2006-17

Final Decision

At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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 based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council’s decision in Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

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 9^th Day of March, 2006

Vincent 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:  March 15, 2006

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Findings and Recommendations of the Executive Director

Records Relevant to Complaint: Documents relating to the enrollment of Dwayne and Darryl Johnson in the Bonnie Brae School in 1979. 
Request Made:  Unknown
Response Made: September 9, 2002
Custodian:  Isaac Bryant
GRC Complaint filed:  January 29, 2006

Background

January 29, 2006[1]

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:

• December 2, 2004 letter from Department of Human Services Privacy Officer to Complainant
• September 10, 2002 letter from the Supervisor of the Interstate Services Unit to Complainant
• November 8, 1978 letter from Division of Youth and Family Services to Complainant
• March 22, 1979 letter from Director of Essex County Welfare Board to Complainant
• Undated letter from Essex County Superintendent of Schools to Complainant
• September 9, 2002 letter from Commissioner of Department of Education to Complainant

The Complainant states that she was a resident of Essex County from 1964 to 1985 and during said time her sons were placed in the Bonnie Brae School.  She states that both her sons are disabled and the record of them being placed in a Special Education school would entitle them to survivor benefits since their father was a Vietnam Veteran. 

Additionally, the Complainant states that she received a letter dated September 9, 2002 from the Commissioner of Education in which he indicated that no records from Bonnie Brae School exist and that he would forward her request to Anthony Marino, Essex County Superintendent of Schools. 

Further, when asked, “[h]ave you filed any action with the N.J. Superior Court concerning this record request or any document sought in it” on the Denial of Access Complaint form, the Custodian checked the box labeled “yes.” 

Analysis

Whether the Council may adjudicate a denial of access complaint when the Complainant has affirmatively asserted on the Denial of Access Complaint form that she has also instituted a Superior Court case regarding access to the same records at issue in the denial of access complaint filed with the Council?

OPRA provides that:

“[a] person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

• institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
• in lieu of filing an action in Superior Court, file a complaint with the Government Records Council…” (Emphasis added.) N.J.S.A. 47:1A-6.

When asked on the Denial of Access Complaint form, “[h]ave you filed any action with the N.J. Superior Court concerning this record or any document sought in it,” the Complainant affirmatively asserted that an action has been filed in Superior Court.

Pursuant to N.J.S.A. 47:1A-6, a requestor who is denied access may, at their option, institute an action in the Superior Court of New Jersey or file a complaint with the Government Records Council.  The language of the statute is clear that the requestor may either institute an action in Superior Court or file a complaint with the Council, but not do both. According to the Complainant’s Denial of Access Complaint form, he has filed an action with the Superior Court concerning access to the records in the records request at issue in this complaint. 

In Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) the Council found that it could not adjudicate the complaint because the Complainant affirmatively asserted that she instituted an action in Superior Court regarding access to the same records that are at issue in the denial of access complaint filed with the Council. The facts of the complaint before the Council now exactly mirrors those in Mosee.  Therefore, like in Mosee, the Council is statutorily precluded from adjudicating this complaint. 

Based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council’s decision in Mosee, the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that she instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council’s decision in Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

Prepared By: Dara Lownie, Case Manager 

Approved By:
Catherine Starghill
Executive Director
Government Records Council

March 3, 2006

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