2004-202

Final Decision

At its December 8, 2005 public meeting, the Government Records Council (“Council”) considered the December 2, 2005 Supplemental 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, accepts the Initial Decision Settlement of the Office of Administrative Law and closes the case without further action. 

Final Decision Rendered by the
Government Records Council
On The 8^th Day of December, 2005

Diane Schonyers, Vice-Chair
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  December 14, 2005

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Supplemental Findings and Recommendations of the Executive Director

Records Requested:(as stated by the Complainant)

1. School Nurses Medical Background and education
2. All letters/memos that have been written to school members, teachers, coaches, staff, or other parents about the Andreaci Family
3. All current non-resident students
4. Copies of all complaints written about the current school nurse
5. A list of all non-resident student who were there 60 day grace period for closing enclosing the one who was almost one year and did not pay tuition
6. Copies of all non resident who special rules were put in place or were call visitors to the school
7. All letters written to school or superintendent, or school board about the Andreacis for the pass 3 years
8. Copies of all Board of Education meeting that the Andreaci family or the non resident issue was ask about

Request Made:  November 10, 2004
Response Made:  November 15, 2004[1]
Custodian:  Mr. Michael Cibuliew
GRC Complaint filed: November 30, 2004

Background

August 11, 2005

The Government Records Council (Council) referred GRC Complaint No. 2005-202 to the Office of Administrative Law (OAL) because the Council was unable to make a determination as to access and other issues based on the Complainant and Custodian’s responses.  Specifically, the OAL was to determine:

1. What records were requested?
2. Are the records being sought  “government records” as defined under N.J.S.A. 47:1A-1.1?
3. When was the records request made?
4. What response was provided to the requestor?
5. When was the response provided?
6. Whether there is a knowing and willful violation of OPRA under the totality of the circumstances with regard to timeliness pursuant to N.J.S.A. 47:1a-5(i).

November 10, 2005

The parties appeared for a hearing on November 2, 2005 where they reached a settlement.  The parties have agreed to the settlement and have prepared a Consent Order indicating the terms of the settlement. The Administrative Law Judge has reviewed the record and the terms of settlement and found:

1. The parties have voluntarily agreed to the settlement, as evidenced by their signatures or their representatives’ signatures and are placed on the record on November 2, 2005.
2. The settlement fully disposes of all issues in controversy and is consistent with the law.

The Administrative Law Judge concluded that the agreement met the requirement of N.J.A.C. 1:1-19.1 and that the settlement should be approved. He therefore approved the settlement and ordered that the parties comply with the settlement terms and that the proceedings be concluded.

Analysis

There is no analysis needed at this time.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council accept the Initial Decision Settlement of the Office of Administrative Law and close this case without further action.

Prepared By: Kimberly Gardner, Case Manager

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

December 2, 2005

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Interim Decision on Access

At the August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 2005 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 referred this case to the Office of Administrative Law for a hearing to determine the following:

1. What records were requested in the Complainant’s November 10, 2004 OPRA request?
2. Are the records being sought “government records” as defined under N.J.S.A. 47:1A-1.1?
3. When was the OPRA request submitted to the Custodian?
4. When did the Custodian respond to the OPRA request?
5. What response did the Custodian provide to each requested record in the Complainant’s OPRA request?
6. Was there a knowing and willful violation of OPRA under the totality of the circumstances with regard to timeliness pursuant to N.J.S.A. 47:1a-5(i)?

Interim Decision Rendered by the
Government Records Council
On The 11^th Day of August, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  August 19, 2005

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Findings and Recommendations of the Executive Director

Records Requested:(as stated by the Complainant)

1. School Nurses Medical Background and education
2. All letters/memos that have been written to school members, teachers, coaches, staff, or other parents about the Andreaci Family
3. All current non-resident students
4. Copies of all complaints written about the current school nurse
5. A list of all non-resident student who were there 60 day grace period for closing enclosing the one who was almost one year and did not pay tuition
6. Copies of all non resident who special rules were put in place or were call visitors to the school
7. All letters written to school or superintendent, or school board about the Andreacis for the pass 3 years
8. Copies of all Board of Education meeting that the Andreaci family or the non resident issue was ask about

Request Made:  November 10, 2004
Response Made:  November 15, 2004[1]
Custodian:  Mr. Michael Cibuliew
GRC Complaint filed: November 30, 2004

Background

November 10, 2004
Written Open Public Records Act (OPRA) Request - Complainant seeks various documentation regarding the school nurse, tuition, residency information, and her family.

