2003-02

Final Decision

At its January 8, 2004 public meeting, the Government Records Council considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt said Findings and Recommendations and, therefore, finds that:

1. Pursuant to N.J.S.A. 47:1A-5(g), “a request for access to a government shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.” Based on the facts in this case, namely the February 28, 2003 certification from Louis J. Garbaccio, the request in this case was oral.
2. There was no written request made by the requestor as required pursuant to N.J.S.A. 47:1A-5(g).
3. The Council has no jurisdiction over complaints concerning responses to oral requests for government records.
4. The complaint is dismissed.

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendation of Executive Director

Relevant Records Requested:  Copies of legal bills of City Attorney Richard Salkin for the period January 1, 2000 to November 2002
Request Date:  November 7 or 8, 2002
Response Date:   November 14, 2002

Custodian:  Acting Clerk Debra D’Auria is the municipal clerk; Davis verbally gave the request to Louis J. Garbaccio, Chief Financial Officer, though.

NOTE: The Denial of Access Complaint states that Doris L. Dukes was the custodian. However, custodian’s counsel indicates that Ms. Dukes died in June of 2002 and, therefore, could not have played any role in this request.

GRC Complaint Filed:  December 23, 2002

Executive Director’s  Recommendation

This complaint challenges the special service charges that were included in copying records.   The request for records was made verbally to the City of Hackensack.  The requestor has not provided any proof that a written request was made.

The Acting Executive Director respectfully recommends that the Council dismiss this case for the following reasons:

1. Pursuant to N.J.S.A. 47:1A-5(g), “a request for access to a government shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.” Based on the facts in this case, namely the February 28, 2003 certification from Louis J. Garbaccio, the request in this case was oral.
2. The requestor has not provided any proof that a written request was made.
3. The Council has no jurisdiction over complaints concerning responses to oral requests for government records.

Statement of Facts

November 7 or 8, 2002, on or about – verbal request for records

Per a February 28, 2002 certification from Louis Garbaccio, department head of the city’s finance department, the requestor provided verbal notice of a request for legal bills for the city attorney, Richard Salkin. The subject bills span January 1, 2000 to November 2002.

November 14, 2002 – Itemization of labor and copy charges for the requested records

$  63.65 for labor

$  52.50 for routine OPRA copy charges

$116.15

The document is stamped “PAID, NOV 19, 2002, City of Hackensack, NJ.”

December 5, 2002 – Jennifer Borg’s, requestor’s counsel, letter to custodian’s counsel, Richard Salkin

Borg states that the $63.65 labor charge for records received is prohibited by OPRA. The total amount billed, and paid, was $116.15. The letter acknowledges receipt of the requested documentation. Borg requests a refund of $63.65.

December 11, 2002 – Letter from custodian’s counsel to requestor’s counsel

Custodian’s counsel argues that N.J.S.A. 47:1:-5 and City Ordinance 9-2002 support the custodian’s position that a charge to recapture municipal costs labor associated with the request is reasonable. The ordinance mandates that labor costs be collected when the time required to fulfill a document request exceeds .25 hours. The 12/5/03 request for a refund of the $63.65 labor charge is denied.

December 23, 2002 – Denial of Access Complaint

Requester’s counsel submitted the complaint. The $63.65 labor charge is at issue.

December 23, 2002 – arguments from requestor’s counsel:

1. The reason the request was considered “extraordinary” was based solely on the fact that it took more than 15 minutes to fulfill the request.
2. Custodian’s arguments are not in keeping with Courier-Post v. Lenape Regional High School District, Superior Court, Burlington County, October 11, 2002 (“Lenape”). That case sets forth six (6) factors that the city did not consider. Instead, it imposed a time limitation.
3. The Lenape case indicates the need to show cause regarding why professional or supervisory personnel would be required to expend an extraordinary amount of time to supervise, review, and/or monitor. The city’s labor charge breakdown does indicate same.

January 30, 2003 – Letter from custodian’s counsel to GRC

Salkin clarifies that Doris L. Dukes, the person requestor’s counsel stated as the custodian on the Denial of Access form, died in June of 2002.

Salkin also declined mediation.

March 5, 2003 – Custodian’s Statement of Information (SOI)

Custodian’s counsel asserts that:

1. The GRC lacks jurisdiction.
2. There is no factual basis for the claim.
3. The “request was not made to or through the Municipal Clerk.”
4. The request was received on November 7 or 8, 2002.
5. The requestor received all of the subject attorney bills on November 19, 2002.

