2005-93

At its October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 21, 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:

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 28^th 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

Findings and Recommendations of the Executive Director

Request Made: April 28, 2005
Response Made: April 29, 2005, May 10, 2005
Custodian: Kevin J. Byrnes
GRC Complaint filed: May 11, 2005

Complainant’s written Open Public Records Act (OPRA) Request. The Complainant seeks a “Disciplinary Authorization and Release” form or other principal form from the Supreme Court of New Jersey, Office of Attorney Ethics executed by or on behalf of Salvatore Alfano, Esq., copies of resolutions passed by the West Milford Township Council on or after April 1, 2005 engaging the services of Salvatore Alfano, Esq., and copies of any contracts between Salvatore Alfano, Esq. and the West Milford Township relevant to resolution mentioned above.

Letter from Custodian to Complainant. Custodian acknowledges receipt of Complainants OPRA request. Custodian states the Complainant may view and purchase a copy of the Township Council’s Resolution engaging services of Salvatore Alfano at the Township Clerk’s office. Additionally, the Custodian states the Complainant may purchase and view a copy of the unimplemented contract engaging the services of Mr. Alfano. The Custodian claims he is awaiting legal advice on how to continue with the “Disciplinary Authorization and Release” form request.

Denial of Access filed with the Government Records Council (GRC) staff. Complaint included the following attachments:

The Complainant alleges that he faxed his OPRA request to Kevin J. Byrnes, Township Clerk and Custodian of Records for West Milford Township on April 28, 2005. The Complainant acknowledges receipt of August 29, 2005 letter from Custodian. The Complainant states that as of the date of this complaint, May 11, 2005, he has not received any additional correspondence from the Custodian.

The Complainant states that he requested three (3) documents from the West Milford Township Clerk and was provided access to only two (2) of his requests in a timely manner. The Complainant claims that the Custodian’s response, “I am awaiting legal advice regarding how to proceed with your request for ‘Disciplinary Authorization and Release’ form” [2] does not extend the seven (7) business day time period within which the requests must be granted or denied. The Complainant states that he should have received all documents from the Custodian by May 9, 2005, however he did not.

The Complainant asserts that the Custodian of Records in West Milford Township “has had a history of not responding to record requests in a timely manner,” [3] citing GRC Case No. 2004-17 and GRC Case No. 2004-111. The Complainant states that in GRC Case No. 2004-17, the Executive Director found that the Custodian of Records in West Milford Township failed to respond to the Complainant’s request in a timely manner. The Complainant also notes that the Council recently held a meeting to determine if the Custodian’s violation was knowing and willful, but that this decision is unknown as of May 11, 2005. Additionally, the Complainant states that in GRC Case No. 2004-111, the Executive Director found that the Custodian did not respond to the OPRA request in a timely manner.

Having filed the Denial of Access Complaint, the Complainant seeks the following: granted access to the “Disciplinary Authorization and Release” form or written denial of access consistent with OPRA; declaration that the Custodian violated OPRA for improperly denying access to the “Disciplinary Authorization and Release” form; and a Council decision as to whether the Custodian’s violation of OPRA was knowing and willful.

Government Records Council (GRC) staff sends request for Statement of Information to Custodian.

The Custodian acknowledges receipt of the Complainant’s written OPRA request on April 28, 2005. On April 29, 2005, the Custodian states he advised the Complainant in writing that items (2) and (3) of his request were available for inspection at the County Clerk’s Office. These items were Township Resolutions passed engaging the services of Mr. Salvatore Alfano, Esq. and any contracts between Mr. Salvatore Alfano Esq. and the Township of West Milford.

The Custodian states in regards to the Complainant’s request for a “Disciplinary Authorization and Release” form, he informed the Complainant that he was “awaiting legal advice regarding how to proceed with [the] request.”[5] The Custodian asserts the reason for this statement was that the requested form was “the subject of litigation in the Passaic County Superior Court and is presently pending in the Appellate Division under the title of Paff v. West Milford Township.”[6] The Custodian states this case was challenging the Ordinance that required attorneys working with the Township to provide this form.

The Custodian certifies that on May 2, 2005, Mr. Alfano advised him that the “Disciplinary Authorization and Release” form was disclosable. Additionally, the Custodian certifies that on May 3, 2005, the Complainant was provided with copies of the Resolution and the unimplemented contract with Mr. Alfano, as well as notified that the “Disciplinary Authorization and Release” form was disclosable, but not currently in the Custodian’s possession. On May 10, 2005, the Custodian states he sent a letter to the Complainant advising him that he could view and purchase a copy of the requested form at the Custodian’s office. The Custodian states that as of June 13, 2005, the Complainant has not responded.

