FINAL DECISION July 28, 2015 Government Records ... July 28, 2015 Government Records Council Meeting

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Transcript of FINAL DECISION July 28, 2015 Government Records ... July 28, 2015 Government Records Council Meeting

  • New Jersey is an Equal Opportunity Employer • Printed on Recycled paper and Recyclable

    FINAL DECISION

    July 28, 2015 Government Records Council Meeting

    Harry Dunleavy Complainant

    v. Jefferson Township Board of Education (Morris)

    Custodian of Record

    Complaint No. 2014-372

    At the July 28, 2015 public meeting, the Government Records Council (“Council”) considered the July 21, 2015 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council, by a majority vote, adopted the entirety of said findings and recommendations. The Council, therefore, finds that:

    1. The Custodian complied with the Council’s June 30, 2015, Interim Order because she responded in the extended time frame, certifying that on October 17, 2014, she provided Ms. Penderson’s résumé to the Complainant that contained responses to the June 30, 2014, OPRA request item Nos. 1 and 3. Additionally, the Custodian certified that she provided Ms. Penderson’s salary as part of her October 17, 2014, response, which satisfied the Complainant’s June 30, 2014, OPRA request item No. 5. Moreover, the Custodian disclosed Mr. Annett’s “Certification of Eligibility with Advanced Standing” to the Complainant in response to his October 9, 2014, OPRA request item No. 2 and certified that no additional certificates existed. Finally, the Custodian simultaneously provided certified confirmation of compliance to the Executive Director.

    2. The Custodian’s failure to respond timely to the Complainant’s June 30, 2014, OPRA request resulted in a “deemed” denial of said request. Moreover, although the Custodian unlawfully denied access to personnel information and records from both the June 30, and October 9, 2014, OPRA requests respectively, she timely complied with the Council’s June 30, 2015, Interim Order. Further, the Complainant’s June 30, 2014, OPRA request item No. 4 was invalid, and the Custodian certified that no records responsive to the Complainant’s October 9, 2014, OPRA request item Nos. 1 and 3 existed. Additionally, the evidence of record does not indicate that the Custodian’s violation of OPRA had a positive element of conscious wrongdoing or was intentional and deliberate. Therefore, 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.

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    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 28th Day of July, 2015

    Robin Berg Tabakin, Esq., Chair Government Records Council

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

    Steven Ritardi, Esq., Secretary Government Records Council

    Decision Distribution Date: July 30, 2015

  • Harry Dunleavy v. Jefferson Township Board of Education (Morris), 2014-372 – Supplemental Findings and Recommendations of the Executive Director

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    STATE OF NEW JERSEY GOVERNMENT RECORDS COUNCIL

    Supplemental Findings and Recommendations of the Executive Director July 28, 2015 Council Meeting

    Harry Dunleavy1 GRC Complaint No. 2014-372 Complainant

    v.

    Jefferson Township Board of Education (Morris)2

    Custodial Agency

    Records Relevant to Complaint:

    June 30, 2014 OPRA request: Copies of:

    1. The type of license and qualifications of the individual hired to replace Mr. Bryant N. Annett.

    2. Résumé of the hired individual. 3. The name of the hired individual. 4. Is the particular individual still employed? 5. The salary of the hired individual. If no longer employed, the total amount paid during

    time of employee

    October 9, 2014 OPRA request: Copies of:

    1. The “Certificate of Eligibility” (“CE”) held by Mr. Annett. 2. The “Certification of Eligibility with Advanced Standing” (“CEAS”) held by Mr. Annett. 3. The “Provisional Certificate” (“PC”) of Mr. Annett, which is required for a CE or CEAS

    when accepting a monitored teaching position.

    Custodian of Record: Dora Zeno Request Received by Custodian: October 9, 2014 Response Made by Custodian: October 17, 2014 GRC Complaint Received: November 6, 2014

    Background

    June 30, 2015 Council Meeting:

    At its June 30, 2015, public meeting, the Council considered the June 23, 2015, Findings and Recommendations of the Executive Director and all related documentation submitted by the

    1 No legal representation listed on record. 2 Represented by Joseph D. Castellucci, Esq., of Schwatrz, Simon, Edelstein, & Celso, LLC (Whippany, NJ).

