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2005-185
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Decision on Access |
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Findings and Recommendations of the Executive Director |
Final Decision
At its February 17, 2006 public meeting, the Government Records Council ("Council") considered the February 10, 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:
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. Decision Distribution Date: February 28, 2006 Supplemental Findings and Recommendations of the Executive DirectorGilda T. Gill GRC Complaint No. 2005-185Complainant v. Salem County Custodian of Records Records Relevant to Complaint:
Request Made: August 26, 2005 and September 8, 2005 Background August 26, 2005 Complainant's written Open Public Records Act (OPRA) Request. The Complainant seeks the 2004 Salary Resolution or other salary resolutions passed in 2004 and 2005, and a listing of individuals paid by the County including appointed officials, elected officials, contractors, subcontractors, and anyone paid through the payroll roster. Pursuant to Executive Order No. 11, it must include name, title, position, salary, payroll record, length of service, and date of separation. September 8, 2005 Public Records Request Response from Custodian to Complainant. The Custodian releases the requested resolution and states that a listing of individuals paid by the County does not exist. September 8, 2005 Letter from Complainant to Custodian. The Complainant claims that it is unbelievable that the Custodian "has no knowledge of the information that is maintained by [the] personnel department and the payroll division of the County."[2] The Complainant requests that the Custodian discuss this matter with her staff and the County Solicitor in order to comply with her request. Additionally, the Complainant asserts that she wishes to keep this as a County matter but will take it to the Government Records Council if necessary. September 29, 2005 Denial of Access Complaint filed with the Government Records Council (GRC) staff. Complaint included the following attachments:
The Complainant claims that she submitted her OPRA request on August 26, 2005 and received a response on September 8, 2005 from the Custodian. In the Custodian's response, the Complainant states that the Custodian denied access to a payroll list by claiming that the document does not exist. October 3, 2005 Offer of Mediation sent to both parties. October 6, 2005 E-mail from Complainant to GRC staff. The Complainant declines mediation and wishes for the investigation to proceed. The Complainant states that her decision is based on the difficulty her office has experienced in receiving requested documents from the Custodian. October 11, 2005 GRC staff sends request for Statement of Information to Custodian. October 11, 2005 E-mail from GRC staff to Complainant. Staff informs Complainant that a request for a Statement of Information was sent to the Custodian and a response is due no later than October 18, 2005. October 11, 2005 Custodian's Agreement to Mediate. October 19, 2005 Letter from GRC staff to Custodian. Staff requests the Statement of Information from the Custodian within three (3) business days of receipt of this letter. October 20, 2005 E-mail from Complainant to GRC staff. The Complainant inquires about the status of the Custodian's Statement of Information. October 20, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that the GRC is not in receipt of the Custodian's Statement of Information as of October 20, 2005. Staff states that the GRC faxed an additional request for the Statement of Information to the Custodian and a response is due by October 24, 2005. October 25, 2005 E-mail from Complainant to GRC staff. Complainant's second inquiry about the status of the Custodian's Statement of Information. October 26, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that the GRC is not in receipt of the Custodian's Statement of Information as of October 26, 2005. Staff states that as per a phone conversation, the Custodian claimed she would submit the requested document after speaking to her legal counsel by October 27, 2005. October 26, 2005 E-mail from Complainant to GRC staff. The Complainant inquires about the time permitted for a Custodian to delay in responding to a complaint before the next step of the process begins. October 31, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that as of this date, the GRC is not in receipt of the Custodian's Statement of Information and the case will proceed to adjudication by the Council. October 31, 2005 E-mail from Complainant to GRC staff. The Complainant states that she is pleased to see this complaint move forward toward resolution. November 1, 2005 E-mail from Complainant to GRC staff. The Complainant inquires about how long the process will take and states that she needs the requested documents by the end of the year, as they will be outdated after the year is over. November 2, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that her case is currently scheduled for the November 10, 2005 Council meeting and she will be notified if anything changes. November 10, 2005 Interim Decision on Access. At its November 10, 2005 public meeting, the Government Records Council ("Council") considered the November 4, 2005 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 found that:
November 18, 2005 Custodian's Statement of Information (dated November 4, 2005) with the following attachments:
