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2004-106
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Final Decision |
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Findings and Recommendations of Executive Director |
Final DecisionCynthia Gallenthin, Complaint No. 2004-106Complainant v. County of Gloucester, Custodian of Record At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 1, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. An administrative change under “Complainant’s Case Position” of said findings and recommendations that states “August 9, 2004” and was changed to state “July 15, 2004.” The Council voted unanimously to adopt the entirety of said findings and recommendations with the administrative change. Therefore, the Council dismissed the case on the basis of:
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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Virginia Hook, Secretary Findings and Recommendations of Executive DirectorCynthia Gallenthin, GRC Complaint No. 2004-106Complainant v. County of Gloucester, Custodian of Records Records Requested:
Custodian: Robert
DiLella Background Complainant’s Case Position The Complainant filed a Denial of Access Complaint with the Government Records Council on August 9, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following: On July 9, 2004 an OPRA request was faxed to the Clerk of the Board, Robert DiLella, who stated that he was unaware of public notice advertised by Gloucester County Improvement Authority, (GCIA) would obtain said public records from GCIA, and would call to advise of availability for inspection in his office. That same day the Clerk advised the Complainant and her husband that public records were available for inspection. The Complainant appeared on July 12, 2004 to inspect the records and upon determination that the records presented were not complete, the OPRA request from July 9, was amended to add: Authenticated duplicate of documents relative to public notice of July 9, 2000 Gloucester County Times and, any and all documents relevant to purchasing anything in Paulsboro through bonds. The Complainant states that the clerk initialed the amendment and informed her that the Deputy Clerk of the Board, Debra Press-Costello would coordinate the public records access during his upcoming absence. The Complainant notes that the Public Notice of Friday July 9, 2004 states that the public records “are on file and available for public inspection in the Office of the Clerk of the Board of Chosen Freeholders, and they were not available. (sic) On July 13 the Complainant appeared with her husband at the West Deptford Police Department and formally requested a police escort to her appointment at GCIA for the records inspection. On the same day the Complainant appeared with her husband as well as a police escort who entered the building first and returned to advise the Complainant that, “only the wife could inspect the public records due to previous threats by the husband.” The Complainant states that she was denied access to public records based on a false statement to a West Deptford Police Officer, which statement was, “unsubstantiated, scurrilous, and intentionally defamatory. Also, the Complainant states that she was denied access because her husband accompanied her. On July 14, 2004 the Complainant appeared with her husband at GCIA and conducted inspection of public records described in the public notice of July 9, 2004. That same day the Complainant contacted the Clerk of the Board regarding the events surrounding the denial of her public records access. The Complainant states that the Clerk explained that Maurice James Maley, Jr., Esq. and/or Parker McCay Criscuolo, P.A. counseled that her public access should be limited to the bond resolution and he would seek OPRA counseling because PMC did not provide their opinion in writing. The Complainant then stated that Attorney Maley and/or PMC, as redevelopment and bond counsel for the instant bond issue might not necessarily be advising the Clerk in the best interest of Gloucester County. Finally, the Complainant states that, “under he color of the law and without privity (sic) of contract, Maurice James Maley, Jr. Esq. and/or Parker McCay Criscuolo, P.A. usurped the lawful authority of the Clerk of the Board of Gloucester County and Gloucester County/OPRA Counsel, by intentionally and maliciously denying public access to said public records.” Public Agency’s Case Position In response to the Complainant’s allegations, Custodian’s Counsel asserts the following: The Custodian notes that on July 9, 2004 the Complainant made a request for onsite inspection of a bond resolution (fifth supplement) of the Gloucester County Improvement Authority. A copy of the fifth supplemental resolution to a Gloucester County Improvement Authority bond resolution adopted on November 22, 1999, as amended and supplemented on 5/4/2000, 9/20/2001, 8/15/2002, and 3/20/2003 authorizing the issuance of additional bonds was made available on July 12, 2004. The resolutions, which the fifth supplemental resolution amended, were also made available for inspection. The Gloucester County Custodian of Records certified that they made available all records requested that their office had on file, and the other items which the Complainant seeks are records of the Gloucester County Improvement Authority, not records of the County of Gloucester. Also, he states, “the requestor has been advised of this circumstance on numerous occasions.” The Custodian goes on to state that the County of Gloucester and the Gloucester County Improvement Authority are two separate entities, each with their own statutory powers, sources of revenue and record keeping obligations. Also, each entity has its own Records Custodian. The Custodian states that the Complainant’s amended request asked for “any and all documents relevant to purchasing anything in Paulsboro through bonds. He then cites N.J.S. 40:37A-62 provides that an Improvement Authority shall file a copy of the bond resolution in the office of the clerk of the governing body of the County, the statute does not require the supporting documentation be filed with the County. And, no such documentation was filed there. Analysis The following correspond directly with the Findings and Recommendations of the Executive Director: N.J.S.A. 47:1A-1.1 states, "Government record" or "record" means 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 a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. The Custodian has certified that they made available all records responsive to the request that they maintain in the office of the County of Gloucester. If the records do exist, the Complainant should file a request for access to the Gloucester County Improvement Authority. Upon review of the November 5, 2004 E-mail from the Complainant and her assertion that there was no response to her request, the record shows that the Custodian responded in a timely manner pursuant to N.J.S.A. 47:1A-1 et. seq. Documents Reviewed The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council:
Prepared By: December 1, 2004 |
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