2005-71

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:

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 11^th Day of April, 2006

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council

Findings and Recommendations of the Executive Director

Records Relevant to the Complaint: All NJDOC government records, documents, evaluations, consultations and findings or any copy thereof in its possession, custody, care or control that has been made, maintained or kept on file of Daryle L. Pitts, (aka Darryl Pitts), date of birth 15 September 1949, with personal identifying information of either Social Security number xxx-xx-xxxx[1]; SBI# 219787A; SBN# 79569; that is and/or have been kept on file and/or submitted to the NJ Department of Health and Senior Services Unit, Director of Medical Services regarding reportable diseases.[2]
Request Made: February 7, 2005
Response Made: February 22, 2005
Custodian: Kathleen Wiechnik
GRC Complaint filed: April 7, 2005

Letter from the Custodian to the Complainant advising him that his request was unclear, as well as asking him to clarify the request.

Complainant’s Denial of Access Complaint. The Complainant requests that the Government Records Council (GRC) “order the New Jersey Department of Corrections (NJDOC) to comply with the Open Public Records Act (OPRA) and copy and produce all NJDOC government records, documents, evaluations, consultations and findings or any copy thereof in its possession, custody, care or control that has been made, maintained or kept on file of Daryle L. Pitts, (aka Darryl Pitts), date of birth 15 September 1949, with personal identifying information of either Social Security number xxx-xx-xxxx[3]; SBI# 219787A; SBN# 79569; that is and/or have been kept on file and/or submitted to the NJ Department of Health and Senior Services Unit, Director of Medical Services regarding reportable diseases.”

The Complainant states that he has still not received a response to his request. He also references Daryle Pitts v. New Jersey Department of Corrections, GRC Case No. 2003-99 (March, 2004) and states that in this case the NJDOC did not provide medical records in excess of 1100 days and only complied upon the intervention of the GRC. In the current case, the Complainant believes that he should not be subject to incur any additional expense for court filing fees, postage fees or copying fees, or further delay as a result of the public agency’s disregard and neglect of legislative mandate. The Complainant also believes that he should be entitled to costs incurred and reasonable attorney’s fees.

The Custodian certifies that she received the Complainant’s OPRA request on February 15, 2005. She states that the request was unclear as to which records the Complainant was seeking. The Custodian states that on February 22, 2005 she sent a letter to the Complainant advising him that his request was unclear, and subsequently asked him to clarify the request. She states that to date she has not received any further correspondence from the Complainant regarding his request. The Custodian also states in the SOI that pursuant to Executive Order #26 (EO 26), medical records are not disclosable under OPRA. She states that an inmate may obtain his medical records by submitting an inmate request for copies of medical/dental records at the facility in which he is incarcerated.

The Custodian states that because the Complainant’s request was unclear and because she requested clarification within seven (7) business days of her receipt of the request, his Complaint should be dismissed.

The Complainant states that he has no recollection or receipt of the February 22, 2005 letter that the Custodian alleges that she sent. The Complainant also references the Custodian’s statement that no further correspondence has been received in regard to the February 7, 2005 request. He references a March 29, 2005 letter with her signature affixed. The letter advises the Complainant to request copies of his medical records through Correctional Medical Services (CMS), and if such records were not received within thirty days to notify her.

On April 5, 2005, the Complainant notified the Custodian of CMS’s failure to provide all said medical records. The Complainant states that on April 12, 2005 the Custodian responded that a copy of his April 5, 2005 letter was being forwarded to the DOC Health Services Unit for investigation. He states that he has received nothing further on this matter.

The Complainant references the Custodian’s statement that medical records are not disclosable pursuant to OPRA and EO 26. He alleges that there is no specification of these records strictly to being medical. The Complainant states, “[r]espondent’s have speciously undertaken denial of said records by claiming the request was unclear and then alternatively attempting to deny said records by stating such records may not be requested pursuant to OPRA, and then at the same time failing to provide said record through the medical/dental records Custodian at the prison.”

Letter from the GRC staff to the Complainant stating that his case is currently being reviewed by the staff.

Letter from the GRC staff to the Custodian. The staff asked the Custodian to certify whether the letter affixed with tracking number seventeen twenty four (1724) pertains to the same OPRA request as the letters containing tracking number 1834, as well as whether their February 22, 2005 letter has been responded to by Mr. Pitts.

