2005-167

At its March 9, 2006 public meeting, the Government Records Council ("Council") considered the March 3, 2006 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 based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council's decision in Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

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 March, 2006

Vincent 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

Findings and Recommendations of the Executive Director

Records Relevant to Complaint: All e-mails between Robert Williams and Telcove or other MIS personnel and Telcove for the past 12 months.
Request Made:  August 16, 2005
Response Made:  August 18, 2005
Custodian:  James Gray
GRC Complaint filed: September 2, 2005

Complainant's written Open Public Records Act (“OPRA”) request. The Complainant is seeking all e-mails between Robert Williams and Telcove or other MIS personnel and Telcove for the past 12 months.

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachment:

The Complainant states that he filed his OPRA request on August 16, 2005 and that on August 18, 2005 he received a phone call from the Deputy Clerk advising that she was attempting to get the requested documents. The Complainant states that on August 25, 2005 he spoke at a Freeholder meeting and claims that during said meeting the Director interrupted him and said, “You were in the county offices yesterday (reviewing purchase documents) and if you abuse the secretaries again I'll have you arrested by the sheriff.”[1] The Complainant claims that this statement was an attempt to deter him from requesting documents. He states that when he reviewed the documents there was a sheriff present and that no incidents were reported. He claims that the Director had the sheriff remove him from the Freeholder meeting. The Complainant contends that he cannot risk being threatened with arrest for looking at public records. He states that he has not received any further response to his request for records. Additionally, when asked on the Denial of Access Complaint form, “Have you filed any action with the N.J. Superior Court concerning this record request or any document sought in it” the Complainant indicated that he has filed action by checking the box labeled “Yes.”[2]

Whether the Council may adjudicate a denial of access complaint when the Complainant has affirmatively asserted on the Denial of Access Complaint form that he has also instituted a Superior Court case regarding access to the same records at issue in the denial of access complaint filed with the Council?

“[a] person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

When asked on the Denial of Access Complaint form, “Have you filed any action with the N.J. Superior Court concerning this record or any document sought in it,” the Complainant affirmatively asserted that an action has been filed in Superior Court.

Pursuant to N.J.S.A. 47:1A-6, a requestor who is denied access may, at their option, institute an action in the Superior Court of New Jersey or file a complaint with the Government Records Council. The language of the statute is clear that the requestor may either institute an action in Superior Court or file a complaint with the Council, but not do both. According to the Complainant's Denial of Access Complaint form, he has filed an action with the Superior Court concerning access to the records in the records request at issue in this complaint.

In Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) the Council found that it could not adjudicate the complaint because the Complainant affirmatively asserted that she instituted an action in Superior Court regarding access to the same records that are at issue in the denial of access complaint filed with the Council. The facts of the complaint before the Council now exactly mirrors those in Mosee. Therefore, like in Mosee, the Council is statutorily precluded from adjudicating this complaint.

Based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council's decision in Mosee, the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

The Executive Director respectfully recommends that the Council find that based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council's decision in Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

[1] As stated in Denial of Access Complaint.
[2] Additional submissions were provided to GRC staff by both parties; however they are not relevant to this case.