2003-88

Final Decision

At its October 9, 2003 public meeting, the Government Records Council considered Complaint No. 2003-88 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide access to copies of videotapes of the public portions of specific town council meetings.

The custodian alleges she provided timely access to the videotapes at a cost of $15.00 a tape, which represented the cost to the Township for duplicating the tapes. The requester paid a total of $60.00 in fees and alleges that some tapes did not contain the complete council proceeding that day, while others were completely blank. Without prejudicing the township's position that the tapes had accurately been copied and contained the full record of the requested meetings, custodian's counsel provided the requester with another set of videotapes at no additional cost. The requester acknowledged receipt of the second set of videotapes but alleges that these tapes also have been tampered with to prevent her from receiving the information she was requesting. The requestor provided no evidence to substantiate this allegation.

• The Council considered the following documents: submissions from the requestor dated March 17, June 13, 25, September 2,4 and 19, 2003; submissions on behalf of the custodian dated March 24, July 22, August 4, 29, and September 20, 2003; staff documents dated August 8 and 13, 2003 and Findings and Recommendations of the Acting Executive Director dated October 6, 2003.

By an affirmative vote of five Council members at its October 9, 2003 meeting, the Council voted to adopt and incorporate the Director's October 6, 2003 Findings and Recommendation and found that:

• The custodian provided access to copies of the videotapes in a timely manner,
  
  
• The charge of $15.00 per tape reflects the Township's actual costs and is reasonable pursuant to N.J.S.A. 47:1A-5,
  
  
• The requestor's allegation of tampering are rejected as the facts do not support the allegations; and therefore,
  
  
• The complaint is dismissed.

There is no application for attorney's fees.

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


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

Dated: October 15, 2003

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Findings and Recommendations of Executive Director

Relevant Records Requested: Videotapes of June July and August 2002 town council tapes, specific dates not determined - August 13, 2002 and all other meetings
Request made: March 17, 2003
Custodian: Jo Ann Behar, Deputy Clerk
Request granted: March 24, 2003
GRC Complaint filed: June 25, 2003

Executive Director's Recommendations

This complaint involves a request for copies of videotapes of town council meetings. After receiving a timely response, the requester advised the township that the tapes she had received were either incomplete or blank. Township's counsel denied any attempt to offer anything less than full records of the meetings. However, in an attempt to resolve the issues, counsel agreed to provide a second set of tapes at no charge following informal intervention from the Government Records Council ("GRC").

Township counsel sent the second set of tapes directly to the GRC staff. The staff then forwarded same to the requester. Following her review of the tapes, the requester again alleged that they were incomplete because the Township attorney had tampered with the tapes in an attempt to keep the requested information from her.

Based on the facts presented to the GRC, the Acting Executive Director respectfully recommends that the Council:

• Find that the custodian provided access to the videotape copies in a timely manner,
  
• Find that the charge of $15.00 per tape is a reasonable charge permitted pursuant to N.J.S.A. 47:1A-5,
  
• Dismiss the allegations of videotape tampering, as the facts do not support those allegations,
  
• Dismiss the complaint.

Statement of Facts

March 17, 2003 - Records request
The requester made an OPRA request for "videotapes of June, July and August 2002 town council tapes - specific dates not determined - August 13, 2002 and all other meetings."

March 24, 2003 - Initial response from custodian
The Township sent the requester a March 24, 2003, letter indicating that upon receipt of a check for $60.00, the Township would copy the tapes for her.

June 13, 2003 - Requester's first allegation that the videotapes are incomplete
The requester wrote to the custodian to notify her that the tapes she received of the town council meetings from June through August 2002 did not have the town council meetings she requested. She indicated that the tapes for June 11, 2002 and June 25, 2002 were not complete video copies of the meetings where her neighbors voiced their complaints about her garden. She alleged that the tapes from July 16, 2002 and August 13, 2002 were completely blank. She asked for an explanation as she had paid $60.00 for the copies she received.

June 25, 2003 - Complaint filing
The requester filed a Denial of Access Complaint alleging that she had received two incomplete tapes and two blank tapes. She also requested a fee schedule explaining why she had to pay $60.00. The requester identified the attorney representing her as Barry Mandelbaum.

