2002-113

Final Decision

At its August 14, 2003 public meeting, the Government Records Council considered Complaint No. 2003-113 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide access to licenses for florists, resolutions of listed businesses and police tapes.

The Council considered the Requestor's Complaint; the custodian's Statement of Information; communications on behalf of the custodian dated June 24, July 24, 25, 31 and August 7, 2003; GRC letters to the parties dated July 24, 2003; and the Acting Executive Director's Finding and Recommendation dated August 8, 2003 stating that:

1. In light of the confusion about a claimed September and submitted October 4, 2002 requests, and the December 6, 2002 request for resolutions of listed businesses, that those portions of the Complaint be dismissed;
2. Neither the Borough's responses to pre-OPRA requests nor the Borough's attempted telephone contact with the requestor complied with OPRA requirements for responding to a records request, as OPRA requires written response where possible;
3. The custodian provided untimely access to the records responsive to the December 6, 2002 request for licensing information;
4. No records exist in response to the December 6, 2002 request for police tapes;
5. Under the facts of this case, OPRA was violated, but, the actions of custodian did not unreasonably deny access under the totality of the circumstances;
6. The Council, formally reprimand the custodian and the police chief for violating the OPRA seven-business day response deadline and for failing to provide the requestor the OPRA rights of appeal; and
7. A copy of the reprimand be provided to the Borough Council.

By affirmative vote of four council members at its August 14th meeting, the Council voted

• To adopt and incorporate the Acting Executive Director's Findings and Recommendations dated August 8, 2003 with the amendment that the custodian be "reminded" rather "reprimanded" and
• To dismiss the Complaint.
  
  A copy of this Order shall be provided to the requestor, the custodian and all legal counsel of record.

VINCENT MALTESE, Chair
Government Records Council

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

Government Records Council
Dated: August 22, 2003

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Findings and Recommendations of Executive Director

Relevant Record(s) Requested: Licenses for businesses, resolutions of listed businesses and police tapes
Request made: December 6, 2002
Custodian: Joseph Wassel, Municipal Clerk
Request denial: December 17, 2002
GRC Complaint filed: January 3, 2003

Executive Director's Recommendation

The complaint concerns a series of requests for copies of various Borough records concerning licensing of florists, police tapes, and related information. In addition, there is confusion the actual requests that are part of the complaint. The requestor has responded to no one since initially agreeing to mediate the case, hindering fact-finding. Of those requests that are clear, it is apparent, that the custodian provided access to records related to florist licensing, however, the custodian failed to meet OPRA standards for timely access these records. Access to other records sought was properly denied, as they did not exist.

The failure to meet OPRA standards was rooted in the custodian's failure to contact the requester regarding the denial, having only attempted to telephone, and not using other means at the custodian's disposal, such as U.S. mail or fax.

In consideration of the facts, claims, and confusion in this case, the Executive Director recommends that the Council find:

1. In light of the confusion about a claimed September and submitted October 4, 2002 requests, and the December 6, 2002 request for resolutions of listed businesses, that those portions of the Complaint be dismissed;
2. That neither the Borough's responses to previous requests from the requestor nor the Borough's attempted verbal contact to the requestor complied with OPRA requirements for responding to a records request, as OPRA requires that responses be in writing;
3. That the custodian provided untimely access to the records responsive to the December 6, 2002 request for licensing information;
4. That no records exist in response to the December 6, 2002 request for police tapes, and;
5. That under the facts of this case, OPRA was violated, but, the actions of custodian did not unreasonably deny access under the totality of the circumstances; and that the Council,

Formally reprimand the custodian and the police chief for violating the OPRA seven-business days response deadline and for failing to provide the requestor the OPRA rights of appeal and provide a copy of the reprimand to the Borough Council.

Statement of Facts

On December 6, 2002, the complainant submitted an OPRA request for copies of licenses issued to specific florists and anyone selling flowers on the sidewalk with signage on the curb. Handwritten notes on the request form initialed "JW" indicate that on December 11 and 12, 2002, the custodian's office telephoned the requestor, received no answer and could not leave a message. The record reflects no further effort to communicate with the requestor. Another note indicates that on December 27, 2002 the requestor came into the Clerk's office and "Janet" offered the requestor access to a book listing the businesses paying annual license fees, which the requestor declined to review.

