November 16, 2008
By SETH AUGENSTEIN and CHRISTINA TATU
FRANKFORD - The local battle over government records requests continues -and continues to test new ground for statewide open government practices.
Two citizens filed nearly identical Open Public Records Act requests in the last several weeks, but the resulting dialogue - which sometimes turned personal and hostile - resulted in two formal Government Records Council complaints against the township clerk.
Henry Knaust, a Frankford resident, and well-known Sparta activist Jesse Wolosky each filed a complaint this month with the GRC for not receiving detailed records requests by fax and e-mail, as they had specified in their requests.
The requests were for financial disclosure statements for township committee members, including those of the recall-embattled Mayor Robert McDowell, and minutes from most 2008 committee meetings, among other documents.
In a string of correspondence between Township Clerk Louanne Cular and Knaust and Wolosky, Cular maintained that the documents were not availableby fax or e-mail, and said the paper documents would cost upwards of $34.25. However, Knaust and Wolosky both maintained their demand, and eventually filed the complaint when those faxes and e-mails never came.
At one point, Wolosky bluntly asked in an e-mail, “Are you ignoring me and denying my OPRA request?”
Cular responded curtly three hours later.
“We have been in touch with you from the day that your request was filed,”she wrote. “We asked for a deposit; you ignord (sic) that. You ignored my deputies (sic) e-mail also. So please drop the arrogant attitude. Your records have been sitting in my office since the day after you requested them.”
The stand off tests some relatively new rules established by the GRC. Two previous decisions - both from complaints against Sussex County towns in the last two years - have ruled that records requesters are allowed to specify that documents be faxed or e-mailed by records custodians.
However, the custodians are also allowed to put in a service charge for the extra attention paid to those requests.
A first-time complaint against a custodian carries a $1,000 personal fine.
Walter Luers, the attorney for Knaust and Wolosky, said municipal clerks need to understand that the GRC makes rulings that set precedents, and effectively interpret the way OPRA is handled with evolving requests and technology.
“Frankly, when it comes to OPRA, the people requesting the documents are more sophisticated than the clerks,” Luers said. Cular said Knaust¹s request was actually faxed before he filed his complaint with the GRC.
She said other parts of the request were impossible to put through the fax machine or to e-mail - especially in the case of Wolosky¹s request for the township¹s petty cash records.
“I feel it's harassment,” she said. “This is their way of not having to pay for the records.”
Cular said she's recently been under pressure from a family health situation. She added that the formal records complaint was just part of the ongoing battling surrounding the public drive to recall McDowell.
“They’re all fighting, but I'm caught in the middle of it,” she said.
Wolosky contended the clerk was “side stepping” her duty as clerk.
“She’s not professionally doing her job,” he said.
According to the Government Record Council¹s Web site, denial of access complaints across the Garden State are multiplying as citizens have become more familiar with the Open Public Records Act, passed in 2001. There were 220 such complaints in 2006, and 310 in 2007. Knaust's complaint is number 256 this year.
Another Frankford public records skirmish will land in Morristown Superior Court this week.
The ongoing OPRA case with local mall developer Sussex Commons will be before Judge B. Theodore Bozonelis on Friday. It could determine how electronic messages are maintained - or not maintained - in the township. In July, the developer filed a suit against the township alleging that Cularfailed to adequately respond to the developer's June 26 request for 23 documents, most of which were for e-mails sent between land use board members and township officials from Nov. 6, 2007 to July 2008 and copies of e-mail correspondence between members of the plan endorsement advisory committee.
The developer made the request after receiving documentation from the Office of Smart Growth regarding e-mail correspondence between members of that office and two Frankford officials.
In 2002, under the Open Public Records Act, the state passed a statute requiring all governing bodies to supply copies of and keep records of electronic documents discussing issues relating to the governing body.Township officials said the requests were too broad and did not indicate specific e-mails between township officials, but rather all electronic correspondence made over an eight month period. Adding to the difficulty of gathering the records is the fact that Frankford does not have township-issued e-mail addresses. Bozonelis first heard the case in August.
