NJ Seal
State of NJ - Government Records Council Email Grc

2006-34

- Final Decision
- Interim Order
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Case was combined with 2006-27.
See case 2006-27

Return to Top

Interim Order

Thomas Caggiano
   Complainant
      v.
Borough of Stanhope
   Custodian of Record

Complaint No. 2006-27, 2006-28, 2006-29, 2006-30, 2006-31, 2006-32, 2006-33, 2006-34, 2006-35, 2006-36, 2006-37, 2006-38, 2006-39, 2006-40, 2006-41, 2006-42, 2006-43 and 2006-47

At the July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 6, 2006 Supplemental 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 these complaints be referred to the Office of Administrative Law to determine whether the custodian knowing and willful violated OPRA under the totality of the circumstances with consideration of the unlawful denial of access to inspect the records specifically requested for inspection only and the legality of the Borough’s October 9, 2003 letter barring the Complainant entry to the municipal building “for any reason”.

 

 

Interim Order Rendered by the

Government Records Council

On The 19th Day of July, 2006

Robin Berg Tabakin, Vice Chairman & Secretary
Government Records Council

 

 

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

 


Michelle Richardson, Designee of Commissioner Susan Bass Levin

Department of Community Affairs

Government Records Council 

Return to Top

Supplemental Findings and Recommendations of the Executive Director

Thomas Caggiano
   Complainant
      v.
Borough of Stanhope
   Custodian of Record

Complaint No. 2006-27, 2006-28, 2006-29, 2006-30, 2006-31, 2006-32, 2006-33, 2006-34, 2006-35, 2006-36, 2006-37, 2006-38, 2006-39, 2006-40, 2006-41, 2006-42, 2006-43 and 2006-47

Records Relevant to Complaint: [1]

  • Records concerning the Oak Drive development on Block 10902, Lots 10 and 12 in Stanhope, New Jersey.
  • Stanhope Public meeting minutes of July, August, September, October and November 2002 with attachments.
  • Borough of Stanhope tax map for Block 109 in Stanhope, New Jersey.
  • Stanhope Environment Commission Public Meeting minutes and attachments of August, September and October 2002. 

 

Request Made:  February 9, 2006[2]

Response Made: February 9, 2006 and February 10, 2006[3]

Custodian:  Robin Kline[4]

GRC Complaint Filed: February 9, 2006 and February 10, 2006[5]

Background

May 11, 2006

            Government Records Council’s (“Council”) Final Decision. At its May 11, 2006 public meeting, the Council considered the May 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, found that:

 

  1. The Custodian has not borne the burden of proving that there was a lawful basis to deny the Complainant access to inspect the requested records in the February 14, 2006 response to the Complainant’s Open Public Records Act (“OPRA”) requests and therefore, the Custodian unlawfully denied the Complainant access to inspect the requested records pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-6. 

 

  1. It was reasonable for the Custodian to require a scheduled appointment for the Complainant to inspect records pursuant to N.J.S.A. 47:1A-5.a., to avoid interfering with the Custodian’s daily operations.

 

  1. The Custodian made copies available to the Complainant in a timely manner pursuant to the Custodian’s February 14, 2006 written response.  Therefore, the Custodian did not unlawfully deny the Complainant access to the records for which he sought copies.

 

May 18, 2006

Council’s Final Decision distributed to the parties.

June 1, 2006

            Complainant’s request for reconsideration of the Council’s Final Decision.  The Complainant states that the Council’s May 11, 2006 Final Decision regarding his eighteen (18) denial of access complaints found the Custodian unlawfully denied him access to inspect the requested records pursuant to OPRA.  The Complainant states that the Borough of Stanhope’s Mayor, Borough Administrator and Custodian willfully denied him access to inspect records.  He requests that the Council consider the Borough of Stanhope’s (“Borough”) actions of denying him access to inspect the records requested in his eighteen (18) OPRA requests a knowing and willful violation of OPRA and that penalties should be assessed pursuant to N.J.S.A. 47:1A-11.   

Analysis

 

Whether the Custodian’s actions rise to the level of a knowing and willful violation of OPRA and unreasonably denial of access under the totality of the 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:

 

“…[i]f 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 contends that the Borough of Stanhope’s Mayor, Borough Administrator and Custodian willfully denied him access to inspect records relevant to his eighteen (18) OPRA requests made on February 9, 2006 by illegally denying him entry into the Borough’s municipal building.  The Complainant alleges that the Custodian had no legal basis to deny him entry into the municipal building and thereby willfully denied him access to inspect the requested records pursuant to OPRA.   He asserts that because of the Custodian’s actions, penalties should be assessed pursuant to N.J.S.A. 47:1A-11.  

