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use.” Id. at 124, 661 A2d 231. This Court did note, however, that “[p]rior decisions have suggested that willful misconduct is the equivalent of reckless disregard for safety.” Ibid. “It is more than an absence of ‘good faith.” Ibid. (quoting Marley v. Borough of Palmyra, 193 N.J. Super. 271, 294-95, 473 A.2d 554 (Law Div. 1963)).

We conclude that the trial court’s instruction that willful misconduct required something between simple negligence and the intentional infliction of harm was not improper. It is clear that willful misconduct requires “much more” than mere negligence. Fielder, supra, 141 N.J. at 124, 661 A.2d 231. It also is clear that willful misconduct will fall somewhere on the continuum between simple negligence and the intentional infliction of harm, Id. at 123, 661 A.2d 231 (citing Foldi v. Jeifries, 93 N.J. 533, 549, 461 A.2d 1145 (1983)). What is not clear, however, is where on the scale willful misconduct should fall in a case such as this. In Fielder, supra, this Court noted that “[p]rior decisions have suggested that willful misconduct is the equivalent of reckless disregard for safety.” 141 N.J. at 124, 661 A.2d 231 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305, 266 k2d 284 (1970)). However, McLaughlin also may be interpreted to suggest that “reckless” applies only to the “indifference to the consequences” aspect of its holding.

These cases make it quite clear that there can be no presumption of “willful” misconduct arising simply from the failure of a public official to respond in a timely fashion to a request for production of a public record. Had the Legislature intended to impose civil monetary penalties upon such officials merely for failing to reply within the statutory time frame of seven days, there would have been no need to include the “willful” standard. As the cases discussed above explain, mere negligence or

heedlessness of the need to comply with the statute in a timely manner is not enough to label the failure as “willful.” There must be some other element of proof to demonstrate that the official acted~ in reckless disregard of the statutory command, that the lack of response was “intentional and deliberate, with knowledge of its wrongfulness, and not merely negligent, heedless, or unintentional,” Executive Comm’n, supra, at 107. In the present case, there is no evidence that could possibly demonstrate that Ms. King’s initial failure to respond within seven days was “reckless,” that it was an “intentional and deliberate” act, taken with “knowledge of its wrongfulness.” While the complainant may well presume that Ms. King’s conduct was so motivated, mere suspicion, assumption and speculation is not sufficient to establish that the act was in fact “reckless” and “deliberate.” Of course, it cannot be overlooked that after receiving no response to its first letter of November 11, the complainant again wrote to King on January 11 and that thereafter the first reference in the correspondence to any legal position about non-coverage of theB.I.D. was in Ms. Gethard’s letter of February 22, referring to a telephone conversation in which Ms. Maruca mentioned such a prospect. It may be argued that the continued failure of the custodian to respond to the repeated requests for the information sought in the November request establishes the element of “willfulness.” But as under the case law even a negligent failure to respond would not amount to willfulness, to find that the custodian was acting in a reckless, intentional, deliberate, and knowledgeable fashion to purposely deny the complainant’s rights under OPRA, when she did not respond to the repeated requests would require some element(s) of evidential proof beyond what can be found in the record which the parties, most especially the complainant, have determined to stand upon. Whether further discovery or a hearing would have produced some “smoking gun” is speculative, but on the present record, that element of proof that would take this to the level of “knowing and willful” action is not present.

The standard for determining motions for summary decision has been defined by the New Jersey Supreme Court in Robin Brill v. The Guardian Life Insurance Company of America, et al,, 142 N.J. 520 (1995). In this case, the Court elaborated upon the standards first established in Judson v. People’s Bank and Trust Co. of Westfield, 17

N.J. 67, 74-75 (1954). Under the Brill standard, as before, a motion for summary decision may only be granted where there are no “genuine disputes” of “material fact.” The determination as to whether disputes of material fact exist is made after a “discriminating search” of the record, consisting as it may of affidavits, certifications, documentary exhibits and any other evidence filed by the movant and any such evidence filed in response to the motion, with all reasonable inferences arising from the evidence being accorded to the opponent of the motion.

