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2004-114
Final Decision - Case Reconsideration
At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 2006 Supplemental Findings and Recommendations of the Executive Director – Case Reconsideration and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:
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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. Decision Distribution Date: April 21, 2006 Supplemental Findings and Recommendations of the Executive DirectorNJ Libertarian Party GRC Complaint No. 2004-114Complainant v. Department of Human Services, Division of Youth and Family Services (DYFS) Custodian of Records Records Relevant to the Complaint: DYFS caseworkers field manual, II Field Operations Casework Policy and Procedures Manual. Background January 13, 2005 At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 4, 2005 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 with the amendment that “including all applicable fees” be added to item #1 of the Executive Director’s conclusions and recommendations and that the Custodian’s name be listed on the “Matrix.” The Council, therefore, found that:
January 31, 2005 Letter from the Custodian to the Complainant. The Custodian states that in accordance with the Council’s January 13, 2005 decision, DYFS is “seeking to send you the CD-ROM containing the Division’s computerized on-line manual system.” She also indicates to the Complainant that the Division needs to know whether the Complainant is willing to pay the fee associated with receiving a copy of the CD-ROM. The Custodian states that in order to read the CD-ROM, software that is manufactured by a third party is required. And, therefore, in order to access their policies and procedures, using the CD-ROM, the purchase of a software license is required. The Custodian informs the Complainant that the current cost of the software is $139.00. And, the Division charges an additional $6.79 to cover the cost of preparing the CD-ROM. The Custodian informs the Complainant that the Division will require prepayment prior to sending a copy of the CD-ROM, pursuant to N.J.S.A. 47:1A-5(f), which states that a public agency shall adopt a form for OPRA requests and include a statement as to whether prepayment of fees is required. March 10, 2005 At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 1, 2005 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 that the Custodian has complied with the Council’s January 13, 2005 Interim Decision. March 18, 2005 Complainant’s response to the Custodian’s January 31, 2005 letter. The Complainant states that the original request was “to have the documents mailed to us on a CD or floppy-disk in MS Word, WordPerfect, or other generally available file format.” The Complainant explains that “despite having been ordered to release the information in the medium requested, the Custodian informed us that in order to read the CD-ROM, software that is manufactured by a third party is required, and therefore the purchase of a software license is required.” The Complainant believes the Custodian’s response violates OPRA in a “number” of ways. He states:
The Complainant requests that the Council order the Custodian to immediately provide the requested record in the medium requested, or converted to some other meaningful medium, or if neither is possible, in whatever medium it is in, for no more than the actual costs allowed by OPRA. Also, the Complainant requests a determination as to whether the Custodian’s actions in handling this request, rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances. March 21, 2005 Letter from Custodian’s counsel to the Council (GRC). Counsel states that in its original request the Complainant did not include a maximum authorized cost. She also states that it is the Division’s position that the Custodian could have initially denied the Complainant’s request for failure to include a maximum authorized cost. However, she made several “fruitless” attempts to work with the Complainant to see if the request could be met at a cost the Complainant willing to pay. She also notes that in complying with the Council’s January 13, 2005 decision, the Custodian sent the Complainant a letter informing them that they could receive the policy manual on CD for $145.79 with a full explanation of the cost involved, and they still have not responded to that letter. May 24, 2005 Letter from the GRC staff to the Custodian. The letter states that the GRC will need a certification as to the following:
June 6, 2005 Certification in response to the GRC staff’s May 24, 2005 letter. The certification was submitted by Celia J. Rechtman who states that she is familiar with the facts herein and is the Administrator of the Policy Development Unit for DYFS. She states that the computer software used to read a CD-ROM containing the Division’s on-line manual system is Folio Views 3.1 a. She states that the cost of preparing the CD-ROM and the cost of the CD-ROM itself totals $6.79. She says that the cost of the CD-ROM itself is $1.00 and the cost of preparing the CD-ROM is $5.79. She states that the $5.79 is based on the fifteen minutes it takes a clerical support person, who earns $23.17 an hour, to produce the CD-ROM. February 10, 2006 Certification submitted by the Administrator of the Policy Development Unit for DYFS. He states that the Policy Development Unit can technically export the Field Operations Manual from Folio to MS WORD. However, he states that a lot of the Folio functionality