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2005-68

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Beth Burns
    Complainant
      v.
Borough of Collingswood
     Custodian of Record

Complaint No. 2005-68

 

At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 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 has born the burden of proving that the Complainant was in receipt of all contracts and agreements responsive to the request. Therefore, there was no unlawful denial of access.
  2. The Custodian violated N.J.S.A. 47:1A-5(e) in not providing immediate access to the requested contracts and violated N.J.S.A. 47:1A-5(g) in not providing the Complainant a written response to the request.
  3. In view of the fact that the records were released to the Complainant and the Complainant was given a reason for the delay, the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-1, et. seq. under the totality of the circumstances.

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 8th Day of September, 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:  September 19, 2005

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Findings and Recommendations of the Executive Director

Beth Burns                                                        GRC Complaint No. 2005-68
Complainant
            v.
Borough of Collingswood
Custodian of Records

Records Requested: “Copies of any and all contracts or agreements between the Borough and Cioffi Towing.”[1] 
Request Made:
 March 2, 2005 
Response Made:  None[2]
Custodian: Alice Marks 
GRC Complaint filed: April 5, 2005

Background

March 2, 2005
Complainant’s written Open Public Records Act (OPRA) Request. The Complainant is seeking a copy of contracts between the Borough and a Cioffi Towing.

April 5, 2005
Complainant’s Denial of Access Complaint with the following attachment:

  • March 2, 2005 Complainant’s written OPRA Request

The Complainant stated that she requested “copies of any and all contracts or agreements between the Borough and Cioffi Towing.” The Complainant asserted that she asked the Custodian about her records request on March 28, 2005 and was told by the Custodian that she did not think there were contracts responsive to the request but had asked another employee to check. The Complainant stated that no further response was received from the Custodian and no records were released.

April 11, 2005
Offer of Mediation sent to both parties.

May 4, 2005
Custodian’s Agreement to Mediate.[3]

May 16, 2005
Statement of Information from the Custodian’s counsel. The Custodian’s counsel stated that no documents were provided to the Complainant because “the record requested, the current towing contract, does not exist.” The Custodian’s counsel asserts that after review of past records a prior contract with the towing company was located and provided to the Complainant.

June 6, 2005
E-mail from the Complainant to the Government Records Council (GRC) staff. The Complainant stated that the indication in the Denial of Access Complaint that she “was told the records were in the bond council” pertained to another complaint and in actuality she received no records or response to her request at the time of her Denial of Access Complaint. The Complainant asserted that she did receive an expired contract with Cioffi Towing from 1996 on May 16, 2005. The Complainant raised the concern that she may not have received all documents responsive to the request since she requested “any and all contracts or agreements.” She believes, based on an article in the Courier Post, that there is a current contract with the towing company and she is not in receipt of this document. Additionally, the Complainant contended that the Borough was not timely in their response to her request and the Complainant believes the documents were deliberately withheld until after the election in which she was running, when the records were no longer useful to her.   

July 20, 2005
Letter from the GRC staff to the Custodian. The GRC staff requested a response to the following in the form of a legal certification from the Custodian:

  • “The date when a response was provided to the Complainant’s OPRA request.
  • Whether there was a written response to the Complainant’s OPRA request.
  • A reason for any delay in access or untimely response to the Complainant’s OPRA request.
  • Whether all documents responsive to the request in your possession have been disclosed to the Complainant.”

July 27, 2005
Certification of the Custodian in response to the July 20, 2005 letter from the GRC staff. The Custodian certified that the original request was made on March 3, 2005. The Custodian stated she spoke with the Complainant later that month[4] regarding the request and informed her that an employee in another department was determining if there was a contract for services responsive to the request. No written response was provided to the Complainant but she was verbally advised as to the efforts being made to fulfill her request. There was a delay in responding to the request “due to the fact that there was an on-going search for the document as she was verbally advised.”

It was determined that a current contract did not exist and that services were being provided under a previous contract, which was released to the Complainant on May 16, 2005.         

August 1, 2005
Supplemental Certification of the Custodian. The Custodian certified that the 1996 towing contract released to the Complainant was the only contract located in the Borough’s files responsive to the request.

Analysis

Whether access was unlawfully denied to the requested contracts and agreements between the Borough of Collingswood and Cioffi Towing?

The OPRA provides that:

“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …”  (Emphasis added) N.J.S.A. 47:1A-1.

