2003-119

Final Decision

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 26th Day of April, 2004

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 

Decision Distribution Date:   April 29, 2004

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. Correspondences between Emerson and Andrew Rubin, Esq. (special counsel retained in Nov. 2002 to investigate malpractice by former borough attorney, William T. Smith from 1990 -1999).
2. Minutes, resolutions, emails re: deliberations over whether to continue malpractice investigation of Smith.
3. Documents referring to cost of malpractice investigation.
4. All invoices and vouchers from Andrew Rubin to Emerson.
5. All invoices and vouchers from Burgiss Association to Emerson
6. Resolutions and minutes pertaining to hiring of Burgiss and Association
7. Press releases referring to Burgiss as "Boro Planner" - modified 8/20
8. All documents regarding terms of use of official borough website and emails (Q & A) to mayor
9. Resolutions, proof of publication and hearing notices pertaining to introduction of 2003 municipal budget

Custodian: Carol Dray, Borough Clerk
Request Made: July 31, 2003
Response Made: September 2, 2003
GRC Complaint filed: September 26, 2003

Executive Director’s Supplemental Findings and Recommendations

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations, and finding that:

1. The custodian has not demonstrated that a special service charge is warranted in this case.
2. Access should be granted to all documents in existence at the time of the request, which the borough had custody of, and which are not exempt under the Open Public Records Act.
3. The issue raised by the requestor concerning receiving notice of her appeal rights is moot, because she received actual notice.
4. This complaint should be dismissed.

Subsequent to the Council’s February 27, 2004 Order, the Custodian informed the Government Records Council staff in letters dated March 9, March 12, 2004 and March 19, 2004 all documents responsive to the request were provided to the Complainant with the exception of:

Emails to or from the mayor concerning borough business and sent or received through the website and 

1. Council Meeting Minutes of April 29, 2003 Borough of Emerson.

At its April 8, 2003 Public Meeting, the Council considered the Supplemental Findings and Recommendations of the Executive Director.  The Council voted to accept said Findings and Recommendations as follows:

1. Order the Custodian to disclose that which has not already been provided to the Complainant in "1" above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq. because the municipal clerk, as Custodian for the Borough, is responsible for responding to the OPRA requests and/or coordinating responses to said requests. The Custodian shall not place the burden of a request back on the Complainant to contact the Borough Attorney or Mayor.
2. Order the Custodian to disclose that which has not already been provided to the Complainant in "2" above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq.  The Custodian shall disclose only the "open session" minutes of the April 29, 2003 Borough Meeting, or in the alternate, where those minutes are yet to be approved, the ";open session"; draft minutes.
3. Finally, the Custodian shall advise the Executive Director when "1" and "2" above are complete. 

In an April 15, 2004 letter to the GRC, the Custodian made accessible to the Complainant all requested information, specifically points "1" and "2" of the Executive Director’s February 27, 2004 Findings and Recommendations.  As a result of this disclosure, no further action is needed.  The complaint should be dismissed.

Legal Analysis

The legal analysis was set forth in the February 27, 2004 Findings and Recommendations and the April 8, 2004 Supplemental Findings and Recommendations.  No additional analysis is needed. 

Documents Reviewed

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

• March 11, 2004 - Request by Custodian for a Copy of the Findings and Recommendation Report
• March 11, 2004 - Follow-up Response by Custodian to March 9, 2003 Letter
• March 12, 2004 - Letter to Custodian Regarding Requested Information that remains Outstanding
• March 19, 2004 - Custodian’s Letter Indicating the Minutes Approved and Scheduled to be Approved from April 2003
• March 26, 2004 - Letter from Custodian to Complainant regarding the accessibility of Mayor’s emails and by-laws of the governing body
• April 8, 2004 - Letter from Custodian to Complainant regarding the balance due
• April 15, 2004 - Letter from Custodian to Complainant regarding the accessibility of recently approved minutes
• April 15, 2004 - Letter from Custodian to GRC

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

April 19, 2004

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Interim Decision on Access

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations, finding that:

1. The custodian has not demonstrated that a special service charge is warranted in this case.
2. Access should be granted to all documents in existence at the time of the request, which the borough had custody of, and which are not exempt under the Open Public Records Act.
3. The issue raised by the requestor concerning receiving notice of her appeal rights is moot, because she received actual notice.

