2003-38

Final Decision

At its September 11, 2003 public meeting, the Government Records Council considered Complaint No. 2003-38 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide access to paper copies of Geographic Information System (GIS) maps of the Township in the possession of the mayor which depicted, among other things, zoning and preserved farmland areas.

The custodian denied the maps were government records but were, instead, given to the mayor by the map vendor in return for personal assistance with computer work. The map vendor alleged the maps were still being revised but admitted that copies had been provided to several municipalities for use in connection with "time sensitive internal projects."

The Council considered: the requestor's complaint; the custodian's Statement of Information; communications on behalf of the custodian dated July 10 and 16, 2003; a communication form the requestor dated July 17, 2003 and the Acting Executive Director's Finding and Recommendation dated September 8, 2003 that the GIS maps were government records to which access should be provided subject to redaction of any notation or drawing on the map by township staff which reflected privileged information under OPRA.

By affirmative vote of five Council members at its September 11, 2003 meeting, the Council voted to adopt and incorporate the Director's September 8, 2003 Findings and Recommendation that the GIS maps were government records to which access should be provided, subject to redaction of any notation or drawing on the map by township staff which reflected privileged information under OPRA. By unanimous vote of the Council, the effective date of the Order shall be 10 days after its receipt by the custodian. There is no application for attorney's fees because counsel does not represent the requestor.

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 Recommendation of Executive Director

Executive Director's Recommendation

The complaint concerns a request for copies of "maps" the requestor claims he observed being presented by the Township mayor at various municipal meetings and which were stored in the municipal building. The custodian denied access claiming that the maps were "not the property" of the municipality because they were loaned to the mayor by vendor developing of the mapping program on a personal basis and was not final products. The map vendor stated the maps were not yet "available for public use" because the mapping is still being tested for accuracy but were made available to several municipalities to support "time sensitive internal projects."

The Executive Director finds that the maps are government records and that the custodian has not provided a explanation that would render it confidential, although notations or markings on a map may be redacted if they qualify as confidential material under OPRA. The Executive Director concludes that the custodian did not knowingly and willfully violate OPRA by denying access in this case and recommends that the Council order the custodian to provide the requestor access to the maps.

Statements of Facts

On February 10, 2003, the requestor submitted an OPRA request seeking a paper copy of maps described as follows:

• GIS map of the Township;
• GIS "Farmland Preservation Map;" and,
• GIS "zoning map" for the Township.

On February 11, 2003, the custodian wrote on the OPRA form that the records "are not the property of Upper Pittsgrove Twp [sic] and the Twp is not authorized to reproduce the requested material." The form with this notation was returned to the requestor on February 12, 2003, along with a letter from the custodian of the same date stating:

The maps that you requested are not yet the property of Upper Pittsgrove Township. They are considered a draft of a work in progress and I have been advised that they are not yet ready for distribution.
Jack Cimprich (the Township mayor) left the maps with me temporarily so that I could be aware of what is being prepared, however Jack advised that they are, at this point, his personal property as he was provided the copies in exchange for his cooperation in assisting the vendor in testing the GIS program.
It is my understanding that, after the GIS work is perfected, and is ready for distribution throughout the County, at that time they would be available as a public record.

The requestor filed an OPRA complaint on April 2, 2003 stating that the maps were "presented at the Planning Board meeting and the Ag Development meeting [sic]" and were stored at the Township office when he requested copies. The requestor stated that the mayor advised him the maps were like "his notes that he would take at meetings" and, therefore, his personal property. The requestor declined mediation.

The custodian filed a Statement of Information on June 26, 2003 asserting that there was no factual basis for the complaint and that it was frivolous. The custodian alleged that the maps were observed by the requestor during a demonstration by the mayor at a community meeting unrelated to the Township. The custodian did not identify the source of this information. By fax dated July 16, 2003, the custodian stated the mayor used the maps at a meeting with the "Ruritans" a local civic organization unrelated to the Township and denied that the GIS maps were "presented to" the Township Planning Board. The custodian did not identify the source of this information.