Additionally OPRA defines a government record in the following way:

 “ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …”  (Emphasis added) N.J.S.A. 47:1A-1.1.

OPRA places the responsibility for proving a claimed exemption on the Custodian. N.J.S.A. 47:1A-6 states in relevant part:

 “… [t]he 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 Complainant requested any and all contracts or agreements between the Borough and Cioffi Towing. The Custodian certified that there are no current contracts with the towing company and that services were being provided under a previous contract, which was released to the Complainant on May 16, 2005. Despite the Custodian’s legal certification to the fact that there were no other records responsive to the request, the Complainant does not feel that she was provided with all the documents responsive to her request.

The Custodian was asked by the GRC staff to certify as to whether all documents responsive to the request had been released; however, the Custodian’s certification stated, “a current contract for towing services, did not exist.” The Custodian then certified that after a diligent search of the Borough’s files the 1996 contract was the only one located responsive to the request and this document was released to the Complainant.

The Custodian certified that the Complainant was in receipt of all contracts and agreements responsive to the request. The Custodian has met the burden of proving that all records in existence responsive to the request were provided to the Complainant. Therefore there was no unlawful denial of access.

Whether the Custodian properly responded to the Complainant’s request for contracts pursuant to N.J.S.A. 47:1A-5(e) and N.J.S.A. 47:1A-5(g)?

The Open Public Records Act (OPRA) provides for “immediate access” to bills. Specifically, OPRA states:

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

Additionally, N.J.S.A. 47:1A-5(g) provides that: 

“[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore 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…”

The Complainant stated that there was no written response to her request for contracts and agreements at the time of her Denial of Access Complaint and the Custodian certified to same. Both the Custodian and Complainant confirm verbal contact regarding the OPRA request later in the month in which the request was made; however there was no written response to the request. The Custodian located a contract responsive to the request and forwarded it to the Complainant on May 16, 2005.

OPRA provides for immediate access to contracts and requires the Custodian to provide a specific basis in writing to justify a lawful denial of access. In this case the Custodian did not provide the Complainant with a written reason for a denial or delay in access to the requested contracts. While the Custodian did verbally relay to the Complainant that employees were working to fulfill her request, it was not in writing as set forth in OPRA.

Therefore, the Custodian has violated N.J.S.A. 47:1A-5(e) in not providing immediate access to the requested contracts. Additionally, the Custodian has violated N.J.S.A. 47:1A-5(g) in not providing the Complainant a written response to the request.  

WHETHER the delay in access to the requested contracts and agreements rises to the level of a knowing and willful violation of N.J.S.A. 47:1A-1.1 et. seq. under the totality of the circumstances?  

OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states:

If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]. N.J.S.A. 47:1A-7(e).

The Complainant alleged that the Custodian delayed access to the requested records until after the election, when the information was no longer useful. The Custodian certifies that the reason for the delay in access is because there was no current contract with Cioffi towing to provide to the Complainant and after a prior contract was located it was provided to the Complainant.

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).

The Custodian in this case certified that the reason the records were not immediately released was because there was no current contract responsive to the request and a search was necessary to locate other documents responsive. The Custodian asserts that she verbally informed the Complainant of the reasons for the delay in access. The Complainant acknowledges being made aware of this and is in receipt of documents from the Custodian pertaining to the request.  

In view of the fact that the records were released to the Complainant and the Complainant was given a reason for the delay, the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-1, et. seq. under the totality of the circumstances.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

  1. The Custodian has born the burden of proving that the Complainant was in receipt of all contracts and agreements responsive to the request. Therefore, there was no unlawful denial of access.
  2. The Custodian has violated N.J.S.A. 47:1A-5(e) in not providing immediate access to the requested contracts and has violated N.J.S.A. 47:1A-5(g) in not providing the Complainant a written response to the request.
  3. In view of the fact that the records were released to the Complainant and the Complainant was given a reason for the delay, the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-1, et. seq. under the totality of the circumstances.

Prepared By: Colleen McGann, Case Manager

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

September 2, 2005


[1] As stated in the Complainant’s original OPRA request.
[2] Stated by the Complainant as a correction to the Denial of Access Complaint in the June 6, 2005 e-mail.
[3] The Complainant declined mediation on this case.
[4] The Custodian did not indicate a date when the Complainant was contacted.

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