2003-97

Administrative Case Disposition

Case Disposition:  This case was settled in mediation on April 28, 2005 and therefore, the case is closed. 

Date of Disposition:  April 28, 2005

Case Manager:  Gloria Luzzatto, Assistant Executive Director

Date:  April 28, 2005

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Interim Decision

At its April 8, 2004 public meeting, the Government Records Council (Council) considered the April 8, 2004 Supplemental Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said Finding and Recommendations of the Executive Director to forego any adjudicatory action pending the outcome of mediation.

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: All deeds and mortgages in digital format
Custodian: Essex County Registrar (Carole Graves)
Request Made:   June 25, 2003
Response: Verbal, though not from the custodian, offered on July 17, 2003 (see letter mis-dated June 17, 2003 from complainant to the then Acting Executive Director Marc Pfeiffer)
GRC Complaint Filed: July 17, 2003

Supplemental Recommendations of the Executive Director

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 said Findings and Recommendations with revisions.  The Council finds that the custodian's lack of response is considered a denial of access under N.J.S.A. 47:1A-5(i) and orders the custodian to:

1. Disclose the requested documents to the Complainant pursuant to N.J.S.A.47: 1A-1 et seq., since the custodian has offered no arguments that would exempt disclosure of the requested documents following receipt of the requestor’s response in number “2” below.
2. Provide the requestor and Executive Director, Paul Dice, with a detailed estimate of the bases for the cost(s) of providing the requested digital copies for those documents in existence with the Essex County Registrar on June 25, 2003 and which are responsive to the complainant’s request within five business days of the custodian’s receipt of the Council’s order.  Such cost estimate(s) should be in keeping with the provisions set forth in N.J.S.A. 47:1A-5.

The Council further concluded that the request for copies “on a continuing basis” is not valid under Open Public Records Act (OPRA) and that the requestor must submit a new OPRA request to the custodian for each new batch of documents sought. N.J.S.A. 47:1A-1.1 – definition of a “Government Record.”

Subsequent to the Council’s Order and on March 18, 2004 the Government Records Council Staff was informed that Terriann Moore-Abrams was the designated Records Custodian for Essex County and had not received the Denial of Access Complaint or an offer of mediation.  A March 18, 2004 letter from the GRC Staff offering the opportunity of mediation was faxed to the designed Records Custodian.  On March 19, 2004, the Record’s Custodian informed the Government Records Council’s Staff by letter that:

1. It did not maintain the requested Deeds and Mortgages in a digital medium, but was able to provide the documents in microfilm images at a charge of $50.00 per roll.
2. Terriann Moore-Abrams, Assistant County Counsel, was the designated Records Custodian for Essex County and had not received the request, the Denial of Access Complaint or information pertaining to an offer of mediation. 

On March 22, 2004 the designated Records Custodian signed the Agreement to Mediate.  A signed Agreement to Mediate was previously received from the Complainant. The case was referred to mediation based on the agreement of the parties. 

The Executive Director respectfully recommends that the Council and GRC staff forego any adjudicatory action pending the outcome of mediation.

Analysis

Pursuant to N.J.S.A. 47:1A-7(d), no legal analysis is needed at this time.

Documents Reviewed

The following documents have been reviewed in preparing the Findings and Recommendations of this case:

• August 26, 2003 – Signed Agreement to Mediate from Complainant
• March 18, 2004 – Letter and fax cover page from GRC to Custodian with offer of mediation
• March 19, 2004 – Letter from custodian to GRC 
• March 22, 2004 – Signed Agreement to Mediate from Custodian
• March 24, 2004 – Fax from GRC Staff to Complainant with custodian’s March 19, 2004 letter attached

________________________

Paul F. Dice
Executive Director
Government Records Council

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Interim Order on Access; Final Decision on Requests of a Continuing Na

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 said Findings and Recommendations with revisions.  The Council finds that the custodian's lack of response is considered a denial of access under N.J.S.A. 47:1A-5(i) and orders the custodian to:

1. Disclose the requested documents to the Complainant pursuant to N.J.S.A.47:1A-1 et seq., since the custodian has offered no arguments that would exempt disclosure of the requested documents following receipt of the requestor's response in number "2" below.
2. Provide the requestor and Executive Director, Paul Dice, with a detailed estimate of the bases for the cost(s) of providing the requested digital copies for those documents in existence with the Essex County Registrar on June 25, 2003 and which are responsive to the complainant’s request within five business days of the custodian's receipt of the Council's order.  Such cost estimate(s) should be in keeping with the provisions set forth in N.J.S.A. 47:1A-5.

