SUPERIOR COURT OF NEW JERSEY Bergen County Justice Center Hackensack, New Jersey

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1 SUPERIOR COURT OF NEW JERSEY Bergen County Justice Center Hackensack, New Jersey FILED JUNE 3, 2008 HON. ROBERT P. CONTILLO, J.S.C. Donald M. Doherty, Esq. Friedman Doherty LLC 125 N. Route 73 West Berlin, NJ Andrew T. Fede, Esq. Herten Burstein Sheridan Cevasco Bottinelli Litt & Harz, LLC 21 Main Street Hackensack, NJ Kenneth G. Poller, Esq. Kenneth G. Poller, P.A. 80 Route 4 East Paramus, NJ Re: Martin O'Shea and John Paff v. Borough of Emerson, a als. Docket No. BER-L Decision Counsel: This matter is before the Court upon the Order to Show Cause and request for Summary Disposition filed by plaintiffs. Plaintiffs claim that their rights under the Open Public Records Act (OPRA), N.J.S,A. 47:1A-1, et seq., have been violated by the defendant municipalities, Norwood and Washington Township, and by Norwood Municipal Clerk Lorraine McKackin and Washington Township Municipal Clerk Mary Ann Ozment. The matter was argued on May 28, The Court reserved decision. [Page 2] I. BACKGROUND AND PROCEDURAL HISTORY Plaintiff Martin O'Shea is a writer and commentator on New Jersey politics, with an interest on open public records matters. Plaintiff John Paff is a citizen of New Jersey, resident in Somerset County. Between October 25, 2007 and October 26, 2007, Plaintiffs forwarded requests under New Jersey's Open Public Records Act (hereinafter "OPRA") to each of Bergen County's 70 1

2 municipalities. By way of such requests, Plaintiffs sought copies of each municipality's Internal Affairs Summary Reports for the years 2004, 2005, and These reports are a compilation of police internal affairs data for a given year listing the number incidents reported, their nature, and how they were resolved. The Attorney General of the State of New. Jersey requires that these reports be prepared by each local policy department and submitted to the county prosecutor. See Attorney General Guideline: Internal Affairs Policy and Procedures, rev'd 11/2000, Of the 70 municipalities which received Plaintiffs' request, ten failed to comply to Plaintiffs' satisfaction. Of these ten municipalities named in his December 10, 2007 Complaint, the issues have been resolved as to eight of them. Plaintiff brings the present Order to Show Cause seeking a finding that the two remaining municipalities the Borough of Norwood and the Township of Washington, and their respective municipal clerks, have violated the Plaintiffs' rights under the OPRA statute. Plaintiffs are also seeking an award of attorney fees and court costs against the municipalities, (N.J.S.A. 47:1A-6) as well as a finding that the municipal clerks' violations were willful and knowing and unreasonable, subjecting them to statutory penalties and possible disciplinary proceedings. (N.J.S,A. 47:1A-11). With regards to Defendant Borough of Norwood (hereinafter "Norwood"), Plaintiffs cite as violative of OPRA Norwood's failure to provide Plaintiffs with one of the requested reports, namely the 2004 report, until after the commencement of this litigation. With respect to Defendant Township of Washington (hereinafter "Washington Township") Plaintiffs cite as violative of OPRA Washington Township's failure to provide any of the reports, predicated on the Township's alleged no-fax policy, and its apparent policy of deferring to the police chief when OPRA requests for police records are made. [Page 3] With respect to both Norwood and Washington Township, Plaintiffs argue that the alleged failures to properly respond to Plaintiffs' OPRA requests amount to an unlawful denial of access. The New Jersey Attorney General requires that each of the municipalities produce these Administrative Internal Affairs reports, and therefore, there is no justification for the denial of Plaintiffs OPRA requests. With regard to Washington Township's refusal to accept OPRA requests by fax, the Plaintiffs argue that N.J.S.A. 47:1 A-5(g), which requires municipalities to respond to requests that are "in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian", renders Washington Township's alleged nofax policy 'a violation of OPRA. Plaintiffs further argue that since both municipalities failed to comply with. the OPRA requests despite the absence of any valid justification, a civil penalty ($1,000 for the first offense) ought to be assessed against the public official, officer, employee, or custodian who knowingly and willfully violated the OPRA statute N.J.S.A. 47;1A-11. Therefore, Plaintiffs request that such civil penalties should be assessed against the municipal clerks of Norwood and Washington Township. In the alternative, Plaintiffs argue that he should be provided limited discovery to 2

