2004-162

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the January 31, 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 amended to include the Custodian’s name on the Matrix, as well as to reflect administrative changes to dates on page “1” in the “Background” from “September 23, 2004” to “September 27, 2004” and “September 24, 2004” to “October 25 and 29 2004.”   The Council, therefore, dismissed the case on the basis of:

1. The Statement of Information as well as the Certification from Custodian’s counsel that the requested records do not exist. 
2. The Custodian failed to respond within the statutory time period.  However, the Custodian’s actions should not be found to be a knowing and willful violation of the OPRA under the totality of the circumstances. 

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 February, 2005

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:Union County Marketing Plan for the years 2003 and 2004
Request Made:   September 27, 2004
Response Made: October 25, 2004 (verbal) October 29, 2004 (written)
Custodian:   Sharda Badri
GRC Complaint filed: 10/17/2004

Background

September 23, 2004
In an Open Public Records Act (OPRA) request, the Complainant seeks a Union County Marketing Plan for the years 2003 and 2004

September 24, 2004
Custodian responds to the records request stating that there are no records relevant to the Complainant’s request

October 17, 2004
In a Denial of Access Complaint to the Government Records Council the Complainant states that she placed her first OPRA request on September 27, 2004.She also states that when she contacted the Clerks office on October 14, 2004 she was told that the request was never received. The Complainant informs the GRC that she has a fax transmittal sheet for her original request. Also, the Complainant states that her husband is running against the all Democratic Freeholder Board for a freeholder seat and did not have this information for public comment.

October 20, 2004
The Government Records Council offers mediation to both parties

December 14, 2004  
In a letter from the GRC to the Custodian the GRC staff informs the Custodian that they have faxed mediation forms on October 20, as well as a Statement of Information on October 27, and have yet to receive a reply to either of these items.

December 15, 2004
The Statement of Information states that the record the requestor is seeking does not exist. In the Certification it is stated that the Custodian’s office received a faxed request on October 14, 2004. The Custodian states that after, “an exhaustive search of the files in my possession and consultation with other County Departments and Agencies, it was determined that the records requested do not exist.” On October 25, 2004 the Complainant was notified of this by telephone, and on October 29, 2004 a formal response was given, in person, to the requestor’s husband, Joe Renna.

January 2, 2005
The Complainant sends the GRC a document that led her to believe that the County does in fact have a marketing plan

January 26, 2005
In a letter from Custodian’s counsel to the GRC, Custodian’s counsel states that, “a general marketing strategy or “marketing plan” was developed and agreed to; however, no specific document outlining this marketing strategy was ever drafted by Mediasquared and submitted to the County.”

Analysis

Whether the Complainant has wrongfully been denied access to a Government Record.

The Open Public Records Act (OPRA) defines a “government record” in N.J.S.A. 47:1A-1.1 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 devise, 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, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof.   The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.”

The Custodian and Custodian’s counsel have certified the requested record does not exist.

Pursuant to the definition of a “government record”, specifically that it “…has been made, maintained or kept on file…” the denial was lawful.

WHETHER the Custodian responded in an appropriate and timely manner pursuant to OPRA.

The Open Public Records Act states in N.J.S.A. 47:1A-5(i) 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 or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request…”

In the Custodian’s Certification it is stated that their office received a faxed request on October 14, 2004. The Custodian states that after, “an exhaustive search of the files in my possession and consultation with other County Departments and Agencies, it was determined that the records requested do not exist.” On October 25, 2004 the Complainant was notified of this by telephone, and on October 29, 2004 a formal response was given, in person, to the requestor’s husband, Joe Renna.

Based on the parties submissions in this case, the Custodian failed to respond within the statutory time period; however, the Custodian’s actions should not be found to be a knowing and willful violation of the OPRA under the totality of the circumstances. 

Conclusions and Recommendations           

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

1. The Statement of Information as well as the Certification from Custodian’s counsel that the requested records do not exist.
   
2. The Custodian failed to respond within the statutory time period.  However, the Custodian’s actions should not be found to be a knowing and willful violation of the OPRA under the totality of the circumstances.

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

January 31, 2005

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