Dept of Education Violations

 

3/18/2014

Gmai l - Dept of Educati on OPR A R eq uests

Harry B. Scheeler, Jr. <[email protected]>

Dept of Educa Education tion OPRA Requests Harry B. B. Scheeler, Schee ler, Jr. <harry res c ue911@gmail. c om> Tue, Mar 18, 2014 at 10: 28 AM To: [email protected] Cc: william.halde william.haldeman@ [email protected], doe.state.nj.us, OPRA Custodian <[email protected]> <[email protected]> Mr. Hespe, Earlier this year the Government Records Council found the Dept of Education in violation of the Open Public Earlier Records Act. Less then 60 days after that violation your agency has twice again violated OPRA for the same reason. reaso n. As  As the Commissioner of Education sits on the GRC, I would expect your own OPRA custodian to be well trained and not violate OPRA. I am currently conducting an audit of your agency's handling of OPRA requests. I have all of the DOE OPRA requests for 2013. I have reviewed half of the requests which total 241. Out of the 241 your agency violated OPRA 31 times. These violations I found were nothing complex that would have challenged the most experienced custodian. The violations were more OPRA 101. Once my audit is complete c omplete I w will ill be publicly releasing releasing my fin findings dings including all of the OPRA requests requests which violations were found. Additionally the history of the audit including all violations I've had to personally file to get the audit finished will be included. The report will be sent you as well as state law makers.  Attached please find find the 2013 GRC GRC violation violation as well as the two new violations violations filed toda today. y. Respectfully, Harry B. Scheeler, Jr. 3 attachments DOE_3-18-2.pdf  311K 2013-190.pdf  89K DOE_3-18-1.pdf  383K

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Harry B. Scheeler, Jr. v Dept of Education Request #W84364 Background

Since the spring of 2013 I have been investigating claims that the Dept of Education OPRA custodians have been habitually violating the Open Public Records Act. Since the Commissioner of Education is a designated member of the Government Records Council the claims and my own suspicions were alarming. It was my intentions to audit the agency and submit my findings to my state elected officials requesting mandated training requirements for custodians of State agencies. And further request mandatory sanctions for custodians who violate OPRA regardless if their actions were intentional or not. On May 8, 2013 I filed an OPRA request with the Dept of Education seeking the disclosure of all OPRA requests made with the subsequent custodial responses for all of 2013. The Custodian at the time, Paul Crupi, imposed an extension twice before latter demanding a service charge. When I challenged the validity of the service charge the custodian imposed a 3rd extension then again demanded a service charge before finally denying the request on June 11, 2013. On July 2, 2013 a complaint was filed with the GRC (2013-190). On January 28, 2014 Mr. Crupi was found in violation of OPRA for failing to meet his burden for a service charge and for failing to provide the requested documents by the first extension date. On January 29,2014 The GRC emailed Dept of Education OPRA Custodian Kimberly Gatti the notice her agency was found in violation of OPRA. In the same email the GRC also issued an Interim Order for the release of the documents unlawfully denied. On February 6, 2014 Ms. Gatti submitted a certification that the documents had been released. After the documents were received I began to audit one of two batches of documents provided which contained 241 pages of requests. I compared the responses to previous GRC cases which are readily available on the GRC website, contained in the 2011 OPRA Custodian’s handbook and further contained in GRC training presentations. My partial audit of 241 requests discovered in 2013 the Dept of Education custodians violated OPRA 31 times. 8 Times extensions were not honored 16 times the custodian failed to provide documents in the medium requested

 

4 times the requestor was directed where to find documents in lieu of providing them 3 times the custodian requested a service charge that appeared to be unjust Some of these requests such as the ones requesting a service charge needed additional inspection. An OPRA request was filed for the full release of 16 requests.

Summary On 2/24/14 an OPRA request was submitted. On 3/3/14 Ms. Gatti contacted me to advise the deadline was being moved to 3/6/14 due offices being closed due to State of Emergency. On 3/5/14 an email was received from Ms. Gatti imposing a deadline until 3/17/14. On Friday, March 14, 2014 I spoke with Dominic Rota over the phone regarding several OPRA requests. During the phone call I expressed my concern that a member of the Government Records Council’s own staff was violating OPRA. Mr. Rota said he “could not speak to how previous requests were handled” but assured me he was proficient in OPRA. On 3/17/14 an email was received from Shubha Bhalerao on behalf of OPRA Custodian Dominic Rota imposing a second deadline until March 31, 2014. Legal Argument