November 30, 2004
Denial of Access Complaint filed by the Complainant stating that the Custodian was non-responsive to her request.

December 13, 2004
Complainant’s signed mediation agreement.

December 14, 2004
Request for Statement of Information from GRC staff to the Custodian.

December 16, 2004
Custodian’s signed mediation agreement.

January 3, 2005
Statement of Information submitted to GRC staff from the Records Custodian.[2]

June 6, 2005
Letter from GRC staff to the Complainant requesting all final submissions regarding the case.

June 6, 2005
Letter from GRC staff to the Custodian requesting a certification that contained the following information:

1. A clear and legible copy of the Statement of Information and all attachments as submitted on January 3, 2005.
2. Individual identification of each requested record, the date of the requested records and the response given to the Complainant.
3. An explanation of whether a timely response was given to the Complainant pursuant to N.J.S.A. 47:1A-5(i).

June 10, 2005
Certification and Statement of Information from Port Republic Board of Education Counsel to GRC Staff stating that:

1. A response was given to the Complainant in a timely manner.
2. The “requestor was given the opportunity to review records such as Board Meetings to determine if she desired a copy of the minutes.”
3. Records were not requested. Information was being sought. OPRA does not require that a record be created in an effort to fulfill the request.

June 20, 2005
Supplemental certification from the Custodian and legal counsel of the Port Republic Board of Education to GRC staff that contained a chart that stated the following:

This supplemental certification provided information that directly conflicted with the Statement of Information. The response to certain records requests were dated December 17, 2004 in the Statement of Information, while the above listed supplemental certification stated that the requests were responded to on November 15, 2004. 

Analysis

Whether there was a knowing and willful violation of OPRA under the totality of the circumstances?

OPRA provides that:

“…government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions…” N.J.S.A. 47:1A-1

OPRA defines a Government Record as:

A government record is defined 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 … or that has been received …” N.J.S.A. 47:1A-1.1

OPRA states 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, provided that the record is currently available and not in storage or archived.

In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor...” N.J.S.A. 47:1A-5(i)

OPRA further states that:

“A public official, officer, employee or custodian who knowingly and willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation…” N.J.S.A. 47:1A-11

The Custodian has certified in the Statement of Information that the requestor was provided with a response to her records request in a timely manner. While the Custodian certified dates of response in their Statement of Information, their supplemental certification supplied a different set of dates for response to the records request. Moreover, the Complainant stated in her Denial of Access Complaint, that she did not receive a response to the records request. The Custodian stated that records were not being requested, however information was being sought.

Due to the contradictions in the Custodians Statement of Information, supplemental certification and the Complainants Denial of Access Complaint, a determination cannot be concluded by GRC staff regarding this case. Therefore, the case should be referred to the Office of Administrative Law (OAL) for a hearing to determine the following information:

1. What records were requested?
2. Are the records being sought  “government records” as defined under N.J.S.A. 47:1A-1.1?
3. When was the records request made?
4. What response was provided to the requestor?
5. When was the response provided?
6. Whether there is a knowing and willful violation of OPRA under the totality of the circumstances with regard to timeliness pursuant to N.J.S.A. 47:1a-5(i).

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council refer this case to the Office of Administrative Law for a hearing to determine the following:

1. What records were requested?
2. Are the records being sought “government records” as defined under N.J.S.A. 47:1A-1.1?
3. When was the records request made?
4. What response was provided to the requestor?
5. When was the response provided?
6. Whether there is a knowing and willful violation of OPRA under the totality of the circumstances with regard to timeliness pursuant to N.J.S.A. 47:1a-5(i)?

Prepared By: Kimberly Gardner, Case Manager

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

August 5, 2005

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