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2005-54

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

Final Decision

John Paff
   Complainant
      v.
Borough of Montvale
   Custodian of Record

Complaint No. 2005-54

 

At its February 17, 2006 public meeting, the Government Records Council (“Council”) considered the February 10, 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 the Custodian has complied with the Council’s October 28, 2005 Interim Order by releasing the Borough’s Closed Session minutes dated March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004, however she failed to do so within the ten (10) business days prescribed by the Council’s decision. 

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

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

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  February 28, 2006

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Supplemental Findings and Recommendations of the Executive Director

John Paff                                                            GRC Complaint No. 2005-54
Complainant
v.
Borough of Montvale
Custodian of Records

Records Requested:

  1. “Written advance notice that gave ‘adequate notice’ of any Closed Executive Sessions of the Borough Council that may have been held on July 13, 2004 and September 28, 2004 prior to 7:30 p.m.
  2. Redacted minutes of any Closed Executive Sessions held by the Borough Council on the following dates: July 11, 2002; January 27, 2004; March 9, 2004; April 27, 2004; July 13, 2004; September 28, 2004; and November 22, 2004
  3. Resolutions passed prior to every Closed Executive Session held by the Borough Council on the following dates: July 11, 2002; January 27, 2004; March 9, 2004; April 27, 2004; July 13, 2004; September 28, 2004; and November 22, 2004
  4. Any fax receipt, or other document indicating the Borough’s receipt of a written OPRA request or other communication from John Paff, on or about January 11, 2005 at the Borough’s fax number of 201-391-9317
  5. Any fax receipt or log indicating the receipt of any and all faxes received at the Borough’s fax number of 201-391-9317 between January 11, 2005, 5 p.m. and January 12, 2005, 8 a.m.
  6. The Borough’s written response to any records request or other communication from John Paff received during January 2005.”[1]

Request Made: January 11, 2005 and February 16, 2005
Response Made: March 3, 2005
Custodian: Maureen Iarossi-Alwan
GRC Complaint filed: March 15, 2005

Background

October 28, 2005

Interim Decision on Access. At its October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 21, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council found that:

  1. The Custodian is to redact the exempt information contained in the requested Closed Session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that have not already been released, specifically minutes from the Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004 Closed Sessions. The Custodian is to provide the Complainant access to said documents within ten (10) business days from receipt of the Council’s decision with confirmation of compliance to the Executive Director.
  2. The Custodian violated OPRA in not releasing the Closed Session minutes to the Complainant within the seven (7) business day time period as prescribed in N.J.S.A. 47:1A-5.i.
  3. The Borough violated N.J.S.A. 47:1A-5.h. by not forwarding the OPRA request to the Custodian.
  4. The Borough’s OPRA request form is currently in compliance with N.J.S.A 47:1A-5.f. and does not require an amendment.
  5. Dictating office policies to Custodians is not within the Council’s authority pursuant to N.J.S.A. 47:1A-7.b.
  6. While the Custodian did not fully comply with OPRA statutes, her actions do not meet the legal standard required to determine a knowing and willful violation of OPRA and an unreasonable denial of access under the totality of circumstances pursuant to N.J.S.A. 47:1A-7.e.

November 28, 2005

Letter from GRC staff to Custodian.  Staff requests confirmation of compliance to the Council’s October 28, 2005 Interim Decision. 

December 12, 2005

E-mail from Custodian to GRC staff.   The Custodian states that the minutes to be released to the Complainant are under attorney review and will be released by the Borough Attorney upon approval. 

December 15, 2005

Letter from Borough Attorney to Complainant.  The Attorney releases the Borough’s Closed Session minutes dated March 9, 2004, August 3, 2004, and September 28, 2004.  He apologizes for any delay in access.

December 27, 2005

Letter from Custodian to GRC staff.  The Custodian states that on December 15, 2005, the Borough Attorney provided the Complainant with March 9, 2004, August 3, 2004, and September 28, 2004 closed session minutes.  She also states that reproduction costs were waived. 