3 determine the culpability of each clerk's denial. Plaintiff also seeks an award of attorneys fees against Norwood ($3,230.20), and Washington Township ($2,222.20). II. APPLICABLE LAW OPRA embodies the public policy of New Jersey that government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by [OPRA]... shall be construed in favor of the public's right of access... [N.J.S.A. 47:1A-1.] OPRA takes the place of the former New Jersey Right to Know Law, N.J.S.A. 47:1A-2 to 4, repealed by L. 2001, c. 404, and continues "the State's longstanding public policy favoring ready access to most public records". Serrano v. S. Brunswick Tp., 358 N.J. Super. 352, 363, 817 A.2d 1004 (App. Div. 2003). "[A]ll government records shall be subject to public access unless exempt". N.J.S.A. 47:1A-1. The custodian of the [Page 4] government record has the burden of proving that the denial of access is authorized by law. N.J.S.A. 47:1A-1.1. OPRA defines "government record" as follows: 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 in the course of... official business... or that has been received in the course of. official business N.J.S.A. 47:1A-1.1. OPRA exempts from public access twenty-one categories of documents, N.J.S.A. 47:1A-1.1, including, for example, documents which, if disclosed, would "...jeopardize security of the building or facility or persons therein.,.", as well as "...information which is to be kept confidential pursuant to court order". In the case at hand, the custodians of the records of Norwood and Washington Township are the municipal clerks of Norwood and Washington Township, respectively. OPRA directs that the custodian "... shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency". N.J.S.A. 47:1A-5(f). The format of that form is delineated in detail in the statute. 3

4 47:1A-5(f). As to the manner in which a government record may be requested, OPRA provides that "A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically or otherwise conveyed to the appropriate custodian". N. J. S.A. 47:1A-5(g). If 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. 47:1A-5(g). And if the custodian asserts that part of a particular record is exempt, under OPRA, from public access, "the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record. If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record". [Page 5] A request for a government record which is received by an officer or employee of a public agency must be forwarded to the custodian of the record, or the requestor must be directed to the custodian. N.J.S.A. 47:1A-5(h). Unless a shorter time period is specified by law, "a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request...". N.J.S.A. 47:1A-5(i). A person denied access to a government record by the custodian of the record may file an action in the Superior Court, or, in lieu thereof, file an action with the Government Records Council. N.J.S.A. 47:1A-6. Said proceedings are to be summary in nature; the public agency has the burden of proving that the denial of access is authorized by law; and access to the record shall be ordered if it is determined that access was improperly denied, N.J.S.A.. 47:1A-6, "A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee". N.J.S.A. 47:1A- 6. If the Court or Council determines that a public official, officer, employee or custodian "knowingly and willfully" violated OPRA, "...and is found to have unreasonably denied access under the totality of the circumstances...", that individual is subject to a civil penalty and. possible disciplinary proceedings. N.J.S.A. 47:1A-11. A. BOROUGH OF NORWOOD III. DECISION OF THE COURT 4