Subsequent to the Council’s February 27, 2004 Order, the Custodian provided complainant with all documents responsive to the request with the exception of:

1. Emails to or from the mayor concerning borough business and sent or received through the website and 
2. Council Meeting Minutes of April 29, 2003 Borough of Emerson.

At its April 8, 2004 public meeting, the Government Records Council ("Council") considered the April 8, 2004 Supplemental Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Finding and Recommendations of the Executive Director with an amended recommendation to "3" below.  The Council, therefore, orders that:

1. The Custodian is to disclose that which has not already been provided to the Complainant in "1" above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq. because the municipal clerk, as Custodian for the Borough, is responsible for responding to the OPRA requests and/or coordinating responses to said requests. The Custodian shall not place the burden of a request back on the Complainant to contact the Borough Attorney or Mayor.
2. The Custodian to disclose that which has not already been provided to the Complainant in "2" above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq.  The Custodian shall disclose only the “open session” minutes of the April 29, 2003 Borough Meeting, or in the alternate, where those minutes are yet to be approved, the "open session" draft minutes.
3. The Custodian shall advise the Executive Director when “1” and “2” above of the order are complete within five business days of receipt of the order. 

Interim Decision Rendered by the
Government Records Council
On The 8th Day of April, 2004

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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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. Correspondences between Emerson and Andrew Rubin, Esq. (special counsel retained in Nov. 2002 to investigate malpractice by former borough attorney, William T. Smith from 1990 –1999).
2. Minutes, resolutions, emails re: deliberations over whether to continue malpractice investigation of Smith.
3. Documents referring to cost of malpractice investigation.
4. All invoices and vouchers from Andrew Rubin to Emerson.
5. All invoices and vouchers from Burgiss Association to Emerson
6. Resolutions and minutes pertaining to hiring of Burgiss and Association
7. Press releases referring to Burgiss as "Boro Planner" – modified 8/20
8. All documents regarding terms of use of official borough website and emails (Q & A) to mayor
9. Resolutions, proof of publication and hearing notices pertaining to introduction of 2003 municipal budget

Custodian: Carol Dray, Borough Clerk
Request Made: July 31, 2003
Response Made: September 2, 2003
GRC Complaint filed: September 26, 2003

Executive Director's Supplemental Findings and Recommendation

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations. Therefore, the Council finds that:

1. The custodian has not demonstrated that a special service charge is warranted in this case.
2. Access should be granted to all documents in existence at the time of the request, which the borough had custody of, and which are not exempt under the Open Public Records Act.
3. The issue raised by the requestor concerning receiving notice of her appeal rights is moot, because she received actual notice.
4. This complaint should be dismissed.

Subsequent to the Council's February 27, 2004 Order, the Custodian informed the Government Records Council staff in letters dated March 9, March 12, 2004 and March 19, 2004 all documents responsive to the request were provided to the Complainant with the exception of:

1. Emails to or from the mayor concerning borough business and sent or received through the website and 
2. Council Meeting Minutes of April 29, 2003 Borough of Emerson.

On March 11, 2004 letter from the Complainant to the Executive Director, the Complainant acknowledges a partial receipt of all documents requested with the exception of "1" and "2" above and draft resolutions that were subsequently provided on March 12, 2004.   

Regarding the documents not disclosed, the custodian provided the following explanation:

1. Emails received by the Mayor of Emerson through the borough website that were not published in the "question and answer" section of the borough website: You may request that information of the Mayor through the Borough Attorney.  I have no copies of those records on file in the Borough Hall nor would I be able to retrieve them from the website.
2. The April 29, 2003 minutes of the Borough Meeting would be disclosed once they are approved. 

The Executive Director respectfully recommends that the Council find the following:

1. Order the Custodian to disclose that which has not already been provided to the Complainant in "1" above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq. because the municipal clerk, as Custodian for the Borough, is responsible for responding to the OPRA requests and/or coordinating responses to said requests. The Custodian shall not place the burden of a request back on the Complainant to contact the Borough Attorney or Mayor.
2. Order the Custodian to disclose that which has not already been provided to the Complainant in "2" above pursuant to the provisions of N.J.S.A. 47:1A-1 et seq.  The Custodian shall disclose only the "open session" minutes of the April 29, 2003 Borough Meeting, or in the alternate, where those minutes are yet to be approved, the "open session" draft minutes.
3. Finally, the Custodian shall advise the Executive Director when "1" and "2" above are complete. 

