Robert F. Edwards v. Housing Authority of Plainfield (Union), 2008-183 & 2009-259 – Supplemental Findings and
Recommendations of the Executive Director
14
Kallen, 92 N.J. 14 (1983). As the New Jersey Supreme Court emphasized in In re Polk
License Revocation, supra, a "due process violation will be found only when a
combination of functions is such as to render an independent judgment impossible." Id.,
90 N.J. at 577. See Withrow v. Larkin, 421 U.S. 35, 55-58, 95 S.Ct. 1456, 1468-69, 43
L.Ed.2d 712, 728-730 (1975). "[T]he bare assertion of improper conduct falls short of
proof of actual bias, prejudice or violation of due process in a hearing required by our
case law." See Matter of Cole, 194 N.J. Super. 237, 246 (App.Div.1984); In re Blum, 109
N.J. Super. 125, 129 (App. Div.1970).
In DeVitis v. NJ Racing Comm’n, 202 N.J. Super. 404 (App. Div. 1985), the
Superior Court of New Jersey, Appellate Division, determined that no denial of due
process occurred in an administrative hearing wherein the appellant claimed that the
administrative law judge violated his right to due process by permitting certain witnesses
to testify who had previously acted in a quasi-judicial capacity by ruling in the first
instance on his suspension. The Court noted that:
“Generally, the rules of the Office of Administrative Law provide that
‘[e]xcept as otherwise provided by law or by administrative rule
establishing a privilege ... [e]very person is qualified to be a witness’ at an
administrative hearing. N.J.A.C. 1:1-15.2(e). See N.J.A.C. 1:1-15.6. Two
exceptions are contained within New Jersey's Administrative Procedure
Act, which states that the ‘administrative law judge may in his discretion
exclude any evidence if he finds that its probative value is substantially
outweighed by the risk that its admission will either (i) necessitate undue
consumption of time or (ii) create substantial danger of undue prejudice or
confusion.’” N.J.S.A. 52:14B-10(a).” DeVitis, supra, at 497.
The Court held that “...the administrative law judge's decision to allow [the
testimony of individuals who previously ruled on DeVitis’ suspension] ... in no way
‘affronted current notions of due process of law’ nor in any way necessitated an undue
consumption of time or created a substantial danger of undue prejudice or confusion.”
DeVitis, supra, at 498. The Court held that because the proceedings afforded DeVitis a
full and fair opportunity to present witnesses and evidence in his own behalf, to cross-
examine witnesses against him and to rebut their testimony, and to present defenses on
his own behalf, all before an objective factfinder in the Office of Administrative Law, the
OAL proceedings fully complied with all due process requirements. Id. at 500.
In the matter before the Council, a review of the ALJ’s Initial Decision reveals
that the ALJ provided the Complainant with ample opportunity to present witnesses and
evidence on his own behalf, including the submission of documentary evidence after the
Complainant’s testimony, and even permitted an adjournment of the hearing to allow the
Complainant an opportunity to obtain legal advice and to amend his witness list. Initial
Decision at pg. 11. The ALJ specifically rejected the Complainant’s objections to the
proceedings before the OAL, including his claims that he was unfairly subjected to
opposing counsel’s badgering and disparaging comments and remarks, as being “without
merit.” Initial Decision at pg. 12. Additionally, the Complainant admitted in his
exceptions that the ALJ permitted the Complainant the opportunity to cross-examine
Robert F. Edwards v. Housing Authority of Plainfield (Union), 2008-183 & 2009-259 – Supplemental Findings and
Recommendations of the Executive Director
15
PHA’s witnesses, but objected to the restrictions on cross-examination, which the ALJ
imposed.
The Council notes that N.J.S.A. 52:14B-10(a) controls the administration of
evidence in contested cases at OAL:
“[t]he parties shall not be bound by rules of evidence whether statutory,
common law, or adopted formally by the Rules of Court. All relevant
evidence is admissible, except as otherwise provided herein. The
administrative law judge may in his discretion exclude any evidence if he
finds that its probative value is substantially outweighed by the risk that its
admission will either (i) necessitate undue consumption of time or (ii)
create substantial danger of undue prejudice or confusion. The
administrative law judge shall give effect to the rules of privilege
recognized by law. Any party in a contested case may present his case or
defense by oral and documentary evidence, submit rebuttal evidence and
conduct such cross-examination as may be required, in the discretion of
the administrative law judge, for a full and true disclosure of the facts.”
