2006-81

Final Decision

At the January 31, 2007 public meeting, the Government Records Council (“Council”) considered the January 24, 2007 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 pursuant to the Custodian’s December 22, 2006 certification, the Custodian has complied with the Council’s December 14, 2006 Interim Order within the required time frame.

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 31^st Day of January, 2007

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, Vice Chairman & Secretary
Government Records Council 

Decision Distribution Date:  February 2, 2007

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Supplemental Findings and Recommendations of the Executive Director

Records Relevant to Complaint:

Copies of all information dealing with Union Hospital complaint # NJ00011811.

Request Made: March 31, 2006

Response Made: No response

Custodian: Paula Howard

GRC Complaint Filed: April 22, 2006

Background

December 14, 2006

            Government Records Council’s (“Council”) Interim Order. At its December 14, 2006 public meeting, the Council considered the December 7, 2006 In Camera 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 with one amendment to the recommended redactions.  The Council, therefore, found that:

1. The redacted sentence on page one (1) appears to be a direct quote from an incident report dated 2/13/04 at 18:25.  Therefore, this sentence is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).
2. The Custodian shall disclose the redacted paragraph on page two (2) of the survey’s notes except for that end of the first sentence beginning with the word “the” which discusses the hospital’s incident report which is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).  This portion of the last paragraph on page (2) of the survey’s notes consists of only seven (7) words.
3. The Custodian shall comply with “2” within five (5) business days from receipt of this decision on the basis of the Council’s above determination and provide certified confirmation to the Executive Director that the Custodian has complied with the Council’s decision.

December 19, 2006

Council’s Interim Order distributed to the parties.

December 22, 2006

            Custodian’s response to the Council’s Interim Order.  The Custodian provided a legal certification attesting to having provided the Complainant the requested record with the redactions authorized by the GRC in accordance with the Council’s December 14, 2006 Interim Order.

Analysis

Whether the Custodian complied with the Council’s December 14, 2006 Interim Order?

The Custodian provided a legal certification attesting to having provided the Complainant the requested record with the redactions authorized by the GRC in accordance with the Council’s December 14, 2006 Interim Order.

Based on the legal certification of the Custodian dated December 22, 2006, the Custodian has complied with the Council’s December 14, 2006 Interim Order within the required time frame.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that pursuant to the Custodian’s December 22, 2006 certification, the Custodian has complied with the Council’s December 14, 2006 Interim Order within the required time frame.

Prepared and

Approved By:

Catherine Starghill, Esq.

Executive Director

January 24, 2007

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Interim Order 2

At the December 14, 2006 public meeting, the Government Records Council (“Council”) considered the December 7, 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 with one amendment. The Council, therefore, finds that:

1. The redacted sentence on page one (1) appears to be a direct quote from an incident report dated 2/13/04 at 18:25.  Therefore, this sentence is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).
2. The Custodian shall disclose the redacted paragraph on page two (2) of the survey’s notes except for that end of the first sentence beginning with the word “the” which discusses the hospital’s incident report which is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).  This portion of the last paragraph on page (2) of the survey’s notes consists of only seven (7) words.
3. The Custodian shall comply with “2” within five (5) business days from receipt of this decision on the basis of the Council’s above determination and provide certified confirmation to the Executive Director that the Custodian has complied with the Council’s decision.

Interim Order Rendered by the

Government Records Council

On The 14^th Day of December, 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, Vice Chairman & Secretary
Government Records Council 

Decision Distribution Date:  December 19, 2006

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In Camera Findings

December 14, 2006 Council Meeting

Steven Siebenlist[1]                                                                  GRC Complaint No. 2006-81

            Complainant

v.

NJ Department of Health & Senior Services (“DOHSS”)

            Custodian of Records

Records Relevant to Complaint:

Copies of all information dealing with Union Hospital complaint # NJ00011811.

Request Made: March 31, 2006[2]

Response Made: No response[3]

Custodian: Paula Howard

GRC Complaint Filed: April 22, 2006

Background

September 21, 2006

Interim Order of the Government Records Council. At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 2006 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council found that:

1. Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[4] (January, 2006), the Custodian is in violation of N.J.S.A. 47:1A-1 for not providing the Complainant with documents the Custodian states are already in the Complainant’s possession as well as stating that certain documents were e-mailed to the Complainant prior to the date of the request. Therefore, the Custodian should release the documents responsive to the Complainant’s request, with proper redactions pursuant to OPRA that the Custodian claims are already in the Complainant’s possession.
2. The Custodian is in violation of N.J.S.A. 47:1A-6 for not bearing her burden of proving that the redacted information in the surveyor’s notes is authorized by law.  Based on the above, the Council should conduct an in camera inspection of the surveyor’s notes to determine if the records are exempt from disclosure.
3. Pursuant to Paff v. Borough of Somerville, GRC Complaint No. 2005-55 (November 2005) as well as the fact that the Complainant’s OPRA request was received on March 31, 2006 and was not responded to until April 26, 2006, the Custodian is in violation of N.J.S.A. 47:1A-5.i. as well as N.J.S.A. 47:1A-5.g.
4. While the Custodian did not respond to the Complainant’s OPRA request  within the statutorily mandated seven (7) business days, denied access to portions of the surveyor’s notes without providing a sufficient legal basis for doing same, and denied access to records the Custodian previously provided to the Complainant in violation of OPRA pursuant to N.J.S.A. 47:1A-1 and Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[5] (January, 2006), the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a. and the legal standard for same established by the New Jersey Courts.
5. The Custodian must deliver to the Council in a sealed envelope six copies of the requested unredacted document (see #2 above), a document or redaction index detailing the document and/or each redaction you assert and the Custodian’s legal certification under penalty of perjury that the document provided is the document requested by the Council for the in camera no later than five (5) business days from the distribution date of the Council’s Interim Order.

October 3, 2006

            Council’s Interim Order distributed to the parties.

October 11, 2006

            Certification of the Custodian with the following attachments:

• Six (6) unredacted documents responsive to the Council’s Interim Order
• Document index detailing the redactions and the asserted lawful basis for such redactions
• Copy of N.J.S.A. 26:2H-12.25 – NJ Health & Vital Statistics Statue entitled:  Definitions of relative patient safety; plans; reports; documentation, notification of adverse events, etc.
• Copy of N.J.A.C. 8:43G-15.2 – NJ Department of Health Regulation entitled:  Medial Records polices and procedures

The Custodian certifies that she has enclosed the requested record pursuant to the Council’s September 21, 2006 Interim Order.  Additionally, the Custodian asserts that the two paragraphs redacted from the record are exempt from disclosure under N.J.S.A. 26:2H-12.25(f)(2) which provides that “any documents, materials or information received by the department, or the Department of Human Services, as applicable, pursuant to the provisions of subsection c. and e. of this section concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting pursuant to subsection c. of this section, shall not be … considered a public record under [OPRA].  Specifically, the Custodian asserts that the redacted sentence on page one (1) and the paragraph on page two (2) are exempt under N.J.S.A. 26:2H-12.25(f)(2) because the information contained in the redacted sentence on page one (1) and the last paragraph on page two (2) are verbatim quotes from the hospital’s incident report.   

Further, the Custodian certifies that the previously asserted exemption from disclosure relating to N.J.A.C. 8:43G-15.2 is not applicable upon the Custodian’s review and contemplation of this regulation.

 Analysis

After completing the in camera inspection of the surveyor’s notes regarding Union Hospital complaint #NJ00011811, the Council should find that the redacted sentence on page one (1) appears to be a direct quote from an incident report dated 2/13/04 at 18:25.  Therefore, this sentence is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).

Additionally, the Council should disclose the redacted paragraph on page two (2) of the survey’s notes except for that end of the first sentence beginning with the word “as” which discusses the hospital’s incident report which is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).  This portion of the last paragraph of the survey’s notes consists of only fourteen (14) words.

Conclusions and Recommendations

            The Executive Director respectfully recommends that the Council find that:

1. The redacted sentence on page one (1) appears to be a direct quote from an incident report dated 2/13/04 at 18:25.  Therefore, this sentence is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).
2. The Custodian shall disclose the redacted paragraph on page two (2) of the survey’s notes except for that end of the first sentence beginning with the word “therefore” which discusses the hospital’s incident report which is exempt from disclosure as “information received by the department … concerning serious preventable adverse events, near-misses, preventable events and adverse events that are otherwise not subject to mandatory reporting … [and] shall not be … considered a public record under [OPRA]” pursuant to N.J.S.A. 26:2H-12.25(f)(2).  This portion of the last paragraph on page (2) of the survey’s notes consists of only nine (9) words.
3. The Custodian shall comply with “2” within five (5) business days from receipt of this decision on the basis of the Council’s above determination and provide certified confirmation to the Executive Director that the Custodian has complied with the Council’s decision.

Prepared and

Approved By:

Catherine Starghill, Esq.