Custodian’s certification in response to the GRC staff’s November 22, 2005 letter. The Custodian certifies that the letters affixed with tracking number eighteen thirty four (1834) pertain to a different OPRA request made by the Complainant which is not at issue in this Complaint. She also certifies that to date she has not received any further correspondence from the Complainant regarding her February 22, 2005 letter requesting further information.

Complainant’s response to the Custodian’s December 1, 2005 certification. The Complainant states that he submitted a certification to the GRC dated June 1, 2005 with copies to the Custodian. The Complainant states that he did not have any knowledge of the existence of Weichnik’s February 22, 2005 letter until receiving the SOI.

The Complainant states that contrary to the Custodian’s assertions, he, in his June 1, 2005 certification once again clearly presented what specific documents and information he sought copies of. He alleges that the delay in resolving the instant complaint for copies in the possession of the NJDOC is a grave injustice, whether it be assigned tracking number 1724 or 1834.

The Complainant states that he formally requested records from the records Custodian, “namely” Kathleen Wiechnik of NJDOC on two occasions. He alleges that the Custodian “apparently” assigned two different tracking numbers to these requests. After a period of six weeks, a second request for records dated March 16, 2005 was submitted, however, only after the first request dated February 7, 2005 was not answered.

The Complainant asserts that, “[i]nasmuch as an excessive time delay from the first request to the present date has occurred, either through inadvertent miscommunication or unexplainable circumstances, equitable resolution of this [complaint] can be fairly adjudicated and indemnification to all parties without any further cost can be fully instituted by the simple production of the requested documents.” Finally, the Complainant requests that the GRC “enter a finding requesting the Custodian to provide all requested documents within a reasonable set time period.”

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

“ … 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.

“Unless 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 … 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.) N.J.S.A. 47:1A-5.i.

EO 26 states that certain records shall not be considered government records and are therefore not accessible to the public. For example:

“…[i]nformation relating to medical, psychiatric or psychological history, diagnosis treatment or evaluation…”

Also, OPRA states that the Custodian has to prove that a denial of access is authorized by law. Specifically, OPRA states:

The Custodian certifies that she received the original request on February 15, 2005 and responded on February 22, 2005 informing the Complainant that the request was unclear, and she would need further clarification. The Custodian also states that pursuant to EO 26, medical records are not disclosable under OPRA. And, an inmate may obtain his medical records by submitting an inmate request for copies of medical/dental records at the facility in which he is incarcerated.

In response to the Custodian’s SOI the Complainant asserts that he has no recollection or receipt of the Custodian’s February 22, 2005 letter. He also brings attention to the Custodian’s statement that no further correspondence had been received in regard to the February 7, 2005 request. He references a March 29, 2005 letter with her signature affixed. The letter advises the Complainant to request copies of his medical records through Correctional Medical Services (CMS), and if such records were not received within thirty days to notify her.

In response, the Custodian certifies that the letters of March 29, and April 12, 2005 which are affixed with tracking number 1834 (the February 7, 2005 and February 22, 2005 letters are affixed with tracking number 1734) pertain to a different OPRA request made by the Complainant which is not at issue in this complaint. She also certifies that to date she has not received any further correspondence from the Complainant regarding her February 22, 2005 letter requesting further information.

EO 26 clearly states that an individual’s medical records should not be disclosed. The Complainant requested “government records…on file of Daryle L. Pitts… regarding reportable diseases.” Based on that fact, the records requested would in fact fall under the definition of medical records pursuant to EO 26 and therefore be exempt from disclosure. Also, because the Custodian has certified that she received the first request on February 15, 2005 and responded on February 22, 2005 her response does fall within the time permitted pursuant to N.J.S.A. 47:1A-5.i. which states that a request should be responded to as soon as possible but no later than seven (7) business days.

Based on the fact that the Custodian has raised a viable defense for denying access to the records, Executive Order #26, as well as responded within the time period allotted under OPRA, the Council should find that the Custodian did not unlawfully deny access to the records requested pursuant to OPRA.

Whether the delay in access to the requested records rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?

