2002-70

Final Decision on Access

At its July 10, 2003 public meeting, the Government Records Council considered Complaint #2002-70 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., against Wall Township. The requestor complains that the custodian advised him that the "mandrel test" results he sought were "not available" because the records were not located in the Clerk's office. After a follow-up communication several weeks later to the custodian by the requestor, records fulfilling the request were provided 60 days after the receipt of the original request.

The Council considered the Requestor's complaint; the Custodian's Statement of Information; communications on behalf of the Custodian dated May 6 and 20, 2003 and June 6, 2003; communications from the Requestor dated March 14, 2003 and May 14, 2003; and the Executive Director's Findings and Recommendations dated July 10, 2003.

By affirmative vote of five Council members at its July 10, 2003 meeting, the Council voted to adopt and incorporate herein the Findings and Recommendations of the Executive Director; to dismiss the portion of the Complaint seeking access to the records; to reserve decision on the issue of custodian penalty under OPRA; and to require the Custodian to submit to requestor and Council by July 31, 2003: (1) a full explanation why access to the records was not afforded within seven business days of receipt of the OPRA request, and (2) a description of the training and education the custodian has received to date regarding OPRA.

A copy of this Order shall be served on the requester, the custodian and all legal counsel of record.

/s/ Vincent P. Maltese, Chair
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
/s/ Virginia Hook, Secretary
Government Records Council

Dated: July 16, 2003

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Findings and Recommendation of Executive Director

Executive Director's Recommendation

This complaint involves access to certain engineering reports of tests performed on a sanitary sewer system in a housing development in Wall Township. The requestor's initial request was denied as "not being available," at the town hall. Ultimately, records documenting the testing were provided.

The Executive Director recommends that the part of the complaint alleging denial of access be dismissed. With respect to the failure to comply with the seven-business-day period for response under OPRA, it is recommended that the Council reserve decision on the timeliness of the custodian's response and request further information from the custodian explaining the reasons for the initial denial and subsequent delay in producing the mandrel test results.

Statements of Facts

On August 29, 2002, the requestor sought the records of the mandrel tests performed during construction of the sanitary sewer system of the Four Seasons at Wall development. The custodian advised the requestor in writing on August 29 that these records were not at the town hall. The requestor replied in writing on the OPRA form rejecting the response as "unacceptable" and suggesting that the matter be referred to the Township Administrator and the Township Attorney. The requestor subsequently filed a Denial of Access Complaint dated October 8, 2002 for failure to receive the test results. In the complaint, the requestor noted that after the initial denial, he visited the Township Administrator to inquire if there would be a response and was assured one would be forthcoming. The complaint was filed approximately five weeks after that conversation. The requestor attached to the complaint previous correspondence addressing whether the tests had been performed and their endeavors to obtain the test results

On October 29, 2002, the Township Administrator provided the requestor five pages of records that he stated contained the mandrel test results.

The custodian's Statement of Information dated February 27, 2003 explained that the test results had to be retrieved from the Township Engineer's office and further asserted that the Complaint was frivolous and should be dismissed for a lack of a factual basis as the information had been provided. The custodian also attached a December 11, 2002 letter to the requestor advising that the test results provided were the only information the Township had pertaining to the mandrel test and that the reports had been obtained from the Office of the Township Engineer.

By letter dated March 14, 2003, the requestor stated that he assumed that the "test results" provided were a summary of information taken from documents in the possession of Bay Pointe Engineering/Schoor DiPalma and that his request to review the source documents for the summary remained unfulfilled. He stated that his interest in these records was compounded by his review of daily inspection records for the project, which did not indicate that mandrel tests were performed or what the results were.

As part of the GRC staff review of the case, the custodian was asked to provide an affidavit regarding the documents provided to the requestor.

On May 6, 2003 the custodian's counsel provided the GRC an Affidavit of Glenn Gerken, Township Engineer, dated April 28, 2003 stating that the mandrel tests were performed by his office and that he had provided to the Township Administrator five pages containing the test results which had been copied from approximately fifteen separate sheets of paper. GRC staff review of the other sheets concluded that they provide more technical detail about the testing process, including air and light tests, along with the mandrel testing.

The requestor sent a May 14, 2003 letter to the GRC stating that the summary information he had been provided indicated air and light tests were performed but there was no mention of Mandrel tests being performed. In a May 20, 2003 letter to the GRC, the custodian's counsel advised that that it had provided all documentation in its possession and in the possession of its Township Engineer that is responsive to the request.

In response to further inquiries conveyed to the custodian by GRC counsel, counsel for the custodian sent a June 3, 2003 letter to the GRC and the requestor, enclosing copies of the 15 pages of work sheets for the mandrel and other tests from which the five page summary provided the requestor had been taken. The requestor complains that he still does not know whether the tests were actually performed or whether they were performed correctly.

Analysis and Conclusion

The evidence in this case indicates that the custodian failed to meet the OPRA requirement of granting access to the records within seven business days of the request. The custodian did not submit evidence that the records were unavailable, in storage or archived. In this regard, the custodian's assertion that the records were in the possession of the Township Engineer does not, absent further explanation, render them "unavailable."

Following the filing of the complaint, the Township fulfilled the request by providing the five pages of summary information. The requestor asked for "record of mandrel tests performed." While it was subsequently determined that there were other records supporting the tests (the 15 pages), upon examination of the five pages, it appears (and has been certified as such by the engineer) delivery of the five page summary responds to the request. Staff analysis of the five pages indicates that several tests were done on separate dates: "air and light" on one date, and mandrel on another. The 15 pages supports this.

The requester's assertion that the tests are not reflected in daily inspection reports and other concerns about the condition of the pipes not relevant to the issues before the GRC which are whether the custodian has provided access to the requested records and the timeliness of that access.

Because the custodian has provided access to the requested records, it is recommended that the Council dismiss the portion of the Complaint alleging a denial of access.

With respect to the custodian's failure to comply with the seven-business-day period for response under OPRA, it is recommended that the Council reserve decision on the timeliness of the custodian's response and request further information from the custodian explaining the reasons for initial denial and subsequent delay in producing the mandrel test results.

/s/ Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: July 10, 2003

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