The Council further finds that the request for copies "on a continuing basis" is not valid under Open Public Records Act (OPRA) and that the requestor must submit a new OPRA request to the custodian for each new batch of documents sought. N.J.S.A. 47:1A-1.1 - definition of a "Government 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

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Findings and Recommendations of the Executive Director

Relevant Records Requested: All deeds and mortgages in digital format
Custodian: Essex County Registrar (Carole Graves)
Request Made:   June 25, 2003
Response: Verbal, though not from the custodian, offered on July 17, 2003 (see letter mis-dated June 17, 2003 from complainant to the then Acting Executive Director Marc Pfeiffer)
GRC Complaint Filed: July 17, 2003

Recommendations of the Executive Director

By the Open Public Records Act (“OPRA”), a complaint was filed July 17, 2003 in which the complainant alleges that an OPRA request allegedly filed June 25, 2003 seeking a copy of all deeds and mortgages in digital format on a continuing basis remains unfilled.  A request made on January 29, 2004 for the custodian’s statement of information was unanswered and no additional information has been provided from the custodian in response to the complaint. Thus, the custodian has offered no defense in this case.

The Executive Director respectfully recommends that the Council:

1. The custodian’s lack of response should be considered a denial of access. N.J.S.A.47: 1A-5(i).
2. Should proceed as though the documents are disclosable given that the custodian has offered no arguments to the contrary. Further, the file does not indicate that the records are clearly not disclosable. N.J.S.A. 47:1A-1. Order the custodian to disclose the requested documents to the Complainant within five business days of the custodian’s receipt of the Council’s order.
3. Order the custodian to provide the requestor and Executive Director Paul Dice with a detailed estimate of the bases for the cost(s) of providing the requested digital copies for those documents in existence with the Essex County Registrar on June 25, 2003 and which are responsive to the complainant’s request. Such cost estimate(s) should be in keeping with the provisions set forth in N.J.S.A. 47:1A-5 within five business days of the custodian’s receipt of the Council’s order.
4. Find that the request for copies “on a continuing basis” is not valid under OPRA and that the requestor must submit a new OPRA request to the custodian for each new batch of documents sought. N.J.S.A. 47:1A-1.1 – definition of a “Government Record.” 

Analysis

The custodian never responded to the complainant’s request. Although a June 17, 2003 letter from the requestor to the Council’s then acting Executive Director Marc Pfeiffer does indicate that a Ms. Jackson from the custodian’s office stated that the county does not offer the service sought by the requestor, there’s no indication that’s the custodian’s position. The custodian’s lack of response should be considered a denial of access. N.J.S.A.47: 1A-5(i).

The custodian has offered no proof that the records sought are not disclosable. Therefore, the Council should consider N.J.S.A. 47:1A-1 which reads “…any limitations on the right of access accorded by P.L. 1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public’s right of access.” Minus any arguments to the contrary by the custodian, and considering that the record does not clearly indicate that access should be denied, the documents should be deemed accessible.

This complaint addresses two categories of Government Records: those in existence at the time of the request and those to be created in the future. The definition of a "Government Record" states that it is one “…that has been made, maintained or kept on file in the course of his or its official business…” N.J.S.A. 47:1A-1.1. Noticeably absent in that definition is any mention of records yet to be created. Rather, it deals only with records in existence. Thus, the custodian is not required to address requests on an on-going nature. In this complaint, the custodian should not be responsible for producing any documentation other that which was in existence at the time of the request and which is responsive to same.

N.J.S.A. 47:1A-5 outlines the costs public agencies may charge for production of Government Records. The custodian should calculate same in accordance with the appropriate provisions and provide an estimate of same to the requestor and to the Council.

Documents Reviewed

The following documents have been reviewed in preparing the Findings and Recommendations of this case:

• June 25, 2003 – Requestor’s OPRA Request
• July 17, 2003 – Denial of Access Complaint Filed
• July 25, 2003 – Letter to GRC from Requestor with copy of OPRA Request
• August 26, 2003 – Offer of Mediation provided to Requestor and Custodian
• August 26, 2003 – Agreement to Mediate signed by the Requestor
• October 17, 2003 – GRC follow-up to Custodian for Response to the Offer to Mediate
• January 29, 2004 – GRC Request for Statement of Information   

_________________________

Paul F. Dice
Executive Director
Government Records Council

March 7, 2004

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