2003-91

Final Decision

At its August 12, 2004 public meeting, the Government Records Council (Council) considered the August 5, 2004 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, dismissed the case on the basis of the Complainant’s withdrawal of his complaint.

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 12^th Day of August, 2004

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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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. All Planning Board resolutions authorizing all the apartments in the Borough of Madison in business and residential districts;
2. List of all apartments and rooms being rented in the Borough of Madison;
3. List of all certificates of occupancy for all the businesses in the Borough of Madison;
4. All the certificates of occupancy for all the apartments and all the homes in the Borough of Madison (including all multiple dwelling houses);
5. List of all multiple dwelling homes on North Street.

Custodian: Marilyn Schaefer
Request Made: June 16, 2003
Response Made: June17, 2003; June 24, 2003; June 27, 2003
GRC Complaint filed: July 11, 2003

Background 

Following the Council’s April 26, 2004 Interim Decision, the Government Records Council’s (GRC) Executive Director intervened in this case in an attempt to clarify the outstanding issues in the case.  Through this intervention, the Executive Director sought to clarify what information the Custodian was able to provide concerning the Complainant’s request for certificates of occupancy and what specific information the Complainant was still seeking. 

On May 20, 2004, the ED and GRC staff conducted separate telephone calls to Mr. Mezzacca, the Custodian’s Counsel, and Mr. DeBiasse, the Complainant. In attendance during the telephone conversations were the following Government Records Council staff: Paul Dice – Executive Director, Gloria Luzzatto – Assistant Executive Director and Anthony Carabelli – Case Manager.  Based on the discussions, the parties stated their positions as follows:

Complainant’s Case Position:

On May 20, 2004, the Complainant stated that he was still seeking the following from the Borough:

1. An explanation of the process to view audio recording tapes of Borough Planning Board resolutions.
2. What certificates of occupancy the Borough of Madison has available for him to review.
3. The actual cost for copying the list of all multiple dwelling homes on North Street.
4. The actual cost for copying the list of all apartments in the Borough of Madison.

In letters dated June 23 and July 9, 2004, the Custodian’s Counsel replied to the Complainant’s outstanding requests detailed above in “1” through “4.” GRC staff forwarded the letters to the complainant for response.  On July 21, 2004, the Complainant verbally informed the GRC staff that he wished to withdraw his complaint.  On July 23, 2004, the GRC staff sent a letter to Complainant confirming same. 

Public Agency’s Case Position:

On May 20, 2004, the Custodian’s Counsel provided the following explanation concerning their methods for storing and maintaining construction permits and certificates of occupancy:

1. The current software contains a list of all certificates of occupancy from August 2003 to the present. 
2. The Construction Office has a list of hard copy paper files of construction permits (some of which contain certificates of occupancy) from the period of August 1996 until August 2003 in the Borough Construction Office.  Mr. Mezzacca indicated that the research in procuring these certificates would require extraordinary effort and would involve a service charge. 
3. The Custodian could convert information from the Borough’s old software program starting from 1990 that would not include certificates of occupancy but rather, permit numbers, dates the permits were issued and the property value after construction.  The Borough of Madison determined from their software manufacturer that it would cost $.75 a page to fulfill this request. 
4. There are cold storage files of Construction information from 1980 to 1996 in the annex of the Borough Building.  

In a June 23, 2004 letter and a July 9, 2004 supplemental letter, the Custodian’s Counsel provided the following responses that directly corresponded to the Complainant’s issues conveyed on May 20, 2004 concerning his request.  Both letters were forwarded to the Complainant:

1. A step-by-step process to view the audio recording tapes of the Borough Planning Board resolutions
2. Certificates of occupancy were only available for construction projects within the time parameters set forth above in items “1” through “4” and in their May 20, 2004 phone discussions with the GRC staff.
3. There were no lists of multiple dwellings on North Street with the exception of those that appeared on the Landlord/Tenant Registration list.
4. The Borough of Madison has no specific list of all apartments in the Borough of Madison.  The only list showing apartments in the Borough of Madison would be the Landlord/Tenant Registration list that consists of 5 pages and the cost of obtaining a copy is $.75 cents per page.

Analysis

On May 20, 2004, the GRC staff clarified the outstanding issues with the parties.  Copies of Custodian’s Counsel responses to the Complainant’s issues faxed to the Complainant on July 7 and 12, 2004 for his review.  On July 21, 2004 the Complainant verbally informed the GRC staff he was satisfied with the Custodian Counsel’s responses regarding his issues and was withdrawing his complaint.  In a July 23, 2004 letter to the Complainant, the GRC staff confirmed the Complainant’s withdrawal of his complaint and the case would be considered closed if no response was received to the contrary by July 27, 2004.  The GRC staff received no response from the Complainant.  Therefore, no further action is needed and the case should be dismissed.  The analysis of the       Findings and Recommendations are incorporated into the Supplemental Findings and Recommendations of this case and no further analysis is needed. 

