2002-110

Final Decision

At its September 11, 2003 public meeting, the Government Records Council considered Complaint No. 2002-110 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide timely access to copies of initial statements and questionnaires of all tax exempt properties in the Township.

There are over 500 such properties and the records, in the possession of the municipal tax assessor's office, had to be located, reviewed for redactions not challenged here and copied. The first batch of 150 records was provided the requestor within seven business days, but staff leaves, winter holiday vacation, and assessor statutory obligations compelled the assessor to offer delivery of the remainder by January 31, 2003. The requestor deemed this a denial. The assessor's office continued to process the request using ten full days of staff time. The remaining 400-plus pages were provided the requestor in January, at least one week ahead of schedule.

The Council considered the requestor's complaint and attachments; the custodian's Statement of Information and attachments; communications on behalf of the custodian dated November 21, December 3, 9, 10, 2002 and April 16,17, June 9, July 30 and August 6, 2003, an affidavit of employees in the assessor's office, communications on behalf of the requestor dated December 23, 2002 and July 27, 2003; agreements to mediate from the parties; and Acting Executive Director's Findings and Recommendations dated September 5, 2003 that:

• Access had been provided to all the government records sought;
• Fulfilling the request took 10 full days of work;
• The assessor documented its claim that existing workload, staff leave schedules and other statutory obligations made it impossible to fulfill the request within seven days without substantial disruption of agency operations;
• The assessor's office diligently processed the request;
• The failure to provide records within seven business days following receipt of the request was a lawful denial of access pursuant to N.J.S.A. 47:1A-5(g) [permitting denial if request would substantially disrupt agency operations and no agreement on delivery date can be reached]; and, therefore,
• The complaint should be dismissed.

By affirmative vote of five Council members at its September 11, 2003 meeting, the Council voted to adopt and incorporate the Director's September 5, 2003 Findings and Recommendations and dismiss the complaint.

A copy of this Order shall be provided to the requestor, the custodian and all legal counsel of record.

I attest the foregoing is a true and accurate record of the Government Records Council:

Government Records Council
Dated: September 15, 2003

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Findings and Recommendations of Executive Director

Relevant Record(s) Requested: Copies of all "initial" statements and questionnaires of all tax-exempt properties in Lakewood
Request made: November 26, 2002
Custodian: Bernadette Standowski, Township Clerk, Linda Solakian, Tax Assessor responding to the request as sub-custodian.
Request denial: December 10, 2002
GRC Complaint filed: December 27, 2002

Executive Director's Recommendation

The complaint concerns a request for copies of all "initial statements and questionnaires" of tax-exempt property in the Township of Lakewood. There are over 500 such documents. The request was made at the end of November 2002 and given a combination of workload, statutory deadlines in the office, and staff leave schedules, the requestor was advised that the request would not be completely fulfilled until the end of January. The requestor did receive copies as they were made. 150 copies were provided within the first seven days. The requestor refused to wait until the end of January, and after correspondence between the tax assessor, the Township attorney, and the requestor, the requester filed a complaint at the end of December.

The sub-custodian continued to make copies and the request was fulfilled in mid-January. The requestor pressed the complaint of the initial denial of access to the Council after mediation did not resolve the issue.

Because the requestor has received all of the requested records at this time, the only remaining issue for Council adjudication is whether there has been a violation of OPRA under N.J.S.A. 47:1A-11. In this regard, the Executive Director recommends that because the request for access substantially disrupted agency operations and the Township attempted to reach a reasonable solution with the requestor for providing the documents, the Township was justified in denying access by not providing the documents within seven business days. Therefore, there was no violation of OPRA under N.J.S.A. 47:1A-11. The case should be dismissed.

Statements of Facts

On November 26, 2002, after discussions with the sub-custodian several weeks earlier, the requestor sought copies of all initial statement and questionnaires of all tax-exempt properties in the Township of Lakewood. The records were located in the municipal tax assessor's office. The submissions note that the Township has over 500 hundred tax-exempt properties and that the documents were subject to redaction of personal information (redactions are not an issue in this dispute). This request is one of three OPRA requests to the Township over which the requestor has filed a complaint with the Council.

The requestor was immediately notified by phone that all the records would not be available until January 31, 2003 and the sub-custodian began the process of copying documents. On December 3, 2002, the township attorney advised the sub-custodian to advise the requestor in writing that his request falls within one of OPRA's exceptions to time limits due to cumbersome requests.

The sub-custodian immediately sent the requestor a letter advising, that in response to the request, 150 copies were already available for pick-up. The requestor was also advised that because of the number of copies, the office being extremely busy with statutory deadlines to meet (December 20 for filing tax roll information), and staff absences due to vacation and maternity leave, they would not be able to comply with OPRA's seven day deadline for all the documents. The sub-custodian indicated that copying would resume after the December 20 deadline was met (there is some confusion over the date; there is indication that the deadline may have been the 27th). The requestor wrote his refusal of the extension on the letter.

