2003-130

Final Decision

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Supplemental Findings and Recommendations of the Executive Director set forth below pertaining to the Council’s February 27, 2004 Interim Decision on Access and all related documentation submitted by the parties.  The Council voted unanimously to adopt the entirety of said Supplemental Findings and Recommendations and to dismiss on the basis of:
Subsequent to the Council’s order, the custodian submitted a March 5, 2004 certification stating that the borough does not have any additional documents that meet the definition of a “Government Record.” Therefore, the Executive Director respectfully recommends that this complaint now be 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

Return to Top

Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:  Minutes of Regional Traffic Study Group meeting among Chatham Borough, Madison Borough, Florham Park Borough and other municipalities.
Custodian: Susan Caljean
Request Made: March 28, 2003; August 13, 2003
Response Made: April 2, 2003; April 15, 2003
GRC Complaint filed: October 7,2003

Recommendations of the Executive Director

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 voted to direct Acting Executive Director Dice to determine the following from the custodian:

1. Ascertain the existence of any additional documents that (a) are relevant to the Complainant’s request and (b) meet the definition of “government record” under OPRA;
2. If such documents do exist, determine whether there is any exception to granting public access to the document under OPRA or other applicable law; and
3. If no exception exists, make such document(s) available to the Complainant.

Subsequent to the Council’s order, the custodian submitted a March 5, 2004 certification stating that the borough does not have any additional documents that meet the definition of a “Government Record.” Therefore, the Executive Director respectfully recommends that this complaint now be dismissed.

Legal Analysis

No additional legal analysis is needed beyond that which was presented in the February 23, 2004 Findings and Recommendation of the Executive Director.

Additional Documents Reviewed

• March 5, 2004 certification of Susan Caljean
•  March 7, 2004 Letter from the Requestor to the GRC disagreeing with the Custodian’s  letter of certification

________________________

Paul F. Dice
Executive Director
Government Records Council

March 7, 2004 

Return to Top

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 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 voted to direct Acting Executive Director Dice to determine the following from the custodian:

1. Ascertain the existence of any additional documents that (a) are relevant to the Complainant’s request and (b) meet the definition of “government record” under OPRA;
2. If such documents do exist, determine whether there is any exception to granting public access to the document under OPRA or other applicable law; and
3. If no exception exists, make such document(s) available to the Complainant.

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 

Return to Top

Findings and Recommendations of the Executive Director

Relevant Records Requested:  Minutes of Regional Traffic Study Group meeting among Chatham Borough, Madison Borough, Florham Park Borough and other municipalities.
Custodian: Susan Caljean
Request Made: March 28, 2003; August 13, 2003
Response Made: April 2, 2003; April 15, 2003
GRC Complaint filed: October 7,2003

Recommendations of Acting Executive Director

This OPRA Complaint filed October 7, 2003 alleges partial denial of an OPRA request to the Borough of Chatham seeking to inspect the minutes and correspondence related to the Regional Traffic Study Group (the “RTSG”)- a group in which Chatham Councilman Richard Plambeck participates. 

The record reflects that that the Custodian made available to the Complainant all official correspondence and documents promulgated by the RTSG; however, counsel for the Custodian maintains that all minutes, notes and other correspondence related to the RTSG are not subject to public access under OPRA because the RTSG is not a “public body” as defined under the Open Public Meetings Act.

The reliance by Counsel for the Custodian on the Open Public Meetings Act in these circumstances is misplaced.  Under the OPRA provisions that are set forth in N.J.S.A. 47:1A-1.1:

“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 a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof.  The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. [emphasis added]

Irrespective of whether RTSG is a public body or not, Councilman Plambeck and all other Chatham municipal officials who participate in the RTSG in their official capacities are subject to the requirements of OPRA set forth above. 

The statement of information provided by the Custodian and the legal arguments presented by the Custodian’s counsel fail to address the question of whether or not any other “government records” (as defined by OPRA) exist with respect to the Complainant’s request.  If such documents do exist, it is possible that those documents may not be subject to public access under the exceptions set forth in OPRA or other law; however, at this juncture the Council does not possess sufficient information make such assessment.

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

1. Ascertain the existence of any additional documents that (a) are relevant to the Complainant’s request and (b) meet the definition of “government record” under OPRA;
2. If such documents do exist, determine whether there is any exception to granting public access to the document under OPRA or other applicable law; and
3. If no exception exists, make such document(s) available to the Complainant.

Legal Analysis

N.J.S.A. 47:1A-1.1 provides, in pertinent part:

“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 a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof.  The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. [emphasis added]

Here, the Custodian has failed to apply the definition of “government record” to the materials requested. 

Documents Reviewed

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

• 3/27/2003, 3/28/2003 and 8/13/2003 Requests for Public Records
• 4/15/2003 Letter from Custodian to Complainant
• 10/7/2003 Denial of Access Complaint
• 10/28/2003 Letter from counsel for Custodian to GRC (in lieu of legal brief)
• 10/28/2003 Letter of transmittal from counsel for Custodian to GRC
• 10/31/2003 Affidavit of Richard Plambeck and accompanying exhibits
• 10/31/2003 Affidavit of Susan Caljean and accompanying exhibits
• 10/31/2003 Affidavit of Herbert H. Kiehn
• 10/31/2003 Statement of Information of Custodian
• 11/14/2003 Letter from counsel for Custodian to GRC
• 1/12/2004 Offer of Mediation (to both Claimant and Custodian)

Conclusion

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

1. Ascertain the existence of any additional documents that (a) are relevant to the Complainant’s request and (b) meet the definition of “government record” under OPRA.
2. If such documents do exist, determine whether there is any exception to granting public access to the document under OPRA or other applicable law.
3. If no exception exists, make such document(s) available to the Complainant.

________________________

Paul F. Dice
Acting Executive Director
Government Records Council

Return to Top