January 6, 2006

Facsimile from Custodian to GRC staff.  The Custodian encloses the Borough’s April 27, 2004 and July 13, 2004 Closed Session minutes and states that she will be mailing said minutes to the Complainant at no cost to him.

January 9, 2006

Letter from Custodian to GRC staff.  The Custodian certifies that on Friday, January 6, 2006, she mailed the Complainant copies of the Borough’s Closed Session minutes dated April 27, 2004 and July 13, 2004 and faxed them to the GRC.  She also certifies that reproduction costs to the Complainant were waived. 

Analysis

WHETHER the Custodian has complied with the Government Records Council’s October 28, 2005 Interim Decision?

Based on the Custodian’s December 27, 2005 letter to GRC staff and her January 9, 2006 certification, she has complied with the Council’s Interim Decision by releasing the following Closed Session minutes to the Complainant: March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004.  Although the Custodian complied by releasing the requested minutes, she failed to do so within the ten (10) business day timeframe prescribed by the Council’s October 28, 2005 decision.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that the Custodian has complied with the Council’s Interim Decision by releasing the Borough’s Closed Session minutes dated March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004, however she failed to do so within the ten (10) business days prescribed by the Council’s October 28, 2005 decision. 

Prepared By:  Dara Lownie, Case Manager

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

February 10, 2006


[1] As stated on written OPRA request

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Interim Decision on Access

John Paff
    Complainant
         v.
Borough of Montvale
    Custodian of Record

Complaint No. 2005-54

 

At the October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 21, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:

  1. The Custodian is to redact the exempt information contained in the requested Closed Session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that have not already been released, specifically minutes from the Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004 Closed Sessions. The Custodian is to provide the Complainant access to said documents within ten (10) business days from receipt of the Council’s decision with confirmation of compliance to the Executive Director.
  2. The Custodian violated OPRA in not releasing the Closed Session minutes to the Complainant within the seven (7) business day time period as prescribed in N.J.S.A. 47:1A-5.i.
  3. The Borough violated N.J.S.A. 47:1A-5.h. by not forwarding the OPRA request to the Custodian.
  4. The Borough’s OPRA request form is currently in compliance with N.J.S.A 47:1A-5.f. and does not require an amendment.
  5. Dictating office policies to Custodians is not within the Council’s authority pursuant to N.J.S.A. 47:1A-7.b.
  6. While the Custodian did not fully comply with OPRA statutes, her actions do not meet the legal standard required to determine a knowing and willful violation of OPRA and an unreasonable denial of access under the totality of circumstances pursuant to N.J.S.A. 47:1A-7.e.

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

Diane Schonyers, Vice-Chair
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  November 3, 2005

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Findings and Recommendations of the Executive Director

John Paff                                                            GRC Complaint No. 2005-54 
Complainant
          v.
Borough of Montvale
Custodian of Records

Records Requested:

  1. “Written advance notice that gave ‘adequate notice’ of any Closed Executive Sessions of the Borough Council that may have been held on July 13, 2004 and September 28, 2004 prior to 7:30 p.m.
  2. Redacted minutes of any Closed Executive Sessions held by the Borough Council on the following dates: July 11, 2002; January 27, 2004; March 9, 2004; April 27, 2004; July 13, 2004; September 28, 2004; and November 22, 2004
  3. Resolutions passed prior to every Closed Executive Session held by the Borough Council on the following dates: July 11, 2002; January 27, 2004; March 9, 2004; April 27, 2004; July 13, 2004; September 28, 2004; and November 22, 2004
  4. Any fax receipt, or other document indicating the Borough’s receipt of a written OPRA request or other communication from John Paff, on or about January 11, 2005 at the Borough’s fax number of 201-391-9317
  5. Any fax receipt or log indicating the receipt of any and all faxes received at the Borough’s fax number of 201-391-9317 between January 11, 2005, 5 p.m. and January 12, 2005, 8 a.m.
  6. The Borough’s written response to any records request or other communication from John Paff received during January 2005.”[1]

