2004-123

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 4, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, dismisses the case on the basis of:

1. The library inventory is not considered part of the body of administrative records and therefore, is not within the scope of the Open Public Records Act.
2. The Custodian certified that no government records responsive to the request were found pursuant to the Open Public Records Act.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 10^th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

Diane Schonyers
Government Records Council 

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Findings and Recommendations of the Executive Director

Records Requested:

1. Any records on Barbara Schwarz/Barbara Schwartz
2. Any records on Mark C. Rathburn aka Mark De Rothschild
3. Any records on Scientology or Church of Scientology
4. Any records on L. Ron Hubbard
5. Any records on former President Dwight David Eisenhower

Request Made:   January 14, 2004 (also see: January 24, 2004, July 16, 2004)
Response Made: January 20, 2004 (also see: January 26, 2004, July 27, 2004)
Custodian: Colleen Daze
GRC Complaint filed: 08/17/2004

Background

January 14, 2004
Complainant’s Open Public Records Act request.        

January 20, 2004
Custodian’s response to the Complainant directing them to the library’s website to obtain the information she is looking for.

January 26, 2005
Complainant’s e-mail to the Custodian asking them to explain their records systems, and in what systems a search was conducted.

January 28, 2005
Custodian’s response to the Complainant’s January 26^th e-mail in which they state that there have been no searches and no contact from an attorney.                      

July 16, 2004 
Complainant’s amended request for records.

July 27, 2004
Custodian’s response to the amended request stating that there are no records responsive to the request.

August 17, 2004
Complainant’s Denial of Access Complaint stating that there is no evidence that a search for executive records was done.

February 22, 2004
The Custodian’s Statement of Information (SOI) to the GRC stating that the Complainant was informed that there are no records responsive to the request.

February 28, 2005
Complainant’s e-mail to the GRC contesting the Custodian’s SOI.

March 2, 2005
Custodian’s counsel’s letter to the GRC stating that the Complainant should not be relaying to the Council any of the discussions that took place between her and the state library during the mediation process.

Analysis

Whether library inventory falls within the scope of a government record pursuant to N.J.S.A. 47:1A-1, et seq.

Library[1] materials, or stated another way, a library’s inventory, does not fall within the scope of a government record as established by the Open Public Records Act [OPRA].  The inventory, or the library’s goods and services is defined in Title 18 to include “…textbooks, copyrighted materials… including but not limited to books, periodicals, newspapers, documents, pamphlets, photographs, reproductions, microfilms, pictorial or graphic works… [and/or] other printed or published matter….”  N.J.S.A. 18A:18A-2

Alternatively, the OPRA defines a government record as “…any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, …”  N.J.S.A.47:1A-1.1  [emphasis added]

The character and nature of books and other printed materials are common characteristics shared by government records and library materials; nevertheless, there is a clear distinction between these groups.   A government record may be printed material, however, as an essential component of that inherent characterization, the material must be utilized or relied upon by the government agency in the course of carrying out the duties and services they provide to the public.  Libraries do not use their inventories in the course of doing business.  A library does provide open access to library materials, a concept that lies at the very heart of the service a library provides. 

Furthermore, while a library grants access to the material it houses (or when appropriate, borrowing rights), the library, or its custodian is not responsible for performing research tasks and gathering materials within the library’s inventory. 

The legislature further clarified this issue when it defined a “library record” as “…any document or record, however maintained, the primary purpose of which is to provide for control of the circulation or other public use of library materials.”  N.J.S.A. 18A:73-43.1.  This definition stands on its own to differentiate “library records” from “library materials.”  The mere notion that the legislature considered and articulated this distinction when drafting Title 18 is illustrative of the position that materials and records were intended to be distinct.  Additionally, N.J.S.A. 18A:73-43.2 establishes that “[l]ibrary records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in [certain enumerated] circumstances.”

Based on the foregoing, it is clear that a custodian for a public library has a responsibility to search through administrative records when faced with an OPRA request.  The library’s inventory shall not be considered part of the body of administrative records.  Should a requestor require materials from the library’s inventory, that requestor is in the best position to utilize the resources of that library and should they find success, use the commonly available copy equipment at the library facility to copy what they wish to retain.   

Whether NJ State Library has records responsive to the request pursuant to N.J.S.A. 47:1A-1, et seq.

Based on the above, as well as the Custodian stating that there were no records found responsive to the request, the Complaint should be dismissed.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that:

1. Library inventory should not be considered part of the body of administrative records.  
2. The Custodian stating that there were no records found responsive to the request.

Prepared By: 
Approved By:
Paul F. Dice
Executive Director

Government Records Council

March 4, 2005            

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Interim Decision on Access

At the September 9, 2004 public meeting, the Government Records Council (“Council”) considered the September 2, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that on the basis of the party’s mutual agreement to mediate, the Council and Council’s staff will forego any adjudicatory action pending the outcome of mediation.

Interim Decision Rendered by the
Government Records Council
On The 9^th Day of September, 2004

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

Records Requested:
Any records on Barbara Schwarz, Mark C. Rathbun, Dwight D Eisenhower, Scientology and the Church of Scientology and all versions of their names and information.
Request Made: January 14, 2004
Response Made: January 14, 2004
Custodian:   Colleen Daze
GRC Complaint filed: August 17, 2004

Background

Complainant’s Case Position

On August 17, 2004, the Complainant signed and returned the Agreement to Mediate to the Government Records Council’s (GRC)staff as an indication of her intention to participate in the mediation process. 

Public Agency’s Case Position

The Custodian signed and returned the Agreement to Mediate on August 25, 2004 as an indication of the agency’s intention to participate in the mediation process.

Analysis

Pursuant to N.J.S.A. 47:1A-7(d), no legal analysis is needed at this time.

Documents Reviewed

The following records were reviewed in preparation for this “Findings and Recommendations of the Executive Director”

1. July 20, 2004 – Complainant’s OPRA request to Custodian
2. August 17, 2004 – Complainant’s Denial of Access Complaint
3. August 19, 2004 – Council’s Offer of Mediation to the Complainant and Custodian
4. August 17, 2004 – Complainant’s signed Offer of Mediation
5. August 25, 2004 – Custodian’s signed Offer of Mediation

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that the Custodian and the Complainant voluntarily signed Agreements to Mediate on August 17^th & 25^th, 2004.  Based on same, the Executive Director respectfully recommends that the Council and Council’s staff forego any adjudicatory action pending the outcome of mediation.

Prepared By:
Marion M. Davies
Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council

September 2, 2004

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