2004-130

Final Decision

1. While the Custodian violated N.J.S.A. 47:1A-5(g), N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(e), it does not rise to a level of a knowing a willful violation of OPRA under the totality of the circumstance.
2. The Complainant was provided access to all records responsive to her August 5, 2004 OPRA request.
3. The Government Records Council Staff is to counsel the Records Custodian on timeliness to access of records (N.J.S.A. 47:1A-5i), immediate access issues (N.J.S.A. 47:1A-5e), and the requirement of a written response (N.J.S.A. 47:1A-5g).
4. The Township of Piscataway is to formally appoint an Assistant Records Custodian within 45 calendar days.

A letter confirming compliance with the Council’s order is to be provided to the Executive Director within 45 calendar days of receipt of this Final 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
Government Records Council
On The 9^th 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 Executive Director

Records Requested:
How many attorneys and/or law firms does the township of Piscataway employ.
How much in legal fees has been expended in 2003 and 2004 date.
Financial Disclosure completed forms for each township council member and the mayor.
Custodian: Township of Piscataway – Ms. Nolan
Request Made:   August 5, 2004
Responses Made:   Verbal Response Only
GRC Complaint filed: August 27, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on August 27, 2004 pursuant to N.J.S.A. 47:1A-1.1 et. seq. The complainant stated the following:

 “ I never received any written correspondence from Ms. Nolan regarding this request. However she did telephone me on August 18, 2004 and told me that the documents were available for review.”

“My sole assertion is that Ms. Nolan was obligated under N.J.S.A. 47:1A-5(i) to “grant access…or deny a request for access…as soon as possible, but not later than seven business days after receiving the request.” Since the request was delivered on August 5, 2004, the request should have been fulfilled by no later than August 16, 2004.  Her failure to fulfill the request in a timely manner constitutes a violation of the Open Public Records Act.”

Public Agency’s Case Position

On October 20, 2004 the Custodian submitted the Statement of Information that  states:

“On August 5, 2004 Clara Halper stopped by this office and hand-delivered various requests for information – totaling nine pages.  We respond to all of the requests, as best we can.  I was out of office, on vacation from August 8 and returned on August 16.  We have provided the information requested in the letter of her complaint. We feel that the Council should dismiss the Complaint since the information requested has been provided.”

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 August 5, 2004 Open Public Records Act (OPRA) request. However, on August 18, 2004, she replied verbally. The Custodian has stated that she was on vacation and therefore, there was a delay in response.  While the records were delayed in being released, both parties have acknowledged receipt and release of the requested records.

Furthermore, N.J.S.A. 47:1A-5(e) states that, “immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts…” A portion of this request was for bills.

The Custodian violated the OPRA by failing to supply a written response to the request, not responding in a timely manner, and failing to supply immediate access records promptly. However, after review of the file, the Government Records Council staff does not find that the Custodian’s actions rises to a level of a knowing and willful violation of OPRA under the totality of the circumstances.

Documents Reviewed

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

1. August 27, 2004 – Denial of Access Complaint
2. October 18, 2004 – Statement of Information Request
3. October 20, 2004 – Statement of Information            

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the complaint on the basis that:

1. While the Custodian violated N.J.S.A. 47:1A-5(g), N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(e), it does not rise to a level of a knowing a willful violation of OPRA under the totality of the circumstance.
2. The Complainant was provided access to all records responsive to her August 5, 2004 OPRA request.

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

November 29, 2004

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