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2005-207
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
Final Decision
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 based on the Custodian’s submissions to the Council dated April 14, 2006 and April 24, 2006, the Custodian provided the Complainant with the requested 2005 executive session minutes on December 20, 2005 which the Custodian had already released before the Council’s April 11, 2006 Interim Order. Therefore, the Custodian’s actions were consistent with the Council’s April 11, 2006 Interim Order and the Council closes this case with no 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. Decision Distribution Date: May 18, 2006 Supplemental Findings and Recommendations of the Executive DirectorLarry Angel GRC Complaint No. 2005-207Complainant v. Township of Mullica Custodian of Records Records Relevant to Complaint: All 2005 executive session minutes where the issues have been resolved. Background April 11, 2006 Government Records Council’s (“Council”) Interim Order. At its April 11, 2006 public meeting, the Council considered the April 4, 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, found that:
April 17, 2006 Custodian’s response to the Council’s April 11, 2006 Interim Order. The Custodian states that she has enclosed a Public Records Request Response which was signed by the Complainant on December 20, 2005. The Custodian certifies that this is a true copy of a record from her office. On the Public Records Request Response form, the Custodian indicates that the Complainant viewed executive session minutes. April 24, 2006 E-mail from Custodian to GRC staff. The Custodian states that the Complainant viewed all 2005 executive session minutes that were releasable. She asserts that these minutes were released by the Governing Body on December 13, 2005 and were reviewed by the Complainant on December 20, 2005. Analysis Whether the Custodian complied with the Council’s April 11, 2006 Interim Order? Based on the Custodian’s submissions to the GRC dated April 14, 2006 and April 24, 2006, the Custodian provided the Complainant with the requested 2005 executive session minutes on December 20, 2005. Therefore, the Custodian had already released the requested records before the Council’s April 11, 2006 Interim Order. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that based on the Custodian’s submissions to the GRC dated April 14, 2006 and April 24, 2006, the Custodian provided the Complainant with the requested 2005 executive session minutes on December 20, 2005. Therefore, the Custodian had already released the requested records before the Council’s April 11, 2006 Interim Order. The Custodian’s actions were consistent with the Council’s April 11, 2006 Interim Order. The Council should close this case with no further action. Prepared By: Dara Lownie, Case Manager Approved By: May 4, 2006 Interim Order
At the April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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:
Interim Order Rendered by the Decision Distribution Date: April 13, 2006 Findings and Recommendations of the Executive DirectorLarry Angel GRC Complaint No. 2005-207Complainant v. Township of Mullica Custodian of Records Records Relevant to Complaint: All 2005 executive session minutes where the issues have been resolved. Background August 25, 2005 Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant is seeking all 2005 executive session minutes where the issues have been resolved. September 8, 2005 Custodian’s response to the Complainant’s OPRA request. The Custodian states that the requested documents are not being provided as they are unavailable at this time. The Custodian claims that she must first review the minutes and then they are to be reviewed by the Township Solicitor. She additionally claims that the minutes must then be brought before the Township Committee for release. She states that she will notify the Complainant when the minutes are ready for review. October 27, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant states that he requested to view executive session minutes from the Clerk in August 2005. He claims that the Custodian informed him that it was her policy to only release minutes at the end of the year. The Complainant claims that at each of the Township meetings following his OPRA request, he raised the issue of his right to view the portions of the meetings that were resolved. He claims that the Township Solicitor advised him to be patient. Additionally, the Complainant argues that the minutes are possibly being withheld due to an upcoming election. He claims that theft charges were filed against one of the elected officers. He asserts that the public has a right to see executive session minutes once the issues discussed are resolved. The Complainant also claims that no executive session minutes have been released since December 14, 2004. October 31, 2005 Offer of Mediation sent to both parties. November 3, 2005 Custodian’s Agreement to Mediate.[1] November 10, 2005 Request for Statement of Information sent to the Custodian. November 17, 2005 Custodian’s Statement of Information (“SOI”) with the following attachments:
The Custodian states that she received the Complainant’s OPRA request on August 25, 2005. She states that the Complainant requested executive session minutes for the year 2005 but no minutes have been provided as they have not yet been approved for release. The Custodian claims that since the Complainant’s OPRA request, she has not had ample time to begin the procedure for releasing executive session minutes. She states that Mullica Township is a municipality with the population of 5,192, is fifty four (54) square miles, and has a limited staff. She additionally states that the Township’s governing body members are part time employees and the Township does not have a Township Administrator, therefore she has had to take on more time consuming projects. Specifically, the Custodian asserts that some of these tasks included the following:
The Custodian claims that her current workload has prevented her from being able to respond promptly to the Complainant’s request. She states that she is not denying the Complainant access, as he will be entitled to view the minutes once they are released. She claims that when the Complainant filed his OPRA request, he mentioned that he was aware of the Township’s issues. She also claims that she advised the Complainant that he would be able to view the minutes once they were released, as has always been done in the past. Further, the Custodian states that according to the Municipal Clerk’s Desk Reference, executive minutes should be periodically reviewed with the Attorney for release. She claims that she is currently printing and reviewing the minutes to forward to the Solicitor. She additionally claims that the Complainant’s complaint is frivolous as she is not hiding anything from the public, her actions are not malicious, and he will be able to review the documents requested once they are approved. Analysis Whether the Custodian unlawfully denied access to the requested minutes by stating that the minutes could not be released until approved by the Township Solicitor? 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. The Open Public Meetings Act states, in part “[e]ach public body shall keep reasonably comprehensible minutes of all its meetings…which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act.” (Emphasis added.) N.J.S.A. 10:4-14. OPRA also provides that “[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i. 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 Complainant asserts that on September 8, 2005, the Custodian denied his August 25, 2005 OPRA request for executive session minutes. The Custodian claims that she is not denying the Complainant access to the minutes, as he will be able to view them once they are approved for release. The Custodian states that she has not had the opportunity to prepare the minutes for release as other Township matters have taken priority creating a large workload. She states that she is currently printing and reviewing the minutes to be forwarded to the Township Solicitor for approval. Taped or written minutes of meetings held by public agencies are made in the course of official business and are “government records” pursuant to N.J.S.A. 47:1A-1.1. OPRA provides that government records are subject to public access unless exempt from access by statute. N.J.S.A. 47:1A-1. In Davis v. Rumson-Fair Haven Board of Education, GRC Case No. 2003-56 (December 2003), the Council held that meeting minutes that are made, maintained, kept or received by public agencies are government records pursuant to OPRA and are therefore releasable unless portions therein are confidential by statute. The Open Public Meetings Act, N.J.S.A. 10:4-14, states that “[e]ach public body shall keep reasonably comprehensible minutes of all its meetings…which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act.” (Emphasis added.) Additionally, OPRA requires Custodians to disclose requested government records not otherwise exempt from disclosure under the law within seven (7) business days pursuant to N.J.S.A. 47:1A-5.i. As the Custodian has not provided any statue exempting the minutes from public access, they are considered government records pursuant to N.J.S.A. 47:1A-1.1 and should have been released to the Complainant within seven (7) business days from receipt of his request pursuant to OPRA: N.J.S.A. 47:1A-5.i. Additionally, if the Custodian required additional time beyond the seven (7) business day time period required by OPRA in order to satisfy the Complainant’s request, she should have obtained a written agreement from the Complainant in order to do so. In Paff v. Bergen County Prosecutor’s Office, GRC Case No. 2005-115 (March 2006), the Custodian knew he needed additional time in order to respond to the Complainant’s request, but failed to obtain a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond. The Council held that the Custodian’s failure to obtain a written agreement extending the seven (7) business day time period resulted in a “deemed” denial of the request. In the case at issue here, the Custodian states that she is not denying access to the requested minutes, as she requires additional time to prepare them for attorney review due to a heavy workload, and will release them at a later date. As such, the Custodian should have attempted to obtain a written agreement from the Complainant extending the seven (7) business day time frame required to provide the requested government records. While having a heavy workload and awaiting attorney review are reasonable, they are not lawful reasons for denying access to requested documents pursuant to N.J.S.A. 47:1A-6. In Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005), the Council held that the Custodian was in violation of N.J.S.A. 47:1A-5.i. for failing to respond in a timely manner even though the Custodian asserted the delay was caused by his efforts to obtain legal advice. Therefore, the Custodian has unlawfully denied access to the requested minutes as having a heavy workload and awaiting attorney review are not lawful reasons for a denial of access pursuant to N.J.S.A. 47:1A-6. The Custodian should have obtained a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond to the records request. Also, while attorney review and heavy workload is reasonable, it is not a lawful reason for a delay in access under OPRA. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that:
Prepared By: Dara Lownie, Case Manager Approved By: April 4, 2006 [1] The Complainant did not agree to mediate this case. |
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