Executive Director

Government Records Council

December 7, 2006

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Interim Order

At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 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. Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[1] (January, 2006), the Custodian is in violation of N.J.S.A. 47:1A-1 for not providing the Complainant with documents the Custodian states are already in the Complainant’s possession as well as stating that certain documents were e-mailed to the Complainant prior to the date of the request. Therefore, the Custodian should release the documents responsive to the Complainant’s request, with proper redactions pursuant to OPRA that the Custodian claims are already in the Complainant’s possession.
2. The Custodian is in violation of N.J.S.A. 47:1A-6 for not bearing her burden of proving that the redacted information in the surveyor’s notes is authorized by law.  Based on the above, the Council should conduct an in camera inspection of the surveyor’s notes to determine if the records are exempt from disclosure.
3. Pursuant to Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005) as well as the fact that the Complainant’s OPRA request was received on March 31, 2006 and was not responded to until April 26, 2006 the Custodian is in violation of N.J.S.A. 47:1A-5.i. as well as N.J.S.A. 47:1A-5.g.
4. While the Custodian did not respond to the Complainant’s OPRA request  within the statutorily mandated seven (7) business days, denied access to portions of the surveyor’s notes without providing a sufficient legal basis for doing same, and denied access to records the Custodian previously provided to the Complainant in violation of OPRA pursuant to N.J.S.A. 47:1A-1 and Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[2] (January, 2006), the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a. and the legal standard for same established by the New Jersey Courts.
5. The Custodian must deliver to the Council in a sealed envelop six copies of the requested unredacted document (see #2 above), a document or redaction index detailing the document and/or each redaction you assert and the Custodian’s legal certification under penalty of perjury that the document provided is the document requested by the Council for the in camera no later than five (5) business days from the distribution date of the Council’s Interim Order.

Interim Order Rendered by the

Government Records Council

On The 21^st Day of September, 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, Vice Chairman & Secretary
Government Records Council 

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Findings and Recommendations of the Executive Director

Complainant

            v.

Department of Health and Senior Services (DOHSS)[2]      

Custodian of Records

Records Relevant to Complaint: Copies of all information dealing with Union Hospital complaint # NJ00011811.

Request Made: March 31, 2006[3]

Response Made: No response[4]

Custodian: Paula Howard

GRC Complaint filed: April 22, 2006

Background

March 31, 2006

            Complainant’s Open Public Records Act (“OPRA”) request asking for the records enumerated above.

April 22, 2006

            Denial of Access Complaint filed with the Government Records Council (“GRC”). The Complainant states that between April 12, 2006 and April 21, 2006 he called and left four (4) messages with the Records Custodian and did not receive a response.  

April 25, 2006

            Offer of Mediation sent to both parties.

April 27, 2006

            Custodian’s Agreement to Mediate. The Complainant did not agree to mediate this complaint.

April 26, 2006

            Letter from the Custodian to the Complainant. The Custodian states that she has marked the requested surveyor’s notes in blue ink to indicate two sections where redacted confidential information was removed. The Custodian states that on page one (1) she has redacted a paragraph where the surveyor cited verbatim language from the incident report. The Custodian informs the Complainant that she also redacted language in the last paragraph on page two (2) of the surveyor’s notes because the section included verbatim language from the incident report. The Custodian informs the Complainant that the hospital exercises exclusive authority and control over the incident report, therefore the Department cannot release any information obtained from that report.

May 2, 2006  

            Request for Statement of Information sent to the Custodian.

May 5, 2006

            Custodian’s Statement of Information (“SOI”) with attachments:

• August 4, 2005 – Letter from the Director of Acute Care Survey at DOHSS to the Complainant
• March 6, 2006 – Letter from the Supervisor of Inspections of Acute Care Survey at DOHSS to the Complainant
• March 31, 2006 – OPRA request

• April 26, 2006 – Letter from the Custodian to the Complainant in reference to the Complainant’s OPRA request

            Custodian’s Counsel states that the custodian in Acute Care Survey (ACS) forwarded the request to Director Alison Gibson for review on April 3, 2006. Counsel states that the Director subsequently forwarded the request to the program staff for the retrieval of the requested records on or about April 4, 2006.

            Counsel states that the unit staff generally contacts the requestor directly within the seven (7) business day period to indicate that the request has been received and to explain what documents are available. Counsel states that this particular request, however, generated internal debate among the custodian, program staff and the program director concerning disclosure of certain files. Counsel goes on to state that during the discussions/disagreements regarding this request, no one remembered to call the requestor to confirm the availability of records and or the mailing date.

