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2005-70
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Final Decision |
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Findings and Recommendations of Executive Dir |
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 with an amendment to place the Custodian on the “Matrix.” 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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Decision Distribution Date: August 19, 2005 Findings and Recommendations of Executive DirDaryle Pitts GRC Complaint No. 2005-70Complainant v. Department of Health and Senior Services Custodian of Records Records Requested: As stated in the Open Public Records Act (OPRA) request, all records, reports, documents, evaluations, consultations and findings or any copy thereof that has been made maintained or kept on file of Daryle Pitts regarding reportable diseases Background April 7, 2005
April 19, 2005 April 25, 2005 May 24, 2005
The Custodian states that she received the request dated February 22, 2005 on March 2, 2005. She also states that although the Complainant states that this was his second request, she had not received any other request in reference to this Complainant. The Custodian states that on March 2, 2005 she faxed the Complainant’s request, “to each of the database managers whose programs were under my purview for their input into a response to Mr. Pitts.” The Custodian states that at the time her office was “focused on preparation efforts for the US Department of Homeland Security’s Top Officials Exercise.” She states that this exercise was designed to strengthen the nation’s capacity to prevent, prepare for and respond to a large-scale terrorist attack. She also states that her office had a major role in participation, and as a result, “the necessary follow-up was not completed to ensure a timely resolution to Mr. Pitts’ request.” The Custodian states that on April 29, 2005 she, “queried each of the database managers under my purview regarding any and all records that may be available on Daryle L. Pitts, using each of the identifiers he had provided.” She states that she received confirmation from each of these individuals that there were no such records in any of the following databases; Communicable Disease Service, Cancer Epidemiology Services, Comprehensive Tobacco Control Program and Center for Health Statistics. She also states that she conferred with database managers for service areas no longer under her preview including; Occupational Health Service and Consumer and Environmental Health Services and these database managers confirmed that there were no such records available in their databases. The Custodian states that she sent a letter to the Complainant describing the findings (as stated in the paragraph above) on May 6, 2005. Finally, she states that, “While it is true that Mr. Pitts did not receive a timely response to his request, it is also true that there were no records to provide. I would like to take this opportunity to add that as the result of this endeavor, I have realigned our Open Public Records Act (OPRA) system to ensure the provision of timely responses to future requests.” Analysis WHETHER the Custodian unlawfully denied access to any of the records from the February 2, and February 22, 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-1.1: 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 certifies that she received confirmation that there were no records responsive in any of the following databases: Communicable Disease Service, Cancer Epidemiology Services, Comprehensive Tobacco Control Program and Center for Health Statistics. She also certifies that she conferred with database managers for service areas no longer under her preview including; Occupational Health Service and Consumer and Environmental Health Services and these database managers confirmed that there were no such records available in their databases. Finally, the Custodian certifies that she sent a May 6, 2005 letter to the Complainant stating that the requested records do not exist. Therefore, there was no unlawful denial of access. Based on the above, the Custodian has met her burden of proving that the denial of access is authorized by law. 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 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 … 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 …” (Emphasis added.) 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 therefor … The Custodian states that she received the request dated February 22, 2005 on March 2, 2005. She also states that although the Complainant states that this was his second request, she had not received any other request regarding this Complainant. The Custodian also states that when she received the request on March 2, 2005 her office was “focused on preparation efforts for the US Department of Homeland Security’s Top Officials Exercise.” The Custodian states that she sent a letter to the Complainant on May 6, 2005 stating that there were no records responsive to the request. Based on the above, the Custodian did not respond in a timely manner. Pursuant to N.J.S.A. 47:1A-5(i), the Custodian should have responded to the Complaint, as soon as possible, but not later than seven business days. Also, N.J.S.A. 47:1A-5(g) requires that the Custodian appropriately respond to requests even if he/she is unable to comply with the request. While the Custodian did violate N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g), the violation does not rise to a level of knowing and willful violation of OPRA under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Chris Malloy, Case Manager Approved By: August 5, 2005 |
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