2004-217

Final Decision

At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 8, 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.

Therefore, the Council finds that:

1. The Custodian should have responded to the Complainant’s request in writing pursuant to N.J.S.A. 47:1A-5(g). 
2. disclose the records responsive to the request in the format requested in accordance with N.J.S.A.  47:1-5(d) subject to fees, if any, that may be directly associated to converting the documents to the medium requested.  The Custodian shall inform the Complainant of the costs involved in converting the documents to the requested medium prior to fulfilling the request. 

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 14^th Day of April, 2005
Diane Schonyers, Vice-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:  April 20, 2005

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Findings and Recommendations of the Executive Director

Records Requested: 

1. Hard copies and electronic copies of Ordinances 1357, 1358 and 1359.

Request Made: November 21, 2004
Response Made: Sometime between November 22, 2004 – November 30, 2004
Custodian: Alice Marks
GRC Complaint filed: December 16, 2004

Background

November 21, 2004
The Complainant submits a written Open Public Records Act (“OPRA”) Request seeking hard copies and electronic copies of Ordinances 1357, 1358 and 1359. 

December 16, 2004
The Complainant files a Denial of Access Complaint with the Government Records Council (“GRC”) claiming that the Custodian did not fulfill her OPRA request by providing electronic copies of the ordinances requested.  The Complainant asserts that the ordinances were created electronically so the Borough should supply them to her in an electronic format.  The Complainant contends that she received a verbal response.  The Complainant also seeks clarification from the GRC on the handling of requests for records in an electronic format and the conversion of the records, as well as requests to e-mail documents already in electronic format. 

December 27, 2004
The GRC staff submits a letter to the Complainant and Custodian offering the mediation process. 

January 24, 2005
The Custodian’s Counsel asserts, in the Statement of Information, that the Ordinances were provided to the Complainant in the only form maintained by the Borough, pursuant to N.J.S.A. 47:1A-5(d).  The Custodian’s Counsel further contends that the unsigned electronic drafts of ordinances are to be considered deliberative material and not considered a government record, therefore, not responsive to the Complainant’s request.  The Custodian’s Counsel maintains that the hard-copy medium provided to the Complainant was meaningful access to the requested records. 

January 31, 2005
The Complainant responds to the Custodian’s Statement of Information.  The Complainant disputes the Custodian’s Counsel’s argument regarding the unsigned records because the Borough Council had not passed all three ordinances at the time of the request, therefore, the hard–copy ordinances were not signed.  The Complainant states that all three ordinances were scheduled for second reading on December 6, 2004.  The Complainant further states that OPRA provides that electronic copies be provided if that is the form requested especially if the records exist electronically by virtue of the record’s creation.  

Analysis

Whether the Custodian properly responded to the Complainant’s OPRA request by her verbal response? 

N.J.S.A. 47:1A-5 (g) provides that “[a] custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof.”

The Custodian failed to provide a written response to the Complainant’s November 11, 2004 OPRA request pursuant to N.J.S.A. 47:1A-5 (g). 

WHETHER the Custodian properly fulfilled the Complainant’s request in the appropriate medium? 

N.J.S.A. 47:1A-5 (d) provides that “[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: in a medium not routinely used by the agency; not routinely developed or maintained by an agency; or requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.”

The Custodian did provide the Complainant with hard copies of the ordinances as requested; however, it appears that no attempt was made to reach an agreement on another meaningful medium. 

In Hugh Sharkey v. Borough of Oceanport, GRC case 2004-67, 2004, the Council decided, “[t] he Custodian should disclose the records responsive to the request in the format requested in accordance with N.J.S.A.  47:1-5(d) subject to fees, if any, that may be directly associated in converting the documents to the medium requested.  The Custodian should inform the Complainant of the costs involved in converting the documents in the requested medium prior to fulfilling the request.”

The Custodian should have tried to reach an agreement on another meaningful medium and if no agreement could be reached, the Custodian should have converted the records into the medium requested subject to fees that may be involved in converting the medium pursuant to N.J.S.A. 47:1A-5(d). 

Conclusions and Recommendations

The Executive Director respectfully recommends that:

1. The Custodian should have responded to the Complainant’s request in writing pursuant to N.J.S.A. 47:1A-5(g). 
2. The Custodian should disclose the records responsive to the request in the format requested in accordance with N.J.S.A.  47:1-5(d) subject to fees, if any, that may be directly associated to converting the documents to the medium requested.  The Custodian should inform the Complainant of the costs involved in converting the documents to the requested medium prior to fulfilling the request. 
3. The Custodian should notify the Executive Director within 10 business days of the completion of item #2, at which time, the Executive Director would summarily dismiss the case. 

Prepared By: Erin Knoedler, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 8, 2005

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