Because the custodian failed to provide access to the requested records by the extension date, the custodian violated N.J.S.A. 47:1A-5(i). See Harry B. Scheeler, Jr. v Dept of Education GRC Complaint No. 2013-190. Also see Kohn v. Twp. of Livingston Library (Essex), GRC Complaint No. 2007-124 (March 2008)

Conclusion 

The New Jersey Supreme Court declared in Fair Share House Center Inc. Vs. New Jersey State League of Municipalities that …”knowledge is power in a democracy and, as such, Government can not  be held accountable to its citizens without access a ccess to information maintained by public agencies”. Because the Commissioner of Education sits on the Government Records Council his or her staff is held

 

to a higher level of accountability. Regardless of the the Commissioner's position the public expects that the State of New Jersey will hire competent employees that will serve the needs of the people in good faith. Its unclear which custodian Kim Gatti or Dominic Rota is responsible for this violation. However it's unconscionable that this public agency has again violated OPRA, for the same reason, less than 60 days since being notified by this council. I respectfully request the Dept of Education be found in violation of the Open Public Records Act.

 

Harry B. Scheeler, Jr. v Dept of Education Request #W84189 Background

Since the spring of 2013 I have been investigating claims that the Dept of Education OPRA custodians have been habitually violating the Open Public Records Act. Since the Commissioner of Education is a designated member of the Government Records Council the claims and my own suspicions were alarming. It was my intentions to audit the agency and submit my findings to my state elected officials requesting mandated training requirements for custodians of State agencies. And further request mandatory sanctions for custodians who violate OPRA regardless if their actions were intentional or not. On May 8, 2013 I filed an OPRA request with the Dept of Education seeking the disclosure of all OPRA requests made with the subsequent custodial responses for all of 2013. The Custodian at the time, Paul Crupi, imposed an extension twice before latter demanding a service charge. When I challenged the validity of the service charge the custodian imposed a 3rd extension then again demanded a service charge before finally denying the request on June 11, 2013. On July 2, 2013 a complaint was filed with the GRC (2013-190). On January 28, 2014 Mr. Crupi was found in violation of OPRA for failing to meet his burden for a service charge and for failing to provide the requested documents by the first extension date. On January 29,2014 The GRC emailed Dept of Education OPRA Custodian Kimberly Gatti the notice her agency was found in violation of OPRA. In the same email the GRC also issued an Interim Order for the release of the documents unlawfully denied. On February 6, 2014 Ms. Gatti submitted a certification that the documents had been released. After the documents were received I began to audit one of two batches of documents provided which contained 241 pages of requests. I compared the responses to previous GRC cases which are readily available on the GRC website, contained in the 2011 OPRA Custodian’s handbook and further contained in GRC training presentations. My partial audit of 241 requests discovered in 2013 the Dept of Education custodians violated OPRA 31 times. 8 Times extensions were not honored 16 times the custodian failed to provide documents in the medium requested

 

4 times the requestor was directed where to find documents in lieu of providing them 3 times the custodian requested a service charge that appeared to be unjust Some of these requests such as the ones requesting a service charge needed additional inspection. An OPRA request was filed for the full release of 16 requests.

Summary On 2/24/14 an OPRA request was submitted. On 3/3/14 Ms. Gatti contacted me to advise the deadline was being moved to 3/6/14 due offices being closed due to State of Emergency. On 3/5/14 an email was received from Ms. Gatti imposing a deadline until 3/17/14. On Friday, March 14, 2014 I spoke with Dominic Rota over the phone regarding several OPRA requests. During the phone call I expressed my concern that a member of the Government Records Council’s own staff was violating OPRA. Mr. Rota said he “could not speak to how previous requests were handled” but assured me he was proficient in OPRA. On 3/17/14 an email was received from Shubha Bhalerao on behalf of OPRA Custodian Dominic Rota imposing a second deadline until March 31, 2014. Legal Argument

Because the custodian failed to provide access to the requested records by the extension date, the custodian violated N.J.S.A. 47:1A-5(i). See Harry B. Scheeler, Jr. v Dept of Education GRC Complaint No. 2013-190. Also see Kohn v. Twp. of Livingston Library (Essex), GRC Complaint No. 2007-124 (March 2008)

Conclusion 

The New Jersey Supreme Court declared in Fair Share House Center Inc. Vs. New Jersey State League of Municipalities that …”knowledge is power in a democracy and, as such, Government can not  be held accountable to its citizens without access a ccess to information maintained by public agencies”. Because the Commissioner of Education sits on the Government Records Council his or her staff is held

 

to a higher level of accountability. Regardless of the the Commissioner's position the public expects that the State of New Jersey will hire competent employees that will serve the needs of the people in good faith. Its unclear which custodian Kim Gatti or Dominic Rota is responsible for this violation. However it's unconscionable that this public agency has again violated OPRA, for the same reason, less than 60 days since being notified by this council. I respectfully request the Dept of Education be found in violation of the Open Public Records Act.