 

The Deputy Clerk who responded to the OPRA requests cited an October 9, 2003 letter from the Borough Administrator to the Complainant that barred the Complainant from entering the municipal building “for any reason” and that if he had any communication other than by mail with Borough employees, he would be charged with “harassment” and “escorted from the property “ and charged with “criminal trespass under N.J.S.A. 2C:18-3.”  The Clerk asserted that for the reasons stated in the October 9, 2003 letter, she believed there was an enforceable “ban” on the Complainant entering the Borough’s municipal building for any reason and that the denial of access “had nothing to do with the OPRA statute” but was based on “New Jersey Criminal Law.”  In her February 14, 2006 response to the Complainant’s OPRA request, she informed the Complainant that while he sought to inspect records, such rights were only accorded an individual who had “a legal right to enter the Municipal Building” and since he was “banned” from entering the building, he had no legal right to inspect records pursuant to OPRA but could receive copies of the records.  Further, the Clerk stated that portions of the Complainant’s February 9, 2006 requests had been previously copied in response to prior OPRA requests for which he had not submitted the copying fees and had not responded.  The Clerk asserted that the Complainant “[was] attempting to force his way into the Stanhope municipal building under the pretext of an OPRA request when he was previously banned from coming into the municipal building …”

 

Subsequently, the newly appointed Custodian informed the Complainant that she was lifting the “ban” and permitting the Complainant access to inspect the records relevant to his eighteen (18) Denial of Access Complaints upon arranging a time for the records inspection with the Custodian.  The Complainant declined to schedule an appointment because he felt that the offer was a concession by the Borough regarding the “ban” on his entering the municipal building, which he contended was not legally enforceable.

 

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 the May 11, 2006 Final Decision, the Council found that there was not a lawful basis for the denial of access to inspect the requested records pursuant to OPRA.  Further, the Borough Administrator’s letter written to the Complainant in October 9, 2003 was not likely enforceable from a legal standpoint barring the Complainant entry into the Borough’s municipal building.  OPRA provides that a custodian shall comply with a request to inspect government records when the request indicates same.  The offering of copies to the Complainant when the request was to inspect records may not be used as a substitute pursuant to OPRA when the Complainant requested inspection.  Therefore, it is possible that the Custodian’s actions were intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional. As such, the case should be referred to the Office of Administrative Law for determination of a knowing and willful violation of the Act under the totality of the circumstances.

Conclusions and Recommendations

 

The Executive Director respectfully recommends that the Council reconsider these complaints and refer them to the Office of Administrative Law to determine whether the custodian knowing and willful violated OPRA under the totality of the circumstances with consideration of the unlawful denial of access to inspect the records specifically requested for inspection only and the legality of the Borough’s October 9, 2003 letter barring the Complainant entry to the municipal building “for any reason”. 

 


Prepared By:   

Operations Manager

 

 

Catherine Starghill, Esq.

Executive Director



[1] The specific OPRA records requests relevant to the eighteen (18) Complaints are listed in the May 4, 2006 Findings and Recommendations of the Executive Director.

[2]As stated on the records request.  There are eighteen separate records requests and each is dated February 9, 2006. A separate Denial of Access Complaint was filed for each request.

[3] February 9, 2006 as stated on the Denial of Access Complaints 2006-27 through 2006-43.  February 10, 2006 as stated on the Denial of Access Complaint 2006-47.

[4] The Custodian states in her April 13, 2006 certification that the Municipal Clerk’s position was vacant from January 1, 2006 through February 21, 2006.  The Deputy Clerk Ellen Horak responded to the Complainant’s OPRA requests. 

[5] The Denial of Access Complaints 2006-27 through 2006-43 were filed on February 9, 2006 and the Denial of Access Complaint 2006-47 was filed on February 10, 2006. 

Return to Top

Final Decision

Thomas Caggiano
   Complainant
      v.
Borough of Stanhope
   Custodian of Record

Complaint No. 2006-27, 2006-28, 2006-29, 2006-30, 2006-31, 2006-32, 2006-33, 2006-34, 2006-35, 2006-36, 2006-37, 2006-38, 2006-39, 2006-40, 2006-41, 2006-42, 2006-43 and 2006-47

 

At its May 11, 2006 public meeting, the Government Records Council (“Council”) considered the May 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:

  1. The Custodian has not borne the burden of proving that there was a lawful basis to deny the Complainant access to inspect the requested records in the February 14, 2006 response to the Complainant’s OPRA requests and therefore, the Custodian unlawfully denied the Complainant access to inspect the requested records pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-6. 
  2. It was reasonable for the Custodian to require a scheduled appointment for the Complainant to inspect records pursuant to N.J.S.A. 47:1A-5.a., to avoid interfering with the Custodian’s daily operations.
  3. The Custodian did made copies available to the Complainant in a timely manner pursuant to the Custodian’s February 14, 2006 written response.  Therefore, the Custodian did not unlawfully deny the Complainant access to the records for which he sought copies.

