Officials fined for violating Open Public Records Act

Officials fined for violating Open Public Records Act

May 31, 2007 - APP

TRENTON:  For the first time, the state Government Records Council issued fines Wednesday against officials who were found to have willfully violated the state's Open Public Records Act.

The council, created to enforce the 2002 public records law known as OPRA, has never finalized cases before in which it found a clear record that officials chose not to comply with a records request.

In separate cases, two records custodians -- South Bound Brook Clerk Donald E. Kazar and Gwendolyn Morrison, leasing director of the Paterson Housing Authority -- were each personally fined $1,000.

Government Records Council Chairman Vincent P. Maltese said the fines should send a message to custodians to comply with records requests.

"A claim of ignorance of OPRA's provisions or a dereliction of duty rising to the level of knowing and willful conduct is not an excuse for noncompliance," Maltese said.

Complaint brought

John Paff, 49, of Franklin Township, who routinely requests meeting minutes and resolutions from towns to see whether they comply with OPRA and the Open Public Meetings Act, brought the complaint against Kazar, who had testified he was too busy with other borough business to comply with the request.

"I don't take any delight personally in someone getting fined $1,000," Paff said. ". . . This will hopefully deter records custodians from being cavalier with records requests," Paff said.

Kazar took months to comply with Paff's requests for the borough council's closed session minutes and resolutions for certain months from 2003 to 2005. Kazar had told the GRC he was busy with other borough business and did not have time to locate them.

Kazar said he was disturbed by the fine and hadn't decided whether to appeal the decision in the case.

"I don't believe that I knowingly and willfully violated it, but I believe it might have been just negligence on my part being that I'm only a part-time clerk in a small office with just one other person," Kazar said.

The other matter was brought by John Bart, supervisor of Northeast Legal Services, who sought information about a sign that said Spanish-speaking residents needed an interpreter for services.

He received a copy of the sign a month after submitting a request. Almost a year later, he received a housing application cover letter that says in bold type "Please bring your own interpreter."

Testimony given

Morrison testified that the sign was not provided sooner because it had been removed -- at Bart's request -- and could not be located. She also said she did not initially provide the cover letter because she did not believe it was part of Bart's request for a copy of all housing authority forms, correspondence and directives referencing an interpreter. She testified that the requester already had a copy.

Administrative Law Judge Barry E. Moscowitz ruled in April that he did not believe Morrison's testimony.

"The Housing Authority properly understood the request for the sign but intentionally denied Bart access to it," Moscowitz wrote. "Similarly, I do not believe that the Housing Authority thought the cover letter was unresponsive to Bart's request."

Neither Morrison, nor her lawyers, returned calls seeking comment.

"The actions of the housing authority justified this fine and the findings of the GRC," Bart said. "I'm glad they saw the situation for what it was."

Elizabeth Mason, president of the New Jersey Foundation for Open Government, said it took five years for the first fines to be levied under OPRA as officials and judges set legal precedent for what constitutes a knowing and willful violation.

"Now at least there are decisions and guidelines as to where the line is drawn when someone is knowingly and willfully violating the law," Mason said. "One of the issues has been the Open Public Records Act has been rather young and defining the parameters has been a challenge for the GRC and the court system."

The custodians have 45 days to file an appeal with the Superior Court's Appellate Division.

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