5 Plaintiffs faxed an OPRA request to the Borough of Norwood, fax # , on October 25, 2007, after 5:00 p.m. The OPRA request specified the documents sought: "We would like paper copies of the "Internal Affairs Summary Report Forms" filed by the Norwood Borough Police Department for the years 2006, 2005 and 2004 mailed to us at the above address". The fax was seen by Norwood Borough Clerk Lorraine McMackin when she arrived at work on October 26, At 9:12 a.m., McMackin faxed the request to Norwood Police Chief Jeffrey L. Krapels. Later that day, Chief Krapels mailed a copy of [Page 6] the 2006 and 2005 Internal Affairs Summary Report Forms, to the Plaintiffs, explaining in a cover letter, as to the 2004 Summary Report Form, that "Since I became Chief of Police in 2005, the 2004 Internal Affairs Summary Report Form cannot be found from the last Chief. If you have any questions, please advise." By letter to McMackin dated November 1, 2007, received by her on November 5, 2007, Plaintiff Martin O'Shea forwarded a check for $1.50 as the fee for his OPRA request. Neither plaintiff at any time stated any objection to Norwood's response to the OPRA request, nor otherwise responded to the non-production of the 2004 Summary Report. Then on December 10, 2007, the within lawsuit was commenced by Plaintiffs against several Bergen County towns, and records custodians, including Norwood, for wrongfully denying plaintiffs access to the 2004 Summary. Report. Plaintiffs demand production of the 2004 Summary Report. Statutory penalties and attorneys fees are also sought. Upon learning of the suit, Chief Krapels inquired of the Bergen County's Prosecutor's Office, with whom the annual summary reports are filed, in accordance with regulations of the New Jersey Attorney General, and obtained copies of the 2004 and 2003 Summary Reports that the prior Norwood Chief had filed with the Prosecutor. Those reports showing no complaints were then provided to plaintiffs.. The issue presented is whether the response of Norwood and its Municipal Clerk to the Plaintiffs' OPRA request was a violation of OPRA. For the reasons that follow, conclude that no violation occurred, and the Complaint, as against the Norwood defendants, must be dismissed. The 2004 Summary Report was not in the possession or custody of the Norwood Municipal Clerk, or, constructively, of the Borough of Norwood, at the time of Plaintiffs October, OPRA request. There is nothing in the record illuminating why the document was not on file, other than that it was created under the watch of a former Chief of Police, and simply could not be found. There is no suggestion in the record, nor any proof, that the non-possession by the Borough and its custodian, of the 2004 Summary Report, was in way the result of a desire not to be able to produce the document, or an [Page 7] intention that it not be viewed by the public. The 5

6 only inference to be had on the facts presented is that the Borough's copy of that report, if indeed a copy of it was ever made or retained, was lost, misplaced or innocently discarded. Arguably, the municipality's police department had a duty to retain a copy of the 2004 Summary Reports for a period of five (5) years, i.e., until The New Jersey Attorney General Guideline, entitled "Internal Affairs Policy and Procedures", issued August 1991, Revised November 1992, Revised November 2000 (the "Guideline"), requires that "Every law enforcement agency will report internal affairs activity to the county prosecutor on an internal affairs summary report form". Page "An annual report summarizing the types of complaints received and the dispositions of the complaints shall be made available to the public. The names of complainants and subject officers shall not be published in this report", Page The underlying records from which the data included in the annual summary reports is culled are subject to the following retention policy: "...files concerning a criminal homicide must be permanently maintained. The schedule also requires any other file involving a criminal matter which resulted in the arrest of the subject officer must be maintained for 75 years. While the schedule further suggests that all other criminal or administrative internal affairs investigative records be maintained for at least five years, agencies should maintain these files as they relate to a particular officer for the career of that officer plus five years." (Page 11-46). Emphasis added. Plaintiffs rely on a 1991 version of the Guideline for the proposition that "noncriminal internal affairs reports and, their respective investigation files are considered "Special Reports" ( ). As such these records must be maintained for a minimum of five years". Plaintiffs also rely on the current Local Police Departments Record Retention Schedule currently in effect for the proposition that the local police departments' annual Internal Affairs Summary Reports are "Special Reports" which must be maintained by the local police departments for a minimum of five (5) years. The Norwood defendants do not concede the point, but neither do they refute it. I will assume for purposes of this decision that a copy of the 2004 Annual Report should have been kept on file in. Norwood for five (5) years, and that its non-retention by the [Page 8] Borough, as revealed by Plaintiffs' October 2007 OPRA request, was non-compliant with a mandatory retention schedule. Did Norwood violate OPRA by not possessing the 2004 Annual Report? Did it have an affirmative duty to retrieve a copy of same from the County Prosecutor and provide it to Plaintiffs? Counsel for Norwood cites to decisions of the Government Records Council for proposition that "...a municipality and its record custodian do not violate OPRA if they are unable to produce a document that they do not have in their possession" (page 6 of Brief). A review of those cited decisions, however, reveals that the Council has never given approval to a custodian who fails to produce for inspection a government record he is required to have on file. The issue has not, apparently, ever been addressed. The most relevant of the cited administrative decision is Hines v. N.J. Dep't of Corr. GRC No (August 12, 2004), wherein it was determined that no 6