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 11th Day of May, 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 

Decision Distribution Date:  May 18, 2006

Return to Top

Findings and Recommendations of the Executive Director

Thomas Caggiano
   Complainant
      v.
Borough of Stanhope
   Custodian of Record

Complaint No. 2006-27, 2006-28, 2006-29, 2006-30, 2006-31, 2006-32, 2006-33, 2006-34, 2006-35, 2006-36, 2006-37, 2006-38, 2006-39, 2006-40, 2006-41, 2006-42, 2006-43 and 2006-47

Records Relevant to Complaint: Records concerning the Oak Drive development on Block 10902, Lots 10 and 12 in Stanhope, New Jersey.[1]
Request Made: 
February 9, 2006[2]
Response Made:  February 9, 2006 and February 10, 2006[3]
Custodian:  Robin Kline[4]
GRC Complaint filed: February 9, 2006 and February 10, 2006[5]

Background

The eighteen (18) referenced complaints involve the same Complainant and Custodian and are combined for purposes of the findings and recommendations because the records requests and the issue in these complaints are similar. 

February 9, 2006

Complainant’s eighteen (18) Open Public Records Act (“OPRA”) requests.  The requested records concern the Oak Drive development on Block 10902, Lots 10 and 12 in Stanhope, New Jersey. 

February 9, 2006[6]

Denial of Access Complaints 2006-27 through 2006-43 filed with the Government Records Council (“GRC”) with the following attachments:

  • February 9, 2006 letter to the GRC.
  • Complainant’s seventeen (17) records requests dated February 9, 2006 listed in the table below:

 

GRC Complaint No.

Records Request

Request Type

2006-27

Soil Erosion and Sediment Control Plan certified by Sussex County Soil Conservation District on October 8, 2002 for Block 10902, Lot 10 submitted by Eleanor Dawalt and approved by Land Use Board (“LUB”)

Inspect and copy

2006-28

Soil Erosion and Sediment Control Plan revision certified by Sussex County Soil Conservation District on March 24, 2004 for Block 10902, Lot 10 submitted by ENF Development Company

Copy

 

Soil Erosion and Sediment Control Plan certified by Sussex County Soil Conservation District on October 8, 2002 for Block 10902, Lot 10 submitted by ENF Development Company and approved by LUB

Inspect

 

August 22, 2002 letter from the LUB Attorney Dolan and Dolan to Winifred Straub concerning Dawalt Subdivision

Inspect

2006-29

Soil Erosion and Sediment Control Plan certified by Sussex County Soil Conservation District on September 30, 2003 for Block 10902, Lot 12 submitted by ENF Development Company and approved by LUB

Inspect and copy

 

State Soil Conservation committee’s letter dated September 30, 2003 titled Borough of Stanhope, Sussex County, Block 10902, Lot 10, Sussex District Plan #SH44 regarding incorporation of Lot 12 into existing certified plan for Lot 10

Copy

 

Certificate of Occupancy issued by Borough of Stanhope to ENF Development Co. LLC regarding Block 10902, Lot 10, 2 Oak Drive

Inspect

2006-30

Letter submitted by Sussex County Soil Conservation District’s certification of Soil Erosion and Sediment Control Plan Plat certified by Sussex County Soil

Conservation District on March 24, 2004, submitted by ENF. Development Co. LLC for Block 10902, Lot 10 revision to LUB

 

 

Inspect and copy

 

August 11, 2002 memorandum from Stanhope Environmental Commission to LUB re: Block 10902, Lots 10, 11, and 12 Frank Dawalt

 

Inspect

2006-31

Variance request submitted by Eleanor Dawalt to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built in rear of Block 10902, Lots 10

and 12 from July 29, 2002 to August 15, 2002

 

Inspect and copy

 

LUB public meeting minutes of August and September 2002

Inspect

2006-32

Variance request submitted by ENF Development Co. LLC to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built on Block 10902, Lots 10 and 12 in the rear from July 29, 2002 to August 15, 2002

 

Inspect and copy

 

Stanhope Town Council Public Meeting minutes of September and October 2002

Inspect

2006-33

Variance request submitted by Mr. And Mrs. Lamicella to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built in the rear of Block 10902, Lot 12 from July 29, 2002 to August 15, 2002

 

Inspect and copy

 

Stanhope Town Council Public Meeting minutes and attachments of July, August, September, October and November 2002

Inspect

2006-34

Stanhope Town Council Public Meeting Minutes and attachments of October 29, 2002

Inspect

 