 

INTERIM ORDER  January 28, 2014 Government Records Council Meeting

Harry B. Scheeler, Jr. Complainant v.  N.J. Department of Education Custodian of Record

Complaint No. 2013-190

At the January 28, 2014 public meeting, the Government Records Council (“Council”) considered the January 21, 2014 Findings and Recommendations of the Executive Director and all related related documentation documentation submitted submitted by the parties. The Council, by a majority vote, adopt adopted ed the entirety of said findings and recommendations. The Council, therefore, finds that: 1.

Al Alth thoug ough h the Cus Custo todi dian an time timely ly res respon ponded ded to to the Com Compl plai ainan nant’ t’ss May 8, 2013 2013 OPR OPRA A request in writing requesting an extension of time to respond, the Custodian’s failure to timely respond in writing within the extended deadline of June 7, 2013, results in a “deemed” denial. N.J.S.A. 47:1A-5(i); Kohn v. Twp. of Livingston Library (Essex), GRC Complaint No. 2007-124 (March 2008).

2.

The Custodi Custodian an has not borne borne her burden burden of proof proof that, that, prior prior to disclos disclosure ure,, the the payment payment of a special service charge is warranted because of an extraordinary expenditure of  time time an and d ef effo fort rt needed needed to fulf fulfil illl the the Comp Compla laina inant nt’s ’s re reque quest st.. N.J.S N.J.S.A .A.. 47 47:1 :1AA-6; 6;  N.J.S.A. 47:1A-5.c; The Courier Post v. Lenape Regional High School, 360  N.J.Super. 191, 199 (Law Div. 2002). Thus, the Custodian shall disclose the sought OPRA requests to the Complainant upon the Complainant’s payment of the actual cost of the materials and supplies used to copy the requested records. N.J.S.A. 47:1A5(b); 5(b ); Paff Paff v. Townsh Township ip of Teaneck Teaneck (Bergen), (Bergen), GRC Compla Complaint int No. 2010-0 2010-09 9 (May (May 2011). The Custodian must identify any documents that are redacted and state the  basis for redacting such documents. d ocuments.

3.

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The The Custod Custodian ian shall shall comply comply with with item numbe numberr one (1 (1)) above above within within five (5) busines bus inesss days from receipt receipt of the Council’ Council’ss Interim Interim Order with appropriate appropriate redactions, including a detailed document index explaining the lawful basis for eac each red redacti action on,, and and si sim multa ultan neou eousl sly y pr prov ovid idee cert certif ifie ied d conf confir irm matio ation n of  1 co com mplia plianc nce, e, in ac acco cord rdan ance ce with with N. N.J. J. Cour Courtt Ru Rule le 1:41:4-4, 4, to the Ex Execu ecutiv tivee 2 Director.

“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.”

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Satisfactory compliance require Satisfactory requiress that t hat the Custodian Custodian deliver the record record(s) (s) to the Complainan Complainantt in the reques requested ted medium. If a copying or special service charge was incurred by the Complainant, the Custodian must certify that the  New Jersey is an Equal Opportunity Opp ortunity Employer  • Printed  •  Printed on Recycled paper and Recyclable

 

4.

The The Coun Counci cill de defe fers rs analy analysi siss of wheth whether er the Custo Custodi dian an knowi knowing ngly ly and willf willful ully ly viol violat ated ed OPRA OPRA and and unr unreas easonab onably ly deni denied ed acce accesss unde underr th thee to tota tali lity ty of th thee circumstances pending the Custodian’s compliance with the Council’s Interim Order.

Interim Order Rendered by the Government Records Council th On The 28 Day of January, 2014

Robin Berg Tabakin, Esq., Chair  Government Records Council I attest the foregoing foregoing is a true and accurate record of the Government Government Records Council.