7 OPRA violation occurred when the custodian of Department of Corrections' records certified that requested records concerning a 1979 disciplinary adjudication "...no longer exist as they have been destroyed in accordance with the retention schedule of the Department of Corrections...", and where the custodian promptly so advised the requestor, by letter. The decision does not resolve the question of whether OPRA might provide any relief or remedy as to non-production of a record a municipality was required to retain, and which it knew it had filed with another government agency (here, the Office of the Bergen County Prosecutor), and which it knew was also available through another agency, (here, the New Jersey Attorney General's Office), meaning that the document could not be certified to "no longer exist", but simply as not being in the custodian's possession, although it was required by law to be in the custodian's possession. In Kaithern v. West Cape May Borough, GRC No (April 8, 2004), a citizen requested copies of two letters referenced in West Cape Environmental Commission Resolutions #103 and #104. The custodian certified that "...the Environmental Commission never produced in final form two letters referenced in Environmental Commission Resolutions 103 and 104 because the commission's secretary (a volunteer, not a paid employee of the municipality) was unable to locate drafts of the two letters on her home computer and the borough's office did not have the letters. As a result, the Custodian could not furnish the information for the Complainant." [Page 9] In determining to dismiss the complaint, the Council found as follows: "Here, the Custodian has provided access to all documents in existence that have been requested by the Complainant. Moreover, the Custodian and officials of the Environmental Commission have provided a reasonable explanation as to their inability to produce the remaining information requested by the Complainant (i.e., the documents do not exist).", Kaithern, then, is administrative authority for the proposition, inferentially, that where documents do not exist, and a reasonable explanation as the custodian's inability to produce it is provided, there is no OPRA violation. The other GRC decisions cited by Norwood are not illuminating on the issue. See, e.g., Bailey v. N.J. Dep't of Treas., GRC No (February 27, 2007) (OPRA request sought copy of.a report that was orally rendered, not reduced to writing. "There is no requirement, under OPRA, that the custodian create a file or paper record to meet the request)"; Herron v. Montclair Board of Ed., GRC No (February 27, 2004) (No OPRA violation where document sought not yet created: "OPRA does not comprehend prospective records requests"); Renna v. County of Union, GRC No (February 10, 2005) (No OPRA violation exists where custodian's certification that the document requested "does not exist" is unrefuted. Document specifically 7

8 requested was never drafted, i.e., it never existed); Belmont v. Township of Washington, GRC No (July 13, 2006) (No OPRA violation in face of unrefuted custodian certification that "...at the time of Complaint's February 8, 2006 request, the requested record did not exist..."). Perry v. Township of Pennsauken, GRC No (May 13, 2004) (custodian's unrefuted certification that the requested documents do not exist warrants dismissal of OPRA complaint). No reported New Jersey case has determined that a municipality has a duty under OPRA to produce a copy of a government record it does not have. Plaintiffs rely on an Appellate Division case for the proposition that a custodian's failure to produce a copy of a government record not in the custodian's possession, but which by law must be in the custodian's possession, provides a basis for a relief or remedy under OPRA, citing Bent v. Township of Stafford, 381 N.J. Super. 30, (App. Div. 2005). Plaintiffs argue [Page 10] that were the law otherwise towns could defeat the goals of OPRA ready access to government records by simply not retaining copies of records, even in the face of mandatory document retention obligations. Bent appealed an administrative decision of the Government Records Council ("GRC") dismissing his denial of access complaint pursuant to OPRA. Bent had filed an OPRA request with the Stafford Township Custodian of Records, seeking the "entire file" of his criminal investigation conducted jointly by the township police department, the U.S. Attorney and the IRS. In affirming the GRC ruling that the Stafford Township custodian had not, denied access to government records, the Appellate Division determined as follows: 381 N.J. Super. at 39. "Here, the GRC properly applied these governing principles in concluding there was no denial of access under OPRA. In the first place, to the extent Bent's request was for discrete records of the 1992 criminal investigation conducted by the STPD [Stafford Township Police Department], the undisputed evidence is that there was full disclosure of all such documents in the custodian's possession. Second, to the extent Bent's request was for records that either did not exist or were not in the custodian's possession, there was, of necessity, no denial of access at all (footnote omitted)". It is following language in the Appellate Division decision upon which Plaintiffs rely for the proposition that OPRA violations and remedies are implicated where a town has failed to keep on file discloseable records it is required to keep on file. "Of course, even if the requested documents did exist, the custodian was under no obligation to search for them beyond the township's files. OPRA applies solely to documents "made, maintained or kept on file in the course of [a public agency's] official business," as well as any document "received in the course 8

