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2004-127

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

William Patterson
   Complainant
      v.
Somerdale Board of Education
   Custodian of Record
Complaint No. 2004-127

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. The Council voted unanimously to adopt the entirety of said findings and recommendations.  The Council, therefore, dismissed the case on the basis that:

  1. The Custodian responded to the Complainant’s July 13, 2004 OPRA request on July 14, 2004 notifying the Complainant that the request was in the process of being compiled.  The Custodian, on August 12, 2004, notified the Complainant, in writing, the debt card transaction records were in the possession of the Prosecutor’s Office and that they were trying to obtain the records.
  2. The Custodian provided the Complainant with copies of the Bank Statements from July of 2000 to July of 2002. 
  3. The Council has no jurisdiction to compel disclosure of the debit card records because the sole copy of these records are in the possession of an arm of the judicial branch of government, i.e. the grand jury, to which OPRA does not apply.

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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Findings and Recommendations of the Executive Director

William Patterson,                                     GRC Complaint No. 2004-127 
Complainant
                        v.
Somerdale Board of Education,
Custodian of Records

Relevant Records Requested:

  1. Copies of transaction receipts and invoices relating to expenditures made using any and all debit cards issued by Fleet Bank subsequent to their issue in February 1999 (for) James Hayden xxxxxxxxxxxx[1], James Hayden xxxxxxxxxxx, and James Hayden xxxxxxxxxxxx.  
  2. Copies of transaction receipts and invoices relating to expenditures made using any and all debit cards issued by Fleet Bank subsequent to their issue in February 1999 (for) Debra Bruner xxxxxxxxxxxx, Debra Bruner xxxxxxxxxxxx and Debra Bruner xxxxxxxxxxxx.
  3. Copies of transaction receipts and invoices relating to expenditures made using any and all debit cards issued by Fleet Bank subsequent to their issue in February 1999 (for) Calvin Gunning xxxxxxxxxxxxx, Calvin Gunning xxxxxxxxxxxxxx and Calvin Gunning xxxxxxxxxxxxxx. 

Request Made:  July 13, 2004
Response Made: July 14, 2004
Custodian:   Daniel Fox
GRC Complaint Filed:   August 24, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council (“Council”) on August 24, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian denied access to the requested records. 

The Complainant alleges no response and further argues that if the Custodian does not have the records on file in their office they are also in violation of public record laws. 

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian provides a response in the form of a letter on July 14, 2004, in which the Custodian acknowledges the request and is in the process of formulating a response. 

On August 12, 2004, the Custodian also asserts some of the original records regarding the debit transactions were forwarded to the Prosecutor’s office as an investigation was in process. 

On September 10, 2004, the Custodian issued a letter releasing the bank statements to the Complainant after the copy charges of $31.00 (95 pages) was received.  The Custodian released copies of the bank statements on September 23, 2004. 

The Custodian further argues that he sought to retrieve the debit card records from the Prosecutor’s office, however, in a letter dated September 24, 2004, the prosecutor’s office declines to release the information as it pertains to a criminal investigation and is exempt by “Grand Jury secrecy.” 

In a letter dated October 19, 2004, the Custodian’s counsel asserts that all files regarding the debit card transactions were given to the County Prosecutor’s office, including Bruner and Gunning’s information.  The Custodian is in the process of trying to retrieve the records from Fleet Bank and will then forward copies to the Complainant. 

Analysis

The following corresponds directly with the “Conclusion and Recommendations of the Executive Director” listed below.

  1. The Open Public Records Act (“OPRA”) provides that “[u]nless a shorter time period is otherwise provided by statute, regulation, or executive order, 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 not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.”  N.J.S.A. 47:1A-5(i).  The Custodian responded, in writing, to the Complainant’s July 13, 2004 OPRA request on July 14, 2004 notifying the Complainant the requested records were in the process of being compiled and that some of the records are archived.  On August 12, 2004, the Custodian sent a letter to the Complainant that the debt card transaction records were in the Prosecutor’s Office and that they were in the process of retrieving the records.  In a September 10, 2004 letter, the Custodian informed the Complainant that bank statements from July of 2000 to July of 2002 could be provided after the copy charges of $31.00 (95 pages) was received.  The Custodian released copies of the bank statements on September 23, 2004. 
  2. The Prosecutor’s office asserts in the September 24, 2004 letter to the Custodian that the documents are exempt by “Grand Jury secrecy.” The grand jury is considered an arm of the Judiciary and exercises its powers under the authority and jurisdiction of the Judiciary.  State v. Murphy, 213 N.J. Super. 404 (App. Div. 1986 ).  Furthermore, the New Jersey Court Rules governing state grand juries vests power in the assignment judge of each vicinage with the responsibility for the administration of grand juries.  See R. 3:6-1.  Thus, the Council has no jurisdiction to compel disclosure of the debit card records because the sole copy of these records are in the possession of an arm of the judicial branch of government, i.e. the grand jury, to which OPRA does not apply. 

Documents Reviewed

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

  1. July 13, 2004 – Complainant’s OPRA request
  2. July 14, 2004 – Custodian’s response to July 13, 2004 OPRA request
  3. August 12, 2004 – Custodian’s second response to the July 13, 2004 OPRA request
  4. August 24, 2004 – Denial of Access Complaint form
  5. September 9, 2004 – Offer of Mediation to Complainant and Custodian
  6. September 10, 2004 – Custodian’s letter to Complainant regarding copy charges
  7. September 22, 2004 – Council staff’s request for Statement of Information
  8. September 23, 2004 – Custodian’s letter releasing the records to the Complainant
  9. September 27, 2004 – Statement of Information
  10. October 4, 2004 – Complainant’s supplemental information
  11. October 13, 2004 – Council’s staff letter to Custodian seeking more information
  12. October 19, 2004 – Custodian’s counsel letter

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council should dismiss the case on the basis of:

  1. The Custodian responded to the Complainant’s July 13, 2004 OPRA request on July 14, 2004 notifying the Complainant that the request was in the process of being compiled.  The Custodian, on August 12, 2004, notified the Complainant, in writing, the debt card transaction records were in the possession of the Prosecutor’s Office and that they were trying to obtain the records.
  2. The Custodian provided the Complainant with copies of the Bank Statements from July of 2000 to July of 2002. 
  3. The Council has no jurisdiction to compel disclosure of the debit card records because the sole copy of these records are in the possession of an arm of the judicial branch of government, i.e. the grand jury, to which OPRA does not apply.

Prepared By:

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

December 1, 2004


[1] Redactions of credit card information of all “xxxxxxxxxxx”

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