2003-114

Final Decision

At its January 8, 2004 public meeting, the Government Records Council (“Council”) considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt said Findings and Recommendations and, therefore, finds that:

1. Pursuant to N.J.S.A. 47:1A-5(g), “a request for access to a government shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.” 
2. There was no written request made by the requestor as required pursuant to N.J.S.A. 47:1A-5(g).
3. The Council has no jurisdiction over complaints concerning responses to oral requests for government records.
4. The complaint is dismissed.

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 Recommendation of Executive Director

Relevant Records Requested:  A transcript of the Parole Board Hearing held for Robert Cruz on June 20, 2003
Request Made:  No written request made
Response Date:  No response made as no written request received from Complainant
Number of Business Days for Response:  Not applicable
Custodian:  Carla Shabazz – New Jersey Parole Board 
GRC Complaint Filed:  August 27, 2003

Executive Director’s Recommendation

The complainant filed a Denial of Access Complaint with the Government Records Council on August 27, 2003, asserting that he made a request for a transcript of the parole board hearing held in his behalf on June 20, 2003.  He contended that the request was made to “Social Worker McCray and the Parole Counselor” of Riverfront State Prison and that he was not given a reason in writing for the denial.

The custodian maintained that they never received a written Open Public Records Act (OPRA) request from the requestor. 

There is no evidence that a written OPRA request was made by the requestor.  The custodian maintains that they never received a written OPRA request from the requestor and the requestor has not provided a copy of the written OPRA request or specifically alleged that he filed a written OPRA request with the custodian.  A denial of access complaint must be based upon a written OPRA request for the Government Records Council to have jurisdiction to adjudicate the complaint.  In this regard, see N.J.S.A. 47:1A-5(g) which provides that, “[A] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.”

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends that the Council:

1. Find that a written OPRA request was not made by the requestor as required in N.J.S.A. 47:1A-5(g).
2. Find that the Government Records Council lacks the jurisdiction to adjudicate the complaint.
3. Find that the complaint should be dismissed.

Statement of Facts

August 27, 2003 – Complaint Filed with Supplement Form

The requestor filed a Denial of Access Complaint alleging that his request for “a transcript of a parole hearing held for me on June 20, 2003 to be prepar(e)d as it is required for a Proceeding in the Superior Court of NJ” was denied because he was unable to pay a deposit of $380 required for transcription of the audio tape.  He contended that the request was made to “Social Worker McCray and the Parole Counselor” of Riverfront State Prison and that he was not given a reason in writing for the denial.   In the complaint, he asserted that on an unspecified date in June 2003 he had communicated to the GRC about the request, however, the GRC has no record of any communication with the complainant regarding his request. 

September 10, 2003 – Complaint sent to Parole Board and custodian’s counsel

A copy of complaint was sent to the Social Worker and Parole Counselor McCray of Riverfront State Prison in Camden September 10, 2003.  A copy was also sent to the custodian’s counsel on the same date.

September 29, 2003 – Response from custodian’s counsel

The GRC received a written response from custodian’s counsel acknowledging the receipt of the Denial of Access Complaint, which indicated that Robert Cruz, the requestor, had entered an appeal to the New Jersey Appellate Court regarding the Parole Board’s decision to deny him parole.   The custodian’s counsel indicated further that the court proceedings required the requestor to provide a transcript from the parole board hearing, and a motion was pending with the court whether he could receive the transcript without any cost to him.  The custodian’s counsel maintained that the requestor was not entitled to a copy of the transcript at the public’s expense, until the court resolved this matter and indicated further that the requestor was informed of the process to obtain a copy of the transcript through the transcribing service used by the Parole Board.

October 15 & 23, 2003 – GRC discussion with custodian’s counsel pertaining to the transcript and status of court proceedings

The custodian’s counsel advised that the motion before the court regarding the request [for a free copy of the transcript] was denied.  The custodian’s counsel indicated further that the parole board retained only audiotapes of parole board hearings and had no transcript prepared of the complainant’s parole board hearing of June 20, 2003.   

October 29, 2003 – Custodian’s certification

The record custodian for the New Jersey State Parole Board certified that no transcript of the audiotape of the requestor’s parole boarding hearing on June 20, 2003 was made. 

November 19, 2003 – Custodian’s Liaison’s Statement of Information

The custodian’s liaison indicated that no OPRA request for information was received from the requestor. 

November 21, 2003 – Custodian’s Statement of Information (SOI)

The custodian asserted that no written OPRA request was received from the requestor regarding a copy of the transcript from his parole hearing held on June 20, 2003.  The custodian maintained that her first knowledge of the request came when she was advised of the complaint filed with the GRC.  The custodian further maintained, “a review of the State Parole file revealed no such request.”  The custodian submitted the following documents with the SOI:

1. Letter sent to requestor [Cruz] informing him of procedure for obtaining the transcript
2. Custodian’s certification that no transcript had been made of the requestor’s parole hearing held on June 20, 2003
3. The requestor’s motion to the Court for the transcript
4. The Court’s denial of the requestor’s motion

December 1, 2003 – Email from custodian’s counsel to GRC

The custodian’s counsel indicated that the parole counselor at Riverfront State Prison had no discussions with the requestor pertaining to a request of the transcript and indicated further that no such request appeared in the requestor’s “inmate requests forms.”

December 2, 2003 – Letter from GRC to Requestor requesting verification of written request

The GRC requested written verification of the requestor’s OPRA request by December 8, 2003.   No response or written verification of an OPRA request was received from the requestor.

Legal Issues and Considerations

The custodian submits that they never received a written OPRA request from the requestor.  The requestor has not provided a copy of the written OPRA request or specifically alleged that he filed a written OPRA request with the custodian.  Based on the credible information received, it would be reasonable for the Council to conclude that the requestor did not submit a written OPRA request with the custodian.  A denial of access complaint must be based upon a written OPRA request in order for the Council to have jurisdiction to adjudicate the complaint.  In this regard, see N.J.S.A. 47:1A-5(g) which provides that, “[A] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.”  Therefore, provided the Council finds that the subject complaint is not based on a written OPRA request, the complaint should be dismissed. 

Conclusions

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends the Council find that:

1. The requestor as required in N.J.S.A. 47: 1A-5(g) did not make a written OPRA request.
2. The Government Records Council lacks the jurisdiction to adjudicate the complaint.
3. The complaint should be dismissed.

Paul F. Dice, Acting Executive Director 
Government Records Council

Dated: December 31, 2003

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