In order to defeat the motion, the opposing party must establish the existence of “genuine” disputes of material fact. The facts upon which the party opposing the motion relies to defeat the motion must be something more than “facts which are immaterial or of an insubstantial nature, a mere scintilla, fanciful, frivolous, gauzy or merely suspicious,....” Judson, supra., at 75 (citations omitted). The Brill decision focuses upon the analytical procedure for determining whether a purported dispute of material fact is “genuine” or is simply of an “insubstantial nature.” Brill supra. at 530.Brill concludes that the same analytical process used to decide motions for a directed verdict is used to resolve summary decision motions. “The essence of the inquiry in each is the same: ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that a party must prevail as a matter of law.’ “Id. at 536, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214. In searching the proffered evidence to determine the motion, the judge must be guided by the applicable substantive evidentiary standard of proof, that is, the “burden of persuasion” which would apply at trial on the merits, whether that is the preponderance of the evidence or the clear and convincing evidence standard, If a careful review under this standard establishes that no reasonable fact finder could resolve the disputed facts in favor of the party opposing the motion, then the uncontradicted facts thus established can be examined in the light of the applicable substantive law to determine whether or not the movant is clearly entitled to judgment as a matter of law. However, where the proofs in the record are such that “reasonable minds could differ” as to the material facts, then the motion must be denied and a full evidentiary hearing held.

Ordinarily, where an issue such as ‘willfulness,” which requires a determination of the state of mind of an actor, is required to be determined, summary decision is not an appropriate means of determining the issue.

In reaching our determination we have considered that where subjective elements, such as intent or motive, are involved, summary judgment is to be granted with caution. Judson, at 76. Exxon Corp. v. Wagner, 154 N.J. Super, 538, (App.Div. 1977).

However, where the record is such that reasonable minds could not differ on the “state of mind” issue under consideration, summary decision can be awarded. Thus, even in a case where the court noted the reluctance to grant summary decision, if the evidence presented after the motion is rejected fails to establish that reasonable minds could differ on the “state of mind” issue at hand, the judge can grant the motion, without sending the matter to the jury,

Where subjective elements such as intent and motivation are involved, summary judgment is particularly inappropriate. Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212, 521 A.2d 872 (App.Div.1987) The court was under no obligation to dismiss plaintiffs claim for punitive damages before hearing any live testimony. Brill v. Guardian Life, supra; Judson v. Peoples Bank, supra. However, at the conclusion of all the evidence, the court was in a position to grant defendant’s motion. Reasonable minds could not differ on the issue of defendant’s level of intent in instituting this gender-based policy. Spragg v, Shore Care, 293 N.J. Super. 33 (App.Div. 1996).

In the present matter, the only evidence that the complainant has proffered respecting the alleged “knowing and willful” nature of Ms. King’s violation of the statute is the series of letters sent requesting the information first sought in the November 16 letter, These letters were not all sent directly to Ms. King, but even if she knew about all of them, the fact that she did not respond to them by providing the requested information or otherwise relying to deny the request, is not evidence that exists in a vacuum. Some of the letters themselves refer to communications between the writer

and Ms. Maruca. These reflect that at least as early as the telephone conversation referenced by Ms. Gethard in her February 22 letter, the issue of a legal opinion of non-coverage was noted. Since the legal position taken by theB.I.D. was that it was not covered, and if it were not covered then OPRA would arguably mandate no response from the custodian, for reasonable minds to determine the custodian was acting in knowing and willful violation of the Act and unreasonably denying access, there would have to be some additional evidence to show that the “non-coverage” position was truly a sham, a false position knowingly taken by the custodian to avoid production of the documents. Since the BID. did in fact argue before the GRC that it was not covered, to find that its reliance on this legal position was not in good faith, and that the custodian’s reliance on the lawyer’s advice was not also asserted in good faith, would require much more than the mere suspicion of “collusion” and “conspiracy” asserted by the complainant in his letters. While this is not to say that all attorneys act in good faith each time they assert a legal position and that some positions are so legally flimsy as to warrant suspicion, to reach the conclusion of a “knowing and willful” violation by the custodian sought by the complainant would require a substantial leap unsupported by the record. And, as previously noted, the fact that the GRC ultimately rejected the legal stance proferred by theB.I.D.’s lawyer does not establish any evidence of bad faith.