Request Made:  January 11, 2005 and February 16, 2005
Response Made: March 3, 2005
Custodian:  Maureen Iarossi-Alwan
GRC Complaint filed: March 15, 2005

Background

January 11, 2005

Complainant’s written Open Public Records Act (OPRA) Request.  The Complainant seeks the following documents: written advance notice of Borough Council’s Closed Executive Sessions which may have been held on July 13, 2004 and September 28, 2004 prior to 7:30 p.m.; redacted minutes of the Borough Council’s Closed Executive Sessions held on July 11, 2002, January 27, 2004, March 9, 2004, April 27, 2004, July 13, 2004, September 28, 2004, and November 22, 2004; Resolutions passed prior to Borough Council’s Closed Executive Sessions held on July 11, 2002, January 27, 2004, March 9, 2004, April 27, 2004, July 13, 2004, September 28, 2004, and November 22, 2004.  To fulfill his request, the Complainant authorizes an expenditure of up to $18.00.  

February 16, 2005

Complainant’s second OPRA request submitted to Borough.  The Complainant seeks the same documents as requested in his January 11, 2005 OPRA request, in addition to “any fax receipt, or other document indicating the Borough’s receipt of a written OPRA request or other communication from John Paff, on or about January 11, 2005 at the Borough’s fax number of 201-391-9317, any fax receipt or log indicating the receipt of any and all faxes received at the Borough’s fax number between January 11, 2005, 5 p.m. and January 12, 2005, 8 a.m., and the Borough’s written response to any records request or other communication from John Paff received during January 2005.”[2]  The Complainant again authorizes an expenditure of up to $18.00 for the fulfillment of this request. 

March 3, 2005

Facsimile from Custodian to Complainant.  The Custodian states that the Borough does not maintain a fax log and that requests regarding Closed Session minutes must go through attorney review prior to release and will require additional time.  The Custodian states she attached a copy of the Borough’s Resolution No. 17-2004, as requested by the Complainant. 

March 15, 2005

Denial of Access Complaint filed with the Government Records Council (GRC) staff.  Complaint included the following attachments:

  • Complainant’s written OPRA request dated January 12, 2004
  • Complainant’s January 11, 2005 fax receipt for written OPRA request
  • Complainant’s February 16, 2005 second written OPRA request
  • Complainant’s February 16, 2005 fax receipt for second OPRA request
  • March 3, 2005 Facsimile from Custodian to Complainant

The Complainant states that on January 11, 2005 he faxed his written OPRA request dated January 12, 2005 to the Borough at the fax number 201-391-9317, which is the fax number advertised on the Borough’s website.  The Complainant alleges that he received a fax receipt showing that the January 11, 2005 fax was transmitted successfully.  The Complainant claims that he did not receive a response from the Borough, so on February 16, 2005, he faxed an additional OPRA request to the same fax number.  This second request contains the same request for documents as the first, in addition to documents regarding the receipt and handling of the Complainant’s first written OPRA request by the Borough.  The Complainant states that he also received a fax receipt showing the successful transmittal of this February 16, 2005 request. 

The Complainant alleges that on or about March 2, 2005, the Custodian of Records for the Borough contacted him by telephone, after exchanging several voicemails.  According to the Complainant, the Custodian informed him that the Borough did not retain a log of incoming faxes and that the Borough’s fax machine was not located in her office, therefore a member of the public could not rely upon requests being properly received and directed to her attention.  The Complainant states that he received written correspondence from the Custodian on March 3, 2005 in which the Custodian reaffirmed that the Borough does not maintain a log of incoming faxes, alleged that the Borough needed additional time to respond to Closed Session requests due to attorney review, and that the requested Resolution was attached. 

