2002-86

Final Decision

At its July 10, 2003 public meeting, the Government Records Council considered Complaint #2002-86 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., against the Township of Edison. The requestor complains that while the custodian wrote within seven business days of receipt of the request that the Township Administrator would be replying to the request, the custodian provided no deadline by which a response would be provided. The Township Administrator did write the requestor almost one month later, stating that the requestor had asked for "information" and did not identify the government records he wished to inspect. In the meantime, the requestor had filed other OPRA requests with the custodian seeking specific government records, the responses to which are not part of this Complaint.

The Council considered the requestor's complaint; the custodian's Statement of Information; communications on behalf of the Custodian dated November 18, 2002, February 13, 2003 and April 1, 2003; a communication from the Requestor dated March 20, 2003; and the Executive Director's Findings and Recommendations dated July 10, 2003.

The Council has decided by affirmative vote of five Council members at its July 10, 2003 meeting voted to adopt and incorporates herein the Findings and Recommendations of the Executive Director; to dismiss the Complaint; and to warn the custodian that within seven business days of receipt of OPRA requests the custodian must either provide access to records or state the specific date by which a response to the request will be provided.

A copy of this Order shall be served on the requester, the custodian and any 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

Relevant Record Requested: None. Requestor seeks answers to questions concerning Edison's affordable housing plan.
Request made: October 2, 2002
Custodian: Raina Murphy, Township Clerk
Request denial: October 10 and October 28, 2002
GRC Complaint filed: October 21, 2002

Executive Director's Recommendation

This complaint involves a claim of a deficient response to a request seeking answers to questions concerning the Township of Edison's affordable housing obligation¹. The custodian provided an initial response by telephone and letter indicating that the Township Administrator would be responding to the request at a later (unspecified) date. It was not until October 28, 2002 that the requestor received a written response advising that the Township would not be responding because the "request" sought information and not government records.

While it is true that the OPRA request sought only information and not specific records, the custodian was still obligated to respond to the request in seven business days, either rejecting the request as defective under OPRA or advising the requestor of the specific date by which a response would be provided. Having chosen to defer response to the request to the Township Administrator with an open-ended response timeframe, the Custodian erred by failing to advise the requestor of the date by which the Administrator would respond. Since the custodian's omission in this instance appears not to have been willful or knowing, the Executive Director recommends that the Complaint be dismissed without penalty to the custodian.

Statements of Facts

On October 2, 2002, requestor used the Township's OPRA request form to ask the following five questions:

1. What was Edison's COAH obligation due to Durham Assoc. lawsuit;
   
2. When did Edison last certify the COAH plan and the date prior to that;
   
3. Has Edison been sued recently because the plan has not been certified;
   
4. What is Edison's obligation to affordable housing; and,
   
5. How many units do we have.²

1. While the requester filed subsequent OPRA requests on related subjects, they were not joined as part of the complaint. However, the custodian has responded to them and claims that the requester has received all records in possession of the Township on the subject.

2 "COAH" refers to the Council on Affordable Housing, a State agency authorized pursuant to Fair Housing Act, N.J.S.A. 52:27D-301, to define what a municipality must do to comply with its constitutional obligation to provide affordable housing for low and moderate income families.

On October 10, 2002, the custodian responded to the request within the OPRA 7 business day time limit with a letter to the requestor advising that the "questions were forwarded to "Administration" and that "they will be formulating a response shortly."

The requestor filed a Denial of Access Complaint dated October 21, 2002 in which he stated that he had not been provided access to the requested information and the Township administration did not provide a time by which it would respond.

On October 28, 2002, Edison's Business Administrator sent a letter to the requestor advising him that his correspondence did not constitute a request for government records under OPRA, but, rather, interrogatories seeking, among other things, legal opinions. The Administrator advised that if the requestor wanted copies of documents, the requestor should specifically identify those documents to the custodian. On November 12, 2003, the requestor declined the GRC's offer of mediating the dispute.

The requestor filed two subsequent OPRA requests, to which the custodian replied. The requestor never indicated that he considered the custodian's responses a denial of these two requests that he wished to file a Complaint with the Council. The second OPRA request was submitted November 1, 2002 and sought:

1. Edison COAH obligations; copy of 'all' or last two certified COAH plans;
   
2. List of affordable housing units in Edison; and statement that Edison "has met obligations to date.

On November 7, 2002, the custodian advised the requestor that a copy of Edison's 1993 Certified COAH Summary Fact Sheet was available. The requestor received that document on November 12, 2002.

The third OPRA request dated November 12, 2003 sought:

1. The last two "petitions for certifications" listed on the COAH summary fact sheet; and,
   
2. A "statement that Edison has met obligations to date."

On November 18, 2002, the custodian sent the requestor a letter regarding the second and third OPRA requests dated November 1 and 12, 2002, respectively, stating:

1. That the COAH summary fact sheet provided to Requestor on November 12 is the only document which would relate to the requests for "petitions for certifications," "Edison COAH obligations" or "all or the last two certified COAH plans";
   
2. That there is no list of affordable housing units on file except for what appeared in the summary fact sheet; and,
   
3. That there are no documents relating to "a statement that Edison has met obligations to date."
   The custodian also noted that the October 2, 2002 OPRA request only asked questions and did not request access to specific government records.
   
   The custodian's statement of information dated February 13, 2003 set forth a chronology of the requestor's three OPRA requests and the Township's responses thereto. However, since the custodian's responses to requests two and three are not the subject of an OPRA complaint, the Council should not consider the Custodian's responses to these requests as part of this Complaint. With regard to the first request, the custodian reiterated the statement to the requester on November 18 that OPRA applies to requests for records and not isolated facts.

The custodian stated that the Complaint should be dismissed for a lack of a factual basis and because it was frivolous.

Analysis and Conclusion

The custodian met the initial OPRA time requirement by acknowledging the request and noting that the Township would "formulate a response shortly." While this response complies with part of the OPRA response requirement, it is incomplete, as it did not advise the requestor when a response to the request would be forthcoming. By not immediately rejecting the request for information, the custodian was obligated pursuant to N.J.S.A. 47:1A-5(i) to advise the requestor "when the record can be made available. If the record is not made available by that time, access shall be deemed denied." The error here, however, was failure to specify a date by which the Administrator would reply to the request

This is not to suggest that Custodians cannot ultimately reject "requests" that are deficient or which do not seek access to government records. However, when custodians do not provide access or advise requestors within seven business days that a request is being rejected, custodians must advise the requestor of a specific date by which a response will be forthcoming. That response may be to reject the request as deficient, such as was done here.

With regard to the other requests, if the requester determines that they have not been completely fulfilled, the requester may file a denial of access complaint on those requests.

The custodian ultimately concluded that the original OPRA request sought only information and not specific documents. However, because the Custodian did not elect to reject the request within seven business days of its receipt and, instead, elected to refer the request to the Business Administrator for response, the Custodian was obligated under OPRA to advise the requestor of a specific day by which the requestor would receive a reply from the Administrator. The Custodian's failure to specify a date for a reply appears inadvertent in this case and not willful or knowing, and accordingly, the Executive Director recommends that the Complaint be dismissed without penalty to the custodian.

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

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