The Custodian acknowledges receiving the Complainant's OPRA request on August 29, 2005. She certifies that on September 7, 2005 she made two (2) Salary Range Resolutions for 2004 available to the Complainant and states that the Complainant picked them up on September 8, 2005. She further certifies that following this complaint, she provided the Complainant with a printout of the County's payroll report on November 7, 2005. The Custodian certifies that she did not provide the Complainant with the requested 2005 Salary Resolution because at that time, no such document existed. She states that the Freeholders have not yet adopted the 2005 Salary Resolution, but when they do, the Complainant is welcome to submit an OPRA request to obtain said document. Additionally, the Custodian certifies that she did not provide the Complainant with the requested payroll information because no such document presently exists. She certifies that hard copies of payroll rosters are no longer created or maintained by the County, as they have been changing over to electronic databases such as ADP payroll, ADP e-time, HR package, and NJDOP CAMPS. She states that because no single document exists maintaining all the information requested by the Complainant, she suggested that the Complainant refine her request "so that a report from the computer system would provide some of the information requested."[3] She states that she also suggested that the Complainant make appointments with Personnel and Treasury to review the remaining requested information. The Custodian certifies that to date, the Complainant has not submitted a refined request, or made the suggested appointments, however, "a modified report from the payroll system was provided which contained information similar to but not exactly what was requested."[4] Analysis Whether the Custodian has complied with the Council's November 10, 2005 Interim Decision? Based on the Custodian's Statement of Information received by staff on November 18, 2005, the Custodian has complied with the Council's November 10, 2005 decision. Whether the Custodian unlawfully denied access to the list of individuals paid by the county by stating that the document does not exist? 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. Additionally, OPRA defines a government record as "... 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 ..." (Emphasis added.) N.J.S.A. 47:1A-1.1. OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states "...[t]he 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 Custodian acknowledges receiving the Complainant's August 29, 2005 OPRA request. She certifies that on September 7, 2005 she made two (2) Salary Range Resolutions available to the Complainant and states that the Complainant picked them up on September 8, 2005. Additionally, the Custodian certifies that she did not provide the Complainant with the requested payroll information because no such document exists. She certifies that hard copies of payroll rosters are no longer created or maintained by the County as they have been updating to electronic databases. The Custodian states that she suggested the Complainant refine her request so that a computer report would provide her with some of the information requested, and that she make appointments with Personnel and Treasury to review the remaining information. She certifies that the Complainant has not refined her request or made the suggested appointments, so on November 7, 2005, she provided the Complainant with a printout of the County's payroll report which contained information similar to but not exactly what was requested. In this case, the requested document at issue is a payroll roster according to the Custodian's certification. However, the Custodian further certified that some of the information was maintained by the County in a database at the time of the request. Therefore, the information stored within the database is considered a government record pursuant to N.J.S.A. 47:1A-1.1 and subject to public access. However, OPRA does not obligate a Custodian to create a document in response to a records request. In this case the Custodian would have had to create a paper document in response to the Complainant's request. In Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super 537 (March 2005), the court reaffirmed that "the Government Records Council (Council), ...has explained that ‘OPRA does not require record custodians to conduct research among its records for a requestor and correlate data from various government records in the custodian's possession.' Reda v. Township of West Milford, GRC Case No. 2002-58 (January 17, 2003). There, an individual sought information regarding a municipality's liability settlements but did not request any specific record. Ibid. In rejecting the request, the Council noted that OPRA only allows requests for records, not requests for information, and therefore, it is ‘incumbent on the requestor to perform any correlations and analysis he may desire.' Ibid." The Custodian states that she suggested the Complainant refine her request so that a computer printout would provide her with some of the information requested, and states that the Complainant has not done so. Therefore, although the Custodian certifies that some of the requested information was stored in a database at the time of the request, she did not unlawfully deny access to the requested payroll list as the specific document requested does not exist and OPRA does not require Custodians to create documents in response to requests. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find:
Prepared By: Dara Lownie, Case Manager Approved By: February 10, 2006 Interim Decision on Access
At the November 10, 2005 public meeting, the Government Records Council ("Council") considered the November 4, 2005 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
Interim Decision Rendered by the Decision Distribution Date: November 21, 2005 Findings and Recommendations of the Executive DirectorGilda T. Gill GRC Complaint No. 2005-185Complainant v. Salem County Custodian of Records Records Requested:
Request Made: August 26, 2005 and September 8, 2005 Background August 26, 2005 Complainant's written Open Public Records Act (OPRA) Request. The Complainant seeks the 2004 Salary Resolution or other salary resolutions passed in 2004 and 2005, and a listing of individuals paid by the county including appointed officials, elected officials, contractors, subcontractors, and anyone paid through the payroll roster. Pursuant to Executive Order No. 11, it must include name, title, position, salary, payroll record, length of service, and date of separation. September 8, 2005 Public Records Request Response from Custodian to Complainant. The Custodian releases the requested resolution and states that a listing of individuals paid by the county does not exist. September 8, 2005 Letter from Complainant to Custodian. The Complainant claims that it is unbelievable that the Custodian "has no knowledge of the information that is maintained by [the] personnel department and the payroll division of the County."[2] The Complainant requests that the Custodian discuss this matter with her staff and the County Solicitor in order to comply with her request. Additionally, the Complainant asserts that she wishes to keep this as a county matter but will take it to the Government Records Council if necessary. September 29, 2005 Denial of Access filed with the Government Records Council (GRC) staff. Complaint included the following attachments:
The Complainant claims that she submitted her OPRA request on August 26, 2005 and received a response on September 8, 2005 from the Custodian. In the Custodian's response, the Complainant states that the Custodian denied access to a payroll list by claiming that the document does not exist. October 3, 2005 Offer of Mediation sent to both parties. October 6, 2005 E-mail from Complainant to GRC staff. The Complainant declines mediation and wishes for the investigation to proceed. The Complainant states that her decision is based on the difficulty her office has experienced in receiving requested documents from the Custodian. October 11, 2005 Government Records Council (GRC) staff sends request for Statement of Information to Custodian. October 11, 2005 E-mail from GRC staff to Complainant. Staff informs Complainant that a Statement of Information was sent to the Custodian and a response is due no later than October 18, 2005. October 11, 2005 Custodian's Agreement to Mediate. October 19, 2005 Letter from GRC staff to Custodian. Staff requests the Statement of Information from the Custodian within three (3) business days of receipt of this letter. October 20, 2005 E-mail from Complainant to GRC staff. The Complainant inquires about the status of the Custodian's Statement of Information. October 20, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that the GRC is not in receipt of the Custodian's Statement of Information as of October 20, 2005. Staff states that the GRC faxed an additional request for the Statement of Information to the Custodian and a response is due by October 24, 2005. October 25, 2005 E-mail from Complainant to GRC staff. Complainant's second inquiry about the status of the Custodian's Statement of Information. October 26, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that the GRC is not in receipt of the Custodian's Statement of Information as of October 26, 2005. Staff states that as per a phone conversation, the Custodian claimed she would submit the requested document after speaking to her legal counsel by today or tomorrow. October 26, 2005 E-mail from Complainant to GRC staff. The Complainant inquires about the time permitted for a Custodian to delay in responding to a complaint before the next step of the process begins. October 31, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that as of this date, the GRC is not in receipt of the Custodian's Statement of Information and the case will proceed to adjudication by the Council. October 31, 2005 E-mail from Complainant to GRC staff. The Complainant states that she is pleased to see this complainant move forward toward resolution. November 1, 2005 E-mail from Complainant to GRC staff. The Complainant inquires about how long the process will take and states that she needs the requested documents by the end of the year, as they will be outdated after the year is over. November 2, 2005 E-mail from GRC staff to Complainant. Staff informs the Complainant that her case is currently scheduled for the November 10, 2005 Council meeting and she will be notified if anything changes. Analysis WHETHER the Custodian unlawfully denied access to the list of individuals paid by the county by stating that the document does not exist? N.J.S.A. 47:1A-1: provides that "... government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions ..." (Emphasis added.) N.J.S.A. 47:1A-1.1: provides that " ... 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 ..." (Emphasis added.) N.J.S.A. 47:1A-6: provides that "... [t]he public agency shall have the burden of proving that the denial of access is authorized by law..." The Complainant states that she submitted an OPRA request on August 26, 2005 and received a response on September 8, 2005 in which the Custodian released the requested resolution and claimed that a list of individuals paid by the county does not exist. On September 8, 2005, the Complainant states she wrote to the Custodian and requested that she speak to her staff and the County Solicitor in order to comply with the request. The Custodian has not responded to the GRC in order to present her party's position on this complaint. Therefore, in accordance with N.J.S.A. 47:1A-1 et seq., the Council should order the Custodian to disclose the document(s) responsive to the request, with appropriate redactions and a legal justification for same, or to submit a legal certification stating that the document does not exist to the Executive Director within ten (10) calendar days of receipt of the Council's decision. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find:
Prepared By: Dara Lownie, Case Manager Approved By: November 4, 2005 |
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