Portion of the Stanhope Town Council Public Meeting minutes of October 29, 2002 where Stanhope Block 10902, Lot 10 and Lot 12 and the ENF Development Co. LLC Oak Drive development was discussed and recorded

Copy

2006-35

Stanhope Town Council Public Meeting minutes and attachments of September 24, 2002

Inspect

2006-36

Stanhope LUB Public Meeting minutes and attachments of August 26, 2002

Inspect

2006-37

Stanhope Environment Commission Public Meeting minutes and attachments of September 5, 2002

Inspect

2006-38

Design of the wall built behind Block 10902, Lot 10 and Lot 12 by ENF Development co. LLC IAW Stanhope Chapter Land Development Chapter 100-58C completed during July 29 and August 15, 2002

 

Inspect

 

Letter from Peter Schneider PE dated August 15, 2002 to ENF Development Co. LLC that approved the two wall design for walls that existed behind Block 10902, Lots 10 and 12, and stated there was compliance with municipal codes

Inspect

 

Petition signed by 14 adjacent property owners to the Borough of Stanhope, entitled Block 10902, Lot 10 Enforcement of Land Development Code present to Town Council dated July 25, 2002

Inspect

2006-39

Borough of Stanhope tax maps folder for Block 109

Inspect

2006-40

Borough of Stanhope Municipal folder for Block 10902, Lot 10 and Lot 12 and Paramount Self Storage Development on Rt. 206 and Dell Road

Inspect

2006-41

Borough of Stanhope Municipal Construction Code Official Building folders for Block 10902, Lot 10 and 12

Inspect

2006-42

Fax sent by Thomas Caggiano to John Cilo Jr. Associates Borough Engineer in Jul 2002 re: Urgent Safety concerning rear single 8 ft tall wall in rear of Block 10902, Lot 12

 

Copy

 

Approval Notice from Borough Engineer John Cilo Jr. to Borough for Block 10902, Lots 12 and 10 re: approval for certificate of occupancy for E.N.F. Development Co. LLC

 

Inspect

2006-43

Drainage velocity calculations submitted by Eleanor Dawalt as part of the combined Site Plan and Soil Erosion and Sediment Control Plan application for the “SCSCP” approved by the Board of Adjustment on November 7, 2001 for the minor subdivision Block 10902, Lot 10 and Lot 12

Copy

 

Fee invoice paid by Eleanor Dawalt to Borough   of Stanhope for Board of Adjustment’s Engineer’s review of combined Site Plan and Soil Erosion and Sediment Control Plan application for Block 10902, Lots 10 and 12, approved by Borough Engineer on Oct. 9, 2001

Inspect

 

Letters of John Cilo Jr. Associates Borough engineer’s and planner’s letters provided to Board of Adjustment

re: site plan and soil erosion and sediment control plan

application submitted by Eleanor Dawalt for individual three house site plans for Block 10902, Lots 10, 11 and            12 and minor subdivision two house site plan for 10   and 12

 

 

Inspect

 

Stanhope Environment Commission Public Meeting minutes and attachments of August, September, October 2002

Inspect

The Complainant states in the seventeen (17) Denial of Access Complaints that he was denied access to inspect the records requested in his OPRA requests. 

February 10, 2006[7]

Denial of Access Complaint 2006-47 filed with the GRC with the following attachment:

  • Complainant’s records request dated February 9, 2006 listed in the table below:

 

GRC Complaint No.

Records Request

 

2006-47

1. Town Council Public Meeting minutes and attachments for 2002 to 2004

Inspect

 

2. LUB Public Meeting minutes and attachments for 2002 to 2004

Inspect

 

3.  Stanhope Environmental Commission minutes and attachments for 2002 to 2003

Inspect

 

4.  Fee paid by ENF Development Co. LLC for LUB, Borough Engineer and Borough Planner of John Cilo Jr. Associates services for review of the Soil Erosion and Sediment Control Plan certified by SCSCD on October 8, 2002 for Block 10902, Lot 10

Copy

 

5.  Fee paid by ENF Development Co. LLC for LUB, Borough Engineer and Borough Planner of John Cilo Jr. Associates services for review of the Soil Erosion and Sediment Control Plan certified by SCSCD on March 24, 2004 for Block 10902, Lot 10

Copy

 

6. Fee paid by ENF Development Co. for LUB, Borough Engineer and Borough Planner of John Cilo, Jr. Associates for review of certification of the incorporation for Lot 10 per letter from James Sadley to SCSCD dated Sept 30, 2003 based upon ENF Development Co. letter dated Jul 18, 2003

 

Copy

 

7.  Fee paid by ENF Development Co. for LUB, Borough Engineer and Borough Planner of John Cilo, Jr. Associates for review of Soil Erosion and Sediment Control Plan certified by SCSCD on Oct. 8, 2002 for Block 10902, Lot 10