The Complainant raises the issue of timeliness stating that the “Custodian failed to send a written response to the January 11, 2005 record request within the seven (7) business day period required by OPRA.”[3]  The Complainant also states that his February 16, 2005 requests for “written advanced notice of the Borough Council’s Closed Executive Sessions that may have been held on July 13, 2004 and September 28, 2004, and redacted minutes from the Borough Council’s Closed Sessions held on July 11, 2002, January 27, 2004, March 9, 2004, April 27, 2004, July 13, 2004, September 28, 2004, and November 22, 2004,”[4] were not released and that the Custodian failed to provide a lawful reason for nondisclosure.  Additionally, the Complainant claims that the Custodian’s OPRA request form does not comply with N.J.S.A. 47:1A-5.f..

The Complainant seeks relief from the Council in the following matters: that the Council will assist this Custodian in establishing office policies that would make future violations of this type unlikely; that the Council compels the Custodian to release records requested in February 16, 2005 OPRA request; and that the Council compels the Borough to amend their OPRA request form to comply with N.J.S.A. 47:1A-5.f. 

March 21, 2005

Offer of Mediation sent to both parties.

March 21, 2005

Complainant’s faxed declination of mediation.[5]

March 28, 2005

Government Records Council (GRC) staff sends request for Statement of Information to Custodian.

March 30, 2005

Custodian’s Statement of Information.  The Custodian alleges that the Complainant’s January 11, 2005 written OPRA request was not received by the Borough, however, the Complainant’s February 16, 2005 request was received on February 17, 2005.  The Custodian claims that she began verbal communication with the Complainant on February 18, 2005 and that she responded to the Complainant in writing on March 3, 2005, in which she released a copy of Resolution #17-2004 dated January 5, 2004 and “responded to other inquiries, as previously discussed with requestor.”[6]

In reference to the Complainant’s request for a fax receipt indicating the Borough’s receipt of John Paff’s January 11, 2005 records request, and the written advance notice of the Borough Council’s Closed Executive Sessions that may have been held on July 13, 2004 and September 28, 2004, the Custodian asserts that no such documents exist.  Besides Resolution #17-2004, which was released to the Complainant on March 3, 2005, the Custodian claims that no other Resolutions exist in response to the Complainant’s request.  In response to the Complainant’s request for a fax log from the Borough’s fax number of 201-391-9317 between January 11, 2005, 5 p.m. and January 12, 2005, 8 a.m., as well as the Complainant’s request for the Borough’s written response to any records request from John Paff during January 2005, the Custodian asserts that “no such document is maintained by the Borough.”[7]  The Custodian also claims that the Complainant’s request for Closed Executive Session minutes were not authorized for release as of the February 16, 2005 request. 

April 1, 2005

E-mail from Custodian’s counsel to GRC staff.  Counsel acknowledges that he is representing the Custodian and that a formal response is being prepared and will be sent to the GRC office by April 5, 2005.

April 4, 2005

Letter from Custodian’s counsel to GRC staff with the following attachment:

  • Borough of Montvale OPRA Request Form

The Custodian’s counsel asserts that the Custodian has no record of ever receiving the Complainant’s January 11, 2005 request for records.  Although the Complainant alleges he has proof of a successful facsimile transmittal, the Custodian’s Counsel claims the Custodian did not receive the request, as many others use that fax machine as well. 

Acknowledging receipt of the Complainant’s February 16, 2005 request, counsel states that the Custodian contacted the Complainant by phone within one (1) day of receiving the request in order to clarify the request.  Counsel claims that during this verbal phone conversation, the Custodian informed the Complainant “what was and was not readily available and to advise that there would be a slight delay in obtaining the Closed Session Minutes due to the necessity of a signoff from the Borough Attorney and/or redaction from those documents of privileged material.”[8]  Due to the verbal communication between the Complainant and the Custodian, counsel alleges that this constitutes a waiver of the time limit for response. 