9 of [the agency's] official business." N.J.S.A. 47:1A-1.1. Contrary to Bent's assertion, although OPRA mandates that "all government records... be subject to public access unless exempt," the statute itself neither specifies nor directs the type of record that is to be "made, maintained or kept on file". Ibid. In fact, in interpreting OPRA's predecessor statute, the Right to Know Law, we found no requirement in the, law concerning "the making, maintaining, or keeping on file the results of an investigation by a law enforcement official or agency into the alleged commission of a criminal offense." (Citations omitted). Thus, even if the requested documents did exist in the files of outside agencies, Bent has made no showing that they were, by law, required to be "made, maintained or kept on [Page 11] file" by the custodian so as to justify any relief or remedy under the OPRA. N.J.S.A. 47:1A- 1.1." (Emphasis added). Ibid. Plaintiffs cite this as authority for their proposition that OPRA relief and remedies are available where the town has failed to provide access to a document that was, in fact, "required by law to be made, maintained or kept on file" by the custodian, such as is, at least arguably, the case as to the 2004 Summary Report. I am prepared to accept that under some circumstances, not present here, an OPRA violation may be triggered by a custodian's failure to have available, or to make available, for public inspection, a government record it is required by law to have on hand, available for public inspection. Malicious destruction of such a record, or its concealment, might trigger an OPRA remedy in the appropriate case. OPRA is not a document retention statute it mandates access to records, not their preservation. Still, OPRA can not be read in isolation from a municipality's legal duty to preserve records. Particularly where the record has been filed with another government entity, and thus, still exists, OPRA might well be interpreted as imposing a duty to make a copy of the record available to the OPRA requestor, once the custodian has moved with reasonable haste and retrieved a copy. 1 I am referring here to documents the municipality is required to have on file. But, where, as here, the requestor is promptly provided with copies of all the government records in the custodian's possession, where the requestor is truthfully and promptly advised of the fact that the custodian does not have a particular document in his or her possession, and advised why the custodian can not locate the document, and where the requestor then accepts the copies produced and pays the nominal charge for the copies produced, without comment or reference to the un-retained, un-produced record, it can not be said under any reasonable reading of the statute that the custodian has "denied access" to the citizen of a government record. 1 Similarly, OPRA mandates that "If the government record is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record". N.J.S.A. 47:1A-5(g). 9