In another OPRA request also dated December 6, 2002, the requestor sought access to police department records. This request is not clearly written, but appears to seek police accident reports for "Blockbuster accident" and "heart attack victim", a police tape for November 15 (the year is not clearly printed in our copy), and a 911 tape for March 15, 2002. Handwritten notes on this document with the initials "JW" indicate that "per chief, only keeps tapes for 1 month."

Both of the December 6, 2002 OPRA request forms submitted by the requestor included a section designated for the custodian to indicate a response and to sign. Neither response section was filled out or signed.

The requestor filed an OPRA Complaint on January 3, 2003 stating she had:

1. Received no response to her "September 2002" request to review licenses;
2. That with regard to her December 6, 2002 request to review licenses of businesses, the custodian had claimed attempts were made to contact her by telephone;
3. That with regard to her December 6, 2002 request to review resolutions of listed businesses, the custodian had demanded the requestor to pay $45.00 before reviewing the requests; and,
4. That her December 6, 2002 request for police tapes had been "refused."

The record reflects confusion concerning the requestor's complaint about denial of access for a "September 2002" request to review licenses. The record submitted by the parties does not include such a request, but does include an October 4, 2002 request that asks to see "receipts of local business flowers (licenses) + displays said outdoors overnight displays + storage"(sic). An argument can be made that these are one and the same and the Borough suggests that they may be the same in its submission. While legally, that conclusion is not reached, in the broader handling of this complaint, the matter becomes moot.

The requestor agreed in writing to mediation, but the mediator, after many attempts, was unable to contact her to schedule the mediation.

On behalf of the custodian, the Borough attorney filed a Statement of Information (SOI) on June 20, 2003 alleging that the Borough has no record of a September request for documents or a December 6, 2002 request for resolutions of listed businesses. The custodian explained that the Borough does not retain copies of florist licenses and, instead, keeps only a receipt book showing the identity of those paying the annual license fee.

Regarding the December 6, 2002 request for floral license information, the custodian stated that the Clerk's Office telephoned the requestor at home but there was no answer and no answering machine on which to leave a message. Further, when the requestor appeared at the Clerk's office on December 27, 2002 and was presented with the license receipt book that was responsive to her request, the requestor pushed it aside. The custodian stated that prior to the effective date of OPRA, the requestor had asked to review records concerning floral licenses and had examined the license receipt book in the presence of the Borough attorney and the clerk.

Regarding the December 6, 2002 request for police tapes, the custodian responded that the requestor had sought police tapes dating back to November 15, 2001 and March 15, 2002 and that the Borough keeps all tapes for thirty days only, then recycles them and records over them. Thus, these records do not exist.

The custodian described a long, troubled history of the requestor's contacts with various offices in the Borough as well as the requestor's numerous pre-OPRA requests for records. The custodian asserts the Borough has never refused to provide the requestor access to records and even copied records in response to an earlier request at a cost of $45 that the requestor never bothered to claim. The custodian stated it has cooperated with the GRC and the Office of Dispute Settlement in an attempt to resolve this matter.

By GRC staff letter dated July 24, 2003, the custodian was asked:

• To describe all communication between the requestor and the custodian concerning the December 6, 2002 request for copies of licenses for florists and anyone selling flowers on the sidewalk with signage on the curb and, if there was none, to explain why;
• To state whether there was any other record in possession of the Borough responsive to this request, such as other types of permits;
• To provide a clearer copy of the December 6, 2002 request for police tapes;
• To state whether Borough police recorded telephone calls and the retention policy for those tapes;
• To state whether the 911 tape from March 15, 2002 was in existence at the time of the request; and
• To provide all evidence documenting the custodian's response to the requestor with respect to the request for tapes and, if there was none, to explain why.