is lost as a result of the conversion. For example, there is no table of contents, jump links are disabled, and many of the “bells” and “whistles” available in Folio are just not available. He also states that since the converted MS WORD is over 6,000 KB, there is no guarantee that the formatting, layout, and overall presentation of the manual will be preserved. He goes on to state that the cost of exporting the manual, preparing the CD-ROM, and the cost of the CD-ROM itself totals $28.24. He states that the cost of analyzing, testing and preparing to export the manual to MS WORD is $20.87. This amount is based on the thirty (30) minutes it takes a professional staff person, who earns $41.74 per hour (41/72/2 = $20.87), to perform these functions. He states that the cost of preparing the CD-ROM is $6.36. This amount is based on the fifteen (15) minutes it takes a clerical support person, who earns $25.47 per hour (25.47/4 = $6.37), to produce the CD-ROM. The cost of the CD-ROM itself is $1.00. March 3, 2006 Complainant’s response to the certification submitted by the Administrator of the Policy Development Unit for DYFS. The Complainant requests that the GRC require a more detailed certification regarding the claim that $6.36 is allowed for the fifteen (15) minutes that it takes for preparation of the CD-ROM. The Complainant argues that if the charge is for simply formatting the CD-ROM, then it should not be permitted pursuant to OPRA. March 15, 2006 GRC staff’s letter to the Administrator of the Policy Development requesting a certification setting forth exactly what steps and staff level (including a breakdown of related salary cost) are required for preparation of the CD-ROM. March 23, 2006 The Administrator of the Policy Development’s certification in response to the GRC staff’s March 15, 2006 request for same. He states that the cost of preparing a CD-ROM is $6.36. He claims that the preparation stages include copying files to a CD writing software program, burning the files directly to the CD-ROM, and labeling the CD-ROM. He states that this amount is based on the fifteen (15) minutes it takes a Secretarial Assistant III, who earns $25.47 per hour ($25.47/4 = $6.37), to produce the CD-ROM. Finally, he states that the Secretarial Assistant III provides clerical support to the Policy Development Unit and is the lowest level title within the Unit. March 24, 2006 The Complainant’s response to the Administrator’s March 23, 2006 certification. The Complainant asserts that fifteen (15) minutes of the Secretarial Assistant III’s time is not warranted under OPRA. He goes on to state that as construed by the Appellate Division in Libertarian Party of Central Jersey and John F. Paff v. Reina Murphy, (as Custodian of Government Records for the Township of Edison) ___ N.J. Super. ___ (App. Div. 2006), the court permitted DYFS to charge no more than the actual cost of the CD-ROM and the cost of postage. The Complainant states that in Libertarian Party, the Appellate Division was called upon to decide how much OPRA allows Edison Township to charge for copying meeting minutes to a computer diskette. He states that in a footnote, the Court referenced N.J.S.A. 47:1A-5.c. and noted that the custodian is only allowed to charge “whenever the nature [of the record] … involves an extraordinary expenditure of time and effort to accommodate the request.” Id. Slip Op. at 6. Finally, the Complainant asserts that copying files to a CD burning program and labeling the CD is a routine procedure that would be required whenever anyone requested an electronic record on a CD-ROM. Analysis Whether the Custodian has unlawfully denied access when the requested records were offered to the Complainant in the medium requested? OPRA provides that “… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) N.J.S.A. 47:1A-1. OPRA defines a government record as follows: “ … 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 … or that has been received…” (Emphasis added.) N.J.S.A. 47:1A-1.1. OPRA also provides that: “[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium…“[i]f the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium…” (Emphasis added.) N.J.S.A. 47:1A-5.d. In the case at hand, the Custodian offered the requested records to the Complainant in the medium requested (CD-ROM) pursuant to the Council’s interim decision dated January 13, 2005. As a result, the Council issued a final decision dated March 10, 2005 in which it dismissed the case on the basis that the Custodian complied with the interim decision. The Complainant has subsequently raised the issue of whether the record has been unlawfully denied based on the fact that the Custodian does not address whether the requested record can be converted to “MS WORD, WordPerfect or other generally available format,” or the cost for making such a conversion. The Complainant asserts that he is unable to read the CD-ROM without purchasing proprietary software from the public agency. OPRA provides that “[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium…” (Emphasis added.) N.J.S.A. 47:1A-5.d. That provision of OPRA goes on to state that “[i]f the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium…” (Emphasis added.) N.J.S.A. 47:1A-5.d. In the instant case, the Complainant requested the records on CD-ROM “in MS Word, WordPerfect or other generally available file format”. It has been confirmed in correspondence to the Council from both the Complainant and the Custodian that the records were released on CD-ROM (the medium requested), but the