            Counsel states that the initial package of documents was forwarded by ACS unit staff to the Custodian via interoffice mail sometime during the week of April 17, 2006. Counsel states that the Custodian was on vacation from April 17 thru April 21, 2006. During this time, Counsel states that Edward Paknis assumed responsibility for reviewing the Custodian’s e-mail and transmitting records requests to the unit staff for processing. Counsel states that Mr. Paknis did not open the Custodian’s mail, and was therefore unaware that information responsive to the request had been forwarded to the Custodian.

            Upon return to work, Counsel states that the Custodian located the documents package, reviewed same, and determined that the documents were not fully responsive to the requestor’s inquiry. He (Counsel) also states that the Custodian contacted program staff on April 24, 2006 and was advised that the Program Director was unavailable until April 26, 2006 as she was attending a conference. Custodian’s Counsel states that program staff and the Custodian were able to contact the Program Director via e-mail to resolve the outstanding issue regarding disclosure of certain documents. As such, those documents were compiled and packaged on April 26, 2006.

            As certified by the Custodian, below is an itemized list of documents made, maintained and kept on file by the Division of Health Care Quality and Oversight on March 30, 2006, and thus responsive to the request (subject to this complaint):

1.  July 22, 2005 letter from Carole Siebenlist.

2.  August 4, 2005 letter to Carole Siebenlist from Director Alison Gibson.

3.  March 6, 2006 letter to Carole Siebenlist from Director Alison Gibson .

4.  March 27, 2006 e-mail from Steven to hcsa.@doh.state.nj.us forwarded to Kathleen DaMarcky.

5.  March 29, 2006 e-mail response to Steven Siebenlist from Kathleen DeMarcky.

6.  Surveyor's notes of October 31, 2005.

            The Custodian provided the following documents to the Complainant in response to OPRA request #W20569:

1.   Item #2 above provided to the Complainant via regular mail on April 26, 2006.

2.   Item #3 above provided to the Complainant via regular mail on April 26, 2006.

3.   Item #6 above provided to the Complainant via regular mall on April 26, 2006. (One paragraph and one sentence redacted because language referenced confidential nformation obtained from a “hospital internal document” under the authority and control of the hospital.)

            The Custodian did not provide the following documents to the Complainant, listed above in response to OPRA request #W20569:

1.   Item #1 (information originated with the request, and already in possession of  the Complainant.)

2.   Item # 4 (information e-mailed to the requestor prior to the date of the request.)

3.   Item #5 (information e-mailed to requestor prior to the date of the request.)

Analysis

Whether the Custodian unlawfully denied access to any of the requested records?

OPRA 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.

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 in the course of his or its official business …The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (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.

            The Complainant states that between April 12, 2006 and April 21, 2006 he called and left four (4) messages with the Custodian and did not receive a response. 

            The Custodian did not provide the following documents to the Complainant, listed above in response to OPRA request #W20569:

1.   Item #1 (information originated with the request, and already in possession of the  Complainant.)

2.   Item # 4 (information e-mailed to the requestor prior to the date of the request.)

3.   Item #5 (information e-mailed to requestor prior to the date of the request.)

            In an April 26, 2006 letter, to the Complainant, the Custodian states that on page one (1) of the surveyor’s notes she has redacted a paragraph where the surveyor cited verbatim language from the incident report. The Custodian also informs the Complainant that she also redacted language in the last paragraph on page two (2) of the surveyor’s notes because the section included verbatim language from the incident report. The Custodian informs the Complainant that the hospital exercises exclusive authority and control over the incident report, therefore the Department cannot release any information obtained from that report.

            OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt.  Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.

            In Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[5] (January, 2006), the Council held that “OPRA does not limit the number of times a requestor may ask for the same record even when the record was previously provided.” Therefore, in the instant case, the fact that the Complainant possibly already had certain documents in his possession is irrelevant under OPRA, as there is no restriction under the law that a requestor may not request copies of documents already in their possession. In this case, the three documents seemingly in the possession of the Complainant before the request was made should have been provided to the Complainant in response to his request assuming there was no lawful exemption to same.

         Based on Caggiano, the Custodian is in violation of N.J.S.A. 47:1A-1 for not providing the Complainant with documents the Custodian states are already in the Complainant’s possession as well as stating that certain documents were e-mailed to the Complainant prior to the date of the request. Therefore, the Custodian should release the documents responsive to the Complainant’s request, with proper redactions pursuant to OPRA that the Custodian claims are already in the Complainant’s possession.

