2003-143

Final Decision

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties to dismiss the complaint. The Council voted unanimously to adopt the entirety of said Findings and Recommendations and to dismiss the case on the basis of:

1. According to N.J.S.A. 47:1a-5 (E), “[I]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.”  OPRA does not specifically refer to ordinances in those records that are “ordinarily” granted immediate access; therefore, the Custodian is not in violation of this portion of the act. 
2. According to N.J.S.A. 47:1A-5(g), “A custodian shall promptly comply with a request to inspect or examine, copy or provide a copy of a government record.”  The Custodian certifies that the Requestor was immediately given access to the Ordinance book and allowed to review Ordinance #74-24 and received a copy of the ordinance the following day. 
3. N.J.S.A.47: 1A-5(i) states that a “custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but no later than seven (7) business days after receiving the request.”  The Custodian certifies that the Requestor received the record the following day, April 29, 2003, thus complying with OPRA.
4. OPRA does not cite a matter regarding the “conduct of a Records Keeper” or custodian. 

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: Ordinance #74-24 Parking of Vehicles on front lawn
Custodian: Maryann Ashenfelder
Request Made: April 28, 2003
Response Made: April 29, 2003
GRC Complaint filed:  October 14, 2003

Executive Director’s Recommendations

This Open Public Records Act (“OPRA”) Complaint filed October 14, 2003 alleges denial of immediate access of an OPRA request to the Borough of Glassboro for Ordinance #74-24 regarding the parking of vehicles on the front lawn of a residence.  Further, the Requestor alleges that under OPRA, she should have had immediate access to the Ordinance and a copy.  The Requestor also wants the Custodian removed from office for “conduct unbecoming a Records Keeper.” 

The Custodian alleges that the Requestor was given immediate access to review the Ordinance and then received a copy the next day, April 29, 2003. 

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

1. According to N.J.S.A. 47:1a-5 (E), “[I]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.”  OPRA does not specifically refer to ordinances in those records that are “ordinarily” granted immediate access; therefore, the Custodian is not in violation of this portion of the act. 
2. According to N.J.S.A. 47:1A-5(g), “A custodian shall promptly comply with a request to inspect or examine, copy or provide a copy of a government record.”  The Custodian certifies that the Requestor was immediately given access to the Ordinance book and allowed to review Ordinance #74-24 and received a copy of the ordinance the following day. 
3. N.J.S.A.47: 1A-5(i) states that a “custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but no later than seven (7) business days after receiving the request.”  The Custodian certifies that the Requestor received the record the following day, April 29, 2003, thus complying with OPRA.
4. OPRA does not cite a matter regarding the “conduct of a Records Keeper” or custodian. 

Legal Analysis

Pursuant to N.J.S.A. 47:1A-1 et. seq. (OPRA), the Government Records Council does not have jurisdiction over the conduct of a Clerk/custodian except as it relates to the access to or denial of access to government records. 

Under N.J.S.A. 47:1A-1, “…government records shall be readily accessible for inspection, copying or examination by the citizens of this State…”  In the instant case, there is no dispute that the Ordinance was accessible on the day requested.  Complainant admits this fact in her October 14, 2003 narratives.  The threshold question becomes whether the custodian’s denial of immediate copying of an Ordinance acted as a denial of the record. 

Pursuant to N.J.S.A. 47:1a-5 (E), “[I]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.”  There is no mention of “Ordinance” in the immediately paragraph.  Further, Ms. Cottrell was granted immediate access, but not immediate copying pursuant to N.J.S.A 47:1A-5(g).  Under N.J.S.A. 47:1A-5(i), the custodian has seven (7) business days to make available a copy of the document.  In the instant case, complainant, in her October 14, 2003 narrative states she “…had to wait until the next day for the copy.”  From this statement, it appears that the complainant received her request within the time required under the statute.

Documents Reviewed

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

• October 14, 2003 – Denial of Access filed with supplemental information
• January 15, 2004 – Offer of Mediation (Requestor & Custodian)
• January 21, 2004 – Custodian Agreement to Mediate
• January 28, 2004 – GRC Request for Statement of Information
• February 24, 2004 – GRC Follow up Request for Statement of Information (deadline 2/26/04)
• February 25, 2004 – Statement of Information with supplemental information

________________________

Paul F. Dice
Executive Director
Government Records Council

March 7, 2004

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