Copy

 

8.  Soil Erosion and Sediment Control Plan plat for Block 10902, Lot 10 approved by LUB and certified by Dept. of Agriculture Sussex County Soil Conservation District for October 8, 2002 submitted by Eleanor Dawalt

 

Copy

 

9.  Soil Erosion and Sediment Control Plan plat for Block 10902, Lot 10 approved by LUB and certified by Dept. of Agriculture Sussex County Soil Conservation District for March 24, 2003 submitted by ENF Development Co. LLC

 

 

Copy

 

10.  Variance request submitted by Eleanor Dawalt to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built in rear of Block 10902, Lots 10

and 12 from July 29, 2002 to August 15, 2002

 

Copy

 

11.  Variance request submitted by E.N.F. Development Co. LLC to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built on Block 10902, Lots 10 and 12 in the rear from July 29, 2002 to August 15, 2002

 

Copy

 

12.  Variance request submitted by Mr. and Mrs. Lamicella to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built in the rear of Block 10902, Lot 12 from July 29, 2002 to August 15, 2002

 

Copy

 

14.  Borough Engineer’s invoice to review and approve the Sussex County Soil Erosion and Sediment Control Plan certified by SCSCD on Oct. 8, 2002, submitted by Eleanor Dawalt for Block 10902, Lot 10

 

 

Copy

 

15.  Letter from Sussex County Soil Conservation District that notified the LUB that the Mar 24, 2004 Soil Erosion and Sediment Control plat for Block 10902, Lot 10 revision submitted by ENF Development Co. LLC was certified

 

 

 

Copy

 

16.  Drainage velocity calculations provided with the Sussex  County Soil Conservation District’s Soil Erosion Sediment Control Plan certified by SCSCD on March 24, 2004 for Block 10902, Lot 10 revision submitted by ENF Development Co.

 

Copy

 

17.  Drainage velocity calculations provided with the Sussex  County Soil Conservation District’s Soil Erosion Sediment Control Plan certified by SCSCD on October 8, 2002 for Block 10902, Lot 10 submitted by Eleanor Dawalt

 

 

Copy

 

18.  Sussex County Soil Conservation District’s letter notifying the LUB that the Soil Erosion and Sediment Control plat for Block 10902 Lot 10 incorporated that Lot 12 was certified through time expiration of a letter from ENF Development Co. LLC on Jul 18, 2003 by the State Soil Conservation Committee finding of September 30, 2003

 

 

Copy

 

19.  Letter from Sussex County Soil Conservation District notifying the LUB that the Mar 24, 2004 Soil Erosion and Sediment Control plat for Block 10902, Lot 10 revision submitted by ENF Development Co. LLC was certified

 

 

Copy

 

20.  Soil Erosion and Sediment Control Plan plat for Minor Subdivision of Block 10902, Lots 10 and 12 approved by the Stanhope Board of Adjustment on November 7, 2001 and certified by the SCSCD

 

 

Copy

 

21.  Drainage velocity calculations provided with the Sussex  County Soil Conservation District’s Soil Erosion Sediment Control Plan for Minor Subdivision, Block 10902, Lots 10 and 12 submitted by Eleanor Dawalt and approved by Board of Adjustment on November 7, 2001

 

Copy

 

22.  Borough Engineer’s inspection report for minor sub-division development on Block 10902, Lots 10 and 12 for period November 7, 2001 through December 19, 2004

 

Inspect

 

23.  Borough Engineer and Borough Planner invoices from John Cilo Jr. Associates to conduct inspections and provide engineer services to the LUB for the minor subdivision development on Block 10902, Lots 10 and 12 for period October 1, 2001 through December 19, 2004

 

Inspect

 

24.  Borough Engineer John Cilo Jr. inspection reports and invoices for engineering services for the Paramount Self Storage Development on Route 206 and Dell Road

 

Inspect

 

25.  Approximately 3 minutes of the public discussion among Thomas Caggiano, LUB Attorney Roger Thomas and LUB Chairman Leonard Kubik at the Aug. 26, 2002 LUB meeting (provide in word format

on a floppy disk) – time frame from approximately 8:01 PM to 8:04 PM re: Block 10902, Lots 10 and 12

Development

 

Copy

 

26.  Paramount Self Storage Soil Erosion and Sediment Plans certified by the Sussex County Soil Conservation District and approved by the Borough of Stanhope

 

 

Inspect

The Complainant states that the Borough of Stanhope denied him access to inspect the Town Council, LUB and Stanhope Environmental Commission’s public meeting minutes and attachments, invoices and reports of services.   

February 22, 2006

Request for Statement of Information sent to the Custodian.

