Robert F. Edwards v. Housing Authority of Plainfield (Union), 2008-183 & 2009-259 – Supplemental Findings and
Recommendations of the Executive Director
6
Complainant’s] request for an adjournment to retain legal consultation. I
denied the remainder of [the Complainant’s] requests because they were
without merit.
The hearing continued on November 25, 2011, and I reiterated that the
sole issue in this consolidated matter is whether the [C]ustodian
unlawfully denied [the Complainant] access to the records requested, and
if so, whether the [C]ustodian knowingly and willingly violated OPRA
and unreasonably denied access under the totality of the circumstances.”
(Footnote omitted). Id. at pg. 7 – 12.
The ALJ determined that based on the credible evidence:
“… I CONCLUDE that [the PHA] maintained documents concerning
Elmwood Gardens, including discussions on the possible plans to
demolish and or alter the housing complex. [Mr.] Hurd provided the
[Planning Board] with some of the documents, which consisted of plans
and discussions about changes to the housing development …”
The ALJ further discussed the Complainant’s request at issue in GRC Complaint
No. 2008-183:
“While [Mr.] Hurd claimed initial forgetfulness on the details of [the
Complainant’s] request for ‘a proposal … submitted … to the Planning
Board to raze Elmwood Gardens,’ [the Complainant’s] request failed to
reasonably identify the documents sought. Indeed, [the Complainant] in
his first request merely sought a “proposal,” without specifically
identifying any particular records sought. [Mr.] Hurd testified that he did
not believe that the material given to [Mr.] Nierstedt contained enough
information to be considered a plan or proposal … and that he did not give
any documents to the Planning Board directly. He explained that, at the
time of [the Complainant’s] first request, he did not recall previously
giving documents to [Mr.] Nierstedt regarding Elmwood Gardens. In fact,
he provided the material to [Mr.] Nierstedt individually as separate
documents and not as a single plan or proposal. Whether those documents,
taken together, meet the definition of a plan or proposal remains dubious.
The documents addressed at the meeting, and previously supplied by [Mr.]
Hurd to [Mr.] Nierstedt, consisted of a site plan, two photographs of the
existing complex, an exterior rendering of potential townhouses, a first-
floor plan of the existing complex, a brief description of the existing
structure, zoning, potential townhouses and a zoning map. Thus, [the
Complainant’s] first … request was not encompassed by OPRA because it
failed to identify the specific government record sought. See Morgano v.
Essex County Prosecutor’s Office, GRC Complaint No. 2007-156
(February 2008).”
The ALJ next discussed the Complainant’s request at issue in GRC Complaint
No. 2009-259:
Robert F. Edwards v. Housing Authority of Plainfield (Union), 2008-183 & 2009-259 – Supplemental Findings and
Recommendations of the Executive Director
7
“The Complainant’s second request sought documents[:]
‘submitted to the … Planning Board … or any member thereof that
were referenced during, pertained to, or were submitted for or as
part of or in anticipation of, the presentation about Elmwood
Gardens given by the [PHA] at the Planning Board [m]eeting on
July 10, 2008 [including] documents that may have been submitted
to the Planning Board prior to the July 10, 2008 meeting.’
The request does not cure the deficiency. [The Complainant’s] request did
not identify any specific government record. Rather, the request
referenced an attached copy of the Courier News article, which
erroneously suggested that [Mr.] Hurd presented a package to the Planning
Board at the meeting. However, the article merely indicated the existence
of a package that included ‘an outline of the current layout of the one-,
two-, three- and four-bedroom unit complex as well as sketches of
possible designs for the town houses [sic].’ The inclusion of the article did
not cure the defect in specificity, because it only noted the inclusion of
some undefined number of ‘sketches’ and an ‘outline’ of the current
layout of the complex in the undefined packaged ‘presented’ by [Mr.]
Hurd.
Essentially, [the Complainant] requested all of the records that may have
been related to the potential demolition of Elmwood Gardens. [The
Complainant’s] request is similar to the blanket request made in Morgano
for a class of various documents … Thus, [the Complainant’s] second
OPRA request was not encompassed by OPRA because it failed to
identify the specific government record sought.
The ALJ thus holds that:
“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).