2002-70V2

Final Decision on Custodian Penalty

By Order issued July 10, 2003, the Council dismissed the portion of Complaint seeking access to the results of tests performed by the Township Engineer on a sanitary sewer system because the records had been provided to the requestor prior to Council adjudication. The Council also reserved decision on the issue of custodian penalty pursuant to N.J.S.A. 47:1A-11 and solicited information regarding the custodian's OPRA training and an explanation why the test results were provided the requestor approximately 60 days after the OPRA request was submitted.

At its August 14, 2003 public meeting, the Government Records Council considered whether the custodian should be penalized pursuant to N.J.S.A. 47:1A-11. The Council considered the Acting Executive Director's Supplemental Finding and Recommendation dated August 6, 2003 and a July 25, 2003 letter from the Township attorney indicating: (a) that the custodian had attended five OPRA training seminars; and, (b) that the records (which dated back to 1997) were stored in a building owned by the Township Engineer's private engineering firm and accessible only by the Township Engineer.

By affirmative vote of four Council members at its August 14, 2003 meeting, the Council voted to adopt and incorporate herein the Director's Supplemental Findings and Recommendations dated August 6; to dismiss the Complaint; and remind the custodian that:

• N.J.S.A. 47:1A-5(i) mandates access to government records in storage;
  
• Custodians, officials, officers and employees handling OPRA requests should know where their government records are stored;
  
• N.J.S.A. 47:1A-5(i) requires custodians to advise requestors within seven business days of the date the OPRA request is received of the date by which a requestor can expect to receive access to stored records; and,
  
• When a custodian does not have direct access to records, the OPRA request can be delegated to an individual with access to the records with instructions to provide them either to the requestor or the custodian.

A copy of this Order shall be provided to the requestor, the custodian, all legal counsel of record and the Governing Body of the Township of Wall.

_______________________________
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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Supplemental Findings and Recommendation of Executive Director

Relevant Record(s) Requested: The "mandrel tests" performed on the sanitary sewer system at the Four Seasons at Wall housing development.
Request made: August 29, 2002
Custodian: Lorraine Kubacz, Township Clerk
Request denied: On August 29, 2002, the requestor was advised that the records were not available at town hall; records were provided to the requestor on October 29, 2002.
GRC Complaint filed: October 21, 2002
GRC Action To Date: Portion of Complaint seeking access to records dismissed July 10, 2003; Additional information regarding timeliness of custodian response sought.

Executive Director's Recommendation

This complaint involves a request for a copy of results of certain tests done in 1997 by the Township Engineer on a sanitary sewer system for a specific housing development. At its July 10, 2003 meeting, the Council found that access to the records had been provided and dismissed that part of the complaint. The Council reserved a decision on the timeliness of the custodian's response and asked the custodian to explain the reasons for the initial denial and subsequent delay in producing the records and to describe the custodian's OPRA training.

The custodian responded that the records were in storage and accessible only by the private consulting firm serving as the Township. The custodian has attended five OPRA seminars.

• OPRA mandates access to government records even if they are in storage;
  
• Custodians, officials, officers and employees handling OPRA requests should know where their government records are stored;
  
• Custodians should advise requestors within seven business days of the date the OPRA request is received of the date by which a requestor can expect to receive access to archived records [N.J.S.A. 47:1A-5(i)]; and
  
• When a custodian does not have direct access to records, the OPRA request can be delegated to an individual with access to the records with instructions to provide them either to the requestor, or the custodian.

Statements of Facts

In a Final Decision dated July 10, 2003, the GRC dismissed the portion of Complaint #2002-70 seeking access to the results of mandrel tests done by the Township Engineer; reserved decision on the issue of custodian penalty under OPRA; and required the Custodian to submit to requestor and Council by July 31, 2003: (1) a full explanation why access to the test results 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. The custodian's attorney responded to the Council's request with a letter dated July 25, 2003.

