2003-30

Final Decision

At its September 11, 2003 public meeting, the Government Records Council considered Complaint No. 2003-30 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the township clerk's failure to provide access to records(s) showing the name of the person who called the clerk on Election Day 2002 about the wife of a candidate working at a polling place.

While the clerk affirms that a person asked whether a candidate's wife could work at the polls on election day, the clerk affirms repeatedly that no written record was made of the name of the person making the inquiry. The township administrator affirms that no such record exists and, further, that it is Township policy to allow anonymous complaints. The manager of the county Board of Elections affirms that the clerk called to discuss the question with the Board, but that no written record regarding the inquiry exists. The requestor, a recently elected council official, alleges the custodian admitted orally that a record containing the name of the person who complained existed but the requestor's allegation lacks corroboration.

The Council considered the requestor's complaint and attachments; the custodian's Statement of Information and attachments; communications from the requestor dated February 11, 17, March 21, May 15, August 29 and September 5, 2003; communications on behalf of the custodian June 5 and September 3, 2003; communications from the Board of Elections dated July 25, 2003 and the Findings and Recommendations of the Acting Executive Director dated September 5, 2003 that the complaint be dismissed on the grounds the government record sought did not exist.

By affirmative vote of five Council members at its September 11, 2003 meeting, the Council voted to adopt and incorporate the Director's September 5, 2003 Findings and Recommendation and dismiss the complaint on the grounds the government record sought did not exist.

A copy of this Order shall be provided to the requestor, the custodian and all legal counsel of record.

I attest the foregoing is a true and accurate record of the Government Records Council:

Government Records Council
Dated: September 15, 2003

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Findings and Recommendation of Executive Director

Relevant Record(s) Requested: Record(s) showing the name of the individual who called the Municipal Clerk on election day 2002 about the wife of a candidate working at the polls.
Request made: February 3, 2003
Custodian: Joy Wiley, Township Clerk
Request denial: February 6, 2003
GRC Complaint filed: March 21, 2003

Executive Director's Recommendation

The complaint concerns a request for the "name of the person who called the custodian to complain" that a candidate's wife was working at a polling place. The custodian has certified that a written record of the name of the person does not exist. Even if the custodian knows who the individual is, OPRA does not require a custodian to create a government record if none exists. The requestor claims that the custodian admitted to him that the name of the complainant was in a file, but upon going to obtain it, decided not to disclose it. The custodian denies that such an admission was made, and asserts that she walked to her file cabinet because the "intimidating attitude" of the requestor, a newly elected Council member, made her extremely nervous. The Township Administrator confirms that no record exists, as does the Manager of the County Board of Elections.

The Executive Director finds that the credible evidence supports the conclusion that a government record identifying the name of the individual who questioned the custodian does not exist and recommends that the Council dismiss the Complaint.

Statements of Facts

On February 3, 2003, the requestor submitted an OPRA request in the form of a letter attached to the Township OPRA request form. The requestor sought the name of the person who called the custodian (in her role as Township Clerk/Election Officer) on Election Day, November 4, 2002, to "complain" that a candidate's wife was working at a polling place. The requestor alleges that the phone call prompted the custodian to contact the Morris County Board of Elections for instructions. The requestor alleges that the Board advised the custodian that the candidate's spouse should not be working at the polls. The custodian then went to the polling place and asked the candidate's wife to leave, which she did.

When the requestor visited the custodian's office in December 2002, the requestor alleges the custodian admitted to him she had "in her office file" the name of the person in question, but declined to provide it until she consulted others.

In a letter to the requestor dated February 6, 2003, the custodian denied the request stating there was no written record containing the information sought and that all matters concerning the request should be referred to the County Board of Elections. In a letter dated February 11, 2003, the requestor warned the custodian to "maintain and protect" the file he alleged existed, pending adjudication of his OPRA complaint.

The requestor filed an OPRA complaint on or about March 21, 2003. The requestor alleges that he visited the custodian on January 2, 2003 and asked her for the name of the person who "called" the custodian on Election Day to "complain" about the wife of a candidate working at the polls. He alleges the custodian rose from her chair and approached her office file "where she said the name(s) were filed" but then declined to do anything further until she contacted the Board of Elections to "verify the situation." The requestor alleges that the custodian stated that the Board instructed her to "refer the problem to them."

The requestor also submitted with his complaint a list of conversations with the custodian that allegedly occurred on unspecified dates between November 5, 2002 and February 11, 2003. However, the list offers either little or no description of the conversations nor any corroborating evidence of the requestor's claim that the custodian had a record containing the information sought.

The Township declined to mediate the matter and filed a Statement of Information on June 6, 2003. The custodian affirmed that she was working for the Morris County Board of Elections on Election Day, November 4, 2002. The SOI included an extensive statement from the custodian in which she affirmed there is no written record of the individual who complained nor did she ever create one. She states further that no one from the Board of Elections asked her the name of the person who raised the issue with her.