10 A rule of reason must illuminate all applications of legislation. OPRA imposes a duty on a records custodian to promptly make available the non-exempt records of which he or she is the custodian. The process can not enforceably be the occasion for a gotcha-[page 12] game, where findings of violations of law, attorney's fees awards, and possible penalties, disciplinary proceedings and punishments, are visited upon a custodian who promptly, truthfully and in good faith reports that one of the documents sought can not be located, and where the requestor does not further respond, or question, or follow-up, but rather simply pays for the copies provided, and then files a lawsuit. 2 I wish to make clear that I have no reason whatsoever to infer, or conclude, that plaintiffs are motivated by anything but a desire to have copies of government records to which they are entitled by law, provided to them as required by law, and to have violations identified, municipal practices and procedures rectified, and, where appropriate, attorney fees paid and penalties assessed. But there is no basis on the record before me for finding that the Norwood records custodian denied plaintiffs access to a government record. For the reasons set forth above, the Plaintiffs claims as to the Borough of Norwood and its Municipal Clerk are dismissed, with' prejudice, B. WASHINGTON TOWNSHIP On October 25 or 26, 2007, Plaintiffs faxed an OPRA request to Washington Township at fax no , identical in content to the OPRA requests faxed to all Bergen County municipalities, seeking to have copies of the Internal Affairs Summary Report Forms for 2006, 2005 and 2004 mailed to them at Mr. O'Shea's Stockholm, New Jersey address. Plaintiffs received no response. On November 8, 2007, Plaintiffs faxed a "reminder" to Washington Township. This fax is dated November 7, 2007, it consists of four pages: Page 1: November 7, 2007 FAX To: Mary Ann Ozmont [Page 13] From: Martin O'Shea 3 Pages follow this cover sheet. 2 Suppose an individual asked for a copy of the employment contract between City X, and Clayton James. Suppose, also, that the custodian certified promptly, truthfully, and in good faith, that there is no employment contract on file between the, City and any James Clayton. The first and last names were mistakenly transposed by the Clerk in the hypothetical. Could it rationally be argued that the custodian had violated OPRA because she failed to promptly make available a copy of the City-Clayton James contract? I would, on this record, find no violation, and hence no basis for a lawsuit, as it is entirely reasonable to expect the requestor to follow up, and entirely unreasonable to resort instead to litigation, alleging that the custodian has denied the requestor access to a government record. 10

11 Page 2:a letter on Mr. O'Shea's letterhead, dated November 8, 2007, indicating it is being sent ("via Fax only to "), addressed to "Mary Ann Ozment, Clerk", and reading as follows: "For a survey we are doing, on October 25 and 26 my colleague John Paff and I sent identical Open Public Records Act requests to every municipality in Bergen County. I am attaching a copy of the request we sent you to help refresh your memory. While we have received responses from most municipalities, we have not yet received one from Washington Township. We remind you that N.J.S.A. 47:1-A-5(i) requires you to respond to a records request within seven (7) business days, which time period has already, expired. We will appreciate hearing from you at your earliest convenience. A duplicate copy of The previously faxed OPRA request form accompanied this "reminder" fax." The Township Clerk, Ms. Ozment, responded to Mr. O'Shea 'reminder' fax, by letter of November 9, 2007, acknowledging receipt on November 8, 2007 of his "Request for Public Records" and confirming their conversations of November 8 and 9: "Your letter of November 8 stated that you had made a request by fax an October 26 and October 26 (sic) and' had not heard from me. As I told you I did not receive that request. We have a common fax machine and your fax 'Was sent directly to the Police Department. I did speak to the Chief yesterday, November 8 and he said that he does not respond to faxes and informed you of that and that he also called the Prosecutor's Office and was told that if that is his policy than that is the policy. ' This will also confirm that I was informed that you could get this same information from the Prosecutor's Office for the entire County of Bergen and from the Attorney General's Office for the entire state. The Chief then said that you can come in Tuesday and he will have the information for you. At that time you can then fill out his Request for Information Form. I hope this answers your questions. I will be out of the office all next week attending the League of Municipalities Conference." [Page 14] Plaintiffs acknowledge receipt of this letter and do not contest the accuracy of the Township Clerk's recitation of events contained therein. 11