Regarding the Complainant’s February 16, 2005 request for a fax receipt indicating communication from John Paff on January 11, 2005, a fax log of all faxes received between January 11, 2005, 5 p.m. and January 12, 2005, 8 a.m., and the Borough’s written response to John Paff’s January 11, 2005 records request, the Custodian’s counsel asserts that the Borough has no such records.  Counsel’s response to the Complainant’s request for written advance notice of Closed Executive Session minutes is that this document does not exist because the Borough decides to go into a Closed Session meeting by a voice vote at a regular meeting.  Counsel states that the Custodian gave the Complainant what she thought would be the “most nearly compliant document.”[9]  Counsel claims that the Custodian could not comply with the request for Closed Session minutes at the time of the request because the minutes needed to be redacted and approved by the Borough Attorney.  Counsel states that the Custodian is now able to comply with this request.  In regards to the Complainant’s final request for Resolutions passed prior to the Borough’s Closed Session meetings, counsel claims that no documents exist again because the Borough Council decides to go into Closed Session by a voice vote, which would be noted in regular session minutes. 

The Custodian’s Council claims that the Complainant’s suggestion that the Borough’s OPRA Form is not compliant with N.J.S.A. 47:1A-5.f. is false.  Counsel alleges that the form used by the Complainant is outdated and was not used by the Borough at all during 2005. 

Commenting on the Complainant’s requested relief from the Council, the Custodian’s counsel states that the Custodian does not object to a recommendation for improvement of office policies, as long as she is not found with wrongdoing on her part in this case.  Counsel also claims that there is no need for an order to release documents to the Complainant because either the documents do not exist or they would have already been released by the time of adjudication.  In regards to amending the Borough’s OPRA request form, counsel asserts that no amendment is necessary because the form is compliant and has been in use since the middle of 2004. 

April 6, 2005

Letter from Complainant to GRC staff.  The Complainant alleges that the counsel’s April 4, 2005 letter was the first to inform him that records for written advance notice for Closed Executive Session minutes, and resolutions passed prior to Closed Sessions do not exist.  The Complainant raises the issue that the Custodian was under a duty to inform him, the requestor, that these documents did not exist, and that releasing the most nearly compliant document with nothing more does not sufficiently grant or deny access to records requested.  As of the date of this letter, April 6, 2005, the Complainant notes that it has taken nearly thirty (30) business days for the Custodian to comply with his request for Closed Session Minutes. 

After reviewing the Borough’s revised OPRA request form, the Complainant asserts that this form lacks the GRC’s contact information and therefore is not in compliance with N.J.S.A. 47:1A-5.f. 

April 21, 2005

Letter from Complainant to GRC staff.  The Complainant states that on April 11, 2005, the Custodian’s counsel disclosed several requested documents.  These documents included the Borough Council’s redacted Closed Session minutes from July 11, 2002, and January 27, 2004, the Borough Council’s redacted Closed Session meeting agendas from March 9, 2004, April 27, 2004, and July 13, 2004, as well as the November 22, 2004 open meeting minutes.  The Complainant asserts that redacted minutes from the Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004 Closed Sessions have yet to be disclosed. 

The Complainant wishes to reserve his right to “amend his complaint, file a new one, or challenge the level of redaction applied to records”[10] released by the Custodian’s Counsel on April 11, 2005. 

April 21, 2005

E-mail from GRC staff to Complainant.  The GRC staff acknowledges receipt of Complainant’s April 21, 2005 letter. 

Analysis

WHETHER the Custodian unlawfully denied access to records requested by the Complainant in the January 11, 2005 and February 16, 2005 OPRA requests?

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.”

N.J.S.A. 47:1A-1.1 provides that: “Government record” or “record” means any paper, written or printed book, document, drawing, amp, 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 maintained or kept on file in the course of his or its official business…”

N.J.S.A. 47:1A-6. provides 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-5.i. provides that: “…[u]nless a shorter time period is otherwise provided b 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.) 