Steven Ritardi, Esq., Secretary Government Records Council Decision Distributio Distribution n Date: January 29, 2014 2014

record has been been made  made available to available  to the Complainant but the Custodian may withhold delivery of the record until the financial financ ial obligation is satisfie satisfied. d. Any such charge must adh adhere ere to the provisions provisions of N.J.S.A. 47:1A-5. 2

 

STATE OF NEW JERSEY GOVERNMENT RECORDS COUNCIL Findings and Recommendations of the Executive Director January 28, 2014 Council Meeting Harry B. Scheeler, Jr. Complainant

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GRC Complaint No. 2013-190

v. N.J. Department of Education Custodial Agency

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Records   “All OPRA submitted to the NJ. [Department] of  EducationRelevant in 2013. to . . Complaint: . I am not requesting the requests documents released[.] I am . . asking for all responses responsive to the same requests.” 3

Custodian of Record: Paul Crupi Custodian Requestt Received by Custodian: Reques Custodian:  May 8, 2013 Response Made by Custodian:  May 17, 2013 GRC Complaint Received:  July 2, 2013 Background

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Request and Response: On May 8, 2013, the Complainant submitted an Open Public Records Act (“OPRA”) request to the Custodian seeking the above-mentioned records. On May 17, 2013, seven (7)  business days later, the Custodian responded in writing seeking authorization for a special service charge that he stated was necessary to fulfill the request. The Complainant did not assent to the special service charge, and the Custodian requested an extension of time to respond until May 24, 2013. On May 24, 2013, the Custodian requested an additional extension of time until May 31, 2013, and on May 31, 2013, he requested a further extension of time until June 7, 2013. On June 11, 2013, the Custodian confirmed in writing that the Complainant refused to pay the special service charge and, as such, denied the request.

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 No legal representation is listed in the record.  No legal representation is listed in the record. 3 The current Records Custodian is Kimberly A. Gatti. 4 The par partie tiess may hav havee sub submitt mitted ed add additio itional nal cor corre respo sponde ndence nce or mad madee add additio itional nal sta stateme tements nts/ass /asser ertion tionss in the submiss sub mission ionss identif identified ied her herein ein.. Howe Howeve ver, r, the Cou Council ncil include includess in the Find Finding ingss and Re Recomm commend endatio ations ns of the Executive Director the submissions necessary and relevant for the adjudication of this complaint. 2

Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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Denial of Access Complaint: On July July 2, 20 2013 13,, the the Comp Compla lain inan antt fi file led d a Deni Denial al of Acce Access ss Comp Compla lain intt with with the the Govern Gov ernmen mentt Records Records Council Council (“GRC” (“GRC”). ). The Complai Complainan nantt states states that on May 17, 2013, 2013, he received and disputed the Custodian’s notice regarding the necessity of a service charge. The Complainant further states that he received the Custodian’s requests for extensions of time on May 17, May 24, and May 31, but that he objected to the May 31 extension as impermissible under OPRA for being too open-ended. open-ended. The Complainant Complainant contests the Custodian’s Custodian’s statement that several hours will be needed to redact the requested documents, arguing that the Custodian has had sufficient time to respond and that any redactions will not be significant enough to warrant a special service charge. Statement of Information: On Augus Augustt 22, 2013 2013,, the Cust Custod odia ian n file filed d a State Stateme ment nt of Info Inform rmat atio ion n (“SOI (“SOI”) ”).. The The Custod Cus todian ian certif certifies ies that that the Compla Complaina inant’ nt’ss reques requestt requir required ed the search search for, for, and review review of, approxi app roximat mately ely 220 OPRA reques requests ts submitt submitted ed to the New Jersey Jersey Departm Department ent of Educat Education ion (“DOE”) between January 1, 2013 and May 8, 2013. The Custodian states that each responsive file needed to be printed and scanned to create a single .pdf document, in addition to being redacte red acted d to obscure obscure any person personal al inform informati ation. on.   Citing   Paff Paff v. Warr Warren en Cnty Cnty.. Of Offi fice ce of the the Pros Prosecu ecuto tor, r, GRC Compla Complain intt No. 20072007-16 167 7 (Febr (Februar uary y 2008) 2008).. The Cust Custodi odian an argu argues es that that  performing this search, review, re view, redaction, red action, and a nd ultimate u ltimate production of the final document required a special service charge.   Citing   Fisher v. Dep’t of Law & Pub. Safety, Div. of Law, GRC Complaint No. 2004-55 (August 2006). Additional Submissions: The Custodian provided the following in response to the GRC’s fourteen (14) point questionnaire regarding the propriety of imposing a special service charge: Question What Wh at record recordss are requeste requested? d?