  • Harry Dunleavy v. Jefferson Township Board of Education (Morris), 2014-372 – Supplemental Findings and Recommendations of the Executive Director

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    parties. By a majority vote, the Council adopted said findings and recommendations. The Council, therefore, found that:

    1. The Custodian did not bear her burden of proof that she timely responded to the Complainant’s OPRA request. N.J.S.A. 47:1A-6. As such, the Custodian’s failure to respond in writing to the Complainant’s OPRA request, either granting access, denying access, seeking clarification, or requesting an extension of time within the statutorily mandated seven (7) business days, results in a “deemed” denial of the Complainant’s OPRA request pursuant to N.J.S.A. 47:1A-5(g), N.J.S.A. 47:1A-5(i), and Kelley v. Twp. of Rockaway, GRC Complaint No. 2007-11 (Interim Order October 31, 2007).

    2. The Complainant’s June 30, 2014, OPRA request item Nos. 1, 3, and 5 are valid because the requested information is defined as a “government record” under OPRA. N.J.S.A. 47:1A-10; Danis v. Garfield Bd. of Educ. (Bergen), GRC Complaint No. 2009-156 et seq. (Interim Order dated June 29, 2010). To these items, the Custodian has unlawfully denied access. N.J.S.A. 47:1A-6. The Custodian must disclose the information regarding Mr. Annett’s replacement and the individual’s résumé to the Complainant. If the Custodian already provided the résumé and salary for the individual that replaced Mr. Annett as part of her October 17, 2014, response, she must certify to this fact and provide supporting documentation (such as a copy of the résumé she provided at that time).

    3. The Custodian shall comply with item No. 2 above within five (5) business days from receipt of the Council’s Interim Order with appropriate redactions, including a detailed document index explaining the lawful basis for each redaction, and simultaneously provide certified confirmation of compliance, in accordance with N.J. Court Rule 1:4-4,3 to the Executive Director.4

    4. Because the Complainant’s June 30, 2014, request item No. 4 asked a question regarding the employment status of the individual that replaced Mr. Annett, the request item is invalid under OPRA. MAG Entm’t, LLC v. Div. of ABC, 375 N.J. Super. 534, 546 (App. Div. 2005); Bent v. Stafford Police Dep’t, 381 N.J. Super. 30, 37 (App. Div. 2005); NJ Builders Assoc. v. NJ Council on Affordable Hous., 390 N.J. Super. 166, 180 (App. Div. 2007); Watt v. Borough of North Plainfield (Somerset), GRC Complaint No. 2007-246 (September 2009). Thus, the Custodian has not unlawfully denied access to this request item. See also Ohlson v. Twp. of Edison (Middlesex), GRC Complaint No. 2007-233 (August 2009), and Rummel v. Cumberland Cnty. Bd. of Chosen Freeholders, GRC Complaint No. 2011-168 (December 2012).

    3 "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment." 4 Satisfactory compliance requires that the Custodian deliver the record(s) to the Complainant in the requested medium. If a copying or special service charge was incurred by the Complainant, the Custodian must certify that the record has been made available to the Complainant but the Custodian may withhold delivery of the record until the financial obligation is satisfied. Any such charge must adhere to the provisions of N.J.S.A. 47:1A-5.

  • Harry Dunleavy v. Jefferson Township Board of Education (Morris), 2014-372 – Supplemental Findings and Recommendations of the Executive Director

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    5. The Custodian may have unlawfully denied access to the certificates responsive to the Complainant’s October 9, 2014, OPRA request. N.J.S.A. 47:1A-10; Herron v. NJ Dep’t of Educ., GRC Complaint No. 2011-324 (Interim Order dated December 18, 2012). The Custodian must disclose Mr. Annett’s responsive certificates that it maintains on file. If any of the certificates do not exist within the Jefferson Township Board of Education’s files, the Custodian must specifically certify to this fact.

    6. The Custodian shall comply with item No. 5 above within five (5) business days from receipt of the Council’s Interim Order with appropriate redactions, including a detailed document index explaining the lawful basis for each redaction, and simultaneously provide certified confirmation of compliance, in accordance w