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2005-89

- Final Decision
- Findings and Recommendations of Executive Director

Final Decision

Tina Renna
   Complainant
      v.
County of Union
   Custodian of Record

Complaint No. 2005-89

 

At its October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 7, 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. On the basis of the Custodian’s certification, there was no denial of access to government records pursuant to N.J.S.A. 47:1A-1.1 because the requested documents do not exist.
  2. The Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances on the basis that the Complainant was not unlawfully denied access to a government record, was provided a response to her OPRA request within the statutory seven business days and has not provided evidence that the Custodian’s actions in this case meet the standard for a knowing and willful violation of the OPRA under the totality of the circumstances.
  3. Based on the foregoing conclusions this case should be closed with no further action by the 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.

Final 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 2, 2005

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Findings and Recommendations of Executive Director

Tina Renna,                                                       GRC Complaint No. 2005-89 
Complainant
v.
County of Union,
Custodian of Records

Records Requested: “Name of last employee who held Louis Mingo’s position”[1]
Custodian:  Nichole Tedeschi
Request Made:  April 26, 2005
Response Made: May 5, 2005
GRC Complaint filed: May 6, 2005

Background

April 26, 2005

Complainant’s written Open Public Records Act (OPRA) request. The Complainant is seeking the name of the last employee who held Louis Mingo’s position as well as the job advertisement and job description for the position.[2]

May 5, 2005

Custodian’s Government Records Request Response. The Custodian asserts that there are no documents to provide responsive to the request for “job postings/advertisements for Lewis Mingo and Sharda Bodri’s current positions.” The Custodian informed the Complainant in writing that Lewis Mingo’s position was one that had been converted from a Senior Program Development position to a Confidential Aide/Director of Senior Services position and as such the position was not held by a prior employee. The Custodian went on to explain the reasoning behind the decision to convert the position as well as the responsibilities and activities of the Division on Aging. The Custodian included the requested “Confidential Aide/Director of Senior Services Job Description.”

May 6, 2005

Complainant’s second written OPRA request.[3]

May 6, 2005

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

  • April 26, 2005 Complainant’s written OPRA request
  • May 5, 2005 Government Records Request Response
  • May 6, 2005 Complainant’s second written OPRA request.

The Complainant states that she received a response to her OPRA request on the seventh business day, May 5, 2005 which stated that the position held by Mr. Mingo was converted from another position and as such was not filled by a prior employee. The Complainant asserts that the “county did not provide (the Complainant) with the name of the person who held the vacant position prior to it being ‘converted’ into a Director’s position for Freeholder Mingo.” The Complainant goes on to state that she has now made an OPRA request to find out the salary information for the position prior to the conversion and expects that the County will make her wait another seven business days for a reply. The Complainant alleges this is a “stonewalling” attempt by the County and would like the County of Union found guilty of a knowing and willful violation of the Open Public Records Act based on this instance and two past instances of similar behavior.

June 8, 2005

Statement of Information submitted by the Custodian’s counsel[4] with the following attachments:

  • April 26, 2005 Complainant’s written OPRA requests[5]
  • April 26, 2005 Custodian’s written confirmation of receipt of April 26, 2005 OPRA requests
  • May 5, 2005 Custodian’s Government Records Request Responses[6]
  • May 6, 2005 Complainant’s second written OPRA requests[7]
  • May 6, 2005 Custodian’s written confirmation of receipt of May 6, 2005 OPRA requests
  • May 10, 2005 Custodian’s Government Records Request Response to the May 6, 2005 requests.

The Custodian’s counsel states that all records requested by the Complainant on April 26, 2005 were released with the exception of documents regarding the “‘the last advertisement or posting for said position,” which were not released because no documents exist. The Custodian’s counsel goes on to state that all documents were provided responsive to the Complainant’s May 6, 2005 request. The Custodian’s counsel maintains that no person held the title/position prior to Mr. Mingo and the conversion of the position to a Director’s position “is indicative of the vastly different nature of the position,” The reasons for the conversion of the position were explained to the Complainant. The name of the individual who held the position prior to its conversion was provided to the requestor in response to the May 6, 2005 request.[8] The Custodian’s counsel asserts that “since all documents responsive to (the Complainant’s) requests, dated April 26, 2005 and May 6, 2005, were provided to (the Complainant) in-full, in a timely manner and completely in accordance with the [OPRA], this Complaint should be dismissed.”

The Custodian’s certification indicates that on May 5, 2005 the Complainant was made aware that the records responsive to her April 26, 2005 request were available and the documents were faxed to the Complainant’s attention on that date. The Custodian states that the Complainant’s contention that she was not provided with the name of the person who previously held Mr. Mingo’s position is inaccurate because the Complainant was informed that no person held the title/position prior to Mr. Mingo. Based on this information the Custodian believes that all documents responsive to the request were provided “in-full, in a timely manner and completely in accordance with the (OPRA).” Additionally, the Custodian certifies that the information contained in the Statement of Information signed by the Custodian’s counsel is accurate.

Analysis

WHETHER access was unlawfully denied to the request for the name of the last employee who held Louis Mingo’s position?