CD-ROM is not readable without the public agency’s proprietary software. In order to determine whether the Custodian unlawfully denied access when it released the record in the medium requested by the Complainant, the Council must determine what was the Legislature’s intent when it used the word “medium” in N.J.S.A. 47:1A-5.d. (e.g. did the Legislature mean the physical material that holds information or the physical material that holds information in an electronic format in which the Complainant may read the information). The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language. Frugis v. Bracigliano, 177 N.J. 250, 280, 827 A.2d 1040 (2003). We ascribe to the statutory words their ordinary meaning and significance, Lane v. Holderman, 23 N.J. 304, 313, 129 A.2d 8 (1957), and read them in context with related provisions so as to give sense to the legislation as a whole, Chasin v. Montclair State Univ., 159 N.J. 418, 426-27, 732 A.2d 457 (1999). It is not the function of this Court to "rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the plain language.” O'Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002). We cannot "write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment," Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230, 87 A.2d 721 (1952), or "engage in conjecture or surmise which will circumvent the plain meaning of the act," In re Closing of Jamesburg High School, 83 N.J. 540, 548, 416 A.2d 896 (1980). "Our duty is to construe and apply the statute as enacted." Ibid. DiProspero v. Penn, 183 N.J. 477, 492-493 (June 2005). Considering the plain meaning of the word “medium”, we consulted a dictionary and encyclopedia. The American Heritage Dictionary of the English Language, Fourth Edition (Copyright 2000 by Houghton Mifflin Company) defines medium as “an intervening substance through which something else is transmitted or carried on.” And, its plural abstraction “media” is defined in the same dictionary as “an object or device, such as a disk, on which data is stored.” Further, the Wikipedia (free encyclopedia) (Copyright 2001-2005) describes a “recording medium” as “a physical material that holds information expressed in any of the existing recording formats.” It lists recording formats as follows: “Ancient examples:
Examples since the 19th century include:
Given the plain language of N.J.S.A. 47:1A-5.d. and the definition and encyclopedic explanation of “medium”, it may be determined that the Custodian has not unlawfully denied access to the requested records because he released the record on the physical material that holds information that was requested by the Complainant (i.e. CD-ROM). The fact that the Complainant can not read the records in the medium he requested does not invoke the Custodian’s obligation to provide the records in "some other meaningful medium” pursuant to OPRA. Further, a custodian is obligated to provide a copy of a requested record in some other meaningful medium only “if the public agency does not maintain the record in the medium requested.” In that situation, the custodian must either convert the record to the medium requested or provide a copy in some other meaningful medium. Specifically, OPRA provides that when “… a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.” N.J.S.A. 47:1A-5.d. The Custodian in this case has certified that the CD-ROM (which is the medium requested by the Complainant) is the medium on which the requested record is maintained by the agency. Therefore, given the plain language of OPRA, the Custodian is under no obligation to convert the CD-ROM to "some other meaningful medium" since the agency does maintain the record in the medium requested. However, the Administrator of the Policy Development Unit for DYFS has certified that the Policy Unit can technically export the Field Operations Manual from Folio Views 3.1 to MS WORD. Therefore, the Complainant may purchase a copy of the Field Manual in MS WORD from DYFS. WHETHER the Custodian’s special service charge of $ 28.27 is reasonable pursuant to N.J.S.A. 47:1A-5.c.? OPRA provides that: “[w]henever the…volume of a government record embodied in the form of printed matter to be…copied pursuant to [OPRA] is such that the record…involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies…The requestor shall have the opportunity to review and object to the charge prior to it being incurred.” (Emphasis added.) N.J.S.A. 47:1A-5.c. The Custodian has stated that in order to read the CD-ROM, software that is manufactured by a third party is required. The Administrator of the Policy Development Unit for DYFS then certified that the Policy Development Unit can technically export the Field Operations Manual from Folio to MS WORD. He goes on to state that the cost of exporting the manual, preparing the CD-ROM, and the cost of the CD-ROM itself totals $28.24. Of the $28.24, the Custodian states that the cost of analyzing, testing and preparing to export the manual to MS WORD is $20.87. This amount is based on the thirty (30) minutes it takes a professional staff person, who earns $41.74 per hour (41/72/2 = $20.87), to perform these functions. For the balance of the $28.24, the Custodian states that the cost of preparing the CD-ROM is $6.36, which includes copying files to the CD writing software program, burning the files directly to the CD-ROM, and labeling the CD-ROM. He states that it takes a Secretarial Assistant III, who earns $25.47 per hour ($25.47/4 = $6.37), fifteen (15) minutes to produce the CD-ROM. Finally, he states that the Secretarial