July 22, 2003 - Township's response to allegation of incomplete videotapes
The Township counsel sent the requester a letter acknowledging her Complaint and "vehemently" denying that the Township provided tapes that were not the full record of the meetings. He stated that GRC staff had contacted his office and indicated that the matter could be resolved if the Township provided new videotapes of the meetings. He stated that the Township consented to recopy the tapes of the meetings held in June, July, and August of 2002 at no expense to the requester. He advised that the tapes would be sent to GRC staff for review no later than August 8, 2003, and then forwarded to the requester. Township counsel noted that while they were sending the tapes again, they did not agree that the Township had made a mistake, that the GRC had made no finding that the Township had violated OPRA, and that they were not agreeing to follow this procedure in the future.

August 4, 2003 - Custodian counsel's sends GRC a second set of videotapes
Township counsel sent GRC staff an August 4, 2003 letter enclosing the videotapes of the June 11, 2002, June 25, 2002, July 16, 2002 and August 13, 2003 Township Council meetings. Township counsel states that she reviewed the tapes and certifies that they are properly copied. She asked the GRC staff to send them to the requester after reviewing same.

August 8, 2003 - GRC staff forwards second set of tapes to requester
GRC staff sent a letter to the requester enclosing the videotapes. See "August 13, 2003" entry below for an explanation of the lack of charges for the second set of tapes.

NOTE: The Assistant Executive Director declined to review the tapes as neither he nor anyone in the GRC staff would have known if what they were viewing were full and complete copies of the meetings.

August 13, 2003 - Township's verbal explanation of videotape copy charges
Township counsel advised the GRC staff that an outside contractor tapes the council meetings. That contractor also made the videotape copies. Township counsel also stated that the first set of tapes totaled $60.00, and that the Township did not charge the requester for the second set. Additionally, she stated that she is not sure if the Township keeps minutes of the public comment period of the council meetings, which is the time that the public may or may not have made comments about the requester's property.

August 29, 2003 - Custodian's agreement to mediate
The custodian signed the Agreement to Mediate.

September 2, 2003 - Requester declines mediation
The requester verbally advised the GRC staff of her refusal of mediation.

September 4, 2003 - Requester's supplemental position statement
GRC staff received requester's Denial of Access Complaint - Detail Summary acknowledging that she had received the four tapes. She states that she was denied access to the four Town Council meetings of June 11, 2002, June 25, 2002, July 16, 2002 and August 13, 2002. She alleges that the tapes had been tampered with, because the videographer did not send the tapes directly to the GRC staff. She further alleges that Township counsel had sent the second set of tapes, as he had sent the first, by first altering them to deny her access. She also stated that the Township attorney had failed to send her the fee schedule for the tapes as GRC staff had requested. She states her concern that the Township attorney is lying to a government official and a government agency, because they are swearing that these tapes are the complete records of the council meetings when they are not. She claims that the only way to ensure that the Township employees did not tamper with the government records is for the videographer to send them directly to her. She asked to be advised when such an action could be ordered by the Council.

Statement of videotape copy fees
In response to GRC staff's follow up on the requester's inquiry concerning the copying fee, Township counsel sent the bill from the videographer for the copying of the videotapes. The bill indicates that the requester was charged $15.00 per videotape for a total of $60.00.

September 19, 2003 - Receipt of Township ordinance regarding videotape copy charges
The custodian provided GRC staff with a copy of the Township's Ordinance that provides a fee structure for the copying of government records. This fee structure identifies video recordings as government records that require special copying procedures and/or the expenditure of extraordinary time and effort. It appears that the fee to be charged for video recordings is the cost of the copying.

September 20, 2003 - Township's need for an outside contractor to copy videotapes
Township counsel sent GRC staff a letter advising that the Township does not have the resources or capability to reproduce the videotapes. Instead, the third party who does the videotaping of Township Council meetings is also the one who does the copying.

Legal Issues and Considerations

The credible information in this case indicates that the Township of West Orange has provided the requested tapes. The requester's assertion that the tapes were tampered with by the Township attorney appears to be based solely on the fact that the Township attorney had temporary custody of the tapes. The requester has provided no facts that support such an assertion. Indeed, the Township attorney has certified that the tapes were copied accurately.

Regarding the requester's inquiry about the cost of the videotapes, N.J.S.A. 47:1A-5 (b) provides that:

"A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record"

In accordance with the above statute, the Township has charged the requester the actual cost of copying the videotapes.

Conclusion

Based on the aforementioned facts, the Acting Executive Director concludes that the township has satisfied its obligation in respect to the subject request. Township counsel certified that the tapes were properly copied. The facts support a finding that the township has satisfactorily presented the requester with copies of those records in its possession that are responsive to the request.

The Acting Executive Director respectfully recommends that the Council dismiss this complaint.

Paul F. Dice, Acting Executive Director
Government Records Council

Dated: October 6, 2003

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