Analysis

The legal analysis was set forth in the February 27, 2004 Findings and Recommendation, no additional analysis is needed. 

Documents Reviewed

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

• February 27, 2004 – Final Decision of Government Records Council
• March 4, 2004 – Notification by Custodian to Complainant that Requested Information was Available for Disclosure
• March 9, 2004 – Response by Complainant to Notification of March 4, 2004
• March 11, 2004 – Request by Custodian for a Copy of the Findings and Recommendation Report
• March 11, 2004 – Follow-up Response by Custodian to March 9, 2003 Letter
• March 12, 2004 – Letter to Custodian Regarding Requested Information that remains Outstanding
• March 19, 2004 – Custodian's Letter Indicating the Minutes Approved and Scheduled to be Approved from April 2003

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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Final Decision

At its February 27, 2004 public meeting, the Government Records Council (“Council”) considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations. Therefore, the Council finds that:

1. The custodian has not demonstrated that a special service charge is warranted in this case.
2. Access should be granted to all documents in existence at the time of the request, which the borough had custody of, and which are not exempt under the Open Public Records Act.
3. The issue raised by the requestor concerning receiving notice of her appeal rights is moot, because she received actual notice.
4. This complaint should be dismissed.

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 the Acting Executive Director

Relevant Records Requested:

1. Correspondences between Emerson and Andrew Rubin, Esq. (special counsel retained in Nov. 2002 to investigate malpractice by former borough attorney, William T Smith from 1990 -1999).
2. Minutes, resolutions, emails re: deliberations over whether to continue malpractice investigation of Smith.
3. Documents referring to cost of malpractice investigation.
4. All invoices and vouchers from Andrew Rubin to Emerson.
5. All invoices and vouchers from Burgiss Association to Emerson (Note - Burgiss was hired in Feb. 2003.
6. Resolutions and minutes pertaining to hiring of Burgiss and Association
7. Press releases referring to Burgiss as "Boro Planner" - modified 8/20
8. All documents regarding terms of use of official borough website and emails (Q & A) to mayor
9. Resolutions, proof of publication and hearing notices pertaining to introduction of 2003 municipal budget

Custodian: Carol Dray, Borough Clerk
Request Made: July 31, 2003
Response Made: September 2, 2003
GRC Complaint filed: September 26, 2003

Recommendations of Acting Executive Director

The Acting Executive Director respectfully recommends the Council find that:

1. The custodian has not demonstrated that a special service charge is warranted in this case.
2. Access should be granted to all documents in existence at the time of the request, which the borough had custody of, and which are not exempt under the Open Public Records Act ("OPRA").
3. The issue raised by the requestor concerning receiving notice of her appeal rights is moot, because she received actual notice.
4. This complaint should be dismissed.

Despite the fact that the requestor provides much more specificity to her request pursuant to her August 28, 2003, letter to the custodian, the custodian continues to argue that a special service charge is warranted for providing access to certain documents.  Because the custodian does not provide factual proof sufficient to support an award of a special service charge, it would be appropriate for the Council to find that a special service charge is not warranted and access should be granted with respect to documents in existence at the date of the request, which the Borough had custody of, and which are not exempt under OPRA.  In this regard, although the custodian gives an estimate for the number of hours, she does not explain the labor to justify those hours.  The Council has found in the past that a failure to make a sufficient showing results in no special service charge being allowed.  (See Diamond v. Old Bridge Township, Complaint no. 2003-15 and Loigman v. Monmouth County Prosecutors' Office, Complaint no. 2003-44.)

The issue raised by the requestor concerning receiving notice of her appeal rights is moot, because she received actual notice.

Documents Reviewed

• July 31, 2003 - Records Request
• September 2, 2003 - Custodian's Response to Records Request
• September 26, 2003 - Denial of Access Complaint Filed along with Exhibits 
• October 23, 2003 - Mediation Forms Submitted to Requestor and Custodian
• October 28, 2003 - Custodian's Request for Advise from GRC Regarding another Request for Records by Requestor
• January 9, 2004 - Custodian's Counsel Submission of Letter to GRC Inquiring the Status of the Complaint
• January 27, 2004 - Letter by Custodian with Attached Correspondences between the Requestor and the Custodian

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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