It goes without saying that given the ultimate rejection of the legal position asserted by the BID., its failure to produce the requested documents to the complainant in the time frame established by OPRA did thwart the intent of the Legislature to provide prompt access to government records. Whether there are flaws in the process established by OPRA that prevent a requestor from quickly remedying a failure to timely produce is not directly an issue before me. But to the extent that the Legislature saw fit to provide a monetary penalty for persons who fail to abide by the legislative command set forth in OPRA, it chose to set the bar for the imposition of such penalties at a very high level. This was a decision of the Legislature; not the GRC or the OAL. If the bar of proof needs to be reset at a lower level to encourage greater compliance with the demands of the statute, such is also a decision for the Legislature, perhaps with the advice of the GRC if it believes that the experience with the statute to this date requires such a change. But given the current language of the Act, in the face of an asserted “good faith” reason presented by the alleged violator for a failure to

provide requested records or to respond in a timely manner, the burden of establishing the grounds for determining “willful” violations rests with the complainant and summary decision can be granted where the complainant fails to establish an evidential basis upon which a reasonable finder of fact could conclude that the complainant’s position is correct. The complainants face a large task to prove that violations were “knowing and willful”. For the reasons stated, I CONCLUDE that here the complainant has failed to produce any evidence from which a reasonable finder of fact could conclude that the failure of the custodian to respond to the several requests for records was a “knowing and willful” violation of the statute warranting the imposition of civil monetary penalties. Therefore, summary decision is GRANTED to the respondent and to the extent the complaint seeks the imposition of statutory penalties, it is DISMISSED.

I hereby FILE my initial decision with the GOVERNMENT RECORDS COUNCIL for consideration.

This recommended decision may be adopted, modified or rejected by the GOVERNMENT RECORDS COUNCIL, who by law is authorized to make a final decision in this matter. If the Government Records Council does not adopt, modify or reject this decision within forty-five (45) days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with

Within thirteen (13) days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the EXECUTIVE DIRECTOR OF THE GOVERNMENT RECORDS COUNCIL, 101 South Broad Street, P0 Box 819, Trenton, New Jersey 08625-0819, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties,

Interim Decision on Access

At the October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 21, 2005 Revised 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 as well as to incorporate in their findings additional legal analysis provided at the Council meeting. Therefore, the Council hereby finds that:

Interim Decision Rendered by the
Government Records Council
On The 28^th 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

Revised Findings and Recommendations of Executive Director

Records Requested: Commission documentation, payment records, resolutions
Request Made: November 16, 2004
Response Made: April 7, 2005
Custodian: Maria Maruca
GRC Complaint filed: May 13, 2005

Complainant’s letter to the Seaside Heights Business Improvement District (“BID”) seeking access to:

Complainant’s follow-up with the BID on his November 16, 2004 request for information

Complainant’s follow-up with the BID on his November 16, 2004 and January 11, 2005 communications to the BID

Complainant’s request for informal intervention from the Government Records Council (“Council”)

Complainant’s non-legal representative’s follow-up to the BID on Complainant’s November 16, 2004, January 11, 2005, January 21, 2005 and February 3, 2005 communications to the BID

Complainant’s non-legal representative’s letter to the Borough of Seaside Heights (“Borough”) requesting the Borough’s assistance in obtaining the requested information from the BID

Letter from the Borough’s Administrator to Complainant’s non-legal representative stating that the writer is “not aware any mechanism that would enable the Borough of Seaside Heights to compel the B.I.D. to give you any information you are requesting. The B.I.D. is the Management Corporation established by the Seaside Heights Business Improvement District, which was established by the governing body of the Borough of Seaside Heights.”

Denial of Access Complaint – The Complainant states that the BID’s Executive Director denied his November 16, 2004[2] OPRA request on February 11, 2005.

Complainant’s non-legal representative’s follow-up to the BID on Complainant’s November 16, 2004, January 11, 2005, January 21, 2005, February 3, 2005 and February 20, 2005 and February 22, 2005 communications

Council staff transmits a Statement of Information (“SOI”) to the BID via e-mail and facsimile

According to the SOI, this is the date the BID provided documentation to the Complainant

Complainant requests a copies of the SOI and mediation forms sent to the BID, states that the information he received from the BID lacks “the authority for the ‘commission payments,’” and questions whether the Council is adhering to proper time frames for adjudication

Custodian submits completed SOI to the Council along with the following documentation:

Letter from the Complainant to First Assistant U.S. Attorney for New Jersey stating the BID has been “stonewalling” attempts to access information and that he is not confident in the GRC’s process

In a letter to the Council, the Complainant expresses frustration with the GRC’s deadlines and process. In part, the Complainant states that the Custodian’s SOI is “defective” because:

Complainant follows up with Council staff regarding when the case will be adjudicated and expresses dissatisfaction with Council procedures.

