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2004-59

- Final Decision
- Findings and Recommendations of Executive Director
- Interim Decision on Access
- Findings and Recommendations of the Executive Director

Final Decision

Barbara Schwarz,
   Complainant
      v.
NJ Department of Treasury,
   Custodian of Record
Complaint No. 2004-59

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 29, 2004 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, dismissed the case on the basis of:

  1. The Custodian’s statement that no records were found pertaining to “Barbara Schwarz/Barbara Schwartz, Mark C. Rathbun aka Mark De Rothschild, L. Ron Hubbard, Scientology or Church of Scientology, and former President Dwight David Eisenhower.” 
  2. Ms. Schwarz’s question to the Custodian asking them to explain their records system is not a request for a government record and therefore is not under the jurisdiction of the Government Records Council.

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 9th Day of December, 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 Executive Director

Barbara Schwarz,                                  GRC Complaint No. 2004-59 
           Complainant
                        v.
Department of Treasury,
           Custodian

Records Requested:

  1. Any records on Barbara Schwarz/Barbara Schwartz
  2. Any records on Mark C. Rathbun 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

Custodian:  Mary Beth Davies
Request Made: March 20, 2004
Response Made: March 24, 2004,
GRC Complaint filed: May 3, 2004

Background

The parties mutually agreed to mediation in the subject case.  The Complainant withdrew her agreement for mediation on September 18, 2004. The case is before the Council for adjudication. 

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on May 3, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the Custodian was not responsive to her request, and was denied access to the following information requested:

  1. Any records on Barbara Schwarz/Barbara Schwartz
  2. Any records on Mark C. Rathbun 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

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts in a February 4, 2004 letter that they searched various treasury divisions such as the Divisions of Public Finance, Investment, Purchase and Property and the Garden State Preservation Trust, and did not find  records responsive to the request. They also state that the preliminary review of her request by the Office of Management and Budget have not produced any records responsive to her request. However, there is a payment history file that indicates there are payment records for six different names similar to hers. They state that a retrieval of these records can be provided for a cost of $101.93.

In a March 26, 2004 e-mail to the Custodian, Ms. Schwarz states that she is not interested in the records that are being offered for $101.93 because they do not concern her, as she has never made any payments to their department. In the same e-mail Ms. Schwarz asks the Custodian to explain their records systems and also wants to know in what systems a search was conducted.

Analysis

N.J.S.A. 47:1A-1.1 states in relevant part: “Government record” or “records”…. 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 …”

The Custodian stated that there were no records found pertaining to “Barbara Schwarz/Barbara Schwartz, Mark C. Rathbun aka Mark De Rothschild, L. Ron Hubbard, Scientology or Church of Scientology and former President Dwight David Eisenhower.”

However, as stated above, there is a payment history file that indicates there are payment records for six different names similar to the Complainant’s.

Consequently, the Complainant has declined these records because they do not concern her, as she has never made any payments to their department

N.J.S.A. 47:1A-7(b) states that the Government Records Council shall receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government records by a records custodian.

Ms. Schwarz’s question to the Custodian asking them to explain their records system is not a request for a government record and therefore is not under the jurisdiction of the Government Records Council.

Documents Reviewed

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

  1. Letter from the Custodian to the Complainant – February 4, 2004
  2. Letter from the Complainant to the Custodian – March 26, 2004
  3. Denial of Access Complaint to the GRC –May 3, 2004
  4. Mediation Agreement signed by Complainant – May 12, 2004
  5. Mediation Agreement signed by Custodian –May 13, 2004
  6. Statement of Information - May 21, 2004

Conclusions and Recommendations of the Executive Director

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

  1. The Custodian’s statement that no records were found pertaining to “Barbara Schwarz/Barbara Schwartz, Mark C. Rathbun aka Mark De Rothschild, L. Ron Hubbard, Scientology or Church of Scientology, and former President Dwight David Eisenhower.” 
  2. Ms. Schwarz’s question to the Custodian asking them to explain their records system is not a request for a government record and therefore is not under the jurisdiction of the Government Records Council.
Prepared By: 
Staff Associate

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

November 29, 2004

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Interim Decision on Access

Barbara Schwarz,
Complainant
v.
Department of Treasury,
Custodian of Record
Complaint No. 2004-59

At the June 10, 2004 public meeting, the Government Records Council (“Council”) considered the May 28, 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 the Council and GRC staff will forego adjudicatory action in the case pending the outcome of mediation. 

Interim Decision Rendered by the
Government Records Council
On The 10th Day of June, 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

Barbara Schwarz                                        GRC Complaint No. 2004-59
Complainant
v.
Dept. of Treasury
Custodian of Records

Relevant Records Requested: Records on Mark C. Rathburn, Mark De Rothschild, Church of Scientology, L. Ron Hubbard former President Dwight D. Eisenhower, and any records on the complainant.
Request Made:  March 20, 2004
Response Made: March 24, 2004
Custodian:  Dept. of Treasury– Mary Beth Davis
GRC Complaint Filed:   May 3, 2004

Executive Director’s Recommendations

The Complainant and the Custodian voluntarily signed Agreements to Mediate on May 12 and May 13, 2004. Based on same, the Executive Director respectfully recommends that the Council and GRC staff forego adjudicatory action pending the outcome of mediation.

Analysis

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

Documents Reviewed

The following documents were reviewed in the preparing the Findings and Recommendations for this case:

  • 5/03/2004 – Denial of Access Complaint Form
  • 5/13/2004 – Custodian’s Counsel agreement to mediate
  • 5/12/2004 – Complainant’s agreement to mediate

Paul F. Dice
Executive Director
Government Records Council

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