2004-124

Final Decision

At its July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 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.  The Council, therefore, dismissed the case on the basis of:

1. There were no records found in response to the request.
2. The delay in providing the written response to the OPRA request does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

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 14^th Day of July, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  July 20, 2005

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Findings and Recommendations of the Executive Director

          v.
New Jersey Department of
Commerce Commission
Custodian of Records

Records Requested:

1. Any records on Barbara Schwarz /Barbara Schwartz.
2. Any records on Mark C. Rathbun aka Mark de Rothschild.
3. Any records on Scientology or Church of Scientology.
4. Any records on L. Ron Hubbard.
5. Any records on former President Dwight David Eisenhower.

Request Made:  July 20, 2004
Response Made: August 2, 2004
Custodian:  Mary Caffrey
GRC Complaint filed: August 17, 2004

Background

July 20, 2004
The Complainant submitted an OPRA Request to the Department of Commerce Commission requesting the following information:

1. Any records on Barbara Schwarz /Barbara Schwartz.
2. Any records on Mark C. Rathbun aka Mark de Rothschild.
3. Any records on Scientology or Church of Scientology.
4. Any records on L. Ron Hubbard.
5. Any records on former President Dwight David Eisenhower.

August 2, 2004
The Custodian responded to the Complainant stating that there were no records responsive to her request. This response was mailed to the wrong address.  Instead of being mailed to 335 E. Broadway it was mailed to 45 E. Broadway.  The Custodian contends that this was a typographical error and the information on file confirms this.

August 17, 2004
Complainant submitted a Denial of Access Complaint stating she was unlawfully ignored and denied information on Barbara Schwarz/Barbara Schwartz, Mark C. Rathbun aka Mark de Rothschild, Scientology or the Church of Scientology, L. Ron Hubbard, President Dwight David Eisenhower.

August 18, 2004
Offer of Mediation transmitted to the parties by the Government Records Council (GRC).

August 23, 2004
The Custodian revised and corrected the mailing address of the Complainant and resent the response to the Complainant on the requested information.

August 25, 2004
Agreements to mediate were signed by both parties.

August 30, 2004
E-mail from the Complainant to the Custodian asking for explanation of the records search used to locate the requested records.

January 31, 2005
The Custodian responded to the Complainant with a descriptive letter stating a global e-mail was sent to all of the departments housed in the Department of Commerce requesting any information that was “made, maintained and kept on file” pursuant to the Open Public Records Act (OPRA) that pertained to the Complainant’s request.

February, 2005
This case was returned from mediation for adjudication by the GRC.

June 7, 2005
Statement of Information submitted by the Custodian certifying that there were no records responsive to the request and explaining the delay in providing the written response.

Analysis

Whether there was an unlawful denial of access in response to Complainant request?

N.J.S.A. 47:1A-1 states that a “government record shall be subject to public access unless exempt from such access…” by [OPRA].

N.J.S.A.47:1A-1.1 states that a 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.

Whether the Custodian responded in a timely manner to the Complainant’s request?

The Custodian certified on June 7, 2005 in her Statement of Information that there were no records responsive to the Complainant request. The delay in the initial response to the Complainant was due to a clerical mistake made on the envelope addressed to the Complainant.  The Custodian corrected this mistake and the Complainant received the response to her OPRA request on August 23, 2004.

The Custodian responded to the Complainant on August 23, 2004 and January 31, 2005 stating on both occasions and in detail that there were no records responsive to the request.  The Custodian contends that there was not denial of access to information in this case, since there was no information “made maintained or kept on file” (N.J.S.A. 47:1A-1.1) that could be disclosed to the Complainant.  Although timeliness is at issue, the GRC staff does not find that the Custodian’s actions of sending the response to an incorrect address rises to a  “knowing and willful” violation of the OPRA under the totality of the circumstances.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that there were no records found in response to the request and the delay in providing the written response to the OPRA request does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

Prepared By: Marion Davies, Staff Associate

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

July 8, 2005

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Interim Decision on Access

At the September 9, 2004 public meeting, the Government Records Council (“Council”) considered the September 2, 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. Therefore, the Council hereby finds that on the basis of the party’s mutual agreement to mediate, the Council and Council’s staff will forego any adjudicatory action pending the outcome of mediation.

Interim Decision Rendered by the
Government Records Council
On The 9^th Day of September, 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 the Executive Director

Records Requested: Any records on Barbara Schwarz, Mark C. Rathbun, Dwight D Eisenhower, Scientology and the Church of Scientology and all versions of their names and information.
Request Made: July 20, 2004
Response Made: No response made
Custodian:   Thaddaeus Diggs
GRC Complaint filed: August 17,2004

Background
Complainant’s Case Position

On August 17, 2004, the Complainant signed and returned the Agreement to Mediate to the Government Records Council’s (GRC) staff as an indication of her intention to participate in the mediation process. 

Public Agency’s Case Position

The Custodian signed and returned the Agreement to Mediate on August 25, 2004 as an indication of the agency’s intention to participate in the mediation process. 

Analysis

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

Documents Reviewed

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

1. July 20, 2004 – Complainant’s OPRA request to Custodian
2. August 17, 2004 – Complainant’s Denial of Access Complaint
3. August 19, 2004 – Council’s Offer of Mediation to the Complainant and Custodian
4. August 17, 2004 – Complainant’s signed Offer of Mediation
5. August 25, 2004 – Custodian’s signed Offer of Mediation

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that the Custodian and the Complainant voluntarily signed Agreements to Mediate on August 17^th & 25^th, 2004.  Based on same, the Executive Director respectfully recommends that the Council and Council’s staff forego any adjudicatory action pending the outcome of mediation.

Prepared By:
Marion M. Davies
Case Manager

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

September 2, 2004

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