(Emphasis added). N.J.S.A. 52:14B-10(a).
Thus, the ALJ had the discretion under the statute to control the submission of
evidence at the hearing, including placing limitations upon the Complainant’s ability to
cross-examine witnesses. The Council therefore rejects the Complainant’s exception in
this regard.
Henceforth, the Initial Decision reflects that the ALJ clearly articulated the
credible evidence he considered to be important to his decision. The ALJ then made a
determination based on the preponderance of the credible evidence in the record. The
ALJ further indicated that the circumstances in this matter revealed an ongoing
contentious relationship between the parties.
Because the preponderance of the credible evidence adduced during the hearing at
the OAL outweighs the parties’ exceptions, and because the Complainant failed to
provide any legal basis for the GRC to reject the ALJ’s findings, the Council adopts the
ALJ’s Initial Decision dated February 6, 2012, which finds:
“I CONCLUDE that the [PHA] and its custodian did not unlawfully deny
[the Complainant] access to the records, because [the Complainant’s]
requests were invalid under OPRA.
I further CONCLUDE that [the Complainant] failed to meet the standard
for a proper OPRA request, where the request sought documents that were
not readily identifiable, and was of the nature of a blanket request for a
class of various documents.
Although [the Custodian] failed to respond to [the Complainant’s] second
OPRA request, which is “deemed” a denial of that request, I
CONCLUDE that imposition of a civil penalty is inappropriate, because
Robert F. Edwards v. Housing Authority of Plainfield (Union), 2008-183 & 2009-259 – Supplemental Findings and
Recommendations of the Executive Director
16
neither the [C]ustodian nor any other official knowingly and willfully
violated OPRA or unreasonably denied access under the totality of the
circumstances.” (Emphasis in original).
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that because
the credible evidence adduced during the hearing at the Office of Administrative Law
outweighs the parties’ exceptions, and because the Complainant failed to provide any
legal basis for the GRC to reject the Administrative Law Judge’s findings, the Council
adopts the Administrative Law Judge’s Initial Decision dated February 6, 2012:
“I CONCLUDE that the [PHA] and its custodian did not unlawfully deny
[the Complainant] access to the records, because [the Complainant’s]
requests were invalid under OPRA.
I further CONCLUDE that [the Complainant] failed to meet the standard
for a proper OPRA request, where the request sought documents that were
not readily identifiable, and was of the nature of a blanket request for a
class of various documents.
Although [the Custodian] failed to respond to [the Complainant’s] second
OPRA request, which is “deemed” a denial of that request, I
CONCLUDE that imposition of a civil penalty is inappropriate, because
neither the [C]ustodian nor any other official knowingly and willfully
violated OPRA or unreasonably denied access under the totality of the
circumstances.” (Emphasis in original).
Prepared By: Frank F. Caruso
Senior Case Manager
Approved By: Catherine Starghill, Esq.
Executive Director
April 18, 2012
New Jersey is an Equal Opportunity Employer • Printed on Recycled paper and Recyclable
INTERIM ORDER
November 18, 2009 Government Records Council Meeting
Robert Edwards
Complainant
v.
Housing Authority of Plainfield (Union)
Custodian of Record
Complaint No. 2008-183
At the November 18, 2009 public meeting, the Government Records Council
(“Council”) considered the November 10, 2009 Findings and Recommendations of the
Executive Director and all related documentation submitted by the parties. The Council
voted unanimously to adopt the entirety of said findings and recommendations. The
Council, therefore, finds that because evidence exists which contradicts the asserted basis
for the denial of access, and because the Custodian has failed to provide the requested
Statement of Information in the instant matter, the GRC is unable to determine whether
the Custodian unlawfully denied the Complainant access to the records responsive to his
request. Thus, this complaint should be referred to the Office of Administrative Law for
a hearing to resolve the facts to determine whether the Custodian unlawfully denied the
Complainant access to the records requested, and if so, for a further determination of
whether the Custodian knowingly and willfully violated OPRA and unreasonably denied
access under the totality of the circumstances.
Interim Order Rendered by the
Government Records Council
On The 18
th
Day of November, 2009
Robin Berg Tabakin, Chair
Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.