Assistant III provides clerical support to the Policy Development Unit and is the lowest level title within the Unit. That portion of the $28.24 relating to the cost for analyzing, testing and preparing to export the manual, which combines exporting the Field Operations Manual from Folio to MS WORD, is reasonable pursuant to the definition of N.J.S.A. 47:1A-5.c. However, the proposed charge of $6.36 for preparing the CD-ROM is not reasonable pursuant to N.J.S.A. 47:1A-5.c. due to the minimal amount of labor required to complete the associated task. In Renna v. County of Union, GRC Complaint No. 2004-134, (January 2005) the Council decided that a special service charge of $1035.17 was warranted based on the need for utilizing forty-one (41) hours of staff time to fulfill the request. Additionally, in Libertarian, supra., the court held that "[i]t is also beyond dispute that the actual cost of the diskette is far less than $55. Thus, the only discernable rationale for the fee is to discourage the public from requesting the information in this format. Such a policy is not legally sustainable." Id. at 3. In the instant case, the Custodian has certified that it would take a Secretarial Assistant III fifteen (15) minutes to produce the CD-ROM. After reviewing both cases mentioned above, the GRC staff concludes that the fifteen (15) minutes needed to produce the CD-ROM does not amount to an extraordinary expenditure of time and effort pursuant to N.J.S.A. 47:1A-5.c. Therefore, the Custodian should be permitted to charge $20.87 for analyzing, testing and preparing to export the manual and only $1.00 for the cost of the CD-ROM. Whether the delay in access to the requested records rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances? OPRA states that: “[a] public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…” N.J.S.A. 47:1A-11.a. OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states: “…[i]f the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e. The Complainant believes that the delay in access isn’t accidental but the direct result of the Custodian’s purposeful acts intended to delay or deny access to the records. Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107). The Custodian has offered the Complainant the record requested in the medium requested. The Custodian has also offered to convert the record into MS WORD. Thus, the Custodian’s actions have gone beyond the requirements of OPRA. Given the facts in this case, the custodian has not knowingly and willfully violated OPRA and unreasonably denied access under the totality of the circumstances. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that:
Prepared By: Chris Malloy, Case Manager Approved By: Final DecisionNJ Libertarian Party Complaint No. 2004-114 At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 1, 2005 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, dismisses the case on the basis that the Custodian has complied with the Council’s January 13, 2005 Interim Decision. 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.
Supplemental Findings and Recommendations of Executive DirectorNJ Libertarian Party GRC Complaint No. 2004-114Complainant v. Division of Youth and Family Services Custodian of Records Records Requested:
(April 9, 2004)
Custodian: Aileen Williams Background January 13, 2005
January 31, 2005 Analysis Based on the letter received on January 31, 2005 the Custodian has complied with the Council’s January 13, 2005 decision by providing access to the documents in the requested medium. Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council dismiss the case on the basis that the Custodian has complied with the Council’s January 13, 2005 Interim Decision. Prepared By: Approved By: March 1, 2005
Final Administrative Action
At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 4, 2005 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 with the amendment that “including all applicable fees” be added to item #1 of the Executive Director’s conclusions and recommendations and that the Custodian’s name be listed on the “Matrix.” The Council, therefore, found that:
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. Findings and Recommendations of Executive DirectorNJ Libertarian Party, GRC Complaint No. 2004-114Complainant v. Division of Youth and Family Services, Custodian of Records Records Requested:
(April 9, 2004)
Custodian: Robert DiLella Background Complainant’s Case Position The Custodian neither granted nor denied the March 10, 2004 and April 9, 2004 records requests, instead they “repeatedly sought additional clarification of the requests.” The Complainant states that they did not learn of the Custodian’s reason for clarification until a May 24, 2004 letter. In the letter it is stated that the Complainant did not include a “Maximum Authorized Cost,” “and normally this omit allows the request to be denied.” The Complainant states that they find nothing in the Act that “permits the Custodian to deny or delay a records request simply because the requestor did not include a “Maximum Authorized Cost” amount within the request.” The Complainant goes on to state that the only possible support for the Custodians position is found under the “Use of Request Forms” section on the “Records Notes” page on the Government Records Council website, which states, “Thus, a custodian should accept any communication that is clearly a request for records if it contains the information necessary for that custodian to fulfill the request, even if it is not submitted on the