The custodian asserted in the SOI that:

• The Township "has been working on several projects that would be greatly enhanced if we had benefit of the GIS mapping system."
• The mayor was so eager to "escalate completion" of the mapping that he contacted the map vendor, Civil Solutions, "on his own time and offered to assist them in moving the project forward."
• The mayor was "invited to participate in the development of the GIS system" due to his expertise in computer science and GIS mapping.
• The County Planning Board and Engineer's office advised that the maps are not yet "available for public use" because the mapping was still being tested for accuracy.

There is no evidence of any written agreement between the vendor and the Township governing release of a map to the mayor or its subsequent use.

The custodian provided a July 10, 2003 letter from Richard Rehmann, Vice President of Civil Solutions' GIS Department to the custodian stating that the mapping data was still being tested and that the purchaser, Salem County, had not yet accepted the data. In the letter, Civil Solutions acknowledges that it has "distributed interim versions of the data to municipalities to support time sensitive internal projects" but had done so with the understanding that the information would not be "distributed or used for any other purpose." No documentation of this claim has been provided.

In a letter to the GRC dated July 17, 2003, the requestor confirmed that he personally saw the mayor display a three-foot square GIS map of "land preserved in Upper Pittsgrove" at a Planning Board meeting and the Salem County Agricultural Development Board "about eight months ago" but knows nothing about the mayor's meeting with the Ruritans.

Analysis and Conclusion

The definition of a government record under OPRA (N.J.S.A. 47:1A-1.1) includes, among other forms of records, "maps" that "...have been made, maintained or kept on file in the course of his or its official business by any officer…or that has been received in the course of his or its official business by any such officer…" OPRA provides that "[t]he term shall not include inter-agency or intra-agency advisory, consultative, or deliberative material."

Requiring material to be made, maintained, kept or received "in the course of official business" by an officer or official does not mean that a record must be generated or received during regular office hours or official meetings. Nor does a document become a government record only if the sender intends it to be.

Civil Solutions refers to what was given to the mayor as "data" of a mapping project and asserts that data was provided to the mayor with the understanding that the information would not be distributed or used for any other purpose than "time sensitive internal projects." However, "internal projects" are official government business. While "internal projects" could include confidential information such as contemplated farmland acquisitions or proposed zoning changes not yet made public) these notations can be redacted from copies provided to the requestor.

Further, characterization of the maps as interim, incomplete, or inaccurate is not relevant to the definition of a government record under OPRA. Many records maintained, kept or received by government officials are eventually superseded or amended. For example, draft meeting minutes are considered government records even though they are subject to change. Such records can be specifically identified for requestors as being subject to amendment or repeal.

Finally, the mayor's claim that the maps are "like my notes," fails as a basis to withhold access under OPRA. The content of a record determines whether the record is disclosable, not the label assigned it. The maps reflect facts of public record such as zoning boundaries, property lines and preserved parcels of land, not deliberative material. The vendor's admission that the maps were distributed to some townships for use on "internal projects" supports the claim that they were received in the course of official business and not merely for personal use based on the mayor's expertise as a computer expert as the custodian argues.

The record, particularly the SOI and the letter from the map vendor, clearly shows that the maps in question are part of the Township's official business. In order for the Township to withhold any portion of a map from the public, the Township must prove that the portion in question is confidential pursuant to OPRA. The assertions made by the custodian provide no basis for the Council to conclude any portion of a map is confidential under OPRA.

For these reasons, the Executive Director

• Finds that the record sought in this case is a government record accessible under OPRA, but may be subject to redaction if notations or markings on a map constitute confidential material under OPRA.
• Concludes that the custodian did not knowingly and willfully violate OPRA by denying access in this case; and,
• Recommends that the Council order the custodian to provide the requestor access to the maps.

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

Dated: September 5, 2003

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