The OPRA provides that,

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

Additionally, the OPRA defines a government record as:

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

The OPRA places the onus on the Custodian to prove that a denial of access is lawful. 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 Complainant requested the name of last employee who held Louis Mingo’s position and asserts that the response she received to her OPRA request, stating that no one held the position prior because the position had been converted from another title was insufficient. The Complainant felt the Custodian should have provided her with the name of the individual who held the position prior to the conversion.  The Custodian informed the Complainant in writing that there was no document responsive to her request because no one had held the Director’s position prior to Mr. Mingo. The Complainant submitted a new OPRA request, not subject of this Complaint, requesting the “name of the person who held the vacant position prior to it being ‘converted’ into a Director’s position for Freeholder Mingo.”

The OPRA states that a request must be for a government record, defined as any document “…made, maintained or kept on file…” The Complainant requested documents that the Custodian has certified do not exist, because no employee held the position prior to Lewis Mingo. Based on the certification of the Custodian the request was for documents that were not made, maintained, or kept on file therefore, there was no denial of access to records.

On the basis of the Custodian’s certification, there is no denial of access to government records pursuant to N.J.S.A. 47:1A-1.1 because the requested documents do not exist.    

WHETHER the Custodian’s failure to provide the Complainant with the requested record, the fact that she waited the statutory seven (7) business days for a response and prior violations of the OPRA rises to the level of a knowing and willful violation of the OPRA under the totality of the circumstances?

The OPRA states 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…” N.J.S.A. 47:1A-11.

OPRA allows the Council to determine a knowing and willful violation of the law and unreasonable denial of access 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.

OPRA 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 to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived...” N.J.S.A. 47:1A-5.i.

The Complainant asserts that the Custodian committed a knowing and willful violation of the OPRA on the basis of the Custodian’s not providing the requested documents and prior violations of the OPRA. The Complainant asserts that she was made to wait the full seven business day period for a response to her request and expects to wait another seven to receive a response to the request made on May 6, 2005.[9] The Complainant feels that these circumstances are evidence of a “stonewalling” attempt on the part of the County and believes they are guilty of a knowing and willful violation of the OPRA.

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 certified that the requested record does not exist because no individual held the Director’s position prior to Lewis Mingo. The Custodian is required to provide that which is made, maintained and kept on file pursuant to the OPRA. Based on the certification of the Custodian no document exists responsive to the request, and there was no denial of access to records.

The Complainant raises the issue that she waited seven business days for a response to her OPRA request. The OPRA requires that Custodians respond to records requests “as soon as possible, but not later than seven (7) business days after receiving the request.” The Complainant filed her OPRA request on April 26, 2005 and was provided a response on May 5, 2005, seven business days after the request was received. Therefore the Custodian acted properly in providing the Complainant with a written response to the request within seven business days pursuant to N.J.S.A. 47:1A-5.i.

The Custodian has been found in violation of the OPRA on prior occasions, however the language of N.J.S.A. 47:1A-7.e., is specific in that a Custodian must unreasonably deny access under “the totality of the circumstances” in the case at hand in order to be found guilty of a knowing and willful violation. The legal standard must be met based on the totality of the circumstances in this case in order to determine the Custodian’s actions were knowing and willful.  The Complainant feels that the Custodian’s actions in prior cases are evidence of a knowing and willful violation of the OPRA but has not presented information that would indicate that the Custodian intentionally and deliberately denied or delayed access to the record in this instance.

The Council should find that the Custodian’s actions do not rise to the level of knowing and willful violations of OPRA under the totality of the circumstances on the basis that the Complainant was not unlawfully denied access to a government record, was provided a response to her OPRA request within the statutory seven business days and has not provided evidence that the Custodian’s actions in this case meet the standard for a knowing and willful violation of the OPRA under the totality of the circumstances.   

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find:

  1. On the basis of the Custodian’s certification, there is no denial of access to government records pursuant to N.J.S.A. 47:1A-1.1 because the requested documents do not exist.
  2. The Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances on the basis that the Complainant was not unlawfully denied access to a government record, was provided a response to her OPRA request within the statutory seven business days and has not provided evidence that the Custodian’s actions in this case meet the standard for a knowing and willful violation of the OPRA under the totality of the circumstances.
  3. Based on the forgoing conclusions this case should be closed with no further action by the Council.

Prepared By: Colleen McGann, Case Manager

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

October 7, 2005


[1] As stated in the Complainant’s Denial of Access Complaint.
[2] The request for the job advertisement and job description are not subject of the Complaint.
[3] As attachment to the Denial of Access Complaint. This request is not subject of this complaint.
[4] The Custodian attached a supplemental certification stating that “the information provided therein is accurate to the best of (the Custodian’s) knowledge and belief.”
[5] Two requests, one not subject of this Complaint.
[6] Two responses, one not subject of this Complaint.
[7] As attachment to the Denial of Access Complaint. This request is not subject of this complaint.
[8] The May 6, 2005 request is not subject of this Complaint.
[9] May 6, 2005 request is not subject of this Complaint.

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