The Custodian asserts that she did not receive any records request dated January 11, 2005 and that she did receive the Complainant’s records request dated February 16, 2005.  The Custodian’s Counsel claims that the Custodian began verbal communication with the Complainant on or about February 18, 2005 and responded in writing on March 3, 2005.  The Custodian certifies that in her March 3, 2005 written response to the Complainant, she enclosed a copy of a requested Resolution, indicated that the Borough does not maintain a fax log, and explained that Closed Session minutes could not be released until reviewed by the Borough’s Attorney.  The Complainant confirms this response.  The Borough’s Attorney alleges that the delay in releasing Closed Session minutes was due to the fact that he needed to redact certain privileged material.

The Complainant states that on April 11, 2005, the Custodian’s Counsel disclosed several requested documents.  These documents included the Borough Council’s redacted Closed Session minutes from July 11, 2002, and January 27, 2004, the Borough Council’s redacted Closed Session meeting agendas from March 9, 2004, April 27, 2004, and July 13, 2004, and November 22, 2004’s open meeting minutes.  The Complainant asserts that redacted minutes from the Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004 Closed Sessions have yet to be disclosed. 

Based on N.J.S.A. 47:1A-5.i., a delay in access to records beyond the seven (7) business day time frame, without proof of a lawful reason for the delay shall be deemed a denial of access.  Additionally, with regard to the Closed Session minutes that have not already been released, the Custodian should redact the exempt information contained in the requested Closed Session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that have not already been released. 

Therefore, the Custodian is in violation of N.J.S.A. 47:1A-6 for failing to adequately bear her burden of proving that the March 3, 2005 denial of access was lawful.  As such, the Custodian should redact the exempt information contained in the requested Closed Session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that have not already been released. 

WHETHER the Custodian properly responded to the Complainant’s February 16, 2005 OPRA request pursuant to N.J.S.A. 47:1A-5.i and N.J.S.A. 47:1A-5.g.?

N.J.S.A. 47:1A-5.i. provides that: “…[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … ”    (Emphasis added.) 

N.J.S.A. 47:1A-5.g. provides that: “ …If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor…”

The Complainant states that he faxed his written OPRA request to the Borough on January 11, 2005 and received a receipt indicating a successful transmittal however, the Custodian asserts that this request was never received.  The Complainant claims that he received no response from the Borough, so he faxed a second request to the same fax number on February 16, 2005, which the Custodian states was received. The Custodian asserts that verbal communication was established on or about February 18, 2005. The Complainant claims that on or about March 2, 2005 he spoke to the Custodian on the phone where she indicated that Closed Session minutes could not be released until redacted and/or reviewed by an attorney.  The Complainant and the Custodian agree that written correspondence from the Custodian was forwarded to the Complainant on March 3, 2005 in which she released a copy of a requested Resolution, claimed that the Borough of Montvale does not maintain a fax log, and stated that Closed Session minutes cannot be released until reviewed by the Borough’s Attorney. 

Custodians are required to respond to records request within the statutorily mandated seven (7) business days pursuant to N.J.S.A. 47:1A-5.i.  Under OPRA, attorney review of Closed Session minutes does not extend the seven (7) business day time period of which to respond to a records request.  Based on the certification of the Custodian contact was made with the Complainant within the seven (7) business day time frame however, she did not respond in writing during this time.  When the Custodian did respond in writing, the seven (7) business day time period had expired. Besides the alleged fact that these minutes needed redaction and attorney review, the Custodian failed to provide the Complainant with a written reason for the denial or delay or the expected date the documents would be available, within the seven (7) business days pursuant to N.J.S.A. 47:1A-5.g.

The Custodian should have released the Closed Session minutes to the Complainant within the seven (7) business day time period as prescribed in OPRA, therefore the Custodian is in violation of N.J.S.A. 47:1A-5.i.

WHETHER the Borough failed to forward the January 11, 2005 OPRA request to the Custodian of Records?

N.J.S.A. 47:1A-5.h. provides that: “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 record.”

N.J.S.A. 47:1A-5.g. provides that “[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…”   (Emphasis added.)

