2005-259

Voluntary Withdrawn

Prepared By:  Christopher Malloy

                       Case Manager

Catherine Starghill

Executive Director

Government Records Council

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Interim Order

At the May 11, 2006 public meeting, the Government Records Council (“Council”) considered the May 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 in accordance with OPRA, the Custodian shall disclose the records responsive to the request, or submit a legal certification with a legal justification explaining why the records should not be disclosed within ten (10) business days of receipt of the Council’s Order to the Complainant and simultaneously provide same to the Executive Director.

Interim Decision Rendered by the
Government Records Council
On The 11^th 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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Findings and Recommendations of the Executive Director

Records Relevant to the Complaint:

1. Report/Document of October 24, 2005 where the East Orange Police Department was summoned to the nurse’s office.
2. Report/Document of October 25, 2005 where the East Orange Police Department was summoned to the auditorium and spoke with the East Orange BOE in regard to a PTA meeting.

Request Made:  November 3, 2005[1]
Response Made: No response
Custodian: Henry Hamilton
GRC Complaint filed: November 28, 2005

Background

November 3, 2005

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant requests the records listed above.

November 28, 2005

Denial of Access Complaint filed with the Government Records Council (“GRC”). The Complainant states that she has not received a response to her OPRA request.

December 27, 2005

Mediation offered to both parties. Neither party agreed to mediation of this complaint.

January 6, 2006   

GRC staff request for the Statement of Information (SOI).

January 20, 2006

Letter from the GRC staff to the Custodian. The letter states that the staff provided the Custodian with a Statement of Information on November 3, 2005 and to date have not received a response. It also states “if this office is not in receipt of your response within three (3) business days of receipt of this letter, this case will proceed to adjudication before the Government Records Council with the documents we have on file at that time.”

Analysis

Whether the Custodian unlawfully denied access to anyof the records requested?

OPRA 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

OPRA defines a government record as follows:

“ … 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.

Also, OPRA provides that the Custodian has to prove that a denial of access is authorized by law. 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.

N.J.S.A. 47:1A-6 clearly states that the public agency has the burden of proving that the denial of access is authorized by law. The Custodian has not responded to the GRC’s request for a Statement of Information, nor to the GRC’s January 20, 2006 letter stating “if this office is not in receipt of your response within three (3) business days of receipt of this letter, this case will proceed to adjudication before the Government Records Council…”

Therefore, in accordance with OPRA, the Council should order the Custodian to disclose the document(s) responsive to the request or submit a legal certification as to why the requested records should not be released.

Conclusions and Recommendations

The Executive Director respectfully recommends that in accordance with OPRA, the Council should order the Custodian to disclose the records responsive to the request, or submit a legal certification with a legal justification as to why the records should not be disclosed to the Executive Director within ten (10) business days of receipt of the Council’s decision. 

Prepared By:  Chris Malloy, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

May 4, 2006   

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