Custodian’s Response Pursua Pursuant nt to the NJDO NJDOE’s E’s recor record d regardi regarding ng the su subje bject ct reques request, t,

Mr. Scheeler (“Requestor”) sought the following when he filed OPRA request #W76731 – “All OPRA requests submitted to the NJ Department Department of Education in 2013.” He then clarified clarified that request stating “I am not requesting the documents release I am howe howeve verr aski asking ng fo forr all all resp respon onse sess resp respon onsi sive ve to the the sa same me requests.” Give a general nature The documents sought are the receipts (for the period of time description and number of the identified in the request) generated by the Records Custodian government records requested. and sent to a requestor following the Custodian’s completion of  an OPRA request. The receipts contain the personal information of reque request stor ors, s, in incl clud uding ing perso persona nall telep telephon honee numb number erss and and  personal email addresses, along with details of the inform inf ormati ation/ on/rec record ordss request requested, ed, maximu maximum m antici anticipate pated d cost, cost, method of delivery, etc. At the time the subject request was Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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 processed, it was determined that there were approximately 220 responsive documents. Wha hatt is the pe perriod of time ime Req Reques uestt #W76731 #W76731 sought sought record recordss that that were were approxim approximate ately ly 4 over which the records months in range, from January 2013 to the date of the request, extend? May 8, 2013. Are some or all of the records  No. sought archived or in storage? Based ed on the inform informati ation on ga gathe thered red from from Human Human Resour Resources ces What is the size of the Bas agency? within NJDOE, NJDOE employs approximately 757 employees at its offices located at Riverview Plaza. What is the number of   At th thee time time the the requ reques estt was was made, made, ther theree was one one indi indivi vidua duall employees available to assi assig gned ned to co comp mple lete te an and d resp respon ond d to all all OPRA OPRA requ reques ests ts ac acco comm mmod odat atee the recor ecords ds received by NJDOE. Based upon a review of the available data request? from 2012-2013, the NJDOE received several OPRA requests  per day. da y. To what extent do the Of the approximately 220 documents responsive to the request, reques req uested ted records records have have to be each one of those documents will likely require some form of  redacted? redaction to protect the personal information of each requestor, includi inc luding ng persona personall email email addres addresses ses and personal personal teleph telephone one numbers. What is the level of personnel, At th thee ti time me the the reque request st was was made, made, Mr. Mr. Cr Crup upii es esti tima mate ted d the the hourly rate, rate, and number hours, hours, ent entire ire proces processs of gatheri gathering ng the records records,, revie reviewing wing them them and if any, required for a then redacting them would take approximately four (4) hours, gover vernment emp employee oyee to with a service charge totaling $83.84, which reflects an hourly locate, locate , retrieve, retrieve, and assemble assemble rate of $20.96 for his work. the records for copying?

What is the level of personnel, hour hourly ly ra rate te,, an and d nu num mber ber of  hour hours, s, if any, any, re requi quire red d fo forr a gover vernment emp employee oyee to mon onit itor or the ins nsp pecti ection on or  ex exam amin inat atio ion n of the the reco record rdss requested? What is the level of personnel, hour hourly ly ra rate te,, an and d nu numb mber er of  hour hours, s, if any, any, re requi quire red d fo forr a gover vernment emp employee oyee to

The Records Custodian is the individual gathering, redacting and com completi ting ng the entire proce ocessing of the the reque quest. Accordingly, there is no additional monitoring or inspection fee that was anticipated by Mr. Crupi.

For the subject request, the time to return records would be minimal since the records did not have to be retrieved from arch archiv ives es.. There There would would be no other other expens expensee assoc associa iate ted d wi with th retrieving the documents from archives.

return records to their original storage space? What hat is the the reas reason on th that at the the agency age ncy employ employed, ed, or intends intends to employ, the particular level of personnel to accommodate the records request? Who

in

th thee

agen agency cy

The records Custodian, at the time of the subject request, was the only individual responsible for reviewing, processing and responding to OPRA requests. Given Mr. Crupi’s estimate, it would essentially take him one-half (1/2) of an entire work day to process the subject request. This one request is just one of  several sever al hundred received by the NJDOE each year. wi will ll At the the tim timee the subj subjec ectt req reque uest st was was sub submitte itted, d, Pau Paul Crup Crupii

Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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 perform the work associated served as the Records Custodian. Accordingly, he would have wi with th th thee re recor cords ds requ request est and and  been the individual responsible to process and respond to the that person’s hourly rate? request. It is my understanding that he sought to charge $20.96  per hour for processing the request. Wha hatt is the the avai availa labi bili lity ty of  The NJDOE has copying copying and scannin scanning g machin machines es locate located d on in info form rmat atio ion n te tech chnol nology ogy and and each floor of the Riverview Plaza Offices. At the time of the copying capabilities? su subj bjec ectt reque request st,, it would would have have be been en neces necessa sary ry to copy copy the orig origin inal al docum document entss (or (or retr retrie ieve ve them them from from the the elec electr tron onic ic data databas basee an and d prin printt them) them),, then then make make the the redac redacti tion onss on the the copied cop ied/pr /print inted ed documen documentt by hand hand with with a thick thick marker marker,, then then scan the redacted documents into the system. At the time of this request, the NJDOE was una unable to make ake redact actions ions electronically, but rather made all redactions manually with a marker to paper. Those redacted documents then needed to be scanned into a .pdf file. It is also important to note that at times it was also necessary to make a copy of the redacted document and redact again to ensure the text is properly redacted. Give a det detailed estim timate ate Activity Time Allotted categorizing the hours needed Run a search on the Department of  Approximately to identify, identify, copy or prepare for  Edu Educat cation’ ion’ss OPRA OPRA databas databasee to determ determine ine 15 minutes inspe nspecction, prod produc ucee, and what OPRA file numbers are responsive.

return the documents.

requested Retrieve Retrieve the physical physical files of approximate approximately ly Approximate Approximately ly 1 220 OPRA records/receipts or retrieve them hour  from the online database print each document from the online and/or database. Ensu En sure re th that at any mi miss ssing ing docum documen ents ts are are retrieved and/or review the online system to ensure accuracy. Review 220 documents to ensure docu docume ment ntss are are resp respon onsi sive ve an and d make make the the necessary redactions. Sc Scan an th thee redac redacte ted d docum documen ents ts to crea create te a .pdf file so that they can be sent electronically to the requestor. Separately email the .pdf files to requestor  as he do does es no nott acce accept pt do docu cume ment ntss on CD

Approximately 30 minutes Approximately 1.5 hours Approximately 30 minutes or  more Approximately 15 minutes or 

(due to the volume of the documents and more email ema il sy system stem limita limitation tions, s, severa severall emails emails would need to be drafted and sent in order  to submit submit the documen documents ts to request requester er via email). Total Time Approximately 4  plus hours hou rs

Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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Analysis Timeliness

OPRA mandates that a custodian must either grant or deny access to requested records within seven (7) business days from receipt of said request. N.J.S.A. 47:1A-5(i). A custodian’s failure to respond within the required seven (7) business days results in a “deemed” denial. Id. Further, Furth er, a custodian’s custodian’s response, response, either granting or denying access, must be in writing pursuant to 5  N.J.S.A. 47:1A-5(g). 4 7:1A-5(g). Thus, a custodian’s custodian’s failure failure to respond in writing writing to a complainant’ complainant’ss 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. Township of Rockaway, GRC Complaint No. 2007-11 (Interim Order October 31, 2007). Moreover, OPRA provides that:

If the the gover governme nment nt reco record rd is in st stor orag agee or archi archived ved,, the the requ reques esto torr sh shal alll be so advised within seven business days after the custodian receives the request. The re requ ques esto torr sh shal alll be ad advi vise sed d by th thee cu cust stod odia ian n when when the the reco record rd ca can n be made made available. If the record is not made available by that time, access shall be deemed denied.  N.J.S.A. 47:1A-5(g). In Kohn v. Twp. of Livingston Library (Essex), GRC Complaint No. 2007-124 (March 2008), the custodian responded in writing on the fifth (5th) business day after receipt of the complainant’s March 19, 2007 OPRA request seeking an extension of time until April 20, 2007. However, the custodian responded again on April 20, 2007, stating that the requested records would be provided later in the week. Id. No records were provided until May 31, 2007. Id. The GRC held that: The [c]ustodian properly requested an extension of time to provide the requested records to the [c]omplainant by requesting such extension in writing within the statutorily statut orily mandated seven (7) business days pursuant pursuant to N.J.S.A. N.J.S.A. 47:1A-5(g) 47:1A-5(g) and  N.J.S.A. 47:1A-5(i) . . . however . . . [b]ecause the [c]ustodian failed to provide th thee [c [c]o ]omp mpla lain inan antt acce access ss to the the requ reques este ted d reco record rdss by the the ex exte tens nsio ion n da date te anticip anti cipate ated d by the [c]usto [c]ustodian dian,, the [c]ust [c]ustodia odian n violat violated ed N.J.S. N.J.S.A. A. 47:1A-5 47:1A-5(i (i)) resulting resul ting in a “deemed” denial denial of access to the records. Id.

