JEFF CARTER VS. FRANKLIN FIRE DISTRICT NO. 1(GOVERNMENT RECORDS COUNCIL)Â

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5573-14T1
JEFF CARTER,
Appellant,
v.
FRANKLIN FIRE DISTRICT
NO. 1 (Somerset),
Respondent.
_____________________________
Argued October 5, 2017 – Decided November 20, 2017
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Government Records Council,
Compaint No. 2011-76.
Jeff Carter, appellant, argued the cause pro
se.
Dominic P. DiYanni argued the cause for
respondent Franklin Fire District No. 1 (Eric
M. Bernstein & Associates, LLC, attorneys; Mr.
DiYanni, of counsel and on the brief).
Raymond R. Chance, III, Assistant Attorney
General, argued the cause for respondent
Government Records Council (Christopher S.
Porrino, Attorney General, attorney; Mr.
Chance, of counsel; Debra A. Allen, Deputy
Attorney General, on the brief).
PER CURIAM
Complainant, Jeff Carter, appeals from the Government Records
Council's (GRC) final decision adopting an Administrative Law
Judge's (ALJ) finding that respondent, Franklin Fire District No.
1 (District), did not knowingly and willfully fail to disclose
records that Carter requested under the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, even though it had violated the
act. Carter's primary claim on appeal is that the GRC's decision
was not supported by the evidence. He also argues the GRC failed
to properly advise him of its rejection of a supplemental
certification he filed in support of his claim and that it should
have imposed a civil penalty on the District's legal counsel who
responded to his OPRA request. We disagree and affirm.
The facts gleaned from the record are undisputed and are
summarized as follows. On January 21, 2011, Carter submitted an
OPRA request to the District for all annual financial disclosure
statements (FDS) filed by its commissioners from 2000 to 2011.
The District, through its attorney, William T. Cooper, denied the
request on February 10, 2011, explaining that the FDS Carter sought
were not maintained by its office and were instead available to
Carter through the Franklin Township Municipal Clerk's office.
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Carter filed an OPRA request with the town clerk and received
all of the documents he requested from the District. He also
submitted a second OPRA request to the District requesting
different documents. Among the documents he received in response
to that request, Carter found a January 25, 2011 email from the
District's administrative assistant, Debi Nelson, who is Carter's
sister, to Melissa Kosensky, the commissioner who served as the
District's custodian of records. The email included some of the
2007 FDS that were on file with Nelson's office, which were the
documents Cooper stated were not in the District's possession.
Carter filed a complaint with the GRC, challenging the
District's denial of his first OPRA request and access to the
requested records. The District filed a Statement of Information
(SOI) with the GRC, explaining the reasons it was delayed in
responding to Carter's first OPRA request. The SOI stated the
delay was the result of receiving about eighteen OPRA requests in
ten days from Carter, its custodian being away for training during
part of this time period, and the custodian referring the request
to its counsel for advice on how to respond. The District denied
that the custodian's "actions r[o]se to the level of a knowing and
willful violation of [OPRA]." The SOI did not reveal that the
District had copies of the 2007 FDS it included in its response
to Carter's second OPRA request. In response to the SOI, Carter
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filed a certification with the GRC that attached the January 25,
2011 email with the 2007 FDS that proved the District had in its
possession some of the requested documents that it failed to
disclose.
On June 26, 2012, the GRC reviewed Carter's complaint and
found that the custodian violated OPRA by not timely responding
to Carter's OPRA request within seven business days, and by denying
access to the FDS as evidenced by the January 25, 2011 email. It
issued an interim order requiring the custodian to disclose the
responsive 2007 FDS to Carter, in addition to any other responsive
statements it had on file from 2000 to the date the OPRA request
was made. It also ordered that if no other FDS existed, the
custodian was to submit a certification attesting to that fact.
On July 2, 2012, the District provided Carter with documents in
response to the GRC's order.
In anticipation of the GRC's scheduled review of the matter,
Carter prepared a certification in which he included a copy of a
January 27, 2011 email from Kosensky to Cooper transmitting the
2007 FDS that she received from Nelson two days earlier. In that
email, Kosensky stated "[i]t looks like we only have copies from
2007. I am assuming that [Carter] can get the rest from the
township." Carter argued in the certification that the document
established that when Cooper responded to Carter's OPRA request,
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he and Kosensky knew the District was in possession of at least
some responsive documents.
