2004-135

Final Decision

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 29, 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. N.J.S.A. 47:1A-5 (g) provides that “…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.” Although the Custodian maintained that a verbal agreement was reached to allow an extension on the W10328 request, the Custodian should have indicated this in writing. 
2. The Custodian’s counsel contended that after the Complainant reviewed the records responsive to her requests on August 17, 2004, the NJDOP found that a certification should have been included and was not included in the records reviewed.  The Custodian’s counsel asserts that the Custodian then forwarded the record to the Complainant as a means to correct this oversight. 
3. N.J.S.A. 47:1A-11 provides that “[a]…[C] ustodian who knowingly and willfully violates [OPRA], as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances shall be subject to a civil penalty…” Although the Custodian did not respond to the Complainant’s W10328 request in writing and later submitted a certification to the Complainant that should have been reviewed as part of her request, the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.  According to the Custodian’s counsel, once the NJDOP found that the certification was not available for the Complainant to review, the Custodian forwarded it to the Complainant to remedy the mistake. 
4. The Custodian provided access to all available records responsive to the Complainant’s requests as originally provided to the Custodian on August 17, 2004 then later provided the missing certification to the Complainant thus fulfilling the OPRA requests.   

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 

Decision Distribution Date:  December 15, 2004

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Findings and Recommendations of the Executive Director

1. I requested my rank on all clerical titles paying over $26,000 and my certification(s) to the title for Mercer, Monmouth, Middlesex, Burlington, Somerset and Hunterdon Counties (W10136). 
2. I requested the certifications for clerical titles since 3/9/04 for Mercer, Middlesex, Hunterdon, Somerset, Burlington and Monmouth Counties and my rank on the certifications (W10328). 
3. I requested the certifications for clerical titles since 3/9/04 – 8/2/04 for Mercer, Monmouth, Middlesex, Hunterdon, Somerset and Burlington Counties, persons hired and rank on the certifications .[1]  

Request Made:  July 14, 2004 and July 27, 2004
Response Made: July 21, 2004 and August 16, 2004
Custodian:   Candice Hendricks
GRC Complaint Filed:    September 3, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council (“Council”) on September 3, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian denied access to some of the requested records. 

The Complainant acknowledges that the Custodian responded to W10136 on July 21, 2004, however, claims that she only received her rank for three (3) titles. 

The Complainant further acknowledges receiving a response on W10328 and W10396, which were combined, however, she only received some of the information she was requesting.  The Complainant asserts that on August 17, 2004, she visited NJDOP to look at the records responsive to W10328, however, her name was not certified to many certifications paying over $26,000.  The Complainant claims that she received the notice date of the Clerical Assessment Program Score on March 9, 2004 and should have been certified with the next “pool” of names.  Further, the Complainant contends that she was certified in May 2004 to Mercer County Social Services as a Senior Clerk Typist and the Custodian’s response did not have that certification listed. 

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian disputes the requested records listed by the Complainant in the Denial of Access Complaint. 

The Custodian’s counsel states that W10136 was received on July 14, 2004; however, the Custodian’s counsel disputes the request as written by the Complainant stating that the actual request is as follows:

“Please advise for the CLERICAL RECRUITMENT what lists am I on and what rank I have for that list?  Is anyone recruited on the open competitive list for the title of Judicial Clerk 3?  How many people have been appointed throughout all 21 counties for the title of Judicial Clerk 3 in the year 2004?” 

The Custodian claims to have responded on July 21, 2004 by providing the lists that the Complainant is “on” and her rank for those lists, that 346 people are eligible for the Judiciary Clerk 3 position and that no appointments have been made to that position.  The Custodian’s counsel asserts that the actual request provided to NJDOP did not specify a salary range of over  $26,000. 

The Custodian’s counsel stated that NJDOP received the W10328 on July 27, 2004 and that the Custodian spoke to the Complainant, who verbally agreed to extend the response deadline until after August 12, 2004.  The Custodian’s counsel disputes that the Complainant’s request as stated in the Denial of Access Complaint is not the actual request received by the NJDOP.  The request received by the NJDOP on July 27, 2004 is as follows:

“Please provide all certifications for the clerical titles since March 9, 2004 for the State of New Jersey for the counties of Mercer, Middlesex, Hunterdon, Somerset, Burlington and Monmouth.  Please provide my rank on each of these certifications.” 

The Custodian’s counsel contends that all the records requested by the Complainant were made available to the Complainant on August 17, 2004.  The Custodian’s counsel asserts that eight (8) disposed certifications were provided for review, however, an additional eighteen (18) certifications could not be provided as they had not yet been disposed, but the names on the lists were provided.  The Custodian’s counsel asserts that the non-disposed records were not certified by the NJDOP as eligible personnel and therefore could not be hired until the lists were certified or disposed.  The Custodian’s counsel further provides that the Complainant’s rank and all ranks for eligible persons were on the lists. 

The Custodian’s counsel asserts, however, that it has come to the attention of the NJDOP that a copy of certification #OS040746 was not provided to the Complainant, in which she is ranked two (2) and this information have since been forwarded to the Complainant.

Analysis

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

1. N.J.S.A. 47:1A-5 (g) provides that “…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.” Although the Custodian maintains that a verbal agreement was reached to allow an extension on the W10328 request, the Council should find that the Custodian should have indicated this in writing. 
2. The Custodian’s counsel contends that after the Complainant reviewed the records responsive to her requests on August 17, 2004, the NJDOP found that a certification should have been included and was not included in the records reviewed.  The Custodian’s counsel asserts that the Custodian then forwarded the record to the Complainant as a means to correct this oversight 
3. N.J.S.A. 47:1A-11 provides that “[a]…[C] ustodian who knowingly and willfully violates [OPRA], as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances shall be subject to a civil penalty…” Although the Custodian did not respond to the Complainant’s W10328 request in writing and later submitted a certification to the Complainant that should have been reviewed as part of her request, the Custodian’s actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.  According to the Custodian’s counsel, once the NJDOP found that the certification was not available for the Complainant to review, the Custodian forwarded it to the Complainant to remedy the mistake. 
4. The Custodian provided access to all available records responsive to the Complainant’s requests as originally provided to the Custodian on August 17, 2004 then later provided the missing certification to the Complainant thus fulfilling the OPRA requests.   

Documents Reviewed

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

1. July 14, 2004 – Complainant’s W10136 OPRA request
2. July 21, 2004 – Custodian’s response to W10136 OPRA request
3. July 27, 2004 – Complainant’s W10328 OPRA request
4. August 16, 2004 – Custodian’s response to W10328 OPRA request
5. September 3, 2004 – Complainant’s Denial of Access Complaint Form
6. September 14, 2004 – Council’s Offer of Mediation to Complainant and Custodian
7. September 21, 2004 – Custodian’s Agreement to Mediate
8. September 22, 2004 – Council’s request for Custodian’s Statement of Information
9. October 6, 2004 – Custodian’s Statement of Information

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends the Council find that:

1. The Custodian responded verbally to the request W10328 when a written response was required pursuant to N.J.S.A. 47:1A-5 (g). 
2. The Custodian provided an additional certification to the Complainant after the NJDOP found that it was not included in the records provided to the Complainant for review on August 17, 2004. 
3. The Custodian did not knowingly and willfully violate N.J.S.A. 47:1A et. seq. under the totality of the circumstances. 
4. The Custodian provided access to all available records responsive to the Complainant's requests as originally provided to the Custodian. 
5. The Council should dismiss the complaint based upon items #1 through #4 above. 

Prepared By:
Erin Mallon, Case Manager

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

November 29, 2004

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