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A custod custodian’s ian’s written response response either granting access, denying access, seeking clarificatio clarification n or requesting an extension of time within the statutorily mandated seven (7) business days, even if said response is not on the agency’s official OPRA request form, is a valid response pursuant to OPRA. Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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Here, the Custodian timely responded to the Complainant’s May 8, 2013 OPRA request  but failed to further respond within the extended time frame he requested on May 31, 2013. Thus, the Complainant’s OPRA requests are “deemed” denied. Id. Therefore, although the Custodian timely responded to the Complainant’s May 8, 2013 OPRA request in writing requesting an extension of time to respond, the Custodian’s failure to timely respond in writing within the extended deadline of June 7, 2013, results in a “deemed” denial. N.J.S.A. 47:1A-5(i); Kohn, GRC 2007-124. Special Service Charge

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. N.J.S.A. 47:1A-1.1. A custodian must release all records responsive to an OPRA request “wit “w ith h ce cert rtai ain n excep excepti tions ons.” .” N. N.J. J.S.A S.A.. 47:1 47:1AA-1. 1. Addit Additio ional nally ly,, OPRA OPRA place placess the burden burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6. Whenever a records custodian Whenever custodian asser asserts ts that fulfilling fulfilling an OPRA records request requires an “extra “ex traord ordinar inary” y” expendi expenditur turee of time time and effort effort,, a specia speciall servic servicee charge charge may be warran warranted ted  pursuant to N.J.S.A. 47:1A-5(c). 47:1 A-5(c). In this regard, OPRA O PRA provides: Whenever the nature, format, of collation, or volume of aexamined, government record embodied in the form manner of printed matter to be inspected, or  copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraor extr aordina dinary ry expendit expenditure ure of time time and effort effort to accommo accommodat datee the reques request, t, the  public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies . . . .”  N.J.S.A. 47:1A-5(c). The determination of what constitutes an “extraordinary expenditure of time and effort” under OPRA must be made on a case by case basis and requires an analysis of the variety of  factors discussed in The Courier Post v. Lenape Regional High School, 360 N.J.Super. 191, 199 (Law Div. 2002). There, the plaintiff publisher filed an OPRA request with the defendant school district, seeking to inspect invoices and itemized attorney bills submitted by four law firms over  a period of six and a half years. Id. at 193. Lenape assessed a special service charge due to the “extraordinary burden” placed upon the school district in responding to the request. Id. Based upon the volume of documents requested and the amount of time estimated to locate and assemble them, the court found the assessment of a special service charge for the custodian’s time was reasonable and consistent with N.J.S.A. 47:1A-5(c). Id. at 202. The court noted that it was necessary to examine the following factors in order to determine whether a record rec ordss reques requestt involv involves es an “extra “extraord ordinar inary y expendi expenditur turee of time time and effort effort to accomm accommoda odate” te”  pursuant to OPRA: (1) the volume of government records involved; (2) the period of time over  which the records were received by the governmental unit; (3) whether some or all of the records Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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sought are archived; (4) the amount of time required for a government employee to locate, retrieve and assemble the documents for inspection or copying; (5) the amount of time, if any, required requir ed to be expended by government employees to monitor the inspection or examination; and (6) the amount of time required to return the documents documents to their original original storage place.

