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2004-111

- Final Decision
- Supplemental Findings and Recommendations of Executive Director
- Interim Decision on Access
- Findings and Recommendations of Executive Director

Final Decision

Ross Kushner,
   Complainant
      v.
Township of West Milford,
   Custodian of Record

Complaint No. 2004-111

At its (Date of Meeting) public meeting, the Government Records Council (“Council”) considered the October 1, 2004 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 that the Custodian has complied with the Council’s November 9, 2004 Interim Decision and the Complainant acknowledges receipt of the documents responsive to his OPRA request.

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 9th Day of December, 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 Executive Director

Ross Kushner,                                   GRC Complaint No. 2004-111 
Complainant
         v.
Township of West Milford
Custodian of Records


Records Requested:
Digital Geographic Information System (GIS) tax maps for the Township of West Milford
Custodian: Township of West Milford – Kevin Byrnes
Request Made:   June 29, 2004
Responses Made: Various and undated verbal; one written on October 13, 2004
GRC Complaint filed: August 6, 2004

Background

This case was heard at the November 9, 2004 Council meeting. The Township was ordered to release the requested digital GIS tax maps directly to the Complainant pursuant to N.J.S.A. 47:1A-1 et seq. without having the Complainant fill out or execute a “Request For Access to Township GIS Data” form and/or a “Data Distribution Agreement.”

Complainant’s Case Position

On December 1, 2004 the Complainant sent an e-mail to the Government Records Council staff stating that he had received the requested information.

Public Agency Position

On December 1, 2004 the Township submitted a written statement via fax to the Government Records Council staff. The letter stated that the information was provided to the Complainant and that he was not asked to sign the previously requested “Data Distribution Agreement.”

Analysis

No Analysis is needed.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

  1. August 6, 2004 – Denial of Access Complaint
  2. August 24, 2004 – Statement of Information Request
  3. September 14, 2004 – Letter from GRC staff to the Custodian requesting response to Statement of Information Request
  4. September 17, 2004 – Statement of Information
  5. October 13, 2004 – Letter and GIS Request form to Complainant
  6. December 1, 2004 – Letter from township confirming release of records
  7. December 1, 2004 – Letter from Complainant confirming receipt of the records

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis Custodian has complied with the Council’s November 9, 2004 Interim Decision and the Complainant acknowledges receipt of the documents responsive to his OPRA request.

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

December 2, 2004

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Interim Decision on Access

Ross Kushner,
Complainant
v.
Township of West Milford,
Custodian of Record
Complaint No. 2004-111

At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 1, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations with the amendment that the Custodian shall have ten (10) business days to comply with the Council’s decision. Therefore, the Council hereby finds that:

  1. The Custodian is to release the requested digital GIS tax maps directly to the Complainant pursuant to N.J.S.A. 47:1A-1 et seq. without having the Complainant fill out or execute a “Request For Access to Township GIS Data” form and/or a “Data Distribution Agreement.”
  2. The Custodian shall comply with #1 directly above within ten (10) business days after receipt of the Council’s decision. Compliance is to include written notification to Executive Director Dice.

Interim Decision Rendered by the
Government Records Council
On The 9th Day of November, 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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Findings and Recommendations of Executive Director

Ross Kushner,                                                  GRC Complaint No. 2004-111
Complainant
v.
Township of West Milford
Custodian of Records

Records Requested:Digital Geographic Information System (GIS) tax maps for the Township of West Milford
Custodian: Township of West Milford – Kevin Byrnes
Request Made:   June 29, 2004
Responses Made: Various and undated verbal; one written on October 13, 2004
GRC Complaint filed: August 6, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on August 6, 2004 pursuant to N.J.S.A. 47:1A-1.1 et. seq. The complainant stated the following:

“I submitted a formal request for this record on 6/29/04. When several weeks had passed and I did not receive this record or any response to my request I contacted the Township and spoke with Kevin Byrnes the Township Clerk, on the phone and later in person. In initial conversations Mr. Byrnes asked how we intended to use this information and promised to respond shortly. No response followed.  When contacted in mid-July Mr. Byrnes stated that the township was in the process of developing a standard protocol for release of this type of information (GIS).  However, he said this required adoption of a municipal ordinance, which would not occur before the end of September 2004. Wishing to avoid the filing of a complaint I agreed to wait until September as long as the Township provided a formal response to my request confirming that this record would be available then.  Mr. Byrnes promised a letter within a few days.  Since then I have received no letter and no other response from the Township.”

