2005-64

Final Decision

At its July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 6, 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 it adopts the Initial Decision of the Office of Administrative Law and find that the parties in this case voluntarily agreed to settle this matter. Therefore, no further action is required on the part of Council.  

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

Final Decision Rendered by the

Government Records Council

On The 20^th Day of July, 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:  July 20, 2006

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Supplemental Findings and Recommendations of the Executive Director

Records Relevant to Complaint:

1. “Copies of all letters to and from the township of Scotch Plains and the Union County Freeholder Board from 1/1/99 to 12/01/04, pertaining to the Senior Focus initiative grant. Including but not limited to the correspondence from Scotch Plains to County Manager Lapola’s May 15, 2001 letter requesting an update report. Also, correspondence from Scotch Plains to County Manager Devanney’s May 1, 2002 letter requesting a report on how you are serving seniors in your municipality. In addition, Scotch Plains original application for Senior Focus initiative funds and all letters and interoffice memos between your recreation department, Scotch Hills Country Club and the township concerning Senior Focus initiative grant.”
2. “View for copies: Purchase orders, invoices and checks of the funds spent by the township of Scotch Plains for the construction, renovations, purchases, and repairs to any part of the Scotch Hills Country Club’s new Pro Shop. Additionally, purchase orders, invoices, and checks of funds spent by the township of Scotch Plains for the ‘substantial renovations to our Scotch Hills Country Club Facility where our senior citizen clubs have met and socialized for years.’”[1]

Request Made: December 20, 2004 and February 7, 2005

Response Made: None

Custodian: Barbara Reipe

GRC Complaint filed: March 7, 2005

Background

July 14, 2005

          Government Records Council’s (“Council”) Interim Order. At the July 14, 2005 public meeting, the Council considered the July 8, 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:

1. Referred the case to the Office of Administrative Law (“OAL”) to determine the following:
   1. Whether there was a denial of access to government records pursuant to N.J.S.A. 47:1A-1 et. seq.?
   2. Whether the Custodian provided immediate access to invoices pursuant to N.J.S.A. 47:1A-5.e.?
   3. Whether the Custodian violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. in their response to the OPRA request?
   4. Whether the Custodian’s delay in access constitutes a knowing and willful violation of OPRA under the totality of the circumstances?

2. Found pursuant to N.J.S.A. 47:1A-7.b., which delineates the Council’s powers and duties, the GRC does not have jurisdiction over the use of Senior Focus Initiative Funds or the content of the records provided.

October 19, 2005

            Notice of Filing from the OAL. 

June 1, 2006

            The Initial Decision from the Administrative Law Judge (ALJ) at the OAL. Upon review of the record and settlement by the parties, the ALJ found that the parties have voluntarily agreed to settle this case; which fully disposes of all issues in controversy.

Analysis

No analysis is needed at this time. The ALJ found that the parties in this case voluntarily agreed to settle this matter at the OAL. Therefore, the Council should adopt the Initial Decision of the ALJ and no further action is required.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council adopt the Initial Decision of the ALJ and find that the parties in this case voluntarily agreed to settle this matter. Therefore, no further action is required on the part of Council.  

Colleen C. McGann

Case Manager

Catherine Starghill, Esq.

Executive Director

July 6, 2006

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Interim Decision on Access

At the July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 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:

1. Referred the case to the Office of Administrative Law to determine the following:
   1. Whether there was a denial of access to government records pursuant to N.J.S.A. 47:1A-1 et. seq.?
   2. Whether the Custodian provided immediate access to invoices pursuant to N.J.S.A. 47:1A-5(e)?
   3. Whether the Custodian violated N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g) in their response to the OPRA request?
   4. Whether the Custodian’s delay in access constitutes a knowing and willful violation of OPRA under the totality of the circumstances?
2. Found pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC does not have jurisdiction over the use of Senior Focus Initiative Funds or the content of the records provided.