Carter's counsel transmitted the certification by email to
the GRC on August 24, 2012. The GRC responded the same day by
informing Carter's counsel that the "submission will not be
reviewed [by the GRC]" because, (1) the matter was already
scheduled before the council for its review of the executive
director's "Findings and Recommendations"; and, (2) its
regulations did "not include a provision for submissions in advance
of the Council's meeting" where there is no hearing being held and
the GRC made no request for additional information. According to
Carter, his attorney never informed him of the GRC's rejection of
his submission.
At its August 28, 2012 meeting, the GRC determined the
custodian complied with the June 26 interim order. It again relied
on the January 25, 2011 email and found that the District violated
OPRA because it did not release documents it obviously had in its
possession. It also found that Carter was a prevailing party
entitled to an award of counsel fees and directed that the matter
be transmitted to the Office of Administrative Law (OAL) for a
hearing to determine the amount of the award and whether the
District's denial of Carter's initial request was a knowing and
willful OPRA violation.
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The OAL scheduled a hearing before an ALJ. At the hearing,
Carter and Nelson testified on behalf of Carter.1 Kosensky
testified for the District. Carter testified about the January
25 and January 27 emails, and explained they proved that two weeks
before Cooper responded to his initial request and explained the
District did not maintain the FDS, Nelson and Kosensky had
exchanged an email that contained some of the requested FDS and
Kosensky provided it to Cooper. He argued that because the
District possessed some responsive documents, it was required to
disclose whatever it possessed, regardless of the town clerk
serving as the repository for the FDS. Carter admitted he promptly
made an OPRA request for the same documents from the town clerk,
who complied and forwarded to him the FDS that he sought.
Nelson testified that after receiving her brother's OPRA
request, she spoke with Cooper and explained she had copies of the
2007 FDS in the District's file and she assumed they were released
to Carter. Only later, upon receiving the GRC complaint, did she
learn that the 2007 FDS were not disclosed.
Kosensky testified she was the District's records custodian
from 2010 to 2011. She received some responsive documents to the
OPRA request from Nelson and forwarded them to Cooper. She
1
By that time, Nelson no longer worked for the District.
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admitted that she thought the 2007 FDS were responsive to Carter's
request, but agreed with Cooper's response to Carter that advised
him to direct his request to the Municipal Clerk's office, and did
not feel that Cooper's response was an attempt to intentionally
withhold documents. It was her opinion, however, that Carter
should have been given a copy of the 2007 FDS that the District
had on file. Finally, she stated that she received no training
about OPRA when she was appointed to the year-long interim
position.
On April 23, 2015, the ALJ issued an Initial Decision. The
judge's comprehensive nineteen-page written decision specifically
found that Nelson sent the January 25, 2011 email to Kosensky, who
then sent the January 27, 2011 email to Cooper. Despite those
emails, the ALJ concluded that the District's custodian did not
knowingly and willfully violate OPRA and that her mistake in
denying the OPRA request was negligent. Relying on the
commissioner's demeanor during the hearing, the ALJ stated that
the commissioner "did not impress [the ALJ] as anything other than
a worker who was doing her job to the best of her ability without
an ulterior motive of denying Carter to access to records he
requested." The ALJ recommended against assessing any civil
penalties under OPRA. The ALJ then determined the amount of the
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counsel fees and costs to be awarded to Carter as directed by the
GRC.
On June 30, 2015, the GRC issued its final decision, adopting
its Executive Director's supplemental findings and recommendations
that were based upon the ALJ's Initial Decision. Addressing
exceptions made by Carter to the ALJ's decision, the GRC explained
again its reason for rejecting Carter's August 12, 2012
certification. This appeal followed.
We begin our review of the GRC's decision by acknowledging
that it "is governed by the same standards as review of a decision
by any other state agency," Fisher v. Div. of Law, 400 N.J. Super.
61, 70 (App. Div. 2008), and is therefore limited. In re
Stallworth, 208 N.J. 182, 194 (2011). We "will not overturn an
agency's decision unless it violates express or implied
legislative policies, is based on factual findings that are not
supported by substantial credible evidence, or is arbitrary,
capricious or unreasonable." Fisher, supra, 400 N.J. Super. at
70.
"Our standard of review is plenary with respect to" the GRC's
interpretation of OPRA. Asbury Park Press v. Cty. of Monmouth,
406 N.J. Super. 1, 6 (App. Div. 2009), aff'd, 201 N.J. 5 (2010);
see also O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 379
(App Div. 2009). "[D]eterminations about the applicability of
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OPRA and its exemptions are legal conclusions . . . and are
therefore subject to de novo review." Carter v. Doe, 230 N.J.