custodian's "official" OPRA request form. Necessary information would include a description of the record(s) sought, the maximum dollar amount the requester is willing to pay if copies are requested, and a plain statement that the submission is intended as a request for records. Because OPRA permits anonymous requests, the requester's name or contact information is not required. OPRA states that deposits may be required for anonymous requests involving more than $5 in copy costs. If a custodian rejects a request because of insufficient information, the correspondence should be returned to the requester with a copy of the agency's OPRA form, indicating why the correspondence does not meet the criteria for requests under OPRA, and that the agency will accept a revised submission or a request submitted on the agency's form.” The Complainant goes on to assert that:
The Complainant also notes, that the April 9, 2004 request specifically asks the Custodian to, “please inform us of the cost” of the requested record. The Complainant also references the Custodian’s May 24, 2004 letter stating, “your request for the Division’s policy manual entails thousands of pages. I was going to suggest that you review the CD-Rom copy of the Division’s policy, which is located at several libraries. This would allow you to leisurely select the passages that you needed and limit the cost greatly for you.” The Complainant goes on to state, “Our March 9, 2004 and April 10, 2004 records requests both asked for the Division’s policy manual to be “mailed or e-mailed to us on a CD or floppy-disk in MS Word, WordPerfect or other generally available file format.” They go on to say that, “since large amounts of data can be put on one or two CD-ROMs, the Custodian’s concern that the manual contains “thousands of pages” is irrelevant.” The Complainant then states, “N.J.S.A. 47:1A-5(d) guarantees us the right to receive the requested records in an electronic medium. So, the Custodian should have simply told us the fee for sending us a copy of the CD-Rom set that “is located at several libraries.” Upon receipt of that information, we would have either ordered the CD-Rom set or not, depending on the cost.” Instead, the Complainant states, the Custodian “concerns herself with irrelevant issues such as the manual’s size and limiting our cost. She also makes the questionable determination that it would somehow be more “leisurely” for us to trek to a distant library than it would be to view the material on our home and office computers.” Finally, the Complainant states, “We assert that the OPRA requires record custodians to fulfill records requests, not to suggest alternate ways in which our inquiry might be satisfied. Since the May 24, 2004 response does not respond to our request, we assert that it be considered a denial of our request.” Public Agency’s Case Position “After continually trying to reach the requestor by phone, e-mail and U.S. mail I did receive a response in writing and so wrote to the requestor that the info is on CD-ROM at the library and sent a list of libraries to the requestor and asked if it were not acceptable to call me.” The Custodian also asserts in the Statement of Information that they sent a copy of the DYFS policy, and, “as it is a huge amount of pages and I could not negotiate a cost with the requestor due to lack of response from the requestor.” She also states, “I am not familiar with Dissents (part of the request) and did not want to presume what parts were needed for the request and thought the requestor could find it on C-D Rom (sic) which would also eliminate a big cost for the requestor.” In a May 24, 2004 letter to the Complainant, the Custodian states that in the initial request, the Complainant failed to include a “Maximum Authorized Cost” and normally this omission allows the request to be denied. In the letter the Custodian also states, “I will include in this mailing a copy of your first and second request, copies of my first and second e-mails to you, and your letter to me. I hope this helps with your second request for all correspondence from your office to the Division.” Finally, in the letter, the Custodian asks the Complainant to contact her to inform her if the library selections are sufficient for the initial request. She states that if she does not hear from the Complainant within thirty days, she will assume they are “satisfied with the library selections and obtaining the requested information from the CD-Rom there,” and will then close out the OPRA request. Analysis The following corresponds directly with the Conclusions 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 …” In this case, the documents requested, (as noted by the Custodian) were in fact made, maintained, and kept on file and therefore subject to public access unless exempt from “such access by: P.L.1963, c.73 (C.47: 1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order …” Based on the above, the Custodian should release the information requested, with proper redactions should they apply, pursuant to N.J.S.A. 47:1A-1 et seq. N.J.S.A. 47:1A-5(c) states: Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies ; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred. If the Custodian felt the request for documents fell under the above-mentioned section of the law, they should have informed the Complainant in writing. Documents Reviewed
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council find that:
Prepared By: January 4, 2005 |
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