2004-07

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. The Council voted to adopt the entirety of said Findings and Recommendations and to dismiss the complaint on the basis of:

The Custodian provided a certification that the records requested by the Complainant (1) have been provided to the Complainant or (2) do not exist. 

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:

1. Stafford Police Department ("SPD") and Internal Revenue Service ("IRS") Reports from January 1992 through August 1994 (Parker 5/15/98 Letter) IRA CID cases 1-1
2. SPD case 92-752 (3/18/92)
3. SPD case 93-1090 (2/3/93) Michael J. Bent

Custodian: Bernadette Park
Request Made: Various dates beginning December 28, 2002
Response Made: Various dates beginning July 23, 2003
GRC Complaint filed: January 23, 2004

Executive Director's Recommendations

This Open Public Records Act ("OPRA") Complaint filed January 23, 2004 alleges denial of an OPRA request to the Township of Stafford Police Department for various police reports and other materials relating to an investigation of the Complainant in connection with various business and personal dealings.  Complainant further alleges that the Custodian has falsely denied the existence of certain requested records.

The Custodian has certified that: (1) all records in connection with the request were given to the Requestor; and (2) notification was given to the Complainant if no record related to his request existed.

The Executive Director respectfully recommends that the Council dismiss this complaint because:
Under the provisions of OPRA, "any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business."  Here, the Custodian has provided a certification that the records requested by the Complainant: (1) have been provided to the Complainant or (2) do not exist.

In this instance, the Council also takes note that the Complainant alleges that the Custodian has not been truthful in the denial of the existence of certain of the requested records.  In a very disorganized and rather incoherent manner, the Complainant has attempted to provide the Council with evidence of this alleged lack of truthfulness.  The Council notes that (1) the Complainant’s evidence is far from convincing; and (2) in the absence of compelling evidence of lack of truthfulness on the part of a Custodian, the Council will not engage in speculative fact-finding when that Custodian has certified as to the truthfulness of his or her response.

Legal Analysis

The Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) defines a government record as "any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business."  The Act further provides that all government records shall be available for public access, subject to certain exemptions specifically set forth therein.  Here, the Custodian has provided a certification that the records requested by the Complainant:

(1) have been provided to the Complainant or (2) do not exist.  As a result, it is appropriate to dismiss the Complainant’s case.

N.J.S.A.   47:1A-7(e) provides that if the Council "determines, by a majority vote of its members, that a custodian has knowingly and willfully violated" OPRA and has been "found to have unreasonably denied access under the totality of the circumstances," then the Council may impose certain penalties.  Here, despite the Complainants protestations to the contrary, there is no evidence that the Custodian has "knowingly and willfully" denied access to the requested records.  In fact, the record reflects a conscientious effort on the part of the Custodian to be as responsive as possible to the Complainant's request.  As a result, there is no basis for the Council to conduct further fact-finding related to the truthfulness of the Custodian's response to the Complainant's requests.

Documents Reviewed

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

• December 28, 2002 - OPRA request #1
• January 2, 2003  - OPRA request #2
• July 22, 2003 - Custodian response to prior OPRA requests
• July 28, 2003  - OPRA request #3
• October 28, 2003 - Custodian response to OPRA request dated 10/4/03
• October 30, 2003 - OPRA request #4
• November 4, 2003 -Custodian response to OPRA request dated 10/30/03
• November 10, 2003 - OPRA request #5
• November 12, 2003 - Custodian response to OPRA request dated 11/10/03
• November 17, 2003 - OPRA request #6
• November 19, 2003 - Custodian response to OPRA request dated 11/17/03
• November 22, 2003 - OPRA request #7
• December 10, 2003 - Requestor's supplemental information to Custodian
• December 10, 2003 - Custodian response to OPRA request dated 11/22/03
• December 13, 2003 - OPRA request #8
• January 23, 2003 - Denial of Access Complaint Form with supplemental information
• January 29, 2004 - Offer of Mediation (Requestor)
• January 30, 2004 - Offer of Mediation (Custodian)
• January 30, 2004  - Custodian decline of Mediation
• February 6, 2004 -Custodian letter to GRC declining Mediation and alleging that all records were received by the Requestor
• February 18, 2004 - GRC request for Statement of Information
• February 20, 2004 - Statement of Information
• February 20, 2004 - Supplemental information provided by Requestor to GRC
• February 25, 2004 - Supplemental information provided by Requestor to GRC
• February 27, 2003 - Supplemental information provided by Requestor to GRC
• March 1, 2004 - Supplemental information provided by the Requestor to GRC
• March 4, 2004 - Supplemental information provided by the Requester to GRC

Conclusion

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

Under the provisions of OPRA, "any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business."  Here, the Custodian has provided a certification that the records requested by the Complainant: (1) have been provided to the Complainant or (2) do not exist.

In this instance, the Council also takes note that the Complainant alleges that the Custodian has not been truthful in the denial of the existence of certain of the requested records.  In a very disorganized and rather incoherent manner, the Complainant has attempted to provide the Council with evidence of this alleged lack of truthfulness.  The Council notes that (1) the Complainant's evidence is far from convincing; and (2) in the absence of compelling evidence of lack of truthfulness on the part of a Custodian, the Council will not engage in speculative fact-finding when that Custodian has certified as to the truthfulness of his or her response.

________________________

Paul F. Dice
Executive Director
Government Records Council

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