258, 273-274 (2017). However, "under our deferential standard of
review, we give weight to the GRC's interpretation of OPRA." McGee
v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010).
"We do not, however, simply rubber stamp the agency's decision."
Bart v. City of Paterson Hous. Auth., 403 N.J. Super. 609, 618
(App. Div. 2008) (citations omitted), certif. denied, 198 N.J. 316(2009).
In our review, we are mindful of the public policy in these
matters. "Any analysis of OPRA must begin with the recognition
that the Legislature created OPRA intending to make government
records 'readily accessible' to the state's citizens 'with certain
exceptions[] for the protection of the public interest.'" Gilleran
v. Bloomfield, 227 N.J. 159, 170 (2016) (alteration in original)
(quoting N.J.S.A. 47:1A-1). OPRA expresses New Jersey's public
policy favoring transparency in government and disclosure of
government documents. See N.J.S.A. 47:1A-1. It endeavors to
"maximize public knowledge about public affairs in order to ensure
an informed citizenry and to minimize the evils inherent in a
secluded process." Times of Trenton Publ'g Corp. v. Lafayette
Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (citation omitted).
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"[A]ny limitations on the right of access . . . shall be construed
in favor of the public's right of access[.]" N.J.S.A. 47:1A-1.
We turn first to Carter's primary contention that the GRC
should have imposed penalties on Kosensky and Cooper because the
District's withholding of the 2007 FDS was knowing and willful.
OPRA requires that a custodian or any other public official or
employee "who knowingly and 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). To determine whether a custodian knowingly
and willfully violated OPRA, "the custodian must have . . . actual
knowledge that his actions were wrongful, and . . . there [must]
be a positive element of conscious wrongdoing." Bart, supra, 403
N.J. Super. at 619; see also Fielder v. Stonack, 141 N.J. 101(1995); Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J.
396 (1962).
If there is a knowing and willful OPRA violation by a public
body or custodian of records, "and [they are] found to have
unreasonably denied access under the totality of the
circumstances, the [GRC] may impose the penalties provided for in
[OPRA]." N.J.S.A. 47:1A-7(e).
N.J.S.A. 47:1A-11 provides a valuable means
to compel compliance with OPRA by public
officials, officers, employees and records
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custodians who might otherwise flout OPRA's
requirements and willfully and knowingly
deprive the public of access to government
records. The civil penalties permitted under
N.J.S.A. 47:1A-11 help ensure that records at
all levels of government, including the
highest levels of our State government, are
not willfully and knowingly withheld in an
effort to shroud possible wrongdoing from the
public's view or deny access to government
records to which every citizen is entitled.
It is inconsistent with the plain language of
N.J.S.A. 47:1A-11 and OPRA's purpose to shield
the recalcitrance and obfuscation of public
officials, officers, custodians and employees
from the imposition of a civil penalty. . . .
[N. Jersey Media Grp., Inc. v. State Office
of the Governor, 451 N.J. Super. 282, 309
(App. Div. 2017) (emphasis added).]
We conclude the GRC's determination that the District did not
knowingly and willfully fail to disclose documents to Carter was
supported by substantial evidence in the record of the hearing
before the ALJ. R. 2:11-3(e)(1)(D). That evidence included proof
that the custodian's decision to forward documents to its counsel
to formulate a response to Carter lacked any indication that she
intended to deprive Carter of responsive documents, and therefore
did not warrant the imposition of civil penalties. See Bart,
supra, 403 N.J. Super. at 619 (finding no knowing and willful
violation of OPRA where a parking authority "consulted with its
counsel . . . to formulate a proper response"). In addition, it
was undisputed that Carter was never deprived of the requested
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documents because he received them from the municipal clerk as
Cooper directed. While Cooper's response on behalf of Kosensky
clearly violated OPRA, there was no demonstration that it was a
knowing and willful attempt to "shroud possible wrongdoing from
the public's view or deny access to government records to which
every citizen is entitled." N. Jersey Media Grp., Inc., supra,
451 N.J. Super. at 309.
We find Carter's remaining arguments regarding Cooper's
liability for civil penalties, and the GRC's failure to consider
his supplemental certification before it agreed with him that the
District violated OPRA and referred the matter to the OAL, to be
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We only observe that Cooper acted
at all times as counsel, not as the custodian, and was never named
as a party to this action, see N. Jersey Media Grp., Inc., supra,
451 N.J. Super. at 288 n.1. And, the certification the GRC refused
to consider when it ruled in Carter's favor was admitted into
evidence and testified to by Carter before the ALJ in support of
his claim that the District's actions were knowing and willful.
Affirmed.
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