2003-135

Final Decision

At its April 8, 2004 public meeting, the Government Records Council ("Council") considered the April 8, 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 Finding and Recommendations of the Executive Director. Therefore, the Council dismissed this complaint on the basis that:

1. The Custodian has supplied a certification in her Statement of Information in which she certifies that the Complainant was granted complete access to the Environmental Commission files at all times during normal business hours. 
2. The Custodian certified that the letters referenced in Environmental Commission resolutions 103 and 104 do not exist.
3. The Custodian certified in her Statement of Information that she complied with the Complainant’s requests to review resolutions and attachments adopted by the West Cape May Environmental Commission and that she had provided the Complainant with copies of any and all resolutions in the Environmental Commission file.
4. The Custodian has satisfied her duties under N.J.S.A. 47:1A-1 et. seq.

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Copy of Environmental Commission Resolutions #101-107 (7/30/03), Copy of Environmental Commission Letters Referenced in #103-104 (8/29/03), and Copy of Environmental Commission Resolutions and Attachments Subsequent to Resolution #107 (9/15/03)
Custodian: Lisa Stefankiewicz, Borough Clerk
Request Made:  August 26, 2003, September 2, 2003, and the requestor alleges that he made a verbal request on July 17, 2003
Response Made: August 27, 2003
GRC Complaint Filed: October 15, 2003

Recommendations of Executive Director

This OPRA complaint filed October 15, 2003 alleges denial of access concerning:

(1)   Two letters referenced in West Cape Environmental Commission Resolutions 103 and 104; and

(2)   Copies of the West Cape May Environmental Commission’s Resolutions and attachments subsequent to resolution 107. 

The requestor acknowledges receipt of the requested resolutions #101-107.

The Custodian certifies in her Statement of Information that the Environmental Commission never produced in final form two letters referenced in Environmental Commission Resolutions 103 and 104 because the commission’s secretary (a volunteer, not a paid employee of the municipality) was unable to locate drafts of the two letters on her home computer and the borough’s office did not have the letters.  As a result, the Custodian could not furnish the information for the Complainant.

In reference to point (2), the Custodian has certified that she has made available to the Complainant all resolutions adopted by the West Cape May Environmental Commission and has affirmed in a March 17, 2004 email that any and all attachments to Resolutions adopted by the Environmental Commission were provided. 

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

1. The Custodian has supplied a certification in her Statement of Information in which she certifies that the Complainant was granted complete access to the Environmental Commission files at all times during normal business hours. 
2. The Custodian certified that the letters referenced in Environmental Commission resolutions 103 and 104 do not exist.
3. The Custodian certified in her Statement of Information that she complied with the Complainant’s requests to review resolutions and attachments adopted by the West Cape May Environmental Commission and that she had provided the Complainant with copies of any and all resolutions in the Environmental Commission file.
4. The Custodian has satisfied her duties under N.J.S.A. 47:1A-1 et. seq.

Analysis

The Open Public Records Act provides that “all government records shall be subject to public access unless exempt from such access” by statute, resolution of the Legislature, rule or regulation, executive order of the Governor, rules of court, federal law, federal regulation, or federal order.  N.J.S.A. 47:1A-1.  Here, the Custodian has provided access to all documents in existence that have been requested by the Complainant.  Moreover, the Custodian and officials of the Environmental Commission have provided a reasonable explanation as to their inability to produce the remaining information requested by the Complainant (i.e., the documents do not exist).  In light of the foregoing, it is appropriate for the Council to dismiss this complaint.

Documents Reviewed

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

• July 30, 2003 - Records Request Made to Environmental Commission (EC) Chairperson
• August 26, 2003 - Records Request to Custodian
• August 29, 2003 - Letter of Thanks for Resolutions #101-107 and Request for the Letters Attached to Resolutions #103 and #104 Submitted to EC Chairperson
• September 2, 2003 - Records Request to Custodian for Letters Referred to in E.C. Resolutions #103 and #104
• September 10, 2003 - Letter from Environmental Commission Chairman to Requestor
• September 11, 2003 - Requestor’s Letter to Clerk's Office
• September 15, 2003 - Letter from Requestor to Environmental Commission Chairman
• September 26, 2003 - Custodian's Letter to GRC with a Certification from Custodian and exhibits
• October 15, 2003 - Denial of Access Complaint Filed along with Supplemental and Attachments (36 pages)
• December 3, 2003 - Response from Environmental Commission Chairman to the Requestor's 9/15/03
• January 14, 2004 - Mediation Forms Submitted to Requestor, Environmental Commission Chairman and Custodian
• January 20, 2004 - Environmental Commission Chairman Accepted Mediation
• January 22, 2004 - Clerk Accepted Mediation
• January 28, 2004 - Statement of Information Form Sent to Custodian
• February 3, 2004 - Statement of Information Filed with Attachments
• March 17, 2004 - E-mail from Custodian Verifying Documents Provided to Complainant

________________________

Paul F. Dice
Executive Director
Government Records Council

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