2004-98

Final Decision

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 1, 2004 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, dismissed the case on the basis that the Complainant acknowledges receipt of the records responsive to his 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 9^th 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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Supplemental Findings and Recommendations of Executive Director

Records Requested:

1. Annual meeting notice
2. Minutes of Borough Council meetings, June and July 2004
3. Agenda of Borough Council meetings, June and July 2004
4. Notice of special meetings of Borough Council, June and July 2004
5. Resolution approved at Borough Council meeting of July 6, 2004

Custodian: Jean B. Montfort
Request Made:   July 7, 2004
Response Made:  July 7, 2004 (verbal)
GRC Complaint filed: July 8, 2004

Background

At the November 9 2004 public meeting, the Government Records Council (Council) issued the following Interim Decision:

1. The Custodian is in violation of N.J.S.A. 47:1A-5(g) in that they did not treat the Complainant’s list as a valid OPRA request. Although there was a verbal response to the request, a written response was necessary. However, under the totality of the circumstances, it does not rise to the level of a knowing and willful violation.
2. Pursuant to N.J.S.A. 47:1A-5(e) the information requested does not fall under the immediate access provision in the Act therefore was not required to be available on demand.
3. Within ten (10) calendar days from receipt of the Council’s decision, the Custodian shall provide the Complainant with access to view/inspect and receive a copy of the documents requested.

On December 2, 2004 the Complainant informed the Government Records Council staff by e-mail that he had received the records, therefore no further GRC action is required.

Analysis

There is no analysis is needed since the Complainant acknowledges receipt of the records responsive to his OPRA request. 

Documents Reviewed

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

1. December 2, 2004 – E-mail from the Complainant to the GRC

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council should dismiss the case on the basis that the Complainant acknowledges receipt of the records responsive to his request.

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

December 1, 2004

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Interim Decision

At its November 9 2004 public meeting, the Government Records Council (Council) considered the October 5, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt said findings and recommendations amending #3 under the “Conclusions and Recommendations of the Executive Director” to state, “Within ten (10) calendar days from receipt of the Council’s decision the Custodian shall provide the Complainant with access to view/inspect and receive a copy of the documents requested.”  Therefore, the Council hereby finds:

1. The Custodian is in violation of N.J.S.A. 47:1A-5(g) in that they did not treat the Complainant’s list as a valid OPRA request. Although there was a verbal response to the request, a written response was necessary. However, under the totality of the circumstances, it does not rise to the level of a knowing and willful violation.
   
2. Pursuant to N.J.S.A. 47:1A-5(e) the information requested does not fall under the immediate access provision in the Act therefore was not required to be available on demand.
   
3. Within ten (10) calendar days from receipt of the Council’s decision, the Custodian shall provide the Complainant with access to view/inspect and receive a copy of the documents requested.

The Custodian is to provide written confirmation to the Executive Director when #3 directly above is completed. 

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

Records Requested:

1. Annual meeting notice
2. Minutes of Borough Council meetings, June and July 2004
3. Agenda of Borough Council meetings, June and July 2004
4. Notice of special meetings of Borough Council, June and July 2004
5. Resolution approved at Borough Council meeting of July 6, 2004

Custodian: Jean B. Montfort
Request Made: July 7, 2004
Response Made:  July 7, 2004 (verbal)
GRC Complaint filed: July 8, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on July 8, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following:

Denial of Access to the above mentioned records. The Complainant states that he went into the office of the Borough Clerk of the Borough of Matawan to inspect certain records including Borough Council minutes, agendas, and meeting notices. He also states that the Clerk advised him that the records were not available and under the law she had, “7 to 10 days” to compile the information, and there were no records in her office that were ever available on demand. He believes the records requested should have been available on demand being that “no research or compilation is required for such date as minutes, agendas, and meeting notices. Finally, after leaving the Borough office on July 6 the Complainant says he tried to contact the Borough Attorney, Brian Mullen, by telephone. He also states that telephone messages were left with no return call, as well as a fax being sent to Mr. Mullen and Ms. Montfort, “again demanding that the records be made available,” and there was no response.

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts the following in a legal certification:

The Complainant wrote down a list of items he was looking for. He was told that the agenda packet was being finalized from the previous night’s meeting and if he returned later in the day he could have a copy. Also, the minutes from the July 6^th meeting were not yet transcribed (the meeting occurred the night before) and when they were transcribed and approved by the Council the Complainant would be forwarded a copy. The Custodian took the Complainant’s list, stapled it to an official OPRA form and asked him to complete same. The Complainant refused to complete the form and the Custodian states that she never denied access, but only required the Complainant to follow proper legal procedure.

Analysis

The following correspond directly with the Conclusions and Recommendations of the Executive Director:

1. N.J.S.A. 47:1A-5(g) states that a request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.

   A Custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record.

   The Complainant walked into the office of the Custodian with a written list of items he wished to receive. Although there was a verbal response, the request was in writing therefore it should have been responded to in the same manner.

2. 47:1A-5(e) states that immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.

   The information requested does not fall under the immediate access provision in the Act therefore was not required to be available on demand.

Documents Reviewed

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

1. July 8, 2004 – Denial of Access Complaint
2. July 21, 2004 – Offer of mediation to Complainant
3. July 22, 2004 – Offer of mediation to Custodian
4. August 5, 2004 – Custodian’s Statement of Information (w/attachments)
   1. Certification (from Superior Court in Monmouth, NJ)
   2. Copy of Complainant’s list stapled to an OPRA form
   3. Letter from Custodian’s counsel to the Complainant

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Custodian is in violation of N.J.S.A. 47:1A-5(g) in that they did not treat the Complainant’s list as a valid OPRA request. Although there was a verbal response to the request, a written response was necessary. However, under the totality of the circumstances, it does not rise to the level of a knowing and willful violation.
2. Pursuant to 47:1A-5(e) the information requested does not fall under the immediate access provision in the Act therefore was not required to be available on demand.
3. The Custodian should provide a date certain as to when the Complainant may view/inspect the documents requested.

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

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