Council staff again transmits the SOI and accompanying documentation to the Complainant because United Parcel Service returned the July 12, 2005 transmission as undeliverable

Complainant advises Council that Custodian’s response “is even more deficient than the first one and, in major respects, is an act of malfeasance or worse.”

Council staff transmits to the BID the following letters sent from the Complainant to the Council:

Council staff provides both parties with a copy of the Findings and Recommendations of the Executive Director prepared for the October 13, 2005 Council meeting. The parties are further advised that it is a staff recommendation only and that the case been moved to the Council’s October 28, 2005 agenda.

Letter from Custodian’s counsel stating his disagreement with the Findings and Recommendations of the Executive Director prepared for the October 13, 2005 Council meeting. Counsel states that “the provisions of OPRA are not applicable to the Seaside Heights BID because it is not a public body or agency. Additionally, should the question be reached, the GRC should find that the Custodian’s denial of records was based on good-faith reliance upon legal precedent and was not a knowing and willful violation of OPRA.”

WHETHER the Seaside Heights Business Improvement District is a “Public Agency” under the Open Public Records Act (“OPRA”)?

Any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department. The Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and Any independent State authority, commission, instrumentality or agency The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions (Emphasis added). N.J.S.A. 47:1A-1.1.

According to the February 17, 2000 Certificate of Incorporation on file with the New Jersey Department of the Treasury, the BID is a nonprofit corporation formed pursuant to the provisions of Title 15A, the “New Jersey Nonprofit Corporation Act.” However, the Borough of Seaside Heights’ Ordinance No. 99-36, as introduced and passed on first reading on December 6, 1999, imposes the structure of the BID along with its funding and operational confines. The following are selected sections contained in Ordinance No. 99-36:

The BID will be funded, at least in part, by special assessments “imposed and collected by the Borough.” The payments “shall be transferred to the District Management Corporation [BID].”

The BID ’s annual budget must be submitted to the Borough for “approval by resolution of the governing body.” The ordinance’s use of if the term “Governing body” is a reference to the Borough.

The BID is “composed of up to twenty voting members[3] appointed by the Mayor and approved by the Council Borough of Seaside Heights.” One (1) of that twenty shall be a “ member of the governing body of Borough of Seaside Heights selected from the governing body of the Borough of Seaside Heights.” Another of the twenty shall include “[t]he Public Affairs Director or other Borough employee…”

In her Statement of Information, the Custodian asserts that the Council should dismiss the Denial of Access Complaint because “it [the BID] is not a state agency, or offshoot thereof, or a political entity.” The Custodian asserts, “[t]here is case law Gonzales v. Borough of Freehold and Roc-Jersey v. Town of Morristown that would support this claim[4].” The Custodian did not provide any additional clarification or support for that statement.

The Custodian has not borne her burden of proving pursuant to N.J.S.A. 47:1A-6 that the BID is not a Public Agency under OPRA. She cites court decisions, but then offers no clarification whatsoever as to how the cases apply to her defense.

Most definitions of "public agency" under NJ statutes and the Administrative Code resemble that contained in OPRA. However, the definition of "public body" under the Open Public Meetings Act (OPMA) requires that an entity, "... (1) consist of 'two or more persons' and (2) be 'collectively empowered as a voting body' (3) 'to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds.' N.J.S.A. 10:4-8a..." The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 30, 2004), at 433, 664.

(1) A private, non-profit corporation created for the express purpose of redeveloping property donated to it by the city of Trenton,

(3) With the mandated reversion of the donated property after the completion of the project and repayment of the debt,

(4) Having corporate bylaws requiring the distribution of all assets to the city upon the dissolution or liquidation of the corporation,

(5) Having a Disposition Agreement with the city that designates the city as the "agency" and the corporation as the "redeveloper" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, and

(6) Having the authority to issue tax-exempt bonds for the financing of the project qualified the corporation as a "public body" under the OPMA. The court further held that the corporation was "an 'instrumentality' created by the City and a 'public agency' under the OPRA for essentially the same reasons that it is a 'public body' under the OPMA." Id. at 442, 670.