In response to the question why the records were not provided within seven working days, custodian's counsel stated:

1. The Township does not have an in-house engineer and currently uses the firm of Schoor DePalma (successor to BayPointe Engineering, the firm that did the mandrel tests in 1997).
   
2. The records sought by the requestor were in storage and only Schoor DePalma employees had access to them.
   
3. The requestor was advised the day the OPRA request was made that the records were not maintained by the Township and were not kept or stored at the Municipal Building. (The clerk's written notation on the OPRA form supports this claim. Furthermore, there is no indication that the OPRA request was submitted to the Township Engineer to be fulfilled.)

In response to the Council inquiry of the custodian's OPRA training and education, the attorney offered evidence that the custodian attended five seminars on OPRA; one conducted by the New Jersey State League of Municipalities in February, 2002, another on August 2, 2002 by the Monmouth County Municipal Clerk's Association, and three others discussing OPRA as part of the core duties of a Clerk.

Analysis and Conclusion

At it's July 10, 2003 meeting, the Council found that the custodian initially denied the request solely on the basis that the records were not in the physical possession of the clerk or stored in the municipal building. No other explanation was provided, and there is no evidence that the custodian advised the requestor the custodian would look for the records and provide them by a specific date as required by N.J.S.A. 47:1A-5(i).

Upon receipt of the denial, the requestor immediately wrote the OPRA form that a denial for such reasons was not acceptable and that the clerk should consult the Town Administrator to obtain the records from the Township Engineer. The requestor gave the form back to the custodian the same day. The custodian did not have any communication with the requestor until approximately 60 days later, when a five-page summary of the test results was provided to the requestor.

N.J.S.A. 47:1A-5(i) states that when a record is currently in storage or archived "the requestor shall be so advised within seven business days after the custodian receives the request" and the requestor shall also be advised when the record can be made available. Access is deemed denied if the record is not made available by that time.

Based on the facts of the case, it is clear that the custodian violated OPRA by denying access to the records because the records were not stored in the Township building. The definition of "government record" appearing at N.J.S.A. 47:1A-1.1 leads to the conclusion that government records do not cease being government records simply because they are stored in buildings owned by private entities. In this case, the records were even accessible by an engineer in the Township's employment. The custodian should have asked the consulting engineering if the records existed. If the records existed, the custodian should have determined the earliest date the engineer could obtain the records, and, within seven business days, advised the requestor of the date the records would be provided. A denial would have been appropriate only if the engineer advised that the records did not exist.

The evidence submitted by the custodian's counsel indicates that the custodian had sufficient training in OPRA to have known that OPRA obligates custodians to provide access to government records even if they are stored and, further, that custodians are obligated to advise requestors of a specific date by which access to stored records will be provided. Thus, the custodian should have known the denial of access was legally insupportable.

However, while the denial of access appears unreasonable, particularly in light of the training received by the custodian, there is no evidence to support a conclusion that the custodian's actions were violations of OPRA that would subject the custodian to a monetary fine. When prodded by the requestor, the custodian searched out and provided the records to the requestor.

Further, there is no evidence in the record that the engineering firm in custody of the records was advised of the OPRA request at all. Nor is there any evidence the custodian provided or solicited from the engineer any deadline by which the records were to be produced. Thus, there is no reason to conclude that the engineer acted to deny access to the records in question.

Therefore, the Executive Director recommends that the Council:

1. Find that the custodian violated the Open Public Records Act by unreasonably and improperly denying access to a government record; and,
   
2. Warn the custodian that this case shall be taken into account if the Council receives a subsequent complaint of this nature against the Custodian.

Further, the custodian should be instructed that:

1. OPRA mandates access to government records even if they are in storage;
   
2. Custodians handling OPRA requests should know where their government records are stored;
   
3. When government records are in storage, OPRA requires custodians to advise requestors, within seven business days after the request is received, of the date by which a requestor shall receive access to the stored records; and
   
4. When a custodian does not have direct access to records, the OPRA request can be delegated to an individual who has access to the records to either fulfill the request directly or to obtain the records and provide them to the custodian.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: August 6, 2003

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