Interim Decision Rendered by the
Government Records Council
On The 14^th Day of July, 2005

Vincent P. Maltese, Chairman
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:  July 20, 2005

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Findings and Recommendations of the Executive Director

Records Requested:

1. “Copies of all letters to and from the township of Scotch Plains and the Union County Freeholder Board from 1/1/99 to 12/01/04, pertaining to the Senior Focus initiative grant. Including but not limited to the correspondence from Scotch Plains to County Manager Lapola’s May 15, 2001 letter requesting an update report. Also, correspondence from Scotch Plains to County Manager Devanney’s May 1, 2002 letter requesting a report on how you are serving seniors in your municipality. In addition, Scotch Plains original application for Senior Focus initiative funds and all letters and interoffice memos between your recreation department, Scotch Hills Country Club and the township concerning Senior Focus initiative grant.”[1] 
2. “View for copies: Purchase orders, invoices and checks of the funds spent by the township of Scotch Plains for the construction, renovations, purchases, and repairs to any part of the Scotch Hills Country Club’s new Pro Shop. Additionally, purchase orders, invoices, and checks of funds spent by the township of Scotch Plains for the ‘SUBSTANTIAL RENOVATIONS TO OUR SCOTCH HILLS COUNTRY CLUB FACILITY WHERE OUR SENIOR CITIZEN CLUBS HAVE MET AND SOCIALIZED FOR YEARS.’”[2]

Request Made: December 20, 2004 and February 7, 2005
Response Made: None[3]
Custodian: Barbara Reipe
GRC Complaint filed: March 7, 2005

Background

December 20, 2004
Complainant’s written Open Public Records Act (OPRA) Request. The Complainant sought copies of correspondence regarding the Senior Focus initiative grant.

February 7, 2005
Complainant’s written OPRA Request. The Complainant sought copies of purchase orders, invoices ad vouchers regarding funds spent by the Township on the Scotch Hills Country Club.

March 7, 2005
Complainant’s Denial of Access Complaint with the following attachments:

• December 20, 2004 Complainant’s written OPRA Request
• February 7, 2005 Complainant’s written OPRA Request.

The Complainant stated the December 20, 2004 OPRA request was hand-delivered to the Custodian and no response was provided to this request until the Complainant visited the city clerk on January 11, 2005 who referred the requestor to the Director of Recreation. Upon contacting the Director of Recreation the Complainant asserts he was told that he would be receiving a call shortly, however, no indication was made as to when the records would be available and the Complainant asserted he did not receive a call. The Complainant alleged that he then sent a follow up note on January 26, 2005 to the Recreation Director stating, “If you think that ignoring me, I will just go away, you made a big mistake.” The Complainant then submitted another records request for financial information on February 7, 2005.

No response was received from the Custodian at the time the Denial of Access Complaint was filed. The Complainant cites an issue of timeliness, as the Complainant received no response to either request in a timely manner. Additionally, no documents were provided in response to the requests. The Complainant goes on to state that he believes he was denied access to the requested records because the Township improperly spent the Senior Focus Initiative Grant funds. Additionally the Complainant adds that he reviewed the use of these funds in a number of municipalities and “in all but two (2) of the seventeen municipalities (the Complainant) found an alarming pattern of lies, suspicious record keeping, misreports, bad mistakes in judgment and illegal use of this grant money.” As a result the Complainant would like the GRC to know that the records he received from most towns reflect a disregard for the senior population and the Complainant requests a meeting so that he may “present (to the Council) other extremely important documents and suspicions.”          

March 29, 2005
Offer of Mediation sent to both parties.

March 30, 2005
Complainant’s signed Agreement to Mediate.[4]

April 7, 2005
Custodian’s Statement of Information with the following attachments:

• December 20, 2005 Complainant’s written OPRA Request
• February 7, 2005 Complainant’s written OPRA Request.

The Custodian asserted that the Director of Parks and Recreation, Ray Poerio “went over the files and discussed” the spending of the Senior Focus Initiative Grant. The Director also offered to bring the Complainant on-site to see what had been accomplished with the Senior Focus Initiative Funds and it was the Director’s impression that the verbal information satisfied the Complainant’s request and answered his questions. Additionally, the Custodian states that the Director offered to make copies and the Custodian felt they had made a good faith effort to comply with the records request.   

May 6, 2005
Letter from the Complainant to the GRC staff. The Complainant stated that he was not satisfied with the records provided. The Complainant asserted that the Town’s statement that they felt the Complainant was satisfied with the verbal explanations provided to him was untrue. The Complainant spent 2 hours reviewing over 400 pages of correspondence concerning what the Town planned to do with the funds. The Complainant alleged that no financial documents were provided to indicate what the grant monies were spent on and to whom they were paid, no copies were offered and no information was provided on the use of Senior Focus funds.

June 16, 2005
E-mail from GRC staff to the Complainant. The GRC staff requested verification of when the Complainant was notified that the records requested were ready for review and when the Complainant was given the opportunity to review the requested records.

June 16, 2005
E-mail from GRC staff to the Complainant. The GRC staff requested the following information in the form of a certification:

• The date and method by which the Complainant was notified of the status of his record requests and an explanation of any delay which may have occurred in responding to the record requests.

