2003-09

Final Decision

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations. The Council dismissed the complaint finding that:

1. All available documents responsive to the request were provided to the requestor
2. The custodian violated the requirements of OPRA in failing to respond to the request within the seven business day time period.  The delay in response was not "knowing and willful" under the OPRA statute. 

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Copies of applications for film movies, commercials and music videos in Paterson in 2001-2002
Custodian: Municipal Clerk of Paterson, Jane E. Williams-Warren
Request Made:  December 10, 2002
Response Made: January 17, 2003
GRC Complaint Filed: January 5, 2003

Recommendations of Acting Executive Director

The requestor asserts that the custodian did not promptly and fully respond to her records request.  (Her claim is based on the fact that she was directed by the custodian to contact the Deputy Police Chief for the requested records only to be informed by him that he did not maintain such records.  The requestor also received over one hundred pages of documents from Paterson' files, consisting of permits, letters and other correspondences that she considered to be fully responsive to her request from an unidentified individual.

The custodian claims that all information requested and what was available through the Special Events Coordinator was submitted to Ms. Camacho on January 17, 2003.  The custodian responded to the issue of timeliness by stating that there was a newly appointed Special Events Coordinator who needed to search for the records.

The Acting Executive Director respectfully recommends the Council find that:

1. The custodian violated the requirements of OPRA by not denying or providing access to copies of requested records that were responsive to the Complainant’s request within the statutorily required seven business days.
2. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period.  The delay in response was not "knowing and willful" under the OPRA statute.
3. That the complaint should be dismissed.

Legal Analysis

The custodian did not meet the OPRA time requirement when she erroneously referred the Complainant to an individual in a different agency for the requested records and then responded to the request twenty-four business days after the request was made and nine business days after the denial of access complaint was filed.

OPRA provides that "unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record as soon as possible, but no later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived." N.J.S.A. 47:1A-5 (i).  This provision does not preclude the custodian from acknowledging the request and noting the date by which the custodian would respond promptly but sufficiently in the future to locate the records.  However, in this case the custodian did not even acknowledge that she was the custodian for the requested records within the statutorily required time period.

The failure of the custodian to respond to the request within the statutorily required time period as provided in N.J.S.A. 47:1A-5 (i) appears to be inadvertent in this case.  The facts suggest that the custodian was not aware that the requested records were maintained by her agency.  OPRA provides that "any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of record or direct the requestor to the custodian of the record."  (Emphasis added).  N.J.S.A. 47:1A-5(h).  There is no evidence suggesting or factual basis on which the Council could reach the conclusion that the custodian was not complying with the law to the best of her ability and knowledge at the time that she referred the Complainant to the Deputy Police Chief.

The Council cannot verify the Complainant's assertion that the custodian did not "fully" comply with the request since this assertion is based on hearsay from an unidentified source.  Under OPRA, a custodian is obligated to provide all documents that are fully responsive to a requestor's records request.  In this case, there is no verifiable evidence or factual basis on which the Council could reach the conclusion that the custodian did not comply with the law when she provided the Complainant with the records on January 17, 2003.

Documents Reviewed

January 5, 2003 – Denial of Access Form Filed
February 13, 2003 – GRC Request for Statement of Information
June 11, 2003 – GRC’s Second Request for a Statement of Information
September 8, 2003 – Statement of Information (SOI) - Failed to Sign Last Page of SOI 
November 6, 2003 – Re-faxed Statement of Information with Signature
November 18, 2003 – GRC's Email to Requestor for a Supplemental
December 31, 2003 - Submission of Supplemental

Conclusion

1. The custodian violated the requirements of OPRA by not denying or providing access to copies of requested records that were responsive to the Complainant’s request within the statutorily required seven business days.
2. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period.  The delay in response was not "knowing and willful" under the OPRA statute.
3. That the complaint should be dismissed.

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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