Harlynne A. Lack, Secretary
Government Records Council
Page 2
Decision Distribution Date: November 23, 2009
Robert Edwards v. Housing Authority of Plainfield (Union), 2008-183 – Findings and Recommendations of the Executive
Director
1
STATE OF NEW JERSEY
GOVERNMENT RECORDS COUNCIL
Findings and Recommendations of the Executive Director
November 18, 2009 Council Meeting
Robert Edwards
1
GRC Complaint No. 2008-183
Complainant
v.
Housing Authority of Plainfield (Union)
2
Custodian of Records
Records Relevant to Complaint: A copy of the Housing Authority of Plainfield
proposal on July 10, 2008 to the Plainfield Planning Board.
Request Made: July 22, 2008
Response Made: July 22, 2008
Custodian: Randall Wood
GRC Complaint Filed: August 19, 2008
3
Background
July 22, 2008
Complainant’s Open Public Records Act (“OPRA”) request. The Complainant
requests the record relevant to this complaint listed above on an official OPRA request
form.
July 22, 2008
Custodian’s response to the OPRA request. The Custodian responds in writing to
the Complainant’s OPRA request on the same business day as receipt of such request.
The Custodian states that access to the requested record is denied because the record
requested does not exist. The Custodian states that there will be a community meeting
before a proposal is presented to the Plainfield Planning Board.
August 19, 2008
Denial of Access Complaint filed with the Government Records Council (“GRC”)
with the following attachments:
Courier News article “120 Units May Be Razed,” dated July 17, 2008;
Complainant’s OPRA request dated July 22, 2008;
Letter from the Custodian to the Complainant dated July 22, 2008.
1
No legal representation listed on record.
2
Represented by Dan Smith, Esq. (Orange, NJ).
3
The GRC received the Denial of Access Complaint on said date.
Robert Edwards v. Housing Authority of Plainfield (Union), 2008-183 – Findings and Recommendations of the Executive
Director
2
The Complainant states that the Custodian unlawfully denied him access to the
record requested. The Complainant agrees to mediate this complaint.
August 25, 2008
Offer of Mediation sent to the Custodian. (The Custodian did not respond within
the required time frame.)
September 9, 2008
Request for the Statement of Information (“SOI”) sent to the Custodian.
September 19, 2008
Facsimile from the GRC to the Custodian’s Counsel.
Pursuant to Custodian
Counsel’s request, the GRC extends the deadline for filing the SOI until September 24,
2008.
September 23, 2008
Facsimile from the GRC to the Custodian’s Counsel. Pursuant to Custodian
Counsel’s request, the GRC once more offers the Custodian the opportunity to mediate.
September 24, 2008
The Custodian agrees to mediate this complaint.
September 30, 2008
This complaint is referred to mediation.
April 6, 2009
Letter from the Complainant to the GRC with the following attachments:
Courier News article dated July 17, 2008;
Letter from the Custodian to the Complainant dated July 22, 2008;
Affidavit from the Custodian dated January 16, 2009.
The Complainant alleges that the Custodian fraudulently alleged that the record
requested does not exist.
The Complainant states that the Custodian’s perfidy is
evidenced by the Courier News article dated July 17, 2008 and a recording of the July 10,
2008 Plainfield Planning Board meeting. The Complainant states that the Custodian’s
actions violate the spirit of OPRA and chills the Complainant’s right to access
government records.
June 12, 2009
Amended Denial of Access Complaint attaching the following:
Courier News article dated July 17, 2008;
Letter from the Custodian to the Complainant dated July 22, 2008.
Affidavit from the Custodian dated January 16, 2009.
4
4
The Complainant included additional material not relevant to the adjudication of this complaint.
Robert Edwards v. Housing Authority of Plainfield (Union), 2008-183 – Findings and Recommendations of the Executive
Director
3
The Complainant amends the Denial of Access Complaint to include an allegation
of fraud. The Complainant states that on July 17, 2008, the Courier News printed an
article entitled “120 Units May Be Razed.” The Complainant states that Lewis Hurd
from the Housing Authority of Plainfield presented a sixteen (16) page proposal to the
Plainfield Planning Board.
The Complainant states that he requested a copy of this
presentation. The Complaint further states that the Custodian fraudulently alleged in his
July 22, 2008 response to the Complainant’s OPRA request and in the affidavit dated
January 9, 2009 that no records responsive to the Complainant’s OPRA request exist.
The Complainant requests that the GRC find that the Custodian knowingly and willful
violated OPRA.
June 30, 2009
The complaint is referred back from mediation to the GRC for adjudication.
