Microsoft Word Edwards V. Housing Authority of Plainfield (Union), 2008-183 and 2009-259 fd
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- Bu səhifədəki naviqasiya:
- Conclusions and Recommendations
- INTERIM ORDER November 18, 2009 Government Records Council Meeting
- Decision Distribution Date: November 23, 2009
- STATE OF NEW JERSEY GOVERNMENT RECORDS COUNCIL Findings and Recommendations of the Executive Director November 18, 2009 Council Meeting
- Background July 22, 2008
- August 25, 2008
- September 24, 2008
- June 30, 2009
- Analysis Whether the Custodian unlawfully denied access to the requested records
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
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
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.
Offer of Mediation sent to the Custodian. (The Custodian did not respond within the required time frame.)
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.
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.
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.
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 Yüklə 284,2 Kb. Dostları ilə paylaş:
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