On appeal from the Government Records Council, Complaint No. 2008-219.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
Defendant Township of Sparta (Township) appeals from a final determination of the Government Records Council (GRC) awarding plaintiff Jesse Wolosky (Wolosky) attorney's fees as a prevailing party in a proceeding brought pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. For the reasons that follow, we affirm in part and reverse in part.
On July 9, 2008, Wolosky submitted an OPRA request to the Township for copies of the minutes of the closed or executive session meetings held by the Township's Council on various dates from January 8, 2008 to June 26, 2008. Wolosky also requested copies of certain so-called "Friday Memos" that the Township's Manager Henry Underhill (Underhill) submitted to the Council from January 1, 2007 to June 30, 2008.
The Township's Custodian of Records (Custodian) provided Wolosky with copies of the Council's executive session minutes, with redactions. The Custodian also provided Wolosky with copies of twenty-four redacted "Friday Memos" from 2008 with redactions, but did not provide him with any of the "Friday Memos" for 2007.
On July 31, 2008, Wolosky submitted another OPRA request to the Township, again seeking copies of the "Friday Memos" that Underhill submitted to the Council from January 1, 2007 to December 31, 2007. The Custodian provided Wolosky with the memos, with redactions.
On September 29, 2008, Wolosky filed a denial-of-access complaint with the GRC, alleging that the Custodian did not comply with OPRA in responding to his document requests. Wolosky asked the GRC to order the Custodian to produce unredacted versions of the documents, or submit each document for in camera review by the GRC, along with an index identifying the legal basis for each redaction.
The GRC issued a decision and order, which were distributed on September 30, 2009, in which it determined that the Custodian's response to the July 9, 2008 request was insufficient because the Custodian failed to provide the lawful basis for the redactions. The GRC additionally determined that the Custodian's response to the July 31, 2008 OPRA request was insufficient because the Custodian did not: provide the extended date by which the records would be provided; produce the records until twenty-two days after receipt of the request and provide the lawful bases for the redactions.
The GRC stated that, in accordance with Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346 (App. Div. 2005), it must undertake an in camera review of the records to determine whether the redacted information was exempt from disclosure under OPRA. Thereafter, the Township furnished the GRC with copies of the unredacted documents, along with a redaction index and a certification setting forth the legal bases for the redactions.
The GRC subsequently issued a decision and order, which were distributed on May 27, 2010. The GRC disapproved three of the seventy-one redactions and ordered the Township to disclose the redacted statements.
The GRC issued another decision and order, which were distributed on June 1, 2010. The GRC concluded that the Township had complied with its May 27, 2010 order. The GRC found that the Custodians who had handled the document requests did not intentionally or deliberately deny Wolosky access to the requested documents. The GRC further found that the Custodians did not knowingly or willfully violate OPRA.
On August 24, 2010, the GRC determined that Wolosky was the prevailing party and he was entitled to a reasonable attorney's fee pursuant to N.J.S.A. 47:1A-7(f). The GRC referred the matter to the Office of Administrative Law ...