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2004-138
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At the March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 4, 2005 Executive Director’s Findings and Recommendations including administrative change to page 1 Header, from “Heidi Abs” to “Township of Middletown”. The Council voted unanimously to adopt the entirety of said findings and recommendations with the administrative change. The Council, therefore, dismisses the case on the basis of:
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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Diane Schonyers Findings and Recommendations of the Executive DirectorLarry S. Loigman GRC Complaint No. 2004-138 Complainantv. Heidi Abs Custodian of Records Records Requested:
Request Made:
8/19/2004 Background August 19, 2004 Complainant submitted a written Open Public Records Act (OPRA) Request seeking a copy of records showing duty status of 5 specific employees over a period of approximately 4 years. August 26, 2004 Letter from Custodian’s counsel to the Complainant requesting an extension of time due to the nature and volume of the records requested. Additionally “it is anticipated that a more detailed response and/or production of the documents requested will be available in approximately 2 weeks, on or about September 10, 2004.” August 30, 2004 Memo from the Complainant to the Custodian’s counsel allowing for an extension of time to September 7, 2004 and denying the request for the extension through September 10, 2004 as the Custodian’s counsel’s letter of August 26, 2004 “does not provide sufficient reason to grant a 2 week extension.” September 10, 2004 Complainant filed a Denial of Access complaint with the Government Records Council alleging a denial of access to government records and untimely response by the Custodian. September 10, 2004 Memorandum to the Custodian from the Custodian’s counsel in response to the Complainant’s request for records stating that attendance records should be released and that the “daily assignment records will have to be individually redacted to remove non-releasable references such as on going criminal investigations, security matters, victim references and the like.” Pursuant to N.J.S.A. 47:1A-5 review, redaction and collation of the 2100 requested documents would require a special service charge of $800.00 plus copy costs for 10-13 hours of senior officer time. September 17, 2004 Offer of Mediation sent to both parties. September 21, 2004 Custodian’s signed Agreement to Mediate. October 25, 2004 Statement of Information submitted by Custodian’s counsel states that the “request is for personnel records beyond those releasable” and that the records would require redaction and special service charge as stated in the September 10, 2004 memorandum. November 23, 2004 Memorandum from the Complainant alleges that the Custodian did not respond in a timely manner. It is also questions the Statement of Information submitted by the Custodian’s counsel claiming that the records are personnel documents, as he was never notified of this. The Complainant does not believe that the records contain the criminal investigations, security matters, victim references that the Custodian’s counsel asserts. He also questions the use of a senior officer in the preparation of the requested documents. November 24, 2004 Letter from the Government Records Council (GRC) staff to the Custodian’s counsel requesting a certification including a complete itemization categorizing the special service charge of $800.00, a detailed explanation of the level of human resources required to fulfill the request, and a chronology of events and activities of township personnel regarding the request. December 1, 2004 Certification of the Custodian’s counsel responsive to the November 24, 2004 request for certification from the GRC stating that the records requested include daily assignment/work logs or sheets briefly listing the daily activities of each officer which might include “type of activity, the name of an individual or witnesses interviewed, references to persons arrested or investigated by name or incident, or similar or related references to criminal activity, criminal investigations ongoing, persons involved in criminal matters, such as suspects, victims, witnesses, etc.” The Custodian’s counsel asserts that as a result of the GRC ruling in Weimer v. Township of Middletown the information can be released with the redaction of sensitive information. Deputy Chief Oches did a sampling of the documents and determined that the collation, redaction and review of the 2100 responsive documents would take 10-13 hours. The $800.00 special service charge was based on the salary plus benefit costs of Deputy Chief Oches. A senior officer would “be required to perform this redaction is primarily driven by the status and rank of the officers being reviewed” because “a clerical or junior ranking personnel would not know the sensitivity of some of the information on the senior officers’ daily records.” The certification goes on to state that in addition to the aforementioned reasons, the Complainant has been legal representation for the individual who normally handles redaction of documents. Additionally, the Township did submit to the Complainant attendance rosters for each officer showing the days each officer was in attendance however, the information was declined. December 6, 2004 Complainant’s response to the December 1, 2005 certification of the Custodian’s counsel alleging inaccuracies as follows; daily assignment/work logs or sheets do not contain the sensitive information alleged in the certification, the likelihood of there being sensitive information is unlikely as the requested reports are not current, clerical employees already have access to the requested information and “it is beyond comprehension why ‘they would not know the sensitivity of some of the assignments or information on the senior officers’ daily records.’” February 16, 2005 Letter from the Government Records Council (GRC) staff to the Custodian’s counsel requesting a certification of the following:
February 22, 2005 Certification of the Custodian stating that after further consideration of the matter the special service charge will be based on 4 hours of work at $45.50/hr. The Township would like to defer to the Government Records Council regarding the inclusion of benefits quoted by the Personnel Officer as 30% of salary rate. The estimate is for the review and redaction of documents but does not include copying costs. The volume of documents includes 6387 pages of daily attendance rosters for 5 employees spanning 3.5 years and 1180 daily assignment sheets for the officers Benbrook and Bailey as “Officers working in the Chiefs Office, being Chief Pollinger, Deputy Chief Oches, and Sgt. Straniero do not keep or turn in daily assignment sheets/logs. Sgt. Brunt will be handling the redaction of the documents requested as he has experience in such redactions and is aware of police requirements. The Custodian states that the records are not archived and so no time is required to return them to storage, there are 102 officers in the police department available to assist in the collation of the documents, Sgt. Brunt and available clerical help will be required to complete the request. February 28, 2005 