June 18, 2005
Letter from the Complainant to the GRC. The Complainant alleged he only met with the Director of Recreation for 25 minutes on January 11, 2005, not the 2 hours claimed by the Custodian in the April 8, 2005 submission and there was no statement made by the Complainant at that time to indicate that he was satisfied with the verbal information provided. While the Custodian stated that the Director of Recreation offered to make copies of the requested records the Complainant asserts that this is not the case; at their meeting the Director neither gave him copies nor offered to do so.

He asserted that he was then contacted by the Township in the week of April 11 - April 15 and was notified that the records were available for his review. On April 20 the Complainant was given access to the records requested and then “was asked to wait in another room while (a staff member) made copied for me.[5]” The Complainant stated, “The Township of Scotch Plains has not fulfilled their obligation to give me access to all financial records concerning the Senior Focus Initiative Grant.”   

June 24, 2005
Certification of the Director of Parks and Recreation. The Director of Parks and Recreation, Raymond Poerio certifies that he met with the Complainant in January of 2005 to discuss the Senior Focus Grant and indicated to him at that time that “it is impossible to specify one item or area in which the Senior Focus Grant was utilized.” This is the reason the Complainant was offered an opportunity to look at the improvements at the facility. The Director of Parks and Recreation certified that he believed at this time that the request was satisfied.

The Director of Parks and Recreation asserted that all financial information and other documents were provided to the Complainant.[6] The financial information provided to the Complainant were those from professional services as well as the contractor who completed the project. According to the Director of Parks and Recreation the documents reviewed included “Resolutions by Council authorizing the bond ordinance, as well as individual Council Resolutions and contracts for the Architect, Engineer and Contractor services… detailed invoices and purchase orders.” In addition to those documents the Complainant was given access to all letters, memos and correspondence associated with the project. The Director of Parks and Recreation certified that the Complainant was given the opportunity to review all documents and had a member of staff available to make any copies requested, which totaled approximately 15.

The Director of Parks and Recreation certified that the Township complied with the Complainant’s request in making all documents available for his inspection and copying them upon his request, rather than copying hundreds of pages that the Complainant may not have needed but would have been charged for. The Director of Parks and Recreation stated that after the inspection of these documents the Custodian left a message on the Complainant’s answering machine verifying if his request was satisfied but did not receive a response and so assumed that he was satisfied.

July 2, 2005
Letter from the Complainant to the GRC staff. The Complainant contended that the certification of the Director of Parks and Recreation is misleading. The Complainant asserted that the first meeting between the Complainant and the Director was in January but no documents were provided at that time and the Complainant was clear that he was not satisfied with the response to his request for documents. The Complainant alleged that no documents were provided to him until May 2005.[7] “Of all the documents (the Complainant) reviewed on April 20, 2005 there was only one that resembled an invoice.” According to the Complainant there was no description of the materials used, no indication that the invoice was paid and “no proof that the terms of the invoice had been met.” The Complainant stated that this indicates inappropriate handling of the Senior Focus Funds. The Complainant alleged there were no contracts provided for the Architect, Engineer and Contractor as the Director states in his certification. Additionally, the Complainant states that the Town did not attempt to contact him until 5 months after the original request for records.    

Analysis

Whether there was a denial of access to letters, purchase orders, invoices and checks of the funds pertaining to the use of the Senior Focus Initiative Grant?

The legislative intent of the Open Public Records Act (OPRA) favors public access to government records.  OPRA states in pertinent part:

“Government records shall be readily accessible for inspection, copying, or examination by the citizens of this State.” N.J.S.A. 47:1A-1.

Additionally, OPRA defines a government record in the following way:

“‘Government record’ or ‘record’ means 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 in the course of his or its official business…” N.J.S.A. 47:1A-1.1.

The Director of Parks and Recreation who handled this OPRA request certifies, “with regards to specific financial information, all documents were provided to (the Complainant).” The Complainant stated that he was provided with only one document that resembles an invoice and was not provided the “Council Resolutions, contracts for the Architect, Engineer and Contractor Services” that the Director of Parks and Recreation certified were released. The Complainant believes there are more documents that have not been released responsive to his request.

Based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine whether there was a denial of access to government records pursuant to N.J.S.A. 47:1A-1 et. seq.  

WHETHER the Custodian provided immediate access to invoices pursuant to N.J.S.A. 47:1A-5(e)?