The custodian's statement also notes that:

• The requestor was elected as member of the Township Committeeman on November 4, 2002.
• On December 22, 2002, the requestor visited her for about 45 minutes to discuss various township procedures and that in the course of the meeting the requestor became hostile and demanded the name of the person who complained about the candidate's wife working at the polls on election day.
• The custodian became "extremely upset" and, feeling intimidated, "went to my file cabinet to give myself a minute to understand what was transpiring." She advises she told the requestor she "would have to check with Morris County first."
• Later, in reporting the incident to the Township Administrator and Attorney, the custodian was instructed by the attorney to refer the requestor to the Board of Elections. The Board subsequently affirmed that advice.

Attached to the SOI is a memorandum from the custodian to the Township Administrator dated February 6, 2003 which states that she "received an inquiry from an individual" on election day and that the requestor visited her, asking for the name of the complainant, once on December 12 and again "at the end of December" [December 22nd]. The incidents reported in the custodian's statement are repeated.

The custodian also provided a letter from the township administrator to the requestor (now a member of the Township Governing Body) dated May 8, 2003, stating that he is satisfied that "there is no written record of the 'complainant' to provide and therefore no record to 'maintain and secure.'"

The administrator alleges that the custodian did not even consider the inquiry a "complaint" when she had the conversation since she was only asked whether a candidate's wife could work as a poll worker. The custodian allegedly replied that she did not know and would look into it.

The administrator also explained that Township policy does not require citizens to identify themselves when making a complaint or an inquiry, nor are custodians required to disclose such information in absence of a written record.

In light of the custodian's repeated claim that the request should have been directed to the Board of Elections, Council staff asked the Board to determine the existence of a record containing the information sought. In response, the Council received an affidavit from Elizabeth Donegan, office manager of the Morris County Board of Elections.

Donegan states that Wiley called the Board to inquire whether it was permissible for a spouse to work as a district board member for an election at which her husband was a candidate. Donegan avers that Wiley did not "identify or name" the individual who raised the question or made the complaint. Donegan states that the Board does not maintain a logbook or "other formal device" to record calls or complaints made to the Board on Election days. Donegan states that she has searched Board files and found no "formal or informal" record of the telephone call or complaint.

A Preliminary Findings and Recommendations of the Executive Director was sent to the parties on August 29, 2003. In response on September 4, 2003, the custodian filed a supplemental certification re-affirming earlier statements that she "never wrote down the name of the individual who questioned me and have never made, to this date, any written record of the inquiry."

A response was received on September 5, 2003 from the requestor disputing the custodian's claim a record did not exist and reiterating his concern about Township policy that apparently operated to prevent him from finding out the names of complainants in non-criminal matters. The requestor also wrote to the Attorney General in response to the certification of Barbara Donegan of the Morris County Board of Elections, alleging it was unlikely that Ms. Donegan could have recalled so much about the inquiry without a written record.

Analysis and Conclusion

The certified SOI signed by the custodian, an affidavit from the county Board of Election, a letter from the township's administrator and the supplemental certification of the custodian all state that a written record of the complaint in question was not made by the custodian or the County Board of Elections.

The only evidence that a record might exist is the requestor's claim that the custodian admitted possession of a writing containing the information sought and even went to her file cabinet to get it, but declined to retrieve it until she received further advice. There is no evidence that there was anyone else present when this conversation occurred. The custodian and township administrator acknowledge in their submissions that the custodian did physically walk to her file cabinet when the requestor asked for the record. However, the custodian and the requestor differ on other aspects of their meeting; the custodian stating meetings occurred December 12 and 22, the requestor, only on January 2. The requestor alleges that the "complaint" was telephoned, while the custodian states that she was asked a question during her visit to the polls.

The custodian's statement that she was "flustered" by the Council member's "intimidating" questioning and that she went to her file cabinet to collect her thoughts rather than to retrieve a record is credible. The record reflects that the custodian was so upset by her encounter with the requestor, who was shortly to be sworn in as her Council member and employer, that she wrote a letter to the Administrator complaining of the Council member's behavior. It is reasonable for the custodian to have been upset under such circumstances and it is plausible that she went to her file cabinet for the reason she states.

The requestor's allegation that the custodian admitted a record existed lacks any corroborating evidence. The fact the custodian admitted she walked to the file cabinet during her discussion with the requestor does not prove the custodian made the statements attributed to her by the requestor. Both the requestor and the custodian admit that they discussed other Township matters for approximately 45 minutes before reaching this issue. The custodian could have gone to her file cabinet for any number of reasons during that meeting and likely did so when the exchange between them grew heated.

Both the letter from the township administrator to the requestor and the affidavit from the County of Board of Elections confirm that the custodian was under no requirement to record election day inquiries. While it appears that the custodian knows the name of the individual who questioned her on election day, OPRA does not require the custodian to write that information down.

The supplemental certification from the custodian re-affirms that the custodian never wrote down the name of the person who questioned her on election day and that she has never made, to this date, any written record of the inquiry. While the requestor contends that the Township's policy of confidentiality concerning the names of complainants conflicts with OPRA, the conflict is simply not presented here because there is no government record existing which can be produced under OPRA.

This record leads the Executive Director to conclude that the statements by the custodian, the administrator and the Board of Elections are credible and that a record of the "complaint" sought by the requestor does not exist. The Executive Director recommends that this OPRA complaint be dismissed.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council

Dated: September 5, 2003

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