The Complainant further stated that, ”Although we understand the township’s desire to develop standard procedures for release of GIS information we do not believe the absence of these procedures relieves the Township of their responsibility to provide this record.  In addition, while the Township has offered to provide us with printed maps these are in no way a replacement for the digitized information.”

Public Agency’s Case Position

In a September 17, 2004 letter, submitted with the Statement of Information, the Custodian stated:

“Following the filing of his request I met Mr. Kushner to discuss his request. It was refined to an area of the Township along the Pequannock River. I advised him that the Township of West Milford had not established a formal policy and procedures regarding the release of this type of digital information.  I did provide him at that time with a paper copy of the material he had requested.  Please understand that I did and still do have a concern with regards to the release of certain digital GIS information especially for the portion of the Township along the Pequannock River that Mr. Kushner requested.

When I met with Mr. Kushner, I advised him that the Township would proceed with the development of a policy to cover this type of request.  The target date to have such a policy in place was the end of September.  At that time we agreed that if the policy was not put into place by the end of September, Mr. Kushner would file a complaint with the Government Records Council. 

That policy has not been put into place and the digital material Mr. Kushner requested can and will be provided to him.  Mr. Kushner will be asked to simply fill out a request form for the ‘Parcel Layer’ GIS information and we will provide him with a CD that contains that information.”

On October 13, 2004 the Custodian sent Mr. Kushner the Township’s GIS request form.

Analysis

Pursuant to N.J.S.A. 47:1A-5(g), “If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.”  Also pursuant to N.J.S.A. 47:1A-5(i), “…a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but no later than seven business days after receiving the request.” The Custodian did not offer a written response to the June 29, 2004 Open Public Records Act (OPRA) request until October 13, 2004. Said response did not include an explanation for the delay, nor did it provide any rationale for nondisclosure. Rather, the Custodian provided the Complainant with a GIS request form and an accompanying agreement that the Complainant needed to execute and return to another Township employee for processing.

The request form that the Custodian submitted to the Complainant is actually two documents. One is titled “Request For Access to Township GIS Data.” The second is a “Data Distribution Agreement.” The GIS request form states “A Township of West Milford, New Jersey Data Distribution Agreement must be submitted with all Township GIS data requests.”

The Township of West Milford’s Data Distribution Agreement contains “Disclaimer” and “Terms of the Agreement” sections. Among other things, i.e. disclaimer, “as is” conditions, limitations on use and reproduction, and more, this agreement states:

Users agree to hold the Township of West Milford, New Jersey and all their employees and agents from any claim, suit, or proceeding arising out of the use of the data in accordance with this agreement, including indemnification of the Township of West Milford for reasonable expenses incurred in defending such claims.

The Custodian states in a September 17, 2004 letter “That policy (Township policy that addresses digital GIS information requests) has now been put into place and the digital material Mr. Kushner requested can and will be provided to him. Mr. Kushner will be asked to simply fill out a request for the ‘Parcel Layer’ GIS information and we will provide him with a CD that contains that information.

The Township of West Milford has erred in its handling of this request. The Complainant was asked to wait three and one half months to gain access to the requested records while the Township worked on an ordinance and policy to deal with requests of this nature. The Township has not provided any basis in law or fact to prove that the imposition of a “Request For Access to Township GIS Data” form and a “Data Distribution Agreement” are permitted under OPRA.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

  1. August 6, 2004 – Denial of Access Complaint
  2. August 24, 2004 – Statement of Information Request
  3. September 14, 2004 – Letter from GRC staff to the Custodian requesting response to Statement of Information Request
  4. September 17, 2004 – Statement of Information
  5. October 13, 2004 – Letter and GIS Request form to Complainant

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council:

  1. Order the Custodian to release the requested digital GIS tax maps directly to the Complainant pursuant to N.J.S.A. 47:1A-1 et seq. without having the Complainant fill out or execute a “Request For Access to Township GIS Data” form and/or a “Data Distribution Agreement.”
  2. The Custodian should be given five (5) business days to comply with this order. Compliance should include written notification to Executive Director Dice.

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

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