2003-116

Administrative Case Disposition

Case Disposition:

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Final Decision

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of the Executive Director set forth below and all related documentation submitted by the parties.  The Council voted unanimously to adopt the entirety of said Findings and Recommendations and to dismiss the complaint on the basis of:

1. The custodian addressed the June 5, 2003 request when copies of the annual dealer inspection reports and dealer certificates for DuBrow’s Nurseries, Inc. were provided to the requestor.
2. The June 5, 2003 request was further addressed by the custodian when the requestor was informed that pursuant to the Department of Agriculture’s records retention policy, copies of the dealer forms and lists that disclose the names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc. purchases stock material are destroyed after one year and that there are no records in the DuBrow’s Nurseries, Inc. files other than those already provided to the requestor.
3. The custodian addressed the June 26, 2003 request when copies of the reverse sides of the annual dealer inspection reports and dealer certificates were provided to the requestor.
4. On February 4, 2004, the custodian affirmed in the Statement of Information that all the responsibilities under OPRA were carried out when the requestor was provided the records that existed at the date of the request and information regarding the inability to produce the dealer forms or lists that disclose the names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc. purchases stock material.

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 Recommendations of Executive Director

Relevant Records Requested: Dealer certificates, dealer inspection reports, and dealer forms and lists that disclose the names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc. purchases stock material used in its landscaping business.
Custodian: Department of Agriculture (Eileen Meagher)
Request Made:   June 5, 2003 and June 26, 2003
Response Made: 6/17/03, 6/20/03 – (requested info provided), 6/30/03 (response to second request)
GRC Complaint filed: 9/25/03

Recommendations of Executive Director

By the Open Public Records Act (“OPRA”), a complaint was filed September 25, 2003 in which the complainant alleges that OPRA requests allegedly filed June 5, 2003 and June 26, 2003 seeking to inspect dealer certificates, dealer inspection reports, and dealer forms and list that disclose the names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc. purchases stock material used in its landscaping business remains unfilled.

The Executive Director respectfully recommends that the Council dismiss the complaint because:

1. The custodian addressed the June 5, 2003 request when copies of the annual dealer inspection reports and dealer certificates for DuBrow’s Nurseries, Inc. were provided to the requestor.
2. The June 5, 2003 request was further addressed by the custodian when the requestor was informed that pursuant to the Department of Agriculture’s records retention policy, copies of the dealer forms and lists that disclose the names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc. purchases stock material are destroyed after one year and that there are no records in the DuBrow’s Nurseries, Inc. files other than those already provided to the requestor.
3. The custodian addressed the June 26, 2003 request when copies of the reverse sides of the annual dealer inspection reports and dealer certificates were provided to the requestor.
4. On February 4, 2004, the custodian affirmed in the Statement of Information that all the responsibilities under OPRA were carried out when the requestor was provided the records that existed at the date of the request and information regarding the inability to produce the dealer forms or lists that disclose the names of other nurseries and dealers from whom DuBrow’s Nurseries, Inc. purchases stock material.

Legal Analysis

Pursuant to OPRA, a government record is defined as “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business…”  (Emphasis added.)  N.J.S.A. 47:1A-1.1.  Further, OPRA generally requires that a custodian provide access to records that exist at the date of a request, for which records the custodian has custody and which are not privileged. 

In this case, the dealer forms and lists are not “maintained or kept on file” in the course of the Department of Agriculture’s official business beyond one year pursuant to the department’s records retention policy.  Therefore, access to these records cannot be provided because they did not exist at the date of the request.     

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

• June 5, 2003 – Requestor’s OPRA request
• June 17, 2003 – Custodian request for an extension of time to respond to request dated 6/5/03
• June 19, 2003 – Custodian response to request dated 6/5/03
• June 26, 2003 – Requestor’s 2^nd OPRA request
• June 30, 2003 – Custodian response to 2^nd request dated 6/26/03
• September 25, 2003 – Denial of Access filed with supplemental information
• January 29, 2004 – Requestor’s Agreement to Mediate
• January 30, 2004 – Statement of Information with supplemental information (including the Department of Agriculture’s records retention schedule)

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council
March 7, 2004

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