            The Custodian is also in violation of N.J.S.A. 47:1A-6 for not bearing her burden of proving that the redacted information in the surveyor’s notes is authorized by law.  Based on the above, the Council should conduct an in camera inspection of the surveyor’s notes to determine if the records are exempt from disclosure.

Whether the Custodian responded to the February 7, 2006 OPRA request within the statutorily required seven (7) business days?

OPRA 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 … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

Additionally, OPRA 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 thereof …” N.J.S.A. 47:1A-5.g

            Custodian’s Counsel states that a custodian in Acute Care Survey (ACS) forwarded the request to Director Alison Gibson for review on April 3, 2006. Counsel states that the Director subsequently forwarded the request to the program staff for the retrieval of the requested records on or about April 4, 2006.

            Counsel states that the unit staff generally contacts the requestor directly within the seven (7) business day period to indicate that the request has been received and to explain what documents are available. Counsel states that this particular request, however, generated internal debate among the custodian, program staff and the program director concerning disclosure of certain files. Counsel goes on to state that during the discussions/disagreements regarding this request, no one remembered to call the requestor to confirm the availability of records and/or the mailing date.

            OPRA requires a Custodian to grant or deny access to a government record in writing, as soon as possible, but not later than seven (7) business days after receiving the request.

            In Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005), the Council held that the Custodian was in violation of N.J.S.A. 47:1A-5.i. for failing to respond in a timely manner even though the Custodian asserted the delay was caused by his efforts to obtain legal advice.  Although in the instant case the Custodian was not attempting to obtain legal advice, the fact that this request generated internal debate among the Custodian, program staff and the program director concerning disclosure of certain files, and no one remembered to call the requestor to confirm the availability of records and/or the mailing date, is not a legally sufficient defense under OPRA.

             Therefore, pursuant to Paff, the Custodian is in violation of N.J.S.A. 47:1A-5.i. as well as N.J.S.A. 47:1A-5.g based the fact that the Complainant’s OPRA request was received on March 31, 2006 and was not responded to until April 26, 2006.  

Whether the delay in access to the requested records rises to the level of a knowing and willful violation of OPRA and unreasonable 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 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 alleges that between April 12, 2006 and April 21, 2006 he called and left four (4) messages with the Custodian and did not receive a response. 

            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).

            While the Custodian did not respond to the Complainant’s OPRA request  within the statutorily mandated seven (7) business days, denied access to portions of the surveyor’s notes without providing a sufficient legal basis for doing same,  and denied access to records the Custodian previously provided to the Complainant in violation of OPRA pursuant to N.J.S.A. 47:1A-1 and Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[6] (January, 2006), the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a. and the legal standard for same established by the New Jersey Courts.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

1. Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[7] (January, 2006), the Custodian is in violation of N.J.S.A. 47:1A-1 for not providing the Complainant with documents the Custodian states are already in the Complainant’s possession as well as stating that certain documents were e-mailed to the Complainant prior to the date of the request. Therefore, the Custodian should release the documents responsive to the Complainant’s request, with proper redactions pursuant to OPRA that the Custodian claims are already in the Complainant’s possession.
2. The Custodian is in violation of N.J.S.A. 47:1A-6 for not bearing her burden of proving that the redacted information in the surveyor’s notes is authorized by law.  Based on the above, the Council should conduct an in camera inspection of the surveyor’s notes to determine if the records are exempt from disclosure.
3. Pursuant to Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005) as well as the fact that the Complainant’s OPRA request was received on March 31, 2006 and was not responded to until April 26, 2006 the Custodian is in violation of N.J.S.A. 47:1A-5.i. as well as N.J.S.A. 47:1A-5.g.
4. While the Custodian did not respond to the Complainant’s OPRA request  within the statutorily mandated seven (7) business days, denied access to portions of the surveyor’s notes without providing a sufficient legal basis for doing same, and denied access to records the Custodian previously provided to the Complainant in violation of OPRA pursuant to N.J.S.A. 47:1A-1 and Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[8] (January, 2006), the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances pursuant to N.J.S.A. 47:1A-11.a. and the legal standard for same established by the New Jersey Courts.
5. The Custodian must deliver to the Council in a sealed envelop six copies of the requested unredacted document (see #2 above), a document or redaction index detailing the document and/or each redaction you assert and the Custodian’s legal certification under penalty of perjury that the document provided is the document requested by the Council for the in camera no later than five (5) business days from the distribution date of the Council’s Interim Order.

Prepared By:  Christopher Malloy

                       Case Manager

Approved By:

Catherine Starghill, Esq.

Executive Director

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