July 31, 2009
Request for the Statement of Information (“SOI”) sent to the Custodian.
August 20, 2009
Letter from GRC to the Custodian. The GRC sends a letter to the Custodian
indicating that the GRC provided the Custodian with a request for a Statement of
Information on July 31, 2009 and to date has not received a response. Further, the GRC
states that if the Statement of Information is not submitted within three (3) business days,
the GRC will adjudicate this complaint based solely on the information provided by the
Complainant.
Analysis
Whether the Custodian unlawfully denied access to the requested records?
OPRA provides that:
“…government records shall be readily accessible for inspection, copying,
or examination by the citizens of this State, with certain exceptions…”
(Emphasis added.) N.J.S.A. 47:1A-1.
Additionally, OPRA defines a government record as:
“… 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 … or that has been received in the course of his or its official
business …” (Emphasis added.) N.J.S.A. 47:1A-1.1.
OPRA places the onus on the Custodian to prove that a denial of access is lawful.
Specifically, OPRA states:
Robert Edwards v. Housing Authority of Plainfield (Union), 2008-183 – Findings and Recommendations of the Executive
Director
4
“…[t]he public agency shall have the burden of proving that the denial of
access is authorized by law…” N.J.S.A. 47:1A-6.
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 “with certain exceptions.” N.J.S.A. 47:1A-1.
Additionally, OPRA places the burden on a custodian to prove that a denial of access to
records is lawful pursuant to N.J.S.A. 47:1A-6.
Pursuant to N.J.A.C. 1:1-15.2(a) and (b), official notice may be taken of judicially
noticeable facts (as explained in N.J.R.E. 201 of the New Jersey Rules of Evidence), as
well as of generally recognized technical or scientific facts within the specialized
knowledge of the agency or the judge. The Appellate Division has held that it was
appropriate for an administrative agency to take notice of an appellant’s record of
convictions, because judicial notice could have been taken of the records of any court in
New Jersey, and appellant's record of convictions were exclusively in New Jersey. See
Sanders v. Division of Motor Vehicles, 131 N.J. Super. 95 (App. Div. 1974).
The Custodian responded in writing to the Complainant’s OPRA request on the
same business day as receipt said request stating that access to the requested record is
denied because the record requested does not exist.
However, in a recently filed
complaint involving the same parties, Edwards v. Housing Authority of Plainfield
(Union), GRC Complaint No. 2009-259, the Custodian admits to providing the
Complainant with some records responsive to the instant complaint.
Moreover, the
Custodian has not provided the requested Statement of Information in the instant matter
before the Council despite multiple requests by the GRC.
Pursuant to N.J.A.C. 1:1-15.2(a) and (b), the GRC takes judicial notice of the
submissions to the GRC in the matter of Edwards v. Housing Authority of Plainfield
(Union), GRC Complaint No. 2009-259, which contradict the Custodian’s July 22, 2008
response to the Complainant’s OPRA request in the instant matter.
See Sanders v.
Division of Motor Vehicles, 131 N.J. Super. 95 (App. Div. 1974).
Because evidence exists which contradicts the asserted basis for the denial of
access, and because the Custodian has failed to provide the requested Statement of
Information in the instant matter, the GRC is unable to determine whether the Custodian
unlawfully denied the Complainant access to the records responsive to his request. Thus,
this complaint should be referred to the Office of Administrative Law for a hearing to
resolve the facts to determine whether the Custodian unlawfully denied the Complainant
access to the records requested, and if so, for a further determination of whether the
Custodian knowingly and willfully violated OPRA and unreasonably denied access under
the totality of the circumstances.
Robert Edwards v. Housing Authority of Plainfield (Union), 2008-183 – Findings and Recommendations of the Executive
Director
5
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that because
evidence exists which contradicts the asserted basis for the denial of access, and because
the Custodian has failed to provide the requested Statement of Information in the instant
matter, the GRC is unable to determine whether the Custodian unlawfully denied the
Complainant access to the records responsive to his request. Thus, this complaint should
be referred to the Office of Administrative Law for a hearing to resolve the facts to
determine whether the Custodian unlawfully denied the Complainant access to the
records requested, and if so, for a further determination of whether the Custodian
knowingly and willfully violated OPRA and unreasonably denied access under the
totality of the circumstances.
Prepared By: Sherin Keys, Esq.
Case Manager
Approved By: Catherine Starghill, Esq.
Executive Director
November 10, 2009
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