March 1, 2006

Custodian’s Statement of Information (“SOI”) in response to GRC Complaints 2006-27 through 2006-43 with the following attachments:

  • October 9, 2003 letter from the Borough Administrator to the Complainant.
  • February 6, 2006 letter from Custodian to the Complainant concerning Complainants January 25 and January 27, 2006 records request.
  • February 14, 2006 letter from Custodian to the Complainant regarding Complainant’s February 8, 2006 request for records.

The Custodian states that the records requests relevant to the seventeen (17) Complaints were received on February 10, 2006.  She states that there are six (6) items in the Complainant’s requests for which he asks only to inspect records.  She states further that the Complainant was denied access to inspect records on file at the Borough of Stanhope (“Borough”) based on New Jersey criminal law due to the Complainant’s “behavior” while in the Borough’s Municipal Building.  According to the Custodian, the Complainant was “banned” from coming into the Municipal Building.  The Custodian states that in a letter dated October 9, 2003 and hand delivered to the Complainant, he was informed that if he came on Borough property, he would be charged with “criminal trespass under N.J.S.A. 2C:18-3.”  The Custodian states that in the February 14, 2006 written response to the Complainant’s OPRA requests, he was prohibited from entering the Municipal building based on the October 9, 2003 letter and therefore denied access to inspect records, but that he could receive copies of the requested records and was informed of the copying costs to obtain the records.  The Custodian states that the Complainant did not respond to this letter. 

February 16 and February 23, 2006, March 3, March 4, March 8, March 10, March 11, March 12, March 13, March 16, March 21 and March 29, 2006 and April 10, 2006

Faxed submissions from the Complainant to the GRC.  In the Complainant’s submissions, he asserts that his OPRA requests to inspect records was denied which he asserts violates OPRA.  He contends further that the Borough  has no court order or other authorized authority to “ban” him from entering its municipal building.  He states that providing copies of the records does not satisfy his requests when he requested to inspect records. 

In the Complainant’s March 10 and 11, 2006 submissions to the GRC, he states that he [the Complainant] subsequently was provided access to inspect the requested records.  He states further that he “must refuse [Custodian’s] offer to inspect the Borough of Stanhope records which requires [him] to submit a request for an appointment.” He asserts that the Borough’s request that he arrange an appointment to inspect the records violates OPRA.  He states further that while he considered the offer to inspect, he felt that the offer was a concession by the Borough regarding the “ban” on his entering the municipal building, which he contends is not legally enforceable.  The Complainant asserts further that he was denied immediate access to inspect “invoices, tax records, et al” pursuant to OPRA. 

March 9, 2006

Custodian’s Supplemental SOI submissions for each of the eighteen (18) Complaints with the following attachments:

  • December 19, 2005 letter to the Complainant to advise him of the cost for copying records in response to a December 13, 2005 OPRA records request.
  • January 23, 2006 letter to the Complainant to reiterate the Custodian’s December 19, 2005 response to the Complainant’s December 13, 2005 OPRA records request.
  • February 14, 2006 letter to the Complainant regarding his February 8, 2006 OPRA records request.
  • March 6, 2006 letter to the Complainant from the newly appointed Custodian to advise that he could inspect the records relevant to his requests.

The Custodian states that the nineteen (19)[8] OPRA requests dated February 9, 2006 were filed and received in the Borough by fax on February 9, 2006.  The Custodian contends that the GRC should not accept the filing of individual complaints because the records requests were submitted to the Borough on the same date and all the requests related to the same property.  The Custodian states that she is the newly appointed Clerk for the Borough of Stanhope and assumed the position on February 21, 2006, after the records requests relevant to Complaint were filed.  The Custodian states that as the Clerk for the Borough, she is the Custodian and after reviewing the Complaints made a decision to “lift the ban” regarding the Complainant’s entry into the Borough’s Municipal Building to inspect the requested records. She states further that in a March 6, 2006 letter to the Complainant, she informed him that he could inspect the requested records and requested that the Complainant make an appointment to inspect the files, but had not received a response as of March 9, 2006. 

The Custodian states that she compiled all the records responsive to the requests for the Complainant to inspect and the records are contained in several large file boxes.  She states further that she planned to provide the Borough’s conference room to the Complainant to examine and inspect the records so not to interfere Municipal Building’s daily operations. 

She contends that in prior instances, the Complainant requested copies of the records and was informed of the copying costs.  She asserts that the Complainant did not respond nor pay the copying costs but filed another OPRA request for the same records.  She references the December 19, 2005 and January 23, 2006 letters from the prior Custodian to the Complainant.   The Custodian also references the February 14, 2006 letter from the prior Custodian to the Complainant advising the Complainant that copies of the requested records were available and would be mailed to him once payment was received.