On December 9, 2002, the sub-custodian advised her counsel of efforts the office made to fulfill the request to date: that a clerk had spent approximately 17.5 hours copying; that the requestor had been provided with 262 copies to date; and the reasons the Tax Assessor's Office could not meet the 7-day deadline. She stated without overtime work, the estimated 300 to 400 remaining copies with redactions could not be completed at that time. She requested advice concerning their obligations and stated that she did not believe the seven-day rule applied.

In a December 10, 2002 letter, the sub-custodian's counsel advised the requestor of the following:

• That the amount of time already devoted to responding to the request plus the personnel shortages left the Assessor's office struggling to meet its 2003 tax rolls by December 27, 2002, which needed to be signed by January 10, 2003, with assessment cards mailed to all property owners by February 1, 2003.
• The number of estimated redacted copies still needed.
• That because the request was substantially disruptive to their operations and the requestor was not agreeable to a reasonable solution, the Assessor's office could deny the request pursuant to N.J.S.A. 47:1A-5(g).
• If the requestor was not agreeable to receiving the balance of the documents on January 31, 2003, he could consider his request denied.

In an undated response, the requestor asserted that having to wait until January 31, 2003 violated the spirit of the law, and that the accusations of his alleged attempts of disruption were shameful, when they had refused to comply with the law and blamed others for their shortcomings.

A complaint dated December 27, 2002 was filed with the Council. Both parties accepted mediation in early January, which did not resolve the matter. In the meantime, the Tax Assessor's staff worked diligently to continue copying the records and completed the 583 copies on January 8, 2003 and the requestor indicates that the copies were received in stages in mid-January.

As part of the Council investigation of this matter, affidavits were received from the sub-custodian's staff indicating that they made true and accurate copies that were subject to redactions. Other submissions were made highlighting the work performed by staff in making the copies, including one individual making copies for seven hours a day for six straight days, stating that the copy machine broke down twice and asserting that it was the staff's efforts that resulted in early completion of the request.

In responding to the complaint, the Statement of Information recounted the history of the matter and asserted that the complaint should be dismissed as frivolous and as lacking a factual basis. In a June 27, 2003 letter, the requestor recounted portions of contact between the parties. Council staff asked the sub-custodian to provide additional information on the matter, including the vacation schedules of the staff, the schedule on which the requestor received copies, an itemization of time spent on the effort, and the other deadlines faced by the office. Questions were also asked concerning the availability of other employees in the Township being made available to assist in the effort.

The sub-custodian responded to all these questions, documented the work of the office in detail, itemized information such as the leave schedule for employees during December, and discussed other copying machines in the municipal building. It is clear that a number of employees dedicated at least 10 full days to copying and redacting the information.

Analysis and Conclusion

In this case, the requestor received the requested documents prior to the date that was originally estimated for the completion of the request. Because the requestor has received all of the requested records at this time, the only issue remaining for Council adjudication is whether there has been a violation of OPRA under N.J.S.A. 47:1A-11 with respect to the sub-custodian meeting the OPRA time requirements for responding to the request.

OPRA, provides that:
If a request for access to a governmental record would substantially disrupt agency operations, the sub-custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency. [N.J.S.A. 47:1A-5(g)]

It is clear that there was communication between the parties. The sub-custodian advised the requestor of the reasons they needed extra time and that fulfilling the request within the seven business day time period would substantially disrupt the tax assessor's operations. The sub-custodian has demonstrated that given the volume of the request, that the records needed to be redacted, that it was a holiday period with personnel absences, the Tax Assessor's statutory obligations, and that overtime would be necessary to fulfill the request, complying with the request within the seven business day period would have substantially disrupted the Tax Assessor's operations. Additionally, the Township's effort to resolve the matter by giving a completion date of January 31, 2003, was reasonable.

With the requestor not accepting the offered date of January 31, 2003, the sub-custodian could have considered the request denied and have taken no further action, pending the requestor filing a complaint with the Council or Superior Court. However, the sub-custodian continued in good faith to make the copies and the record shows that the office worked hard in that effort. The sub-custodian should be commended for continuing the work in the spirit of OPRA, in spite of an appropriate denial of access and filing of the complaint.

The Executive Director finds that because the request would have substantially disrupted agency operations and because the Township attempted to reach a reasonable solution with the requestor, pursuant to N.J.S.A. 47:1A-5(g), the Township was permitted to deny access by not providing the records within seven business days of the request. Therefore, there was no violation of OPRA under N.J.S.A. 47:1A-11. The Complaint should be dismissed.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council

Dated: September 5, 2003

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