The Council should find that based on the foregoing discussion of the BID’s budgets, funding and organizational structure, and the judicial precedent of Lafayette Yard defining public agency under OPRA, the Seaside Heights Business Improvement District is a “Public Agency” as defined in N.J.S.A. 47:1A-1.1 and is, therefore, subject to OPRA.

WHETHER the BID’s April 7, 2005 response to Complainant’s November 16, 2004 OPRA constitutes an unlawful denial of access?

The OPRA provides that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions.” N.J.S.A. 47:1A-1.

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.) in the course of his or its official business. N.J.S.A. 47:1A-1.1.

Custodians must provide a written response to OPRA requests. Specifically, “[i]f a custodian is unable to comply with a request for access, the custodian shall indicate the specific reason therefore on the request form and promptly return it to the requestor.” N.J.S.A. 47:1A-5.g.

With regard to the timing of responses to OPRA requests, custodians “shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request…In the event the custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request.” N.J.S.A. 47:1A-7.i.

The OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states that a “public agency shall have the burden of proving that the denial of access is authorized by law.” N.J.S.A. 47:1A-6.

The Custodian in this case did not provide the Complainant with a written response to his November 16, 2004 OPRA request until April 7, 2005. In the BID’s April 7, 2005 response, the Custodian’s representative did provide the Complainant with selected records. However, the Complainant was due a written response by November 26, 2004, or November 29, 2004 if the Custodian’s office was closed the day after Thanksgiving. Either way, the Custodian’s response was more than four months late. Therefore, the Custodian violated sections N.J.S.A. 47:1A-5.g and N.J.S.A. 47:1A-7.i.

The BID memorialized all the points in its April 7, 2005 response to the Complainant in an SOI dated 5/13/05, including a certification that the records being sought dated 2001 were “destroyed when a pipe burst during a snow storm on President’s weekend 2002.”

It is not clear from the record whether the Custodian provided all records responsive to the Complainant’s request. For example, the Complainant’s November 16, 2004 request seeks “a complete breakdown of the commissions paid to the B.I.D. director copies of the payment records for commissions paid to the Seaside Heights B.I.D. director from 2001 to 2004, a detail of the sources of the commissions and how the commissions were calculated. Also, please provide copies of the payment records for commissions paid to the Seaside Heights B.I.D. director from 2001 to 2004.” The BID responds by providing grant awards, sponsorship contracts and special event and fundraiser income breakdowns for 2002, 2003 and 2004. The BID also included a breakdown percentage from which the commissions for its executive director, Maria Maruca, were derived. From the list of documents provided by way of copy to the Council, it is not clear whether the commission payment records exist, and if they were disclosed.

The Complainant also seeks certain resolutions authorizing commissions to be paid to the BID’s executive director. The BID never responded to this portion of the Complainant’s OPRA request.

The Council should order the Custodian to provide a detailed and complete list to the Council and the Complainant itemizing what records the BID maintains that are responsive to the Complainant’s November 16, 2004 request, in whole or in part. The Council should further order that the Custodian provide immediate access to any records that are responsive to the Complainant’s November 16, 2004 request and which have not already been provided. The Custodian must indicate specifically what records, if any, it alleges have already been provided.

A public official, officer, employee or custodian who knowingly and willfully violates (OPRA), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty. 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.

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).

Based on the facts that the Custodian responded to the Complainant’s OPRA request more than four months late, and that the response remains incomplete, the Council should refer this case to the Office of Administrative Law to determine if the Custodian knowingly and willfully violated OPRA.

[1] The subject correspondence mistakenly shows the date as “2004.”
[2] The complainant form mistakenly shows the date in “Description of Records” section as “November 16, 2005.”
[3] Borough Ordinance No. 2001-06 increased the number of voting members of the BID board to 21. Borough Ordinance No. 03-06 again increased the number of voting board members to 22. These two ordinances maintain the process of appointment of voting BID board members by the Mayor and approval by the Borough Council.
[4] This is a direct quote from the Custodian’s May 13, 2005 Statement of Information.