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State of NJ - Government Records Council Email Grc

2005-127

- Revised Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Findings and Recommendations of the Executive Director

Revised Final Decision

Donal Meyers
   Complainant
      v.
Borough of Fair Lawn
   Custodian of Record

Complaint No. 2005-127

 

At its May 11, 2006 public meeting, the Government Records Council ("Council") considered the May 4, 2006 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, finds that the case has been settled in the Appellate Division of the Superior Court of New Jersey and thus closes this case without further action.

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.  Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. 

Final Decision Rendered by the
Government Records Council
On The 11th Day of May, 2006

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council

Decision Distribution Date: May 18, 2006

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Supplemental Findings and Recommendations of the Executive Director

Donal Meyers                                                GRC Complaint No. 2005-127
Complainant
            v.
Borough of Fair Lawn
Custodian of Records

Records Requested: (As stated by the Complainant)

"All documents, in electronic format (I suggest that the forwarding of responsive e-mails to dmeyers@fairlawnonline.com would be an appropriate way to honor this request), sent from or received by David Ganz to or from his personal e-mail account that relate in any manner to his position as a Fair Lawn Borough public official and/or the conduct of government by or for the Borough of Fair Lawn, from January 1, 2004 to May 31, 2005.  (As this could be quite extensive, I request that the documents be made available for inspection prior to copying.)"
Request Made:  June 10, 2005
Response Made: June 13, 2005
Custodian:  Joanne Kwasniewski
GRC Complaint filed: July 1, 2005

Background

December 8, 2005

Government Records Council's ("Council") Final Decision.  At its December 8, 2005 public meeting, the Council considered the December 2, 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. The Council, therefore, found that:

  1. The Custodian may have unlawfully denied access to a government records.
  2. The Custodian has not borne the burden of proving that the records responsive to the request are not government records.
  3. The Custodian shall obtain the government records that are responsive to the request and release them pursuant to the OPRA within ten (10) business days from receipt of this decision and simultaneously inform the Executive Director of same.

December 21, 2005

Letter to Council from the Custodian requesting a sixty-day extension to comply with the Council's final decision.

January 6, 2006

E-mail correspondence from the GRC staff confirming a verbal conversation with the Complainant affirming that the Complainant agreed to allow the Custodian an additional sixty-day extension to comply with the Council's final decision.

January 11, 2006

Letter from the Executive Director to the Custodian granting the sixty-day extension to comply with the Council's final decision.

February 8, 2006

The Custodian's counsel submitted a request for Stay of the Counsel's final decision so that the Borough could appeal the decision in the Appellate Division of the Superior Court of New Jersey.

March 9, 2006

Order of Dismissal from the Superior Court of New Jersey Appellate Division Docket No. A-2727-05T1. This order stated that the case was settled in a pre-argument conference and therefore the case is dismissed.

March 16, 2006

Letter to the Custodian from the Executive Director requesting certification of the Borough's compliance with the Council's final decision.

March 28, 2006

Letter from the Borough's Counsel stating that the Borough considered the settlement in Superior Court compliance with the Council's decision.

March 29, 2006

The Custodian submitted a Stipulation of Settlement that was adopted by the Borough's Council on March 28, 2006 via a Council Resolution.

Analysis

The Council issued a final decision at its December 8, 2005 public meeting. Upon receipt of that decision, the Custodian requested a sixty-day extension to comply with the Council's decision. The Executive Director granted the sixty-day extension. Prior to the deadline, the Borough requested a Stay of the Council's decision.

The Borough appealed the Council's decision in Superior Court. In a pre-argument conference, the parties settled. The Superior Court issued an Order dismissing the appeal pursuant to the settlement of the parties. GRC staff received a copy of the March 9, 2006 Order of Dismissal. Thereafter, the Custodian submitted to GRC staff a copy of the Stipulation of Settlement that was adopted by the Borough's Council on March 28, 2006 via a Council Resolution.

The case has been settled in Superior Court. Therefore, the Council should close the case without further action.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that this case has been settled in Superior Court and close this case without further action.

Prepared By: Kimberly Gardner, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

May 4, 2006

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Final Decision

Donal Meyers
   Complainant
      v.
Borough of Fair Lawn
   Custodian of Record

Complaint No. 2005-127

 

At its December 8, 2005 public meeting, the Government Records Council ("Council") considered the December 2, 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.  The Council, therefore, finds that:

  1. The Custodian may have unlawfully denied access to a government records.
  2. The Custodian has not borne the burden of proving that the records responsive to the request are not government records.
  3. The Custodian shall obtain the government records that are responsive to the request and release them pursuant to the OPRA within ten (10) business days from receipt of this decision and simultaneously inform the Executive Director of same.

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 8th 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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Findings and Recommendations of the Executive Director

Donal Meyers                          GRC Complaint No. 2005-127
Complainant 
      v.
Borough of Fair Lawn
Custodian of Records

Records Requested: (As stated by the Complainant)
"All documents, in electronic format (I suggest that the forwarding of responsive e-mails to dmeyers@fairlawnonline.com would be an appropriate way to honor this request), sent from or received by David Ganz to or from his personal e-mail account that relate in any manner to his position as a Fair Lawn Borough public official and/or the conduct of government by or for the Borough of Fair Lawn, from January 1, 2004 to May 31, 2005.  (As this could be quite extensive, I request that the documents be made available for inspection prior to copying.)"
Request Made:  June 10, 2005
Response Made: June 13, 2005
Custodian:  Joanne Kwasniewski
GRC Complaint filed: July 1, 2005

Background

June 10, 2005

Written Open Public Records Act (OPRA) Request. Complainant seeks Fair Lawn government records stored on Mr. David Ganz's personal computer.