12 Plaintiffs did not respond to the letter, other than by naming the Township and the Clerk as defendants in the multi-defendant suit, asserting that they, Plaintiffs, had been denied copies of the requested records. In defense of their actions, the Washington Township defendants assert that Mr. O'Shea's initial fax was faxed to a number shared by the entire township. The Clerk has certified that she did not receive the fax. Rather, it was taken by a representative of the Police Department for referral to the Police Chief, who, unbeknownst to the Clerk, "undertook to process Plaintiffs request". After learning of the request, the Clerk conferred with the Police Chief and discussed the request with Mr. O'Shea over the phone, and also responded by letter of November 9, as detailed above. The Township Clerk further certified, in uncontradicted fashion, as follows: "As Township Clerk, I do not have access to records of the Township Policy Department which are maintained exclusively by the Police Chief. The Police Chief advised that he contacted the Bergen County Prosecutor's Office, and received confirmation from the Prosecutor's Office that his policy of not accepting faxes for this type of information was appropriate; that he could follow his procedure; and that the information sought by Plaintiff O'Shea was available from the Bergen County Prosecutor's Office for the entire County of Bergen, and from the Attorney General's Office for the entire State of New Jersey. This information was conveyed to Plaintiff O'Shea in my letter dated November 9, Additionally, I advised Plaintiff O'Shea that the Police Chief had advised Plaintiff O'Shea that he (Mr. O'Shea) could come to the Township on the Tuesday following November 9, 2007 at which time the Police Chief would have the Internal Affairs Summary Reports for Plaintiff O'Shea and, at that time Mr. O'Shea could fill out the request form utilized by the Police Chief. I learned from the Police Chief that he did not have a copy of the 2004 and 2005 Internal Affairs Summary Report which he had filed with the Bergen County Prosecutor's Office, and that he had to request those documents from the Prosecutor's Office." [Page 15] The copies of all the referenced Summary Reports 2004, 2005 and 2006 accompanied the Clerk's April 4, 2008 court certification. The service of that certification upon the plaintiffs constituted the first time the defendants provided copies of any of the requested government records to the Plaintiffs. 12

13 It is the position of the Washington Township defendants that they did not deny plaintiffs copies of the records nor otherwise violate OPRA. The Township defends its apparent policy of delegating to the Police Chief the authority to specify the form to be utilized by OPRArequestors of Washington Township police records, as well as its apparent delegation to the Chief of the custodian's statutory responsibility to process all OPRA requests. Likewise, the Township defends the Police Chief's refusal to accept faxed OPRA requests seeking copies of documents created by and maintained by the police department, or even to "respond" to such requests, as well as the Chiefs apparent policy of requiring such OPRA-requestors to "come in", presumably to the Police Department, in order that the OPRA requestor can "fill out [the Chief s] request for Information form", and pick up the documents. (See Letter of Township Clerk to O'Shea, November 9, 2007). The policies and procedures imposed by Washington Township as to Plaintiffs' OPRA request can not be squared with the requirements of the Open Public Records Act. The municipality's designated record custodian, not its police chief, is the individual responsible for implementation compliance with the Open Public Records Act. N.J.S.A. 47:1A-5. "A custodian shall promptly comply with a request to inspect, examine, copy or provide a copy of a government record". N.J.S.A. 47:1-A-5(g). That custodian, and no one else, is empowered and directed by OPRA to "... adopt a form for the use of any person who requests access to a government record held or controlled by the public agency". N.J.S.A. 47:1A-5(1). Having one OPRA form for the police department, one for the town's designated records custodian, or, theoretically, one for the head of the Department of Public Works, etc., etc., runs afoul of the statutory mandate that the custodian adopt a form, and, more broadly, undercuts the clear mandate of OPRA. as set forth by the Legislature is its fundamental finding 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. [Page 16] There is nothing in the record suggesting that the Township itself, or its custodian of records, has a policy of neither accepting or even responding to faxed OPRA requests. The Clerk in this instance in fact did respond, and promptly, to Mr. O'Shea's "reminder" fax. While she advised him of the Police Chief's policy of 'not responding' to faxes, that policy is of no moment as the Police Chief has not been shown to have any authority to make policy as to OPRA, a matter confined by statute to the designated custodian of the records, i.e., in this case, the town's Clerk. The Chiefs policy of no-faxes is ultra-vires, i.e., beyond his authority to create or impose. It also may run afoul of the liberal statutory provisions setting forth the broad manner in which OPRA requests may be made: "A request' for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian." N.J.S.A. 47:1A-5(g). I am aware of administrative decisions to the effect that a governmental entity can adopt rules prohibiting faxed OPRA requests. In Mann v. NJDEP, GRC No (January, 2006), the Government Records Council held that a state agency the Department of Environmental Protection - could, through its rulemaking process, prohibit submission of OPRA requests via 13