The Complainant asserts that he has a receipt of the successful fax transmittal to his January 11, 2005 OPRA request.  The Custodian alleges that she did not receive this faxed request for records.  The Complainant claims, as per a phone conversation with the Custodian, that the Custodian said the Borough’s fax machine is not located in her office because it also serves other Borough offices, therefore could not be relied upon to properly receive records requests.  The Complainant stated that he faxed his February 16, 2005 request to the same fax number as his first request.  He also states that he received a receipt of a successful transmittal for this request.  The Custodian certifies receiving this request on February 17, 2005. 

OPRA requires public agencies to receive requests for records that are hand-delivered, mailed, or transmitted electronically, to forward such requests to the Custodian or refer the requestor to the Custodian.  In this case, the Complainant has a fax receipt of a successful fax transmittal to the Borough dated January 11, 2005, however, the Custodian asserts she never received such request and the Complainant claims that he was not directed to the Custodian.  Based on these facts, it is concluded that the Borough was in receipt of the January 11, 2005 OPRA request and failed to forward the request to the Custodian.

Therefore, the Borough is in violation of N.J.S.A. 47:1A-5.h. in failing to forward the Complainant’s January 11, 2005 OPRA request to the Custodian. 

WHETHER the Council should compel the Custodian to amend their OPRA Request Form and assist the Custodian in establishing office policies to prevent future OPRA violations?

N.J.S.A. 47:1A-7.b. provides that: “The Government Records Council shall…prepare an informal pamphlet explaining the public’s right of access to government records and the methods for resolving disputes regarding access, which records custodians shall make available to person’s requesting access to a government record…[and] make training opportunities available for records custodians and other public officers and employees which explain the law governing access to public records…”

N.J.S.A. 47:1A-5.f. provides that: “The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency…The form shall include space for…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…”

The Complainant argues that the OPRA request form is not in compliance with N.J.S.A. 47:1A-5.f. because it fails to provide the requestor with “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.”[11]  The Custodian’s counsel asserts that the form used by the Complainant is no longer in use by the Borough, and the form currently in existence is in compliance with N.J.S.A. 47:1A-5.f.  Counsel also claims that this form has been in use since mid-2004.  After reviewing the Borough’s revised OPRA request form attached in Counsel’s April 4, 2005 letter, the Complainant still alleges that the form fails to comply with N.J.S.A. 47:1A-5.f. because it lacks the GRC’s contact information, in terms of the procedure for filing an appeal. 

Pursuant to N.J.S.A. 47:1A-5.f., OPRA requires that a public agency’s request form include “[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.”  The OPRA request form that the Complainant filed with the Borough lacked this information.  The form submitted by the Custodian’s Counsel on April 4, 2005 does include a statement of the requestor’s right to appeal as well as the procedure for filing an appeal.  The current form posted on the Borough’s website includes this as well as the GRC’s contact information. 

Therefore, the Borough’s OPRA request form is currently in compliance with N.J.S.A. 47:1A-5.f. and does not need amending as it does include “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.”

Additionally, the Complainant asks that the Council work with the Custodian and help her establish office policies that would prevent future OPRA violations.  The Complainant states that as per a phone conversation with the Custodian, she said that a member of the public could not rely upon faxed OPRA requests being properly received, as the Borough’s fax machine is not located in her office. 

While N.J.S.A. 47:1A-7.b. mandates that the Council make available training opportunities for Custodians, however, it is not within the Council’s authority to dictate office policies to Custodians. 

WHETHER there was a knowing and willful violation of OPRA under the totality of the circumstances?

