Tuesday, May 26, 2015

Administrative Law Judge finds that Fire District records custodian did not willfully violate OPRA.

In an April 23, 2015 written opinion, New Jersey Administrative Law Judge Susan M. Scarola ruled that a former Commissioner for Franklin Township (Somerset County) Fire District No. 1 did not "knowingly and willfully" violate the Open Public Records Act (OPRA).  The judge did find, however, that the District is liable for $7,828.95 in attorney fees and costs borne by the OPRA requestor.

The opinion, which is on-line here, concerned Jeff Carter's OPRA request for Financial Disclosure Statements filed by fire commissioners between 2000 and 2011.  The District's records custodian at the time was Melissa Kosensky who ceased being a Commissioner in 2012 after having lost her election.  Well after the expiration of OPRA's seven business-day response period, William T. Cooper, the Fire District's attorney at the time, advised Carter to make his request to the Franklin Township Clerk because FDS filings are done through that office.

Carter filed a Denial of Access complaint with the Government Records Council (GRC) on April 4, 2011.  From subsequent OPRA requests, Carter learned that the District did possess four FDSs from 2007 in its files and that Kosensky was aware their existence as of January 27, 2011.  Carter contended that Kosensky willfully withheld the four FDS forms from him and argued that she should be fined for a knowing and willful OPRA violation.

Judge Scarola found that Kosensky was negligent in not immediately providing the four 2007 FDS forms to Carter and for relying on Cooper to respond to Carter.  But, Scarola wrote, "having had the opportunity to observe Kosensky’s demeanor throughout the course of these proceedings and during her testimony, she did not impress me as anything other than a worker who was doing her job to the best of her ability without an ulterior motive of denying Carter to access to records he requested."  Thus, the court held that Carter was not able to prove Kosensky's "actual knowledge that the actions were wrongful and a positive element of conscious wrongdoing" and declined to levy a fine against her.

Judge Scarola did find, however, that Carter, having prevailed in the OPRA case, was entitled to legal fees and costs.  She awarded Carter's lawyer, Walter M. Luers of Clinton, $315 per hour for 23.9 hours spent on the case plus $300.45 in costs for a total of $7,828.95.

Scarola's ruling will stand unless the GRC modifies or rejects it.

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