“A public official, officer, employee or custodian who knowingly or willfully violates [OPRA], 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 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 states that he requested records from the records Custodian on two occasions. He alleges that the Custodian “apparently” assigned two different tracking numbers to these requests. After a period of six weeks, a second request for records dated March 16, 2005 was submitted, however, only after the first request dated February 7, 2005 was not answered.

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 particular case, the Custodian has certified that she received the original OPRA request on February 15, 2005 and responded on February 22, 2005, therefore falling within the time period allotted by OPRA.

Based on the fact that the Custodian has certified that she responded to the original request within the time period allotted by OPRA as well as asked for further clarification of the request, there is no evidence that the Custodian’s actions were consistent with the legal standards established for knowing and willful conduct by the New Jersey courts, therefore the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a.

WHETHER the Complainant is a “prevailing party” pursuant to N.J.S.A. 47:1A-6 and entitled to reasonable attorney’s fees when the complaint has not been completely adjudicated and the Complainant is not an attorney but is representing himself before the Council?

OPRA provides that “…A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.” N.J.S.A. 47:1A-6.

The Complainant believes that he is entitled to the fees incurred in filing this Complaint before the Council.

In previous cases, the Council has determined that attorney's fees may be awarded only when the requester has obtained a final decision that the record in question must be disclosed. Fisher v. Essex County Sheriff's Office, GRC Case 2002-08. This interpretation of N.J.S.A. 47:1A-6 was reiterated recently in Teethers v. DYFS, GRC Cases 2002-6 and -15. In these cases, the parties did not have a hearing but instead voluntarily "settled" the case before holding a hearing. There was no "enforceable judgment on the merits" determined or "decided" by the Administrative Law Judge (“ALJ”). Thus, no one "prevailed" by reason of the ALJ's decision or judgment and the complainant’s counsel was not entitled to attorney’s fees pursuant to OPRA.

The Council is scheduled to render a decision in this complaint. After the Council reviews the Findings and Recommendations of the Executive Director it will do one of two things. The Council may render an interim order finding that the Complainant was unlawfully denied access and order the Custodian to disclose the document in whole, or in part. Alternatively, the Council may render a final decision finding that the Complainant was lawfully denied access, and uphold the Executive Director’s recommendation. In any event, the Council will not address the issue of awarding reasonable attorney’s fees to the Complainant until after the complaint has been completely adjudicated and a determination that access was unlawfully denied is made.

The more complicated aspect of this issue is whether the Complainant would qualify for reasonable attorney’s fees if the Council determines that he has been unlawfully denied access. According to the Supreme Court of New Jersey, the New Jersey Legislature has promulgated a “substantial number of statutes authorizing an award of a reasonable counsel fee to the attorney for the prevailing party.” (Emphasis added.) NEW JERSEYANS FOR A DEATH PENALTY MORATORIUM v. NEW JERSEY DEPARTMENT OF CORRECTIONS and DEVON BROWN, 182 N.J. 628; 868 A.2d 1031 (February 2005) (Decision without a published opinion.) cited to 370 N.J. Super. 11; 850 A.2d 530 (June 2004), (quoting Rendine v. Pantzer, 141 N.J. 292 (1995). Although the underlying purpose of those statutes may vary, they share a common rationale for incorporating a fee-shifting measure: to ensure “that plaintiffs with bona fide claims are able to find lawyers to represent them[,]… to attract competent counsel in cases involving statutory rights, … and to ensure justice for all citizens.” Id.(quoting Coleman v. Fiore Bros., 113 N.J. 594, 598, 552 A.2d 141 (1989)). Thus, the courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not an attorney who is the plaintiff representing himself.

According to the Supreme Court of New Jersey, the New Jersey Legislature has promulgated a “substantial number of statutes authorizing an award of a reasonable counsel fee to the attorney for the prevailing party.” Therefore, based on the fact that courts of the state have determined that the state’s fee-shifting statutes are intended to compensate an attorney hired to represent a plaintiff not the plaintiff representing himself, the Complainant is not entitled to reasonable attorney’s fees pursuant to OPRA.

[1] Redaction made by the Government Records Council staff.
[2] As stated by the Complainant in his Denial of Access Complaint.
[3] In the Statement of Information, the Custodian states that a response was made (this letter was presented to the GRC). The Complainant states that he received no response.
[4] The Complainant declined mediation of this Complaint
[5] The tracking number given to the February 7, 2005 request is 1724.