Counsel attached a February 28, 2003 certification from Louis J. Garbaccio stating:

1. That he is the city’s chief financial officer.
2. That the requestor made an oral request for the monthly bills of City Attorney, Richard E. Salkin.
3. The request was made on approximately November 7 or 8, 2002.
4. He advised requestor that he would comply with the request.
5. He spoke with the requestor on November 14, 2002 and told him that the documents were available and what the cost would be.
6. The requestor paid for and received the documents on November 19, 2002.
7. The various actions he took to comply with the request.

March 11, 2003 – Letter memorandum from custodian’s counsel

1. The verbal nature of the request is confirmed.
2. Legal point one:
   1. The GRC does not have jurisdiction over this matter because:

                           i.      There has been no denial of access

                           ii.      The Council’s actions are limited to determinations of disputes regarding access.

                           iii.      The city’s ordinance must be challenged in Superior Court.

3. Legal point two – If the GRC rules that it has jurisdiction, it should also rule that the city’s labor charges are reasonable because:
   1. The complainant submitted his request to the city’s chief financial officer, not the municipal clerk. Therefore, the city was not obligated to provide the requestor with a cost estimate. Further, the city’s labor charges were made within the confines of the ordinance and paid without question.
   2. The city’s labor charge was made within the parameters of the Lenape decision.

March 17, 2003 – Requestor’s counsel’s response to the March 11, 2003 letter memorandum from custodian’s counsel

1. The GRC has jurisdiction to hear the complaint because the imposition of the labor fee is an “effective denial of access. ” If the requestor had not paid the fee, he would not have been given the records.
2. The City’s ordinance that deems any request that takes more than a quarter of an hour to complete as “extraordinary” is not supported under OPRA nor by Lenape.
3. Even if the request could be deemed “extraordinary,” the labor charge for the City’s Chief Financial Officer is not in keeping with Lenape. The City has not explained why clerical staff could not have performed the work done by the Chief Financial Officer.

March 19, 2003 – Custodian counsel’s response to the March 17, 2003 response from requestor’s counsel

Custodian’s counsel:

1.      Question’s the GRC’s right to overturn a municipal ordinance.

2.      Argues that the Lenape case involves a school district, not a municipality. School districts don’t enact ordinances the way municipalities do. Further, municipalities must enact such ordinances to recover extraordinary expenditures of time.

March 26, 2003 - Custodian’s counsel submission of supplemental certification of Louis Garbaccio pertaining to complaint

July 3, 2003 – Custodian counsel’s submission of a “The Record” editorial as a Rule 803©(25) admission against interest

The editorial discusses a North Bergen, NJ ordinance that imposes a special service charge for production of public records if an extraordinary expenditure of time and effort is involved.

July 8, 2003 – Objection by requestor’s counsel of custodian counsel’s July 3, 2003 admission against interest submission.

Counsel objects to the inclusion of the article as evidence because:

1.      The ordinance in North Bergen has no bearing on the one in the City of Hackensack.

2.      The editorial is consistent with their position.

3.      Editorial board statements do not bind The Record as a corporate entity.

December 24, 2003 – Preliminary Findings and Recommendations (PFR) to respective parties

December 29, 2003 – Custodian counsel’s response to PFR

The custodian’s counsel noted that the Statement of Information omitted a supplementary certification by Louis Garbaccio dated March 27, 2003

December 31, 2003- Requestor counsel’s response to PFR

The requestor’s counsel asserts that the custodian waived its procedural claim when it processed the verbal records request and accepted the fees for copying the documents and maintained that the Council had jurisdiction in this case. 

December 31, 2003 – Custodian counsel’s response to requestor counsel’s 12/31/03 letter

The custodian’s counsel maintained that N.J.S.A 47:1A-5(b) and (g) supported their position. 

Conclusion

The Acting Executive Director respectfully recommends that the Council dismiss this case for the following reasons:

1. Pursuant to N.J.S.A. 47:1A-5(g), “a request for access to a government shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.” Based on the facts in this case, namely the February 28, 2003 certification from Louis J. Garbaccio, the request in this case was oral.
2. The requestor has not provided any proof that a written request was made.
3. The Council has no jurisdiction over complaints concerning responses to oral requests for government records.

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

eDated:  December 30, 2003

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