2005-209

At its January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 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:

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 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
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

Request Made: October 20, 2005
Response Made: October 31, 2005, November 17, 2005
Custodian: Wanda Worner
GRC Complaint filed: November 5, 2005

Denial of Access Complaint filed with the Government Records Council (GRC) staff. The Complainant claims that he submitted an OPRA request on October 20, 2005 requesting the following documents: the Township Council’s December 22, 2003 meeting minutes including tapes; contracts of all Township employees from the last three years including 2005 and beyond; a list of all department heads, their titles and responsibilities; and a list of all township employees.

The Complainant asserts that he received a response from the Custodian in which she released the requested minutes and informed him that the Business Administrator needed to review his OPRA request and Mr. Carbone would provide a response, since the other requested items are not in her possession.

Letter from Township Clerk to Complainant. The Clerk claims that no list of township employees exists and that the law does not require her to create one. She also claims that no list of all department heads, their titles and their duties exist and that the law does not require her to create one. The Clerk alleges that in her one year and one month term, she has never seen a contract for any employee on file. She further states that she has provided the Complainant with the December 22, 2003 meeting minutes as well as copies of the recordings.

The Custodian certifies that the following documents were provided to the Complainant: written minutes from the Township Council’s December 22, 2003 meeting, and copies of audio tapes from the same meeting. The Custodian states that she cannot remember the date in which these documents were provided to the Complainant. She certifies that she offered the Complainant a copy of the Township Administrator’s contract on November 21, 2005, but as of November 23, 2005, he had not picked it up from her office. The Custodian states that this contract was misfiled and located on November 21, 2005.

Additionally, the Custodian certifies that the following documents were not provided to the Complainant: a listing of all township employees, and a listing of all department heads, titles, and responsibilities. She asserts that administration informed her that these documents do not exist and that by law she is not required to create them. She further states that as she does not have any statute citations for not providing the above mentioned documents, she certifies that she has tried to the best of her ability to provide the Complainant with said documents, but since they are not in her possession she cannot provide them. The Custodian also states that the requested documents are being used in a personnel matter regarding the Complainant.

Facsimile from Complainant to GRC staff. The Complainant states that as of this date, he has not received the requested tapes. He claims that although the November 17, 2005 letter from the Custodian indicated that he received said tapes, two (2) were blank and the minutes were not complete and never accepted by the Township Council.

Letter from GRC staff to Custodian. Staff requests that the Custodian submit a legal certification addressing the following questions:

Letter from Custodian to GRC staff. The Custodian submits her response to staff’s December 14, 2005 letter. She certifies that the minutes provided to the Complainant are the only minutes responsive to his request and are as complete as she can determine since she was not the Clerk at the time the minutes were created. The Custodian also certifies that the audio tapes provided to the Complainant are the only tapes responsive to his request. She further certifies that the true copies of these tapes maintained by the township are as incomplete as the tapes provided to the Complainant. The Custodian states that as she was not the Clerk at the time the original tapes were created, she can only assume that the person operating the machine at the time incorrectly loaded the cassette tapes. Lastly, the Custodian certifies that on November 28, 2005, the Complainant submitted a subsequent OPRA request for the Township Council’s December 11, 2003 meeting minutes and audio tapes for same. She certifies that said request “was complied with in a timely fashion as prescribed by law.”[4]

Whether the Custodian unlawfully denied access to records requested in the Complainant’s October 20, 2005 OPRA request?

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-1.1defines 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-6 provides that “… [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-5.e. provides that “[i]mmediate 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.” (Emphasis added)

The Complainant asserts that he submitted his OPRA request on October 20, 2005. He also asserts that he received a response from the Custodian on October 31, 2005 in which the Custodian released the requested minutes and audio tapes, and informed him that the Business Administrator would respond to the other requested items. The Complainant claims, however, that two (2) of the audio tapes are blank and that the minutes are not complete.

The Custodian certifies that she provided the Complainant with the requested December 22, 2003 minutes as well as audio tapes of the minutes. She certifies that the minutes and tapes provided to the Complainant are as complete as the originals maintained by the township. The Custodian also certifies that she made a copy of the Township Administrator’s contract available to the Complainant on November 21, 2005, the date in which it was located due to the contract being misfiled. She further certifies that she has not provided the Complainant with a list of all township employees and a list of all department heads, titles, and responsibilities because the administration informed her that these documents do not exist. The Custodian certifies that she has tried to the best of her ability to provide the Complainant with all the requested documents.

OPRA places the burden of proving that a denial of access is lawful on the public agency. In this matter, the Complainant asserts that he was not provided with a list of all township employees, department heads, titles, and responsibilities. The Custodian certifies to the best of her knowledge that no such document exists. Therefore, based on the Custodian’s certification, she has born her burden of proving that the denial of access was lawful pursuant to N.J.S.A. 47:1A-6.

OPRA also states that immediate access shall ordinarily be granted to contracts (N.J.S.A. 47:1A-5.e.). In the Custodian’s November 17, 2005 response to the Complainant, she states that in her one year and one month working for the township, she has never seen a contract for any employee nor could she find any on file. However, in her Statement of Information, she certifies that she located a copy of the Township Administrator’s contract on November 21, 2005, as it was misfiled and the same day offered it to the Complainant. Although contracts must ordinarily be disclosed immediately, the requested contract did not exist at the time of the request because it was misfiled. Immediate access was granted once the contract was discovered, and because the Custodian adhered to the intent of the statute, there is no violation of N.J.S.A. 47:1A-5.e.

Therefore, pursuant to N.J.S.A. 47:1A-6, the Custodian has born her burden of proving that the denial of access was lawful, and pursuant to N.J.S.A. 47:1A-5.e., she has provided immediate access to the requested contract.

Whether the Government Records Council has jurisdiction over the accuracy of records disclosed pursuant to N.J.S.A. 47:1A-7.b.?

N.J.S.A. 47:1A-7.b. provides that “[t]he Government Records Council shall… receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian…”

The Complainant asserts that on October 31, 2005 he was provided with copies of the requested meeting minutes and audio tapes for same, however claims that both are incomplete. The Custodian certifies that the minutes and the audio tapes provided to the Complainant are as complete as the originals maintained by the Township.

N.J.S.A. 47:1A-7.b. delineates the power of the Council. In Kwanzaa v. Department of Corrections, GRC Case No. 2004-167 (March, 2005), the Council held that it does not have jurisdiction over the accuracy of the document’s content pursuant to N.J.S.A. 47:1A-7.b. The Council does oversee the disclosure and nondisclosure of documents. In this case, the Custodian certifies that she has provided the Complainant with all responsive records as complete as they are maintained on file by the Township. Therefore, this portion of the complainant should be dismissed.

[1] As stated on Complainant’s October 20, 2005 OPRA request.
[2] Neither party agreed to mediate this case.
[3] As stated on December 14, 2005 letter.
[4] As stated on December 15, 2005 letter.