2005-39

Final Decision

At its August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 2005 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:

1. The Custodian has met the burden of proving that there was no unlawful denial of access and that the Complainant was provided access to all records responsive to his request.
2. The Custodian provided a written response to the November 18, 2004 OPRA request on November 24, 2004 informing the Complainant that the requested records were available.  The Complainant acknowledges receipt of the response.  Therefore, Custodian’s response was timely and in conformity with the provisions of the Open Public Records Act.

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 11^th Day of August, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  August 19, 2005

Return to Top

Findings and Recommendations of the Executive Director

Records Requested:(as stated by the Complainant)
“Please have a list of all pending and recent lawsuits settled in the past year lawsuits against the Town of Old Bridge.  I just need the docket number, the County, and plaintiff’s name.”
Request Made:  November 18, 2004
Response Made: No response at time Complaint filed
Custodian:  Rose Marie Saracino
GRC Complaint filed: December 6, 2004

Background

November 18, 2004
Written Open Public Records Act (OPRA) Request - Complainant seeks “[p]lease have a list of all pending and recent lawsuits settled in the past year lawsuits against the Town of Old Bridge.  I just need the docket number, the County, and plaintiff’s name.”

December 6, 2004
Denial of Access Complaint filed by the Complainant stating that he submitted an OPRA request and received “no response at all.”  He submitted a statement concerning his OPRA request with the complaint and a signed “Agreement to Mediate.”

March 3, 2005
Offer of mediation provided to the Complainant[1] and the Custodian. 

March 28, 2005
Government Records Council (GRC) staff sends request for Statement of Information to Custodian

May 9, 2005
E-mail from the Complainant to the GRC staff states that “I received a written notice from the Old [B]ridge Township clerk documents were ready.  I submitted the required payment. Seven days later I have not received the documents.”

July 21, 2005
E-mail to the Custodian from GRC staff requesting a Statement of Information or certification explaining her position in response to the complaint and the OPRA request. 

July 25, 2005
The Custodian’s certifies in the Statement of Information that she responded to the November 18, 2004 OPRA request by mail on November 24, 2004 to inform the Complainant that the requested records were available.  In response, she states that the Complainant requested the documents be mailed to him and he submitted the payment for the documents to the Custodian on December 6, 2004.  The Custodian states further that the documents were mailed to the Complainant on December 6, 2004[2] upon receipt of the Complainant’s payment. 

Analysis

WHETHER the Custodian unlawfully denied access to records requested in the November 18, 2004 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-1.1: 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 Custodian certified in her Statement of Information that she responded to the request on November 24, 2004 informing the Complainant the requested records were available and upon receipt of payment from the Complainant, the requested records were mailed to the Complainant on December 6, 2004.   The Complainant asserts in his Denial of Access Complainant filed on December 6, 2004 that he did not receive a response to his request.  However, in the May 9, 2005 e-mail to the GRC staff, the Complainant acknowledged receiving a response to his request and sending payment to the Township for the documents. 

The Custodian has met the burden of proving that there was no unlawful denial of access and that the Complainant was provided access to all records responsive to his request.

Whether the Custodian responded to the OPRA request within the statutorily required seven business days?

N.J.S.A. 47:1A-5(i) provides that: “[u]nless a shorter time period is otherwise provided b 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 …  In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” 

N.J.S.A. 47:1A-5(g) provides that:  “[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy therefore …”

The Custodian provided a written response to the Complainant’s November 18, 2004 OPRA request on November 24, 2004 informing the Complainant that the requested records were available.  The Complainant acknowledges receipt of the response.  Therefore, Custodian’s response was timely and in conformity with the provisions of OPRA.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

1. The Custodian has met the burden of proving that there was no unlawful denial of access and that the Complainant was provided access to all records responsive to his request.
2. The Custodian provided a written response to the November 18, 2004 OPRA request on November 24, 2004 informing the Complainant that the requested records were available.  The Complainant acknowledges receipt of the response.  Therefore, Custodian’s response was timely and in conformity with the provisions of OPRA.

Prepared By: Gloria Luzzatto, Assistant Executive Director

Approved By:
Paul F. Dice
Executive Director
Government Records Council

August 5, 2005

Return to Top