The Custodian contends that the GRC should consider the Complainant’s current requests for copies of records to be frivolous until he follows through on his previous record requests for copies by submitting the copying fees pursuant to OPRA.  

April 6, 2006

Request for document index and certification regarding the eighteen (18) Complaints sent to the Custodian. 

April 13, 2006

Custodian’s document index and certification in response to the Complaints.  The Custodian states that the Borough’s Municipal Clerk’s position was vacant from January 1, 2006 through February 21, 2006 after the Clerk’s resignation on December 30, 2005 and there was no Municipal Clerk who acted as the Records Custodian pursuant to N.J.S.A. 47:1A-1.1.  She states further that the Deputy Clerk was not appointed as the Acting Clerking during the period the Clerk’s position was vacant and asks that the GRC take this information into consideration in the subject Complaints. 

In the submission of the document index, the Custodian states that the following records do not exist regarding the eighteen (18) OPRA requests:

 

GRC Complaint No.

Records Request

Non-Existent record / Broad and Unclear

2006-33

Variance request submitted by Mr. and Mrs. Lamicella to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built in the rear of Block 10902, Lot 12 from Jul 29, 2002 to Aug 15, 2002

 

Non-existent record

 

Inspect Stanhope Town Council Public Meeting minutes and attachments of July, August, September, October and November 2002

Attachments non-existent

2006-34

Inspect Stanhope Town Council Public Meeting Minutes and attachments of October 29, 2002

Attachments non-existent

2006-35

Inspect Stanhope Town Council Public Meeting minutes and attachments of September 24, 2002

Attachments non-existent

2006-36

Inspect Stanhope LUB Public Meeting minutes and attachments of August 26, 2002

Attachments non-existent

2006-37

Inspect Stanhope Environment Commission Public Meeting minutes and attachments of September 5, 2002

Attachments non-existent

2006-35

Inspect Stanhope Town Council Public Meeting minutes and attachments of September 24, 2002

Attachments non-existent

2006-36

Inspect Stanhope LUB Public Meeting minutes and attachments of August 26, 2002

Attachments non-existent

2006-37

Inspect Stanhope Environment Commission Public Meeting minutes and attachments of September 5, 2002

Attachments non-existent

2006-39

Inspect the Borough of Stanhope Tax Maps folder for Tax Map Block 109

 

 

Broad and unclear

2006-42

Copy of fax sent by Thomas Caggiano to John Cilo Jr. Associates Borough Engineer in Jul 2002 re: Urgent Safety concerning rear single 8 ft tall wall in rear of Block 10902, Lot 12

 

Broad and unclear

 

Inspect Approval Notice from Borough Engineer John Cilo Jr. to Borough for Block 10902, Lots 12 and 10 re: approval for certificate of occupancy for E.N.F. Development Co. LLC

 

Broad and unclear

2006-43

Inspect Stanhope Environment Commission Public Meeting minutes and attachments of August, September, October 2002

Attachments non-existent

2006-47

1. Inspect Town Council Public Meeting Minutes and attachments for 2002 to 2004

Attachments non-existent

 

2. Inspect LUB Public Meeting Minutes and attachments for 2002 to 2004

Attachments non-existent

 

3.  Inspect Stanhope Environmental Commission Minutes and attachments for 2002 to 2003

Attachments non-existent

 

12.  Copy variance request submitted by Mr. and Mrs. Lamicella to LUB and fee for Borough Engineer’s service in support of LUB evaluation and LUB approval to build a lower wall in the non-disturbance and conservation zone for wall built in the rear of Block 10902, Lot 12 from Jul 29, 2002 to Aug 15, 2002

 

Non-existent Record

Analysis

Whether the Custodian unlawfully denied access to records requested in the Complainant’s eighteen (18) OPRA requests dated February 9, 2006?

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, 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 …” (Emphasis added.)

N.J.S.A. 47:1A-1.1.

OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:

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

Additionally, OPRA provides for the inspection of a government record.  Specifically, OPRA states that:

“…[t]he custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular business hours…” N.J.S.A. 47:1A-5.a.

OPRA also provides that:

“[u]nless 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 …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

The Complainant asserts that he was denied access to inspect records in his eighteen (18) OPRA requests dated February 9, 2006.  He states that he was subsequently provided access to inspect the records but declined the offer because he contends that he should not have to arrange an appointment to inspect records pursuant to OPRA.  He asserts further that the offer to receive copies of the requested records did not satisfy his request when he requested to inspect records. 