A response to these issues was received by letter dated July 28, 2003 from the custodian's attorney:

• That the Clerk's office had made several attempts to telephone the requestor concerning the December 6th requests and was unable to leave a message. (There is no statement explaining why no further attempts to communicate were made, such as letter to the requestor's home address or fax to number the requestor supplied.)
• That in response to the request for florist licensing information, the requestor received access on December 27, 2002 (and previously, prior to OPRA's enactment) to the license receipt book, which was the only Borough record responsive to the request.
• The custodian provided the GRC another copy of the December 6 OPRA request for tapes and stated that the Totowa Police Department recycles all tapes after thirty days regardless of whether they contain calls to "911" or to police personnel. The custodian claims the requestor was aware of the 30-day retention policy when she submitted the OPRA request because the police chief had informed her of the policy on numerous occasions prior to the request.

The custodian's attorney also stated that the majority of records sought to date by the requestor relate to criminal charges against her or to complaints the requestor herself has filed against Borough employees. The attorney asserts that at the time of the requests, the OPRA process was still new and "a learning experience." The attorney claims that before and after OPRA, the Borough made every effort to comply with the numerous oral and written demands for records made by this requestor.

The custodian's attorney also submitted a July 31, 2002 letter indicating that the Borough of Totowa does not maintain any records concerning the business activity described as "selling flowers on sidewalk with signage on curb."

By letter dated July 24, 2003,GRC staff asked the requestor to explain what she meant by stating that her December 6, 2002 request for police tapes was "refused." The requestor has not responded.

Analysis and Recommendation

Based upon the evidence presented by the custodian, it appears that the Borough ultimately provided access to the records in the December 6, 2002 request. They were responsive to the request for licensing information, and that the requested police tapes were no longer in existence by the time the request was submitted. However, there are issues of compliance with the OPRA notice and timeliness that must be addressed.

The evidence before the GRC indicates that the custodian did not respond to the requests within seven business days following their receipt. The custodian claims to have made phone calls to the requestor's home. However, on several request forms the requestor also provided a fax number and mailing address on all her OPRA request forms. There is no evidence that the custodian attempted to communicate with the requestor by mail or fax.

Additionally, while it is the attorney's "understanding that" the police chief advised the requestor of the retention policy in response to the December 6, 2002 request, such an apparent verbal denial is not adequate, as OPRA requires a written response. Thus, even if the police chief's conversation with the requester actually occurred, there was a violation of the written denial and notice of rights requirements.

The fact that the requestor "showed up" at the Clerk's office December 27th, did not fulfill the custodian's obligation to provide access to government records within seven business days of the receipt of the OPRA request. The custodian's assertion that the requestor reviewed the license receipt book prior to OPRA's effective date and that she was previously advised of the police tape retention policy also does not alter or excuse the fact that the custodian failed to respond in writing to the December 6, 2002 requests. Furthermore, Borough responses to any pre-OPRA requests do not constitute a response to OPRA requests made in December 2002.

The fact that the Borough attempted to telephone the requestor supports a finding that the custodian understood OPRA obligated the custodian to communicate with the requestor. However, despite the history of requests and interactions between the requestor and the Borough, the failure to communicate by telephone does not relieve the custodian from using other available means, such as mail or fax, to contact the requester. The custodian should have used these other means to fulfill the notice obligation under OPRA. The custodian is herewith warned that this case shall be taken into account in judging the reasonableness of the custodian's response to future OPRA requests.

Finally, the confusion over the September and October 4 requests are reflected in the subsequent December 6 request. The custodian noted that it had provided the information to the requestor in 2001, but had otherwise not responded to the request.

In consideration of the facts, claims, and confusion of this case, the Executive Director recommends that the Council find:

1. In light of the confusion about the September and October 4, 2002 request, and December 6, 2002 request for resolutions of listed businesses, that those portions of the Complaint be dismissed;
2. That neither the Borough's responses to previous requests from the requestor nor the Borough's attempted verbal contact to the requestor complied with OPRA requirements for responding to a records request, as OPRA requires that responses be in writing;
3. That the custodian provided untimely access to the records responsive to the December 6, 2002 request for licensing information;
4. That no records exist in response to the December 6, 2002 request for police tapes;
5. That OPRA was violated, but, the actions of custodian did not unreasonably deny access under the totality of the circumstances; and that the Council,
6. Formally, reprimand the custodian and the police chief for violating the OPRA seven-business days response deadline and for failing to provide the requestor the OPRA rights of appeal and provide a copy of the reprimand to the Borough Council.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: August 8, 2003

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