2005-88

Final Decision

At its November 10, 2005 public meeting, the Government Records Council (“Council”) considered the November 4, 2005 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:

1. Pursuant to the fact that the record requested did not exist at the time of the request, there would not have been an unlawful denial of access except that the Custodian’s delay in responding to the Complainant’s request resulted in a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.i.
2. The Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and an unreasonable denial of access under the totality of the circumstances on the basis that the Custodian responded to the request on the eighth business day, one day later than the OPRA allows.
3. The Council has ruled that a form is not necessary to make a request for records. Therefore, a lack of form did not create a Denial of Access to other records, giving the Government Records Council the authority to act.

Decision Distribution Date:  November 22, 2005

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Findings and Recommendations of Executive Dir

Records Requested: Officially Adopted Form (to be used for the purpose of making records requests)[1]
Request Made:  April 11, 2005
Response Made:  no response[2]
Custodian: Sandra M. Comparri
GRC Complaint filed: April 25, 2005

Background

April 21, 2005

Letter from the Custodian’s counsel to the Custodian. Custodian’s counsel informs the Custodian that there is a form that should be filed by an individual seeking records from the public entity. In the letter, he states that he is attaching the form that should be modified relative to their fire district.

April 25, 2005

Complainant’s Denial of Access Complaint with the following attachment:

• Open Public Records Act (OPRA) request

The Complainant states that on April 11, 2005 he made an OPRA request for the record listed above. He states that no one has responded to his letter. (The Complaint was filed on April 25, 2005 and the Custodian has certified that she responded on April 27, 2005). The Complainant alleges that he needs this form to make his request for records. He also states “the Board of Commissioners are operating illegally and conducting meetings outside the provision and laws of Title N.J.S. Title 40A et. seq.”

The Complainant states that budget hearings and meetings were held without advertisement as required by law. He also states that there were no public notices undertaken as required by the DCA and DLGS. He further states that there were no public notices placed in the Newspaper of Record about the budget approval and election.

May 2, 2005

Mediation sent to both parties[3]

May 3, 2005

Complainant’s e-mail to the GRC. The Complainant states that he has received a letter from the Custodian titled “Temporary Form, Request for Public Records, Public Records Request Form.” He raises the following issues with the form:

• The letter failed to inform him as to who is the “Official Custodian of Records”
• The letter does not have a contact phone number, pursuant to State Law

The Complainant states that because of these reasons he is unable to at this time to submit an “Official Request for Records” to the Custodian of Records. He also states that the second page contained information as to what he will be charged per page, however, the board made no move to publish a “Public Notice” outlining those costs and charges, and their availability.

July 7, 2005

Custodian’s Statement of Information with the following attachments:

• Complainant’s Open Public Records Act (OPRA) request (received April 15, 2005)
• Tracking receipt for the delivery of the OPRA request

The Custodian states that the request for the OPRA form was received on April 15, 2005, and responded to on April 27, 2005. She also states that everything responsive to the request was supplied.

October 11, 2005

Custodian’s letter to the GRC staff. The Custodian certifies that she received a request for an OPRA form from Jim Colby on April 15, 2005. She states that at that time the Board did not have an official form for records request.. She goes on to state that an OPRA form was created and sent to Mr. Colby on April 27, 2005. She states that this form was officially adopted by Resolution 2005-12, on May 23, 2005, which was their next meeting.

Analysis

WHETHER the Custodian unlawfully denied access to the Officially Adopted Records Request Form?

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,        with certain exceptions …” (Emphasis added.)

The OPRA defines a government record as follows:

“ … 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.

N.J.S.A. 47:1A-5.i. provides that:

“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.)

Additionally, 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 therefor on the request form and promptly return it to the requestor…”

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

“…The public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.

The Custodian certifies that she received a request for an OPRA form from the Complainant on April 15, 2005. She states that at that time the Board did not have an official form for records request. She goes on to state that an OPRA form was created and sent to Mr. Colby on April 27, 2005.

The OPRA specifically defines a government record as being made, maintained or kept on file. Based on the fact that the Custodian has certified that at the time of the request the agency did not maintain the record requested, there would not have been an unlawful denial of access.  However, there is a “deemed” denial of access in this case due to the custodian’s late response to the Complainant’s records request.  Specifically, the Custodian certifies that the request for the OPRA form was received on April 15, 2005, and responded to on April 27, 2005 (eight (8) days after receipt of the request).

The OPRA states that a request for records should be granted or denied as soon as possible, but not later than seven business days. Although the request was responded to in writing, the response was not within the allotted time allowed pursuant to the OPRA.

While the Custodian did respond to the record request in writing, it was on the eighth business day; therefore violating N.J.S.A. 47:1A-5.i. and resulting in a “deemed” denial of access.

WHETHER the delay in access to the Officially Adopted Records Request form rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?       

The OPRA states that:

“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.

The 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.

In his Denial of Access Complaint the Complainant states that he has not received a response to his request. The Complaint was filed with the Government Records Council on April 25, 2005. The Custodian certifies that she received the OPRA request on April 15, 2005 and responded to the request on April 27, 2005.

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).

Although the Custodian did not respond within seven business days of the request, the response was only one day late and therefore does not rise to to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances

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 on the basis that the Custodian responded to the request on the eighth business day, one day later than the OPRA allows.

WHETHER the lack of a form created a Denial of Access to other records, therefore giving the Government Records Council the authority to act?

The OPRA states that the Government Records Council’s role is to:

“…receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian…” N.J.S.A. 47:1A-7.b.

The Complainant alleges that he needs the Officially Adopted Records Request form to make his request for records.

In Wilcox v. Township of West Caldwell, GRC Complaint No. 2004-28 the

Council decided that a request for access to a government record need only be in writing. Therefore, Complainant did not need the form to make another records request.

The Council has ruled that a form is not necessary to make a request for records. Therefore, a lack of form did not create a Denial of Access to other records, giving the Government Records Council the authority to act.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

1. Pursuant to the fact that the record requested did not exist at the time of the request, there would not have been an unlawful denial of access except that the Custodian’s delay in responding to the Complainant’s request resulted in a “deemed” denial of access pursuant to N.J.S.A. 47:1A-5.i.
2. The Custodian’s actions do not rise to the level of a knowing and willful        violation of OPRA and an unreasonable denial of access under the totality of the circumstances on the basis that the Custodian responded to the request on the eighth business day, one day later than the OPRA allows.
3. The Council has ruled that a form is not necessary to make a request for records. Therefore, a lack of form did not create a Denial of Access to other records, giving the Government Records Council the authority to act.

Prepared By: Chris Malloy, Case Manager

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

November 4, 2005

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