2003-137

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 in the entirety said Findings and Recommendations and to dismiss the case on the basis:

1. The fees charged by the Custodian were within the fee limitations set forth under OPRA;
2. The Custodian has certified that the records were provided to the Complainant in the form that they are maintained by the municipality, therefore the Custodian responded appropriately to the request;
3. The allegedly non-responsive information provided to the Complainant was, in fact, responsive or, in the alternative, was reasonably maintained by the Custodian as part and parcel of the information provided to the Complainant; and
4. Current year information was immediately accessible in a form that complies with the immediate access provisions of OPRA.

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 the Executive Director

Relevant Records Requested: List of all municipal employees by salary, title and overtime for the years 1999, 2000, 2001, 2002, 2003
Custodian: Gretchen M. McCarthy, Municipal Clerk
Request Made: September 8, 2003; September 11, 2003
Response Made: September 22, 2003
GRC Complaint filed: October 24, 2003

Recommendations of Acting Executive Director

This OPRA Complaint filed October 24, 2003 alleges that: (a) the copying fees associated with the Complainant’s OPRA request were so prohibitive as to constitute a de-facto denial of the request; (b) the Custodian or other municipal official possessed the requested information in a more concise format than the 768 pages produced and intentionally withheld such information in order to inflate the cost to the Complainant and discourage his OPRA request; (c) the Custodian’s response contained information that was non-responsive to the Complainant’s request and the Complainant was required to pay copying charges for such non-responsive information; and (d) the information requested was not immediately accessible as required by OPRA.

The record reflects that the fees charged by the Custodian were not in excess of the maximum fees set forth under N.J.S.A. 47:1A-5(b).

The Custodian has certified in writing that the requested records were provided to the Complainant in the exact form in which such records are maintained by the municipality (subject to appropriate redaction) and that a more concise form of the requested records did not exist.

The Custodian has certified in writing that most of the allegedly non-responsive items were, in fact, responsive to the Complainant’s request.  Moreover, the Custodian has certified that the reason that a small number of former municipal employees appear on the list provided to the Complainant was that such records were maintained by the municipality for the purposes of facilitating access to the information for unemployment claims and employment verification. 

The Custodian has certified that the current year information was immediately available and offered to the Complainant in the form of a current salary resolution and collective bargaining agreements.  The more specific employee-related information for both the current and prior years was stored in a manner that contained personal information that required redacting.  Such redacting was completed and the information was made available to the Complainant within 14 days of his request.

The Acting Executive Director respectfully recommends the Council dismiss this denial of access complaint for the following reasons:

1. The fees charged by the Custodian were within the fee limitations set forth under OPRA;
2. The Custodian has certified that the records were provided to the Complainant in the form that they are maintained by the municipality, therefore the Custodian responded appropriately to the request;
3. The allegedly non-responsive information provided to the Complainant was, in fact, responsive or, in the alternative, was reasonably maintained by the Custodian as part and parcel of the information provided to the Complainant; and
4. Current year information was immediately accessible in a form that complies with the immediate access provisions of OPRA.

Legal Analysis

N.J.S.A. 47:1A-5(b) provides that copying fees for requests made under OPRA not exceed $0.75 per page for the first ten pages, $0.50 per page for the second ten pages and $0.25 for each page thereafter.  The fees charged by the Custodian in this instance did not exceed these limits.

N.J.S.A. 47:1A-5(i) requires that records requested under OPRA be provided to the requesting person no later than seven days after a request is made, unless such information is in storage or is archived.  While it took the Custodian between 11 and 14 to comply with the request in this case, the Complainant does not base his complaint on this technical time violation.  Rather, he objects to the format in which the requested information was provided.  OPRA does not speak to the format in which the custodian maintains such information.  Here, the Custodian has certified that she provided the requested information in the format in which such information is maintained by the municipality, subject to appropriate redaction.  Nowhere does OPRA require that the Custodian do more. 

Moreover, the fact that a small quantity of technically non-responsive information was included by the Custodian in her response to the Complainant’s OPRA request does not rise to the level of conduct that warrants sanctioning of the Custodian by the Council.  N.J.S.A. 47:1A-7(e) permits the Council to impose penalties on a Custodian that “knowingly and willfully” violates OPRA and  “unreasonably” denies access to the requested information.  Here, the Custodian’s actions were neither willful, nor unreasonable.

N.J.S.A. 47:1A-5(e) requires that “ordinarily” immediate access shall be provided to “budgets, bills, vouchers, and individual employment contracts, and public employee salary and overtime information.”  With respect to public employee salary information, the Custodian reasonably interprets N.J.S.A. 47:1A-5(e) to apply to the current year, and the Custodian has certified that such information for the current year was immediately available for inspection by the Complainant.  As a result, the Custodian did not violate the immediate access provisions of OPRA.

Documents Reviewed

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

• 9/8/2003 – Complainant’s request to Custodian for information for public employee salary and overtime information for 1999, 2000, 2001, 2002 and 2003.
  
• 9/8/2003 – Letter from Custodian to Complainant acknowledging request and setting forth applicable copying fee.
  
• 9/22/2003 – Letter from Custodian to Complainant informing Complainant that requested records were available for inspection.
  
• 10/24/2003 – Denial of Access Complaint
  
• 1/12/2004 – Offer of Mediation (to Custodian, Complainant and Complainant’s counsel)
  
• 1/28/2003 – Statement of Information transmittal from GRC to Custodian
  
• 1/30/2003 – Statement of Information prepared by Custodian

Conclusion

The Acting Executive Director respectfully recommends the Council dismiss this denial of access complaint for the following reasons:

1. The fees charged by the Custodian were within the fee limitations set forth under OPRA.
2. The Custodian has certified that the records were provided to the Complainant in the form that they are maintained by the municipality, therefore the Custodian responded appropriately to the request.
3. The allegedly non-responsive information provided to the Complainant was, in fact, responsive or, in the alternative, was reasonably maintained by the Custodian as part and parcel of the information provided to the Complainant.
4. Current year information was immediately accessible in a form that complies with the immediate access provisions of OPRA.

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

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