The Custodian further certifies that he made his best effort to contact Mr. Alfano regarding legal advice, as well as notifying the Complainant immediately after receiving notification that the document could be released.

WHETHER the Custodian’s statement that the release of the requested record would be delayed due to pending legal advice constitutes a lawful denial of access?

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.)

N.J.S.A. 47:1A-1.1: provides that “ … 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-6: provides that “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…”

The Custodian acknowledges receiving the Complainant’s OPRA request on April 28, 2005. He certifies that on April 29, 2005 he provided a written response to the Complainant indicating that two (2) out of three (3) items requested were available that the Clerk’s office. Additionally, the Custodian certifies that in his April 29, 2005 letter, he informed the Complainant that he was “awaiting legal advice”[7] on how to proceed with his request for a “Disciplinary Authorization and Release” form. The Custodian states that the reason for this response to the Complainant was because the form was “the subject of litigation in the Passaic County Superior Court.”[8]

The Custodian states that on May 2, 2005, he received notice from his legal counsel, Mr. Alfano that the “Disciplinary Authorization and Release” form could be released. The Custodian certifies that on May 3, 2005 when the Complainant went to his office to view the other two (2) documents requested, he verbally informed the Complainant that the form requested was authorized for release, but that he had not yet received it from Mr. Alfano. Further, the Custodian certifies that on May 10, 2005 he informed the Complainant in writing that the requested form was now available at the Clerk’s office.

N.J.S.A. 47:1A-6 mandates that the Custodian must bear the burden of proving that the denial of access is lawful. In the Custodian’s April 29, 2005 response to the Complainant, he indicated that there would be a delay in access to the “Disciplinary Authorization and Release” form because he was seeking legal advice. Pursuing legal advice responsive to records requested does not constitute a lawful denial or delay in access under ORPA. Additionally, the Complainant did not agree to receive the requested document at a later date, beyond the statutorily mandated seven (7) business days under OPRA.

Therefore, the Custodian is in violation of N.J.S.A. 47:1A-6 for failing to bear his burden of proving that the denial of access to the “Disciplinary Authorization and Release Form” was lawful.

WHETHER there was a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances?

N.J.S.A. 47:1A-11.a. provides 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-7.e. provides that: “…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-5.i. provides that: “[u]nless a shorter time period is otherwise provided b 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 …”

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 therefore …”

The Custodian certifies responding to the Complainant’s April 28, 2005 request in writing on April 29, 2005. The Custodian states that he informed the Complainant that two (2) out of three (3) items requested were available that the Clerk’s office, and that he was seeking legal advice regarding the release of the “Disciplinary Authorization and Release” form. The Custodian certifies that on May 3, 2005 he verbally informed the Complainant that the requested form was authorized for released by counsel, but that the form was not in the Custodian’s possession yet. Additionally, the Custodian certifies that he sent written correspondence on May 10, 2005 to the Complainant informing him that the requested form was now available at the Clerk’s office.

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).

N.J.S.A.47:1A-5.g. mandates that if a Custodian is unable to comply with a request for records, he must notify the Complainant in writing and indicate the specific reason for non-compliance. In this case, the Custodian did respond in writing one (1) day after the request was made, indicating that he was seeking legal advice on how to proceed with the request for a “Disciplinary Authorization and Release”form. The Custodian’s May 10, 2005 response that the requested form was now available at the Clerk’s office, was also in writing. Therefore, the Custodian is not in violation of N.J.S.A. 47:1A-5.g.

Pursuant to N.J.S.A. 47:1A-5.i., Custodians must respond to records requests as soon as possible but no later than seven (7) business days. On April 29, 2005, the Custodian responded to the Complainant’s April 28, 2005 request, releasing two (2) documents and indicating a delay in access for the “Disciplinary Authorization and Release” form. The Custodian informed the Complainant on May 10, 2005 that the form could be released. The Custodian did respond to the request within the seven (7) business day time frame, however he did not state an anticipated date of release for the “Disciplinary Authorization and Release” form. The Complainant also did not agree to receive said document beyond the seven (7) business day time period.

Therefore, the Custodian is in violation of N.J.S.A. 47:1a-5.i. for not providing the Complainant with the requested documents within the statutorily required seven (7) business days.

Although the Custodian violated N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-6, her actions do not rise to a knowing and willful violation of OPRA and unreasonable denial of access because it is reasonable that someone would seek legal advice regarding access to documents subject to litigation.

[1] As stated on Denial of Access Complaint
[2] As stated on Denial of Access Complaint
[3] As stated on Denial of Access Complaint
[4] Neither party agreed to mediate in this case
[5] As stated on Statement of Information
[6] As stated on Statement of Information
[7] As stated on April 29, 2005
[8] As stated on Statement of Information