ALLAN JOHNSON v. BOROUGH OF OCEANPORT MONMOUTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALLAN JOHNSON,

Respondent,

v.

BOROUGH OF OCEANPORT (MONMOUTH),

Respondent.

_________________________________

HUGH SHARKEY,

Appellant.

_________________________________

October 27, 2016

Argued October 6, 2016 Decided

Before Judges Alvarez, Accurso and Higbee.

On appeal from the Government Records Council, Complaint No. 2007-107.

Hugh Sharkey, appellant, argued the cause pro se.

Scott C. Arnette argued the cause for respondent Borough of Oceanport (The Arnette Law Firm, LLC, attorneys; Mr. Arnette, on the brief).

Debra A. Allen, Deputy Attorney General, argued the cause for respondent Government Records Council (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Allen, on the brief).

PER CURIAM

Hugh Sharkey appeals from the denial of his 2014 request to the Government Records Council to reconsider its August 11, 2009 final decision that Sharkey knowingly and willfully violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and ordering him to pay a $1000 civil penalty. Because we agree with the GRC's decision that Sharkey's request, made fifty-five months after the GRC issued its final decision, was grossly out of time, we affirm. See N.J.A.C. 5:105-2.10(b) (providing that requests for reconsideration "must be filed within 10 business days following receipt of a [GRC] decision").

Sharkey was an Oceanport Borough councilman in 2006 when plaintiff Allan Johnson made several OPRA requests to the Borough's records custodian seeking Sharkey's Borough-related email. Oceanport did not assign email addresses to members of council at that time, and they often conducted Borough business through their personal email accounts.

When Johnson did not receive the records he believed himself entitled to, he filed a complaint with the GRC in April 2007. In its August 2009 decision on GRC Complaint No. 2007-107, the GRC adopted the administrative law judge's (ALJ) finding that Sharkey willfully failed to respond to the custodian's several requests for records responsive to Johnson's request and fined him $1000. Sharkey paid the fine and did not take an appeal.

In 2011, a different ALJ conducted a hearing on the second of Johnson's GRC complaints that he was denied email sent to or from Councilman Sharkey on his personal email account relating to Borough business. That ALJ concluded that although Sharkey failed initially to respond to requests Johnson made for records subsequent to the request already adjudicated, his failure was not willful and, under the circumstances (largely related to "the multiple and sometimes conflicting requests by . . . [Johnson]"), was not an unreasonable denial of access. In its January 31, 2012 decision on GRC Complaint No. 2008-141, the GRC adopted the second ALJ's findings.

Over two years later, on March 20, 2014, Sharkey filed with the GRC a request for reconsideration of its August 11, 2009 final decision on GRC Complaint No. 2007-107, contending that the decision was contradicted by and irreconcilable with the GRC's decision on Complaint No. 2008-141. The GRC denied the request as well outside the ten-day time limit for requests for reconsideration under N.J.A.C. 5:105-2.10(b), resulting in this appeal.

We agree with the GRC that Sharkey's request for reconsideration was properly denied on the basis that it was grossly out of time. Leaving aside that the ALJ in the second case carefully explained why the facts in that matter differed from those found in the prior matter, resulting in a different conclusion, Sharkey fails to explain why he waited over two years after receiving the decision in the second case to seek reconsideration of the final decision in the first case.

Because we cannot find that the GRC's decision to deny reconsideration under these circumstances was either arbitrary or capricious, we affirm. See In re Herrmann, 192 N.J. 19, 27 (2007).

Affirmed.