14 facsimile. In. Paff v. City of East Orange, GRC No (March 26, 2008), plaintiff, a coplaintiff in the case currently before me, challenged procedures established by the East Orange City Clerk whereby OPRA requests are not accepted via fax. That procedure was sustained by the Council from attack by the plaintiff. Plaintiff had cited to the Broad language contained in OPRA to support its argument that faxed OPRA requests must be accepted. OPRA states: N.J.S.A. 47:1A-5g. "...[a] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian...". In sustaining the East Orange, custodian of records' no-fax policy, the Council interpreted the statute as describing the sorts of methods by which a custodian may choose to accept OPRA requests, rather than as specifying the options the requestor may have for communicating his OPRA request to the custodian. [Page 17] As set forth in the Council's Decision, "Pursuant to N.J.S.A. 47:1A-5.g., OPRA requests shall be made "in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian." Id. This indicates that any one of the prescribed means is acceptable under the law. The disjunctive use of the word "or" indicates that not every one of the prescribed methods of conveyance is required by OPRA." Presumably then, under this reading of the statute, a custodian of government records may adopt a no-fax policy, even if faxed transmissions would be considered having been "...transmitted electronically..." within the meaning of N.J.S.A. 47:1A-5.g, because such a mechanism for making a written OPRA request may be foreclosed at the election of the custodian, provided another method is acceptable to the custodian. I do not find this argument to be overwhelmingly persuasive. Such a reading of the statute would, logically, permit a government records custodian to refuse to accept OPRA requests that are "...hand delivered...", while another custodian may choose to bar those that are "...mailed...". It is not clear why the legislature would have determined to vest the custodian with such a power: Administrative decisions by an agency entrusted with a certain matter are, however, entitled to great deference. State v. Johnson, 42 N.J. 146, 159 (1964), and the Court will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982); Paff v. New Jersey Dept. of Labor, 392 N.J. Super. 334, 340 (App. Div. 2007). 14

15 The Court need not affirm a municipal records custodian's rights to bar faxed OPRA requests because, in the case of Washington Township, it is not the policy of the custodian - Municipal Clerk Mary Ann Ozment to refuse to accept, process or respond to faxed OPRA requests. As aforesaid, that policy is the policy of a department head the police chief who is not the designated custodian of records in Washington Township. In this case, the Washington Township processed the faxed request, but did so in a manner that had the effect of denying plaintiffs access to documents they properly sought pursuant to OPRA. The fax should not have been diverted from the custodian to the chief; the fax should have been provided to the custodian of records of Washington [Page 18] Township, to whom it was addressed. The OPRA request should not have been declined by the custodian on the theory that the Chief insisted on utilization of his own form of OPRA request. And the plaintiff should not have been led to the conclusion he reasonably reached from the custodian's letter of November 9, i.e., that he must come up to Bergen County, to the police station, to personally sign the Chief s form, in order to receive the requested documents. These combined actions constituted a failure to process plaintiffs' document request in a proper or timely fashion, amounting to a denial of the document access mandated by OPRA. Under these circumstances, an award of reasonable attorney's fees is mandatory ("A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee". (Emphasis aded). N.J.S.A. 47:1A-6. Here, the hourly rate charged is reasonable, and the quantum of hours incurred reasonable and proportionate to the work necessarily undertaken on behalf of plaintiffs. Plaintiffs are awarded attorney's fees in the amount of $2,222.20, against the Township. There is no basis for an assessment of penalties under N.J.S.A 47:1A-11, because the record is devoid of any evidence of knowing or willful violation by the Township Clerk, its Police Chief, or any other public official, officer or employee of the municipality, with respect to the failure to provide access to the requested documents in accordance with OPRA. A Judgment accompanies this Decision. /s/ ROBERT P. CONTI LO, J.S.C. 15