Documents Reviewed

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

1. June 19, 2004 – GRC’s letter to both parties detailing the phone conversations and information sought by the Complainant
2. June 23, 2004 – Custodian Counsel’s letter to GRC offering information and a request for a clarification of the June 19^th letter
3. July 1, 2004 – Complainant’s letter requesting an update on complaint
4. July 6, 2004 – GRC faxed June 23, 2004 letter to Complainant
5. July 8, 2004 – GRC’s letter to Custodian’s Counsel requesting a response to June 19^th letter
6. July 9, 2004 – Custodian’s letter to GRC regarding the June 19^th letter
7. July 12, 2004 – GRC faxed July 9, 2004 response to Complainant
8. July 23, 2004 – GRC’s letter to Complainant requesting a written response to this case

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Government Records Council find that the case should be dismissed on the basis of Complainant withdrawal of his complaint.

Prepared By: 
Approved By:
Paul F. Dice
Executive Director
Government Records Council

August 5, 2004

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Interim Decision on Access

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of 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.   In the recommendations, the complainant was to provide information requested by the custodian pertaining to the requests for a list of all certificates of occupancy for all apartments and all homes in the Borough of Madison.  The information requested by the requestor was to be provided to the custodian with a copy to the Executive Director within five business days of receipt of the Council’s Interim Decision.  Failure to provide the requested information will result in the case being dismissed. 

At the April 8, 2004 public meeting, the Government Records Council considered the April 8, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  The Executive Director recommended that the Council dismiss the case finding that:

1. The Complainant’s March 23, 2004 response was unclear and no more specific than what had been presented in the original request. 
2. The Complainant did not respond to the Custodian in a timely fashion as instructed by the Council.

The Council amended the Executive Director’s April 8, 2004 Findings and Recommendations and by consensus adopted that the Executive Director intervene with the custodian and the requestor to resolve the outstanding issue of access concerning the certificate of occupancy for all apartments and homes in the Borough of Madison and report his findings at the April 26, 2004 public meeting of the Government Records Council. 

Interim Decision Rendered by the
Government Records Council
On The 8th Day of April, 2004

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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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: (1) All Planning Board resolutions authorizing all the apartments in the Borough of Madison in business and residential districts; (2) List of all apartments and rooms being rented in the Borough of Madison; (3) List of all certificates of occupancy for all the businesses in the Borough of Madison; (4) All the certificates of occupancy for all the apartments and all the homes in the Borough of Madison (including all multiple dwelling houses); (5) List of all multiple dwelling homes on North Street.
Custodian: Marilyn Schaefer
Request Made: June 16, 2003
Response Made: June17, 2003; June 24, 2003; June 27, 2003
GRC Complaint filed: July 11, 2003

Executive Director’s Supplemental Findings and Recommendation

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of 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.  In this recommendation, the Complainant was to provide information requested by the custodian pertaining to the requests for a list of all certificates of occupancy for all apartments and all homes in the Borough of Madison.  The information requested by the custodian was to be provided to the custodian with a copy to the Executive Director within five business days of receipt of the Council’s Interim Decision.  Failure to provide the requested information will result in the case being dismissed. 

On March 23, 2004, the GRC staff received a response from the Complainant regarding this Interim Decision.  However, the Custodian did not receive a copy of said response.  On March 24, 2004, the GRC staff forwarded a copy to the Custodian requesting a response by March 29, 2004 concerning the additional information provided by the Complainant and whether it was sufficient for the custodian to comply with the request for the certificate of occupancy information.

A March 29, 2004 response from the Custodian’s Counsel concerning the Complainant’s March 23, 2004 letter indicated that the information provided in said letter was insufficient and unclear and asserted the problem previously raised still exists in responding to the request. 

The Executive Director respectfully recommends the Council dismiss the complaint on this basis:

1. The Complainant’s March 23, 2004 response was unclear and no more specific than what had been presented in the original request. 
2. The Complainant did not respond to the Custodian in a timely fashion as instructed by the Council.

Legal Analysis

The legal analysis was set forth in the March 11, 2004 Findings and Recommendation and no additional analysis is needed. 