Letter from the Complainant to the Executive Director of the GRC. The Complainant questions the February 22, 2005 Certification of the Custodian which states that some of the records requested do not exist. The Complainant raises the concern that the December 1, 2004 certification from the Custodian’s counsel does not state this information however the Custodian’s counsel certified that he was personally familiar with the records requested. He states, “The larger issue is the authority of the records custodian. Mr. Reilly (Custodian’s counsel) is making decisions for Ms. Abs, the appointed records custodian, and is denying her the ability to even review the documents that she is charged by law with maintaining.” March 1, 2005 E-mail from the Custodian confirming the amount of the special service charge as $182.00 based on 4 hours at $45.50/hr. Analysis Whether the Custodian responded to the request in a timely manner pursuant to OPRA. N.J.S.A. 47:1A-5(i) states, “…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’s Counsel wrote to the Complainant advising him that a response would be forthcoming and stated the reason there would be a delay in response, specifically, the nature and volume of the records requested. In the written response the Custodian’s Counsel stated that it would be, “on or about September 10, 2004” before the township could respond. The “Township of Middletown Public Records Request Response” was drafted on September 13, 2004 and signed by the Complainant and the Custodian on September 20, 2004. A response was drafted for the Complainant pertaining to the specifics of his request on September 13, 2004 as promised. Therefore, after review of this matter, the Government Records Council staff does not find that the Custodian violated N.J.S.A. 47:1A-5(i). Whether there was a denial of access to government records. N.J.S.A. 47:1A-5(g) states, “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.” The Complainant contends that the Custodian failed to respond by September 10, 2004 and therefore was denied access. On August 26, 2004 the Custodian’s counsel requested an extension of time due to the “volume of records that you have requested and that there is possibly confidential or excluded information on some of the records that requires a review to determine whether redaction (and the extent of redaction) is required.” The Complainant contends that the Custodian failed to respond by September 10, 2004 and therefore was denied access. However, after careful review of the original response given to the Complainant the letter specifically stated that a response would be given “on or about September 10, 2004”. A response was drafted for the Complainant pertaining to the specifics of his request on September 13, 2004. The documents requested have been offered after receipt of payment for a special service charge. Therefore, the Complainant has not been denied access and there is no violation of N.J.S.A. 47:1A-5(g). WHETHER the Custodian lawfully imposed a special service charge pursuant to OPRA. The Open Public Records Act provides permission for a public agency to charge a special service charge in certain circumstances under N.J.S.A 47:1A-5(c). Specifically OPRA 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. Additionally N.J.S.A. 47:1A-5(d) states: 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. The Government Records Council has established in Fisher v. Department of Law and Public Safety, 2004-55 that the following criteria must be met when determining the applicability of a special service charge.
A memo, dated September 10, 2004 from the Custodian’s counsel certified that an $800.00 special service charge is necessary to cover the cost of employing Deputy Chief Oches for the 10-13 hours necessary to collate, review and redact the documents requested. Counsel states that the documents requested, “might list cases worked on and the type of activity, the particular name of an individual or witness interviewed, references to persons arrested or investigated by name or incident, or similar or related references to criminal activity, criminal investigations ongoing, persons involved in criminal matters, such as suspects, victims, witnesses, etc.” Therefore, the 2100 pages relative to the request must be individually reviewed and redacted. A request for further information and subsequent certification from the Custodian received February 22, 2005 reduces the cost of the special service charge to 182.00 based on further review of the records requested. The Custodian certifies that the records request actually encompasses 6387 daily attendance rosters and approximately 1180 daily assignment sheets, none of which are archived. Only patrol officers produce daily assignment sheets, therefore, there is no records responsive to the request for 3 of the individuals for which they are requested, Chief Pollinger, Deputy Chief Oches and Sgt. Straniero. The time period in which the records requested were received is approximately 3 and ½ years. Sergeant William Brunt, the police department OPRA liason, will handle the redaction as he is experienced in such matters and is familiar with police requirements. It is estimated that it will take 4 hours of his time at $45.50/hr, calculated from his hourly salary rate. No time is required to return the documents to their original location. The police department has approximately 102 officers, one of which will complete this records request with the assistance of any available clerical help. The agency has the copying capabilities to produce the document in-house. The Custodian has deferred to the GRC on the inclusion of benefit costs in the special service charge. The Custodian has approximated a benefit cost of 30% of the salary based on a number supplied by the Personnel Officer. Details have not been provided to support the inclusion of benefits as a direct cost for producing the records and therefore they should not be included. Pursuant to N.J.S.A. 47:1A-5(c)(d) the Custodian has justified the imposed special service charge of $182.00. This charge does not include the cost of benefits as the Custodian has not justified their inclusion. WHETHER the Custodian’s counsel has authority to respond on behalf of the Custodian regarding records requests. OPRA provides that the Council’s powers and duties include that of determining the type of complaints that are within its jurisdiction. Specifically, N.J.S.A. 47:1A-7(b) states that the GRC shall: “receive, hear, review and adjudicate a compliant filed by any person concerning a denial of access to a government record by a records custodian …” The complainant raises a concern about the authority of the records Custodian being usurped by the Custodian’s counsel in matters pertaining to records requests. The Custodian of Records has the right to manage records requests and defer to counsel for any issues arising from a records request. OPRA does not give the GRC the authority to govern how a Custodian internally handles records requests. Pursuant to N.J.S.A. 47:1A-7(b), which delineates the Council’s powers and duties, the GRC does not have jurisdiction to regulate how a Custodian utilizes its counsel in its response to a records request. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find:
Prepared By: March 4, 2005 |
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