2003-124

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 noted that the administrative changes would be incorporated into the record.  The Council voted to adopt in the entirety said Findings and Recommendations and to dismiss the case on the basis:

1. The June 4, 2003 request was addressed by the custodian alleging that the records in question were verbally reported and therefore, unable to be produced.  
2. The June 16, 2003 request was addressed by the custodian stating the identity of the Division of Taxation employee responsible for the receipt of the reports and the status of his employment.    
3. On October 17, 2003, the custodian affirmed that all the responsibilities under OPRA were carried out and the requester received information regarding the request specifically the inability to produce the report.
4. According to OPRA (N.J.S.A. 47:1A-1.1), 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,” and no records exist in the above defined form.  

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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Changes to Findings & Recommendations of the Executive Director

The Findings and Recommendations of the Executive Director in Complaint No.

2003-124 dated February 27, 2004 is modified to reflect the following change:

Page 1, under “Recommendations of Acting Executive Director” at the end of last sentence in the first paragraph add the following sentence: “Regarding the June 16, 2003 request, the custodian identified the employee responsible for the receipt of the reports, but had no knowledge of the person who made the reports and referred the requestor to the Hunterdon County Board of Taxation.”

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

Dated:  February 27, 2004

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Findings and Recommendations of Executive Director

Relevant Records Requested: Copy of an investigation and determination report from the Hunterdon County Board of Taxation to the New Jersey Department of Treasury-Division of Taxation and reports/correspondence from the “respected” New Jersey Department of Agriculture employee who inspected the property in question.  Furthermore, the name of the party within the Division of Taxation who received the report from Hunterdon County Board of Taxation and who communicated the report. 
Custodian: Department of Treasury-Division of Taxation, Government Records Access Unit (Mary Beth Davies)
Request Made:   June 4, 2003 and June 16, 2003 (Note: original request made May 3, 1998 prior to OPRA)
GRC Complaint filed: 10/1/03

Recommendations of Executive Director

By Open Public Records Act (“OPRA”), Complaint filed October 1, 2003, requestor alleges OPRA requests allegedly filed June 4, 2003 and June 16, 2003 seeking to inspect a farmland assessment investigation report and determination from Hunterdon County Board of Taxation to the Department of Treasury-Division of Taxation, including names of employees who worked on the report has remained unfilled. 

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

1. The June 4, 2003 request was addressed by the custodian alleging that the records in question were verbally reported, therefore, unable to be produced.  
2. The June 16, 2003 request was addressed by the custodian stating the identity of the Division of Taxation employee responsible for the receipt of the reports and the status of his employment.    
3. On October 17, 2003, the custodian affirmed that all the responsibilities under OPRA were carried out and the requester received information regarding the request specifically the inability to produce the report.
4. According to OPRA (N.J.S.A. 47:1A-1.1), 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,” therefore, no records exist in the above defined form.  

Legal Analysis

Further, pursuant to N.J.S.A. 47:1A-5(i), upon receipt of a request for records, a custodian “…shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived…. If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request…” In the instant case, on June 13, 2003, the custodian responded to the June 4, 2003 request by stating that the “records” in question did not exist because the “farmland” designation had been reported verbally and therefore, no records could be produced.  On July 2, 2003, the custodian responded to the June 16, 2003 request by supplying the identity of the Department of Taxation employee responsible for the receipt of the oral report of the investigation conducted by the Hunterdon County Board of Taxation and the Department of Agriculture determining that the farmland assessment was proper..  The custodian also told the requestor that the employee had since retired.

Under OPRA, N.J.S.A. 47:1A-1.1, the record to be obtained must be one that is made, maintained and/or kept on file in the ordinary course of the custodian’s or public official’s course of business.  There is no requirement, under OPRA, that the custodian create a file or paper record to meet the request.  In the instant case, the custodian affirmed that the only report received by the Department of the Treasury was an oral report.  There is, therefore, no written record or recording of the information sought.  Further, there is no timeliness issue inferred from the first request as the custodian’s response came within the seven business day statutory period.  The requestor/complainant did not raise a timeliness issue regarding the four-day delay of response on the second request.  Based on the above analysis, Ms. Bailey was not denied access to records. The complaint, therefore, should be dismissed.

Documents Reviewed

The following documents have been submitted to members of the Government Records Council and/or designee concerning the case:

• 5/3/98 – Requester’s original public record request (prior to OPRA)[1]
• 6/1/98 – Custodian’s response (prior to OPRA)[2]
• 8/3/98 – Custodian supplemental response (prior to OPRA)[3]
• 6/4/03 – Requester’s OPRA request
• 6/13/03 - Custodian response to request dated 6/4/03
• 6/15/03 – Requester’s correspondence to GRC challenging denial of records
• 6/16/03 – Requester’s 2^nd OPRA request
• 6/30/03 – Requester’s correspondence to GRC challenging denial of records (with supplemental information)
• 7/2/03 – Custodian response to request dated 6/16/03
• 10/1/03 – Denial of Access and Supplemental Information  
• 10/15/03 – Requester’s Supplemental Information
• 10/17/03 – Statement of Information with Supplemental Information
• 10/17/03 – Custodian’s notice of Counsel
• 10/23/03 – Requester’s Letter to GRC re: Custodian’s Counsel
• 11/17/03 – Requester’s Supplemental Information
• 1/16/04 – Offer of Mediation (Requester & Custodian)
• 1/28/04 – Denial of Access filed again
• 1/29/04 – Requester Agreement to Mediate

Conclusion

1. The June 4, 2003 request was addressed by the custodian allegeding that the records in question were verbally reported, therefore, unable to be produced.  
2. The June 16, 2003 request was addressed by the custodian stating the identity of the Division of Taxation employee responsible for the receipt of the reports and the status of his employment.    
3. On October 17, 2003, the custodian affirmed that all the responsibilities under OPRA were carried out and the requester received information regarding the request specifically the inability to produce the report. 
4. According to OPRA (N.J.S.A. 47:1A-1.1), 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,” therefore, no records exist in the above defined form. 
5.  The complaint should be dismissed. 

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

Dated:  February 23, 2004

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