In the March 1, 2006 SOI, the Custodian, who was the Deputy Clerk at the time of the OPRA requests were filed with the Borough, states that she provided the February 14, 2006 written response to the Complainant advising him that he was legally prohibited from entering the Borough’s Municipal Building several years ago because of his “behavior” and was, therefore, denied access to inspect the records in his February 9, 2006[9] OPRA requests. In the February 14, 2006 response, the Custodian also advised the Complainant that the records for which he was seeking copies would be provided upon payment of the copying costs, but the Custodian contends that she did not receive a response from the Complainant or payment for the copies.  The Custodian asserts that the October 9, 2003 letter from the Borough Administrator to the Complainant (barring the Complainant access to the Municipal Building due to his “behavior”) was a legal basis to deny the Complainant access to inspect records sought in his OPRA requests. 

Pursuant to N.J.S.A.47:1A-1, government records shall be readily accessible, not only for copying, but also for inspection.  While the Custodian asserts that the Complainant was “legally banned” from entering the Borough’s Municipal Building based on an October 9, 2003 letter from the Borough Administrator to the Complainant, the “letter” does not likely ban the Complainant from the Municipal Building from a legal standpoint.  Therefore, the Custodian has not borne the burden of proving that there was a lawful basis to deny the Complainant access to inspect the records sought in the Complainant’s OPRA requests pursuant to OPRA. Thus, the Custodian unlawfully denied the Complainant access to inspect the requested records for which the Complainant only wanted to inspect pursuant N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-6. 

Additionally, the newly appointed Custodian subsequently re-evaluated the Complainant’s OPRA requests and in a March 6, 2006 letter to the Complainant, the Custodian informed the Complainant that he could inspect the requested records; however, she requested that he schedule an appointment with her for the inspection of the records. The Custodian states in the SOI that she planned to provide the Borough’s conference room to the Complainant to examine and inspect the records so not to interfere with the Municipal Building’s daily operations.   She states that the Complainant did not contact her to arrange a time to inspect the requested records.  In submissions from the Complainant to the GRC, the Complainant declined the Custodian’s offer to arrange a specific time to inspect the records because he contends that he should not have to schedule an appointment to inspect records pursuant to OPRA. 

OPRA provides that a Custodian shall permit the inspection of records during regular business hours.  Based on the Custodian’s subsequent re-evaluation of the Complainant’s OPRA requests and decision to provide the Complaint opportunity to inspect the records responsive to his OPRA requests, as well as the Custodian’s explanation that the records were contained in several large file boxes and her intensions to set aside the Borough’s conference room for the inspection so not interfere with daily operations, it was reasonable for the Custodian to require a scheduled appointment to inspect the records pursuant to N.J.S.A. 47:1A-5.a.

With regard to the records the Complainant requested copies, the Custodian did made copies available to the Complainant in a timely manner pursuant to the February 14, 2006 letter.  Therefore, the Custodian did not unlawfully deny the Complainant access to the records for which he sought copies. 

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that:

  1. The Custodian has not borne the burden of proving that there was a lawful basis to deny the Complainant access to inspect the requested records in the February 14, 2006 response to the Complainant’s OPRA requests and therefore the Custodian unlawfully denied the Complainant access to inspect the requested records pursuant N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-6. 
  2. It was reasonable for the Custodian to require a scheduled appointment to inspect records pursuant to N.J.S.A. 47:1A-5.a.
  3. The Custodian did made copies available to the Complainant in a timely manner pursuant to the February 14, 2006 letter.  Therefore, the Custodian did not unlawfully deny the Complainant access to the records for which he sought copies. 

Prepared By: Gloria Luzzatto, Operations Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

May 4, 2006


[1] The specific documents are listed below under “Background.”
[2]As stated on the records request.  There are eighteen separate records requests and each is dated February 9, 2006. A separate Denial of Access Complaint was filed for each request.
[3] February 9, 2006 as stated on the Denial of Access Complaints 2006-27 through 2006-43.  February 10, 2006 as stated on the Denial of Access Complaint 2006-47.
[4] The Custodian states in her April 13, 2006 certification that the Municipal Clerk’s position was vacant from January 1, 2006 through February 21, 2006.  The Deputy Clerk Ellen Horak responded to the Complainant’s OPRA requests. 
[5] The Denial of Access Complaints 2006-27 through 2006-43 were filed on February 9, 2006 and the Denial of Access Complaint 2006-47 was filed on February 10, 2006. 
[6] The Complainant declined mediation when he filed his Denial of Access Complaints with the GRC. 
[7] The Complainant declined mediation when he filed his Denial of Access Complaint with the GRC. 
[8] The Custodian mistakenly references nineteen (19) OPRA requests.  There are eighteen (18) OPRA  requests which are the subject of the eighteen (18) Denial of Access Complaints filed by the Complainant. 
[9] The Custodian’s February 14, 2006 letter indicates requests dated February 8, 2006.  However, the SOI addresses the requests at issue in the subject cases. 

Return to Top