2004-136

Administrative Case Disposition

Case Manager: Christopher Malloy

Date: August 5, 2005

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Interim Decision

At its June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 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.  Therefore, the Council referred the case to the Office of Administrative law to determine if the Custodian’s failure to provide the Complainant with the records in the medium requested constitutes a knowing and willful violation of the OPRA under the totality of the circumstances.

Interim Decision Rendered by the
Government Records Council
On The 9^th Day of June, 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:  June 14, 2005

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Findings and Recommendations of Executive Director

Records Requested: Salary grade structure for the years 2000 and 2004
Custodian: Marlena Russo
Request Made: 8/31/04
Response Made: 9/03/04, 9/08/04 (verbal)
GRC Complaint filed: September 9, 2004

Background

November 9, 2004
The Government Records Council’s November 9, 2004 Interim Decision in which the Council ordered disclosure, as well as a hearing to determine whether there is a knowing and willful violation.

November 22, 2004
A letter from Custodian’s counsel stating that the documents requested were delivered to the Complainant via facsimile.

Analysis

There is no analysis needed at this time.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council refer the case to the Office of Administrative Law to determine if the Custodian’s failure to provide the Complainant with the records in the medium requested constitutes a knowing and willful violation of the OPRA under the totality of the circumstances.

Prepared By: Chris Malloy, Case Manager

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

June 3, 2005

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Interim Decision

At its November 9 2004 public meeting, the Government Records Council (Council) considered the November 1, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties, including the administrative changes on page 1 under “Background” in the first paragraph to read “N.J.S.A. 47:1A-1 et seq.” in place of “N.J.S.A. 47:1A-1-1 et seq.” and in the second paragraph the date of “August 3^rd” should state “September 3^rd.”  The Council voted unanimously to adopt said findings and recommendations with the administrative changes and an amendment to #2 of the Executive Director’s recommendations to state “The Council will hold a hearing on January 13, 2005.” Therefore, the Council hereby finds:

1. The Custodian shall disclose the documents responsive to the request, subject to appropriate redactions, in the medium requested and with special charges, should they apply, in accordance with N.J.S.A. 47:1A-1 et seq.
2. The Council will hold a hearing on January 13, 2005 to determine if the Custodian’s failure to provide the Complainant with the records in the medium requested constituted a denial of access and a knowing and willful violation of OPRA under the totality of the circumstances.

The Custodian is to provide the Complainant access to the # 1 directly above within 10 calendar days from receipt of the Council’s decision.  A letter confirming compliance with the Council’s order is to be provided to the Executive Director.

Interim Decision Rendered by the
Government Records Council
On The 9^th Day of November, 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: Salary grade structure for the years 2000 and 2004
Custodian:   Marlena Russo
Request Made:   8/31/04
Response Made: 9/03/04, 9/08/04 (verbal)
GRC Complaint filed: September 9, 2004

Background

Complainant’s Case Position
The Complainant filed a Denial of Access Complaint with the Government Records Council on September 9, 2004 pursuant to N.J.S.A. 47:1A-1.1 et. seq. alleging the following:

Denial of access to salary grade structures for the years 2000 and 2004.The Complainant states that he made an OPRA request on August 31, and was contacted by phone by Marlena Russo on August 3^rd and informed that there are many different salary structures used by the different Unions operating in the country. After clarifying his request, the Complainant states that he was informed on September 8 that his request was ready to be picked up, and it would cost $1.50. The Complainant asserts that he asked the Custodian if the document could be faxed and he was informed that the County no longer faxes out OPRA requests. The Complainant states that he asked if the information could be sent as a digital file and was told no, it could be mailed to him. The Complainant alleges he asked if the document could be mailed with a bill and was told no, a check would first have to be mailed. The Complainant believes the circumstances surrounding his denial show a clear attempt to deny him public records in a timely manner.

Public Agency’s Case Position
In the Statement of Information, Custodian’s counsel asserts that the complaint is frivolous because the requesters were provided with access to all records within the statutory time frame. Custodian’s counsel goes on to state that on September 8, 2004 the Clerk of the Board’s office notified Mrs. Renna that the records were available for inspection or pick-up. It is stated that Mrs. Renna insisted that the records be e-mailed or faxed to her instead, but was informed that the records were not available in a digital medium and therefore could not be sent via e-mail. Mrs. Renna was also informed that it is no longer the policy of the Custodian of Records to transmit requests via facsimile. However, she was informed that she could forward a check to the County and upon receipt; the records would be mailed to her. Custodian’s counsel further states that requestors chose not to inspect the records in person nor pay the statutory per page fee for the records to be sent. In regards to the Denial of Access Complaint the Custodian states, “ Their Complaint seems to suggest that Mr. and Mrs. Renna believe that the County has an absolute burden to provide documents via e-mail, regardless of how they are maintained. The same appears true for the use of facsimile as a means of the County delivering records to satisfy OPRA requests.” Custodian’s counsel states that, “facsimile is at least as expensive to deliver OPRA records as making copies for requestors would be.” Furthermore, it is stated that delivery of such documents unnecessarily diverts important resources for the Clerk of the Board’s office. They also state that, “Any requirement to utilize this medium without allowing for statutory charges would seem illogical in light of the cost factors alone. In order to avert this, it is the policy of the County to no longer deliver OPRA documents via facsimile.” Custodian’s counsel then asserts that, “In essence, Mr. and Mrs. Renna are attempting to force the County of Union to utilize the medium of e-mail in situations where the source documents are not even maintained in a digital medium, and to dictate the County’s allocation of valuable resources. In addition, these methods of making requests have the effect being simply an “end-run” around the statutory per-page fees.” Finally, Custodian’s counsel states that, “Our reading of the Open Public Records Act (OPRA) does not seem to suggest such interpretations are warranted, not even intended by the Legislature.”

Analysis

1. 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.

   N.J.S.A. 47:1A-5(d) states: 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. If 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. If 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,
2. 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.
3. The documents requested can seemingly be produced by ordinary document copying equipment in ordinary business size and therefore it does not seem as if there should have been denial of access. However, the law also allows for special charges in certain instances as stated above. If the County feels that transferring documents via facsimile or e-mail requires a substantial amount of manipulation or programming of information technology, they are entitled to impose a special service charge should they deem one necessary. Based on the above-mentioned reasons, the County should release the documents requested either via facsimile or in a digital medium pursuant to N.J.S.A. 47:1A-1 et seq.
4. Pursuant to N.J.S.A. 47:1A-5(d), the Council should consider whether there is a knowing and willful violation of the law by the Custodian’s failure to provide the Complainant with the records in the medium requested.

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

1. September 9, 2004 – Denial of Access Complaint
2. September 14, 2004 – Offer of Mediation to the Complainant and Custodian
3. September 30, 2004 – Statement of Information (w/attachments)
   1. Complainant’s written request
   2. Salary grade sheets released to the Complainant
      
4. October 5, 2004 – Complainant’s e-mail to the GRC

Conclusions and Recommendations of the Executive Director
The Executive Director respectfully recommends that the Council find that:

1. The Custodian should disclose the documents responsive to the request, subject to appropriate redactions, in the medium requested and with special charges, should they apply, in accordance with N.J.S.A. 47:1A-1 et seq.
2. There should be a hearing to determine if the Custodian’s failure to provide the Complainant with the records in the medium requested constituted a denial of access and a knowing and willful violation of OPRA under the totality of the circumstances.

Prepared By: 

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

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