N.J.S.A. 47:1A-7.e. provides that: “…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-11. provides that: “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…”

According to the Custodian, the denial of access to records requested was due to the fact that some requested records did not exist, and that closed session minutes allegedly needed redaction and/or attorney review.  The Custodian certifies that she never received the Complainant’s January 11, 2005 request.  The Custodian certifies receipt of the February 16, 2005 request and that she commenced verbal communication with the Complainant on or about February 18, 2005.  The Custodian’s counsel claims that as per a phone conversation, the Custodian notified the Complainant that the Borough did not maintain fax logs and that Closed Session minutes could not be released until review or redaction by the Borough’s attorney.  The Custodian certifies that she responded to the Complainant’s February 16, 2005 request in writing on March 3, 2005 restating that there would be a delay in the release of closed session minutes, that the Borough did not maintain a fax log, and that a copy of the requested Resolution was attached.  The Custodian’s counsel claims that the Complainant did not mention any dissatisfaction with the delay in the release of Closed Session minutes by the Custodian. 

The Complainant asserts that on April 11, 2005, the Custodian’s Counsel disclosed several requested documents.  These documents included the Borough Council’s redacted Closed Session minutes from July 11, 2002, and January 27, 2004, the Borough Council’s redacted Closed Session meeting agendas from March 9, 2004, April 27, 2004, and July 13, 2004, and November 22, 2004’s open meeting minutes.  The Complainant asserts that redacted minutes from the Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004 Closed Sessions have yet to be disclosed. 

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

In this case, the facts support the notion that the Custodian believed she was following the law in notifying the Complainant of a delay in releasing closed session minutes.  Although, the Custodian did notify the Complainant on this matter, she failed to do so in writing within the required seven (7) business day time period.  The Custodian also stated that she did not release requested documents to the Complainant because no such documents existed or were maintained by the Borough.  While the Custodian did notify the Complainant in writing that no fax logs were maintained with the Borough, she failed to specifically deny access to the requested written advance notice of the Borough Council’s Closed Sessions.  Additionally, the Custodian failed to provide an expected date of release for the closed session minutes to the Complainant.  However, on April 11, 2005, the Custodian released some, not all of the requested minutes. 

Although the facts support that the Custodian did not fully comply with OPRA statutes, her actions do not meet the legal standard required to determine a knowing and willful violation of OPRA under the totality of the circumstances pursuant to N.J.S.A. 47:1A-7.e. since the Custodian certifies never receiving the January 11, 2005 OPRA request and she responded to the February 16, 2005 request on the eighth day, only one day past the required timeframe.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

  1. The Custodian violated N.J.S.A. 47:1A-6 for failing to prove that the denial of access to Closed Session minutes was authorized by law. 
  2. The Custodian should redact the exempt information contained in the requested Closed Session minutes, providing a detailed and lawful basis for each redacted part thereof and provide access to those redacted minutes that have not already been released, specifically minutes from the Borough Council’s March 9, 2004, April 27, 2004, July 13, 2004, and September 28, 2004 Closed Sessions.
  3. The Custodian violated OPRA in not releasing the Closed Session minutes to the Complainant within the seven (7) business day time period as prescribed in N.J.S.A. 47:1A-5.i.
  4. The Borough violated N.J.S.A. 47:1A-5.h. by not forwarding the OPRA request to the Custodian.
  5. The Borough’s OPRA request form is currently in compliance with N.J.S.A 47:1A-5.f. and does not require an amendment.
  6. Dictating office policies to Custodians is not within the Council’s authority pursuant to N.J.S.A. 47:1A-7.b.
  7. That while the Custodian did not fully comply with OPRA statutes, her actions do not meet the legal standard required to determine a knowing and willful violation of OPRA under the totality of circumstances pursuant to N.J.S.A. 47:1A-7.e.

Prepared By: Dara Lownie, Case Manager

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

October 21, 2005


[1] As stated on written OPRA request
[2] As stated on written OPRA request
[3] As stated on Denial of Access Complaint
[4] As stated on written OPRA request
[5] Custodian also declined medication
[6] As stated on Statement of Information
[7] As stated on Statement of Information
[8] As stated on April 4, 2005 letter
[9] As stated on April 4, 2005 letter
[10] As stated on April 21, 2005 letter
[11] As stated on Denial of Access Complaint

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