March 23, 2005

Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant stated that he was denied access to the requested records because the Custodian stated that the records are on the Mayor's personal computer and therefore they are not government records that she maintains and not subject to OPRA.

The Complainant also included a written attachment where the Mayor responded to a few of his questions via his (the Mayor) personal America Online e-mail account. The Complainant further stated and attached supporting documentation where the Mayor had responded to a previous OPRA request from the Complainant, using his (the Mayor) personal e-mail address.  The Complainant cited that in GRC Case No. 2003-38 (Seerey v. Upper Pittsgrove Township), the Council held that, "Requiring material to be made, maintained, kept or received "in the course of official business" by an officer or official does not mean that a record must be generated or received during regular office hours or official meetings. Nor does a document become a government record only if the sender intends it to be." Therefore, the Complainant concludes that the record should be released and not withheld even though it is maintained on the Mayor's personal computer.

The Complainant included the following documents in the Denial of Access Complaint:

  1. Exhibit A – June 10, 2005 OPRA request and addendum.
  2. Exhibit B – E-mail correspondence between the requestor and the clerk regarding the request and clarification of the request.
  3. Exhibit C - E-mail correspondence denying the Complainant access to the Mayor's personal e-mail. The Custodian stated that they do not deem the Mayor's personal e-mails as government records.
  4. Exhibit D – Copy of e-mail correspondence between the Mayor and the Custodian. The e-mail is from the Mayor's personal e-mail account. This e-mail contained answer's to questions raised by the Complainant at a Borough Council meeting.
  5. Exhibit E – The question and answer correspondence that is referenced in Exhibit D.
  6. Exhibit F – May 13, 2005 OPRA request. The Custodian originally denied item #1 of this OPRA request stating that the requested record was not in the Borough's possession.  Five days later, Mayor Ganz forwarded the record to the Complainant from his personal e-mail account.[1]
  7. Exhibit G – Correspondence from the Mayor's personal e-mail account to the Complainant with attachments containing requested information.
  8. Exhibit H, I & J – The attached information referenced in Exhibit G.

July 1, 2005

GRC staff sent an offer of mediation to both parties.

July 1, 2005

Records Custodian signed agreement to mediate.

Complainant sent e-mail stating that he did not want to mediate.

July 8, 2005

GRC staff sent a fax to the Custodian requesting a Statement of Information.

July 13, 2005

Statement of Information submitted by the Custodian stating that the requested record is exempt from disclosure because material on the Mayor's personal computer which was not sent to or received from the Custodian or a borough employee is not a public record.  She further stated that she does not have access to the Mayor's personal computer nor has the township purchased a computer for the Mayor.       

The Custodian attached the following documents to the Statement of Information:

  1. E-mail correspondence between the Custodian and Complainant clarifying the OPRA request.
  2. E-mail correspondence denying the Complainant the requested records. The Complainant's response, stating his position that he believes that he should have access to the information.

Analysis

WHETHER the Custodian unlawfully denied access to the e-mails from the Mayor's personal e-mail account regarding the Borough of Fair Lawn business?

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.

"...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 in the course of his or its official business..." N.J.S.A. 47:1A-1.1.

"Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be..." N.J.S.A. 47:1A-1.1

"...The public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6.

The Complainant requested records that are government records as defined by N.J.S.A. 47:1A-1.1. The Custodian alleged that due to the location of the records, they are not considered government records. However, the definition of a government record is not restricted by the location of the record. The definition states in part that, it is, "made, maintained or kept on file..." N.J.S.A.47: 1A-1.1.  In this case, the Mayor has utilized his home computer/personal e-mail to communicate with various individuals regarding Borough business. The Complainant has submitted written documentation in his Denial of Access Complaint that shows communication via the Mayor's personal e-mail and himself (the Complainant) regarding Borough business.

The Council has previously decided that, "...Requiring material to be made, maintained, kept or received "in the course of official business" by an officer or official does not mean that a record must be generated or received during regular office hours or official meetings. Nor does a document become a government record only if the sender intends it to be..."(Emphasis added.) Seerey v. Upper Pittsgrove Township  (GRC Case No. 2005-38).

Therefore, to the extent that records fall within the definition of "government records" under OPRA and are maintained in the Mayor's personal e-mail account but have not been disclosed to the Complainant, these records should be released in accordance with the OPRA.

The location of the records does not inhibit the Custodian from obtaining the records and providing access to the records pursuant to the OPRA. The Custodian may have unlawfully denied access to government records. The Custodian should obtain the government records that are responsive to the request and release them in accordance with the OPRA.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

  1. The Custodian may have unlawfully denied access to a government records.
  2. The Custodian has not borne her burden of proving that the records responsive to the request are not government records.
  3. The Custodian should obtain the government records that are responsive to the request and release them pursuant to the OPRA within 10 business days of receipt of the decision and inform the Executive Director of same.

Prepared By: Kimberly Gardner, Case Manager

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

December 2, 2005


[1] The referenced request and denial is not at issue in the complaint. The Complainant references this matter to strengthen his position.

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