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2006-01
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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. Decision Distribution Date: March 15, 2006 Findings and Recommendations of the Executive DirectorJohn Paff GRC Complaint No. 2006-1Complainant v. Borough of Audubon Custodian of Records Records Relevant to Complaint: Amended Stipulation of Settlement for Defender Fire Co. No. 1 and Heavy Rescue, Inc. Background December 11, 2005 Complainant’s request for the Amended Stipulation of Settlement for Defender Fire Co. No. 1 and Heavy Rescue, Inc. December 20, 2005 Custodian’s response to Complainant’s request for records. The Custodian states that she is forwarding the Borough’s request form and once the form is completed and returned with an original signature, she will fulfill the Complainant’s request for records. December 28, 2005 Complainant’s second request for records. The Complainant asserts that the Custodian has violated the Open Public Records Act by failing to honor his December 11, 2005 request for records. He cites the Government Records Council’s website in that custodians should accept any communication that is clearly a request for records. December 29, 2005 Custodian’s response to Complainant’s second request for records. The Custodian states that she has enclosed the Borough’s Ordinance #832-02 as well as the Borough’s Public Record Request Form. She requests that the Complainant return the completed form with a check or money order for $2.25. January 3, 2006 Denial of Access Complaint filed with the Government Records Council (“GRC”) staff. Complaint included the following attachments:
The Complainant states that on December 11, 2005 he faxed his request for records to the Custodian and asserts that said fax was received by the Custodian’s office on December 12, 2005 according to his fax receipt. He states that on December 20, 2005 he received a response from the Custodian indicating that the Borough would not fulfill his request until he completed their Public Record Request Form. He claims that although this letter stated that the request form was being provided, he did not receive the form until December 29, 2005. He further states that on December 28, 2005 he faxed a second request for records to the Custodian. The Complainant states that in said request, he directs the Custodian’s attention to the GRC’s website in which it indicated that Custodians “should accept any communication that is clearly a request for records if it contains the information necessary for that Custodian to fulfill the request.”[1] He states that on December 29, 2005 he received a fax cover page, an unsigned note advising that he fill out the Borough’s request form and return it with $2.25, a three page copy of the Borough Ordinance 832-02 and the Borough’s Public Record Request Form. The Complainant asserts that the records request he submitted to the Custodian on December 11, 2005 was valid and therefore he is entitled to having his request either granted or denied within seven (7) business days. He states that he did not receive the requested records or a specific denial of access to said records within seven (7) business days. However, he states that during this seven (7) business day time frame he did receive a letter from the Custodian indicating that he must fill out the Borough’s request form to have his request fulfilled. The Complainant cites N.J.S.A. 47:1A-5.f. in that public agencies are required to adopt an official records request form. However, he also cites N.J.S.A. 47:1A-5.g. in that a records request must be in writing. He states that this section does restrict OPRA requests only to those provided on the agency’s official request form. The Complainant claims that it takes time and effort to receive, complete, and return an agency’s request form which stands in the way of N.J.S.A. 47:1.1 which provides that government records should be “readily accessible for inspection, copying, or examination by the citizens of the State.” Additionally, the Complainant claims that the Borough’s Ordinance No. 832-02, which the Borough relies on to require requestors to fill out the official request form, is invalid as it is not authorized by state law. He states that N.J.S.A. 40:48-1 provided over thirty (30) acts that fall within a municipality’s authority. He claims that requiring citizens to complete the Borough’s request form is not one of the acts included. He further states that OPRA does not grant authority to municipalities to set conditions on requestors in addition to those provided by the Act itself. Besides the authority granted to municipalities under N.J.S.A. 40:48-1, the Complainant states that N.J.S.A. 40:48-2 grants municipalities police powers relating to matters of local concern and not to those matters involving state policy or of general public interest. The Complainant claims that the Borough’s ordinance requiring requestors to use their official request form does not relate to the public’s “health, safety and welfare”[2] and therefore cannot be required under the Borough’s police power granted from N.J.S.A. 40:48-2. He additionally states that OPRA is state policy and the Borough’s ordinance does not relate to a matter of local concern. The Complainant states that OPRA has prevented local legislation from addressing the same subject matter. He cites Overlook Terrace Management v. Rent Control Board of West New York, 71 N.J. 451, 461-62 (1976) in that the Supreme Court set forth the following questions to determine the applicability of preemption:
The Complainant claims that in response to the first and fifth questions, the Borough’s ordinance conflicts with OPRA. He states that OPRA provides that government records be readily accessible and mandates that Custodians either grant or deny access to records within seven (7) business days. The Complainant claims that OPRA’s objective of promptly providing citizens access to requested records would be obstructed by requiring requestors to contact the agency in order to obtain a request form, complete the form and then return it to the Custodian before OPRA’s seven (7) business day timeframe begins. In response to the second, third, and fourth questions, the Complainant states that as per N.J.S.A. 47:1A-1, OPRA uniformly applies to every political subdivision as well as every other instrumentality within or created by those political subdivisions. He claims that requestors should not have to become acquainted with various request procedures in order to obtain access to government records. Further, the Complainant notes that the GRC has issued advice to Custodians on its website entitled “Use of Request Forms” in which it states, “[m]ust a public agency accept a request for public records if it is not on the Custodian’s OPRA form? The answer is yes…In viewing OPRA’s provisions as a whole, the requirement for custodians to adopt an ‘official’ OPRA request form is intended to educate and assist the public with the process of obtaining records under OPRA. It is not intended as a barrier to access for those requestors who already know their rights under OPRA and know what information is required by a custodian to complete an OPRA request. Thus, a custodian should accept any communication that is clearly a request for records…”[4] The Complainant requests the following from the Council in regards to his complaint:
January 3, 2006 Offer of Mediation sent to both parties. January 3, 2006 E-mail from Complainant to GRC staff. The Complainant states that he does not wish to participate in mediation. January 5, 2005 E-mail from Custodian to GRC staff. The Custodian states that she received the complaint and requests advice as to what steps to take. January 5, 2005 E-mail from GRC staff to Custodian. Staff states that the first step normally would be to decide whether to participate in mediation. Staff states that as both parties must agree to participate and the Complainant has already declined, this complaint moves on to the next step. Staff advises that she will send a request for a Statement of Information to the Custodian and it should be returned to the GRC by January 12, 2006. January 5, 2006 Custodian’s Agreement to Mediate. January 5, 2006 E-mail from Custodian to GRC staff. The Custodian states that she faxed her Agreement to Mediate prior to receiving staff’s response e-mail. She states that she and her Deputy Registrar/Clerk worked on the request together. She also states that she has notes of all the procedures for said request and asks what she should do now. January 6, 2006 GRC staff sends request for Statement of Information to Custodian. January 9, 2006 Facsimile from Custodian to Complainant. The Custodian states that she is still awaiting payment of $2.25 for the requested documents being held for him. She requests that he advise her if he is still interested in obtaining these documents. January 11, 2005 E-mail from Custodian to GRC staff. The Custodian states that the requested information is in the mail and that she has attached her timeline of events regarding this complaint. The Custodian lists her timeline of events as follows:
January 11, 2006 Custodian’s Statement of Information with the following attachments:
The Custodian states that the Borough takes great pride in providing requestors with access to records. She states that this OPRA timeline was tight due to the holidays and the end of the year. She also states that the Complainant’s documents are still being held and she is awaiting payment of $2.25 for copies. The Custodian certifies that all documents and submissions attached to her Statement of Information are true to the best of her knowledge. January 12, 2006 E-mail from Custodian to GRC staff. The Custodian asks if she must copy the Complainant on all submissions to the GRC. She claims that she never denied him access, she just required him to follow Borough procedures. January 30, 2006 E-mail from Complainant to GRC staff. The Complainant submits his response to the Custodian’s Statement of Information. The Complainant claims that until the Custodian received his January 3, 2006 Denial of Access Complaint, she refused to fulfill his request unless he resubmitted it on the Borough’s official request form. He states that that he received a facsimile from the Custodian on January 9, 2006 indicating that she is awaiting payment and that she is currently holding the requested documents. The Complainant asserts that the Custodian’s January 9, 2006 fax implies that she never previously insisted that he complete the Borough’s request form and that she was simply awaiting payment. He states that the Council now needs to determine whether the Custodian’s change of position moots this case. The Complainant asserts that dismissing this complaint as moot will allow the Custodian to continue to improperly require requestors to complete the Borough’s request form. The Complainant asks that the Council implement the policy used by the Courts, specifically in New Jersey Div. of Youth & Family Services v. J.B., 120 N.J. 112, 118-19 (1990).[5] Analysis What constitutes a valid OPRA request? The Complainant asserts that he submitted his records request on December 11, 2005. He claims that on December 20, 2005 he received a response from the Custodian indicating that the Borough would not fulfill his request until he completed their Public Record Request Form. The Custodian certifies that she advised the Complainant of the Borough’s policy for submitting OPRA requests on December 20, 2005. She also certifies that on December 29, 2005 she provided the Complainant with the Borough’s official form, the Borough’s ordinance regarding OPRA requests, and the charge for copies. On January 9, 2006, the Custodian states that she sent a fax to the Complainant indicating that she was awaiting payment for copies and requested to know if he was still interested in receiving the records he requested. The Complainant argues that as the Custodian originally denied access because he failed to use the Borough’s official form but later honored his request, the Custodian never actually insisted on the use of the form but was just awaiting payment. Review of the OPRA statute and its legislative intent lead the Council to conclude that use of the request form is required for all requestors. The statute provides that the custodian “shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.” N.J.S.A. 47:1A-5.f. The statute specifically prescribes what must be on the form:
Id. Although the statute does not expressly state that OPRA requests must be on the form adopted by the agency pursuant to N.J.S.A. 47:1A-5.f., principles of statutory construction show that the Legislature intended use of this form by all requestors to be mandatory. In interpreting a statute, it is axiomatic that “each part or section [of the statute] should be construed in connection with every other part or section so as to produce a harmonious whole.” Matturi v. Bd. of Trustees of JRS, 173 N.J. 368, 383 (2002), quoting In re Passaic Cty. Utilities Auth., 164 N.J. 270, 300 (2000). In addition, a construction which renders statutory language meaningless must be avoided. Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204 (1999). See also G.S. v. Dept. of Human Serv., 157 N.J. 161, 172 (1999). (a statute should be interpreted so as to give effect to all of its provisions, without rendering any language inoperative, superfluous, void, or insignificant). As noted, N.J.S.A. 47:1A-5.f. requires that custodians adopt a request form, and sets forth a detailed list of what the form must contain. The next subsection of the statute provides: 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. The custodian shall sign and date the form and provide the requestor with a copy thereof. (Emphasis added.) N.J.S.A. 47:1A-5.g. The form to which N.J.S.A. 47:1A-5.g. refers is the form required by N.J.S.A. 47:1A-5.f. In providing, in 5.g., that the custodian “shall” sign and date the form, indicate the basis for denial on the form, and return the form to the requestor, the Legislature evidenced its clear intent that it is mandatory for the form to be used by requestors. See Harvey v. Essex Cty. Bd. Of Freeholders, 30 N.J. 381, 391-92 (1959) (the word “shall” in a statute is generally mandatory). The express requirement that the custodian use the request form in denying an OPRA request, construed together with the preceding statutory requirement that the custodian adopt a request form, demonstrates that the Legislature intended that this form would be used for all OPRA requests. If all requestors are not required to submit requests on the form prescribed by the statute, then the statutory provisions requiring the custodian to sign and date the form, and return it to the requestor, would be meaningless. Indeed, a custodian would be unable to fulfill these express requirements of N.J.S.A. 47:1A-5.g. if the requestor does not use the form in submitting his request. Accordingly, nothing in OPRA suggests that some requestors may forgo using the official request form. In enacting the form requirement, the Legislature has expressed its policy that use of the form promotes clarity and efficiency in responding to OPRA requests, consistent with OPRA’s central purpose of making government records “readily accessible” to requestors. N.J.S.A. 47:1A-1. The Appellate Division has indicated that the statute’s form requirement serves the additional purpose of prompting the legislative policy that a requestor must specifically describe identifiable records sought. See Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534, 546 (App. Div. 2005) (an open-ended request that fails to identify records with particularity is invalid). In Bent v. Twp. of Stafford Police Dept., 381 N.J. Super. 30, 33 (App. Div. 2005), the Court held that the requestor’s general request for information violated this policy and was therefore invalid. In reaching this conclusion, the Court noted that OPRA mandates that the request form provide space for a “brief description” of the record request. Id. Similarly, in Gannett New Jersey Partners L.P. v. County of Middlesex, 379 N.J. Super. 205, 213 (App. Div. 2005), the Court specifically pointed to the same statutory request form requirement in determining that OPRA does not authorize requestors to make blanket requests for agency records. Accordingly, based on the language of the statute, as well as judicial recognition of the importance of the statutory request form, it is determined that the statute requires all requestors to submit OPRA requests on an agency’s official OPRA records request form. OPRA’s provisions come into play only where a request for records is submitted on an agency’s official OPRA records request form. Therefore, the Complainant’s records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA. Moreover, the Custodian was not obligated to fulfill the Complainant’s request, however she chose to do so and certifies that she notified the Complainant of such on January 9, 2006 and is awaiting payment of $2.25. Whether the Council has authority over municipal ordinances? OPRA provides the various roles of the Council. Specifically, OPRA states “[t] he Government Records Council shall… receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian…” In the Custodian’s Denial of Access Complaint, he requests that the Council declare the Borough’s ordinance requiring requestors to submit OPRA requests on the Borough’s official form as invalid. Under OPRA, the Council does not have authority over a municipality’s ordinances or regulations pursuant to N.J.S.A. 47:1A-7.b. As such, the Council is precluded from determining a municipality’s ordinance invalid. Whether the Custodian’s denial of access to the requested record on the basis that the Complainant did not the use the Borough’s official OPRA form rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of circumstances? 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. 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. The Complainant asserts submitting his records request on December 11, 2005. The Custodian certifies responding to said request on December 20, 2005 in which she advised the Complainant that his request must be submitted on the Borough’s OPRA form. The Custodian additionally certifies providing the Complainant with the Borough’s form, the Borough’s ordinance regarding the use of forms, and the charge for copies on December 29, 2005. Further, the Custodian certifies that on January 9, 2006 she contacted the Complainant to advise that she was awaiting payment and requested to know if he was still interested in obtaining the requested records. 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). As the Custodian was following the Borough’s ordinance to only fulfill requests submitted on the official form as well as the fact that the Custodian did eventually honor the Complainant’s request even though she was not obligated to do so as the request was not a valid OPRA request, the Custodian’s actions do not rise to the level of a knowing a willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find:
Prepared By: Dara Lownie, Case Manager Approved By: March 3, 2006 |
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