Documents Reviewed

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

• March 11, 2004 – Interim Decision on Access Requesting a Response from the Complainant
• March 23, 2004 – Email Response by Complainant to GRC Regarding Interim Decision on Access
• March 24, 2004 – GRC Staff Email Sent to Custodian Regarding March 23, 2004 Response by Complainant
• March 29, 2004 – Reply by Custodian’s Counsel to March 23, 2004 Complainant’s Email

________________________

Paul F. Dice
Executive Director
Government Records Council

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Interim Decision on Access

At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of 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 as follows.

1. The custodian has provided access to the complainant pertaining to the requests for all Planning Board resolutions, list of all apartments and rooms rented, and a list of all multiple dwelling homes on North Street in the Borough of Madison.
2. Mr. DeBiasse is to provide the information requested by the custodian pertaining to the requests for a list of all certificates of occupancy for all businesses and all certificates of occupancy for all apartments and all homes in the Borough of Madison.  The information requested by the custodian is to be provided to the custodian with a copy to the Executive Director within five business days of receipt of the Council’s Interim Decision. 

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Findings and Recommendations of the Executive Director

Relevant Records Requested: (1) All Planning Board resolutions authorizing all the apartments in the Borough of Madison in business and residential districts; (2) List of all apartments and rooms being rented in the Borough of Madison; (3) List of all certificates of occupancy for all the businesses in the Borough of Madison; (4) All the certificates of occupancy for all the apartments and all the homes in the Borough of Madison (including all multiple dwelling houses); (5) List of all multiple dwelling homes on North Street.
Custodian: Marilyn Schaefer
Request Made: June 16, 2003
Response Made: June17, 2003; June 24, 2003; June 27, 2003
GRC Complaint filed: July 11, 2003

Recommendations of Executive Director

This OPRA Complaint filed July 11, 2003 alleges the denial of an OPRA request to review: (1) all Planning Board resolutions authorizing all the apartments in the Borough of Madison in business and residential districts; (2) a list of all apartments and rooms being rented in the Borough of Madison; (3) a list of all certificates of occupancy for all the businesses in the Borough of Madison (4) all the certificates of occupancy for all the apartments and all the homes in the Borough of Madison (including all multiple dwelling houses); (5) a list of all multiple dwelling homes on North Street.

The record reflects that the Custodian responded to the requests numbered “(2)” and “(5)” above on June 17, 2003 and advised the Complainant that copies of such records would be provided upon payment of the appropriate duplicating fee.

The record reflects that the Custodian responded to the request numbered “(1)” above on June 24, 2003 and advised the Complainant that he was welcome to view the Planning Board meeting minutes (which contain all Planning Board resolutions) at his convenience.

The record reflects that the Custodian responded to the request numbered “(3)” and “(4)” above on June 27, 2003 by requesting clarification as to the breadth and time frame of such requests.  There is no indication that the Complainant ever provided such requested clarification.

The Executive Director respectfully recommends the Council find that:

1. The custodian has provided access to the complainant for requests numbered “1”, “2” and “5”
2. Mr. DeBiasse is to provide the information requested by the custodian in requests numbered “3” and “4” with a copy to the Executive Director within five business days.  Failure to provide the requested information will result in the case being dismissed. 

Legal Analysis

N.J.S.A. 47:1A-5(i) provides, in pertinent part, that “[u]nless a shorter time period is otherwise provided . . .   a custodian of a government record shall grant access to a government or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request.”  Here, the Custodian made a significant portion of the requested documents available to the Complainant in strict compliance with the provisions of OPRA.  Moreover, the Custodian sought clarification with respect to the balance of the requested documents and offered to make those documents available upon receipt of such clarification.  The Complainant failed to respond to the Custodian’s request for clarification.  The requestor should be given five business days to comply with the custodian’s request.  Failure to provide the requested information will result in the case being dismissed.

Documents Reviewed

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

• June 16, 2003 – Records Request
• June 27, 2003 – Custodian’s Response to Requestor Denying a Portion of the Request
• July 11, 2003 – Denial of Access Complaint Filed
• July 22, 2003 – Mediation Forms Sent to Custodian and Requestor
• July 29, 2003 – Custodian Letter to GRC Requesting More Time Before Mediation
• November 17, 2003 – Emails Between GRC and Mediator Stating that the Complaint Referred Back for Adjudication
• January 29, 2004 – GRC Submitted Statement of Information to Custodian
• February 6, 2004 – Statement of Information Submitted to GRC

Conclusion

The Executive Director respectfully recommends the Council find that:

1. The custodian has provided access to the complainant for requests numbered “1”, “2” and “5”
2. Mr. DeBiasse is to provide the information requested by the custodian in requests numbered “3” and “4” with a copy to the Executive Director within 5 business days.  Failure to provide the requested information will result in the case being dismissed. 

________________________

Paul F. Dice
Executive Director
Government Records Council

March 7, 2004

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