OPRA provides for immediate access to certain records. Specifically N.J.S.A. 47:1A-5(e) states:

Immediate access ordinarily shall be granted to budgets, bills (emphasis added), vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information. N.J.S.A. 47:1A-5(e)

The Complainant requested Purchase orders, invoices and checks of funds for purchases made with Senior Focus Initiative funds but stated that he received no documentation responsive to this request until April 20, 2005 and what was received at that time was incomplete. He alleged that the Director of Parks and Recreation did meet with him in January of 2005 but did not provide any documents at that time. The Director of Parks and Recreation for the Township handled this request and certified that all documents have been released to the Complainant responsive to the request, however has not specified a date when this information was released to the Complainant. He did state that he met with the Complainant in January of 2005. The Custodian did not specify that the Complainant was offered documentation at that time but did assert that he believed that the Complainant’s request for information had been satisfied at the time of their January meeting.

Based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine whether the Custodian provided immediate access to invoices pursuant to N.J.S.A. 47:1A-5(e).  

WHETHER the Custodian responded in writing to the request for letters, purchase orders, and checks of the funds within the statutory time period pursuant to OPRA?

OPRA mandates that a Custodian must grant access to requested records within seven days of receipt of the request. N.J.S.A. 47:1A-5(i) explicitly states:

“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.” N.J.S.A. 47:1A-5(i).

If a Custodian is unable to comply within seven days it is required that the Complainant be given a reason for the delay. OPRA states:

“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.” N.J.S.A. 47:1A-5(g).

The Custodian stated that the Complainant met with the Director of Parks and Recreation regarding the requested information. The Custodian and the Director of Parks and Recreation both certified that the Township believed the Complainant was satisfied with the information provided during a 2-hour conversation between the Director and the Complainant. The Custodian has not provided information as to the date when the response was provided. The Complainant stated he did not have any contact with the Township until January, when he spoke with the Director of Parks and Recreation but did not receive any records. The Complainant stated that he did not indicate at any time that he was satisfied with the verbal response to his request.

Based on the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine whether the Custodian violated N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g) in their response to the OPRA request.

WHETHER the delay in access to the requested records constitutes a knowing and willful violation of OPRA under the totality of the circumstances?

OPRA states;

“A public official, officer, employee or custodian who knowingly and willfully violates P.L.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.L.1999, 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 enforcement of the penalty imposed by this section.” N.J.S.A. 47:1A-11(a).

The Complainant made his original OPRA request on December 20, 2005 and alleges the Township did not contact him until January of 2005. The Custodian does not deny this fact. When asked to certify to, “the date and method by which the Complainant was notified of the status of his record requests and an explanation of any delay which may have occurred in responding to the record requests,” no date was provided. The Director of Parks and Recreation certified that he met with the Complainant in January 2005 for 2 hours and implied that documents were available to the Complainant at that meeting, while the Complainant contends he met with the Director for 20-25 minutes in January 2005 and that no documents were provided to him until April 20, 2005.

Based on the Custodian’s delay in access and the contested facts in this case, this matter should be referred to the Office of Administrative Law to determine whether there is a knowing and willful violation of OPRA under the totality of the circumstances.

WHETHER the Township properly used the Senior Focus Initiative funds?

Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the Council shall: 

“receive, hear, review and adjudicate a compliant filed by any person concerning a denial of access to a government record (emphasis added) by a records custodian …; issue advisory opinions …; prepare guidelines and an informational pamphlet …; prepare lists for use by records custodians …; make training opportunities available for records custodians …, and operate an informational website and a toll-free helpline …” N.J.S.A. 47:1A-7(b).

The Complainant raised a concern that the records he received from most towns regarding the use of Senior Focus Initiative Funds reflect a disregard for the senior population and the Complainant requests a meeting so that he may “present (to the Council) other extremely important documents and suspicions. Additionally, the Complainant asserted that the delay and denial of access indicates inappropriate handling of the Senior Focus Funds.  

Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC does not have jurisdiction over the use of Senior Focus Initiative Funds or the content of the records provided.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council:

1. Refer the case to the Office of Administrative Law to determine the following:
   1. Whether there was a denial of access to government records pursuant to N.J.S.A. 47:1A-1 et. seq.
   2. Whether the Custodian provided immediate access to invoices pursuant to N.J.S.A. 47:1A-5(e).
   3. Whether the Custodian violated N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g) in their response to the OPRA request.
   4. Whether the Custodian’s delay in access constitutes a knowing and willful violation of OPRA under the totality of the circumstances.
2. Find pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC does not have jurisdiction over the use of Senior Focus Initiative Funds or the content of the records provided.

Prepared By:  Colleen McGann, Case Manager

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

July 8, 2005

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