Id. at 199. court depending determinedonthat the of context of OPRA, the termof “extraordinary” will vary among The agencies theinsize the agency, the number employees available to ac accom commo moda date te docume document nt requ reques ests ts,, th thee av avail ailab abil ilit ity y of info inform rmat atio ion n techn technol ology ogy,, copy copying ing capabilities, the nature, size and number of documents sought, as well as other relevant variables. Id. Id. at 202. “[W]hat “[W]hat may appear appear to be extraordi extraordinary nary to one school school distric districtt might be routin routinee to another.” Id. The Custodian has provided a response to questions posed by the GRC that reflect the analyt analytical ical framework framework outline outlined d in the Courier Courier Post regard regarding ing the proper proper assess assessmen mentt of a special service charge. Here, the evidence of record does not demonstrate that the “extraordinary expenditure of  ti tim me an and d effo effort rt”” requ requir ired ed to impo impose se a sp spec ecia iall se serv rvic icee ch char arge ge is ne need eded ed to fulf fulfil illl the the Complainant’s OPRA request. On one hand, hand, the record record establi establishe shess that that the Custod Custodian ian identif identified ied approxim approximate ately ly 220 documents documen ts respon responsiv sivee to the Complai Complainan nant’s t’s request request.. The Custod Custodian ian stated stated that that the record recordss contain personal information of requestors, and that the Custodian alone would be responsible for reviewing and redacting such information. Also, at the time of the request, DOE could not make redactions electronically and, instead, must print, manually redact, and re-scan documents  prior to disclosure. However, the record also indicates that the requested OPRA files need not be retrieved fr from om storag storage, e, that that no monito monitoring ring of the review review process process is necessa necessary, ry, and that the requis requisite ite copying and scanning facilities are present at DOE’s offices. Unlike the records requested in Courier Post, which consisted of thousands of pages produced by four (4) law firms over six (6) years, the Custodian here stated that the records are all located on DOE’s OPRA database and can be retrieved retrieved by using a search search function. function. See  Courier Post, 360 N.J. Super. at 193. Additionally, the proposed special service charge of $83.84 is based on four hours of  estimated work. While this may represent a significant portion of the Custodian’s working day, and DOE may receive several hundred OPRA requests each year, the time required does not  place an “extraordinary burden” on either the Custodian or DOE.   See  id. As noted in Courier  Post: The process of review and redaction . . . cannot be used to frustrate the goal of  [OPR [OPRA] A] . . . to “p “pro romp mptly tly permit permit acce access ss to the the rema remain inde derr of the the [reda [redact cted ed]] record.” Redaction of privileged or confidential data cannot cause the release of  otherwise public information to be placed in a straight jacket. Id. at 206. Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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The court in Courier Post further stated that: [A]n individual with sufficient education and experience to hold the position of a custodian of records[] should be able to quickly ascertain the presence of, and delet del ete, e, confi confide dent ntia iall and and priv privil ileg eged ed in info form rmat atio ion n to enab enable le that that custo custodia dian n to Id.

“promptly “prom ptly comply with a reques requestt to inspect . . .” a government government record.

 Notably, however, the bulk of the time estimate submitted su bmitted by b y tthe he Custodian is devoted to the printi printing, ng, manual manual redact redacting ing,, and re-scan re-scanning ning necessi necessitat tated ed by DOE’s DOE’s inabil inability ity to redact redact documents electronically. In Paff v. Township of Teaneck (Bergen), GRC Complaint No. 201009 (May 2011), the custodian also had to make paper copies of the requested records in order to redactt certain redac certain information information before providing electronic electronic copies of same to the complainant. complainant. OPRA  provides that a custodian may charge the actual cost of duplicating the record, including the “cost of materials and supplies used to make a copy of the record, but shall not include the cost of  labor or other overhead expenses associated associated with making the copy . . . .” N.J.S.A. 47:1A-5(b). 47:1A-5(b). The Council recognized in Paff that, though the cost of providing electronic copies is likely $0.00, the Custodian properly assessed the related cost for making the copies necessary to redact the records based on N.J.S.A. 47:1A-5(b). Id. Thus, the Custodian here is entitled to char charge ge the Comp Compla lain inan antt fo forr th thee actua actuall cost cost of th thee mater materia ials ls and and su suppl pplie iess us used ed to copy copy the 6 requested records prior to the redaction and scanning of such records. Therefore, the Custodian has not borne her burden of proof that, prior to disclosure, the  payment of a special service charge is warranted because b ecause of an extraordinary expenditure ex penditure of time and effort needed to fulfill the Complainant’s request. N.J.S.A. 47:1A-6; N.J.S.A. 47:1A-5.c; Cour Co urie ierr Po Post st,, 360 360 N. N.J. J. Su Super per.. at 199 Thus Thus,, th thee Cust Custod odia ian n sh shal alll disc disclo lose se the so sough ughtt OPRA OPRA requests to the Complainant upon the Complainant’s payment of the actual cost of the materials and supplies used to copy the requested records. N.J.S.A. 47:1A-5(b); Paff, GRC 2010-09. The Custodian must identify any documents that are redacted and state the basis for redacting such documents. Knowing & Willful The Council defers analysis of whether the Custodian knowingly and willfully violated OPRA OPR A and unreaso unreasonabl nably y denied denied access access under under the totali totality ty of the circum circumsta stances nces pending pending the Custodian’s compliance with the Council’s Interim Order.

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In the Custodian’s SOI, she certified that DOE could not “make redactions electronically” at the time of the Complainant’s request. In instances where a custodian  does have  the capability to electronically redact in a visually obvious manner a record requested to be provided electronically, a custodian shall not charge for electronic delivery of those electronically redacted records.  See  Paff, GRC 2010-09.

Harry B. Scheeler, Jr. v. N.J. Dep’t of Educ., GRC 2013-190 – Findings and Recommendations of the Executive Director 

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