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2004-139

- Final Administrative Action
- Findings and Recommendations of the Executive Director

Final Administrative Action

Michael DeLuca, 
     Complainant
v.
Town of Guttenberg,
     Custodian of Record

Complaint No. 2004-139

At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 4, 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 with the amendment that the Custodian’s name be listed on the “Matrix.”  The Council, therefore, found that:

  1. The Custodian is hereby notified that a response to an OPRA request must be in writing pursuant to N.J.S.A. 47:1A-5(g).
  2. The Custodian’s name will be listed on the “Matrix,” as she did not comply with the OPRA statutory seven-day time frame in responding to the Complainant’s records request.
  3. The Complainant received all the records responsive to his September 1, 2004 OPRA request.
  4. The Council does not have the jurisdiction to impose a penalty on an attorney who provides legal advise to a Custodian regarding the disclosure of government records as this action is strictly under the jurisdiction of the New Jersey Supreme Court.
  5. Based upon items 1-4 above, the complaint is dismissed.

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 13th Day of January, 2005

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:  January 24, 2005

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Findings and Recommendations of the Executive Director

Michael DeLuca                                              GRC Complaint No. 2004-139
Complainant
v.
Town of Guttenberg
Custodian of Records

Relevant Records Requested:

  1. The complete full file for the Galaxy and Mall at Galaxy 7000, 7002 and 7004 Blvd. East Fire Safety file from July 2004 to the present.  

Request Made:  September 1, 2004
Response Made: September 16, 2004
Custodian:   Linda Martin
GRC Complaint Filed:   September 16, 2004
Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council (“Council”) on September 16, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian denied access to the requested records. 

The Complainant asserts that he was given a verbal response on September 14, 2004 from the Fire Official stating that the Town Attorney needed to review the file for any possible redactions.  The Complainant claims that the Town Attorney never responded even after a September 16, 2004 letter was sent to his attention regarding the matter.  The Complainant acknowledges receiving the records after waiting 15 days for the record[1]

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian contends that she requested additional time to comply with the request, as she needed to seek some information from the State of NJ Fire Official. 

The Custodian contends that the Complainant received a verbal response to his request on September 14, 2004 by the Town of Guttenberg’s Fire Official.  The Custodian further states that the Town’s Fire Official informed the Complainant that final approval needed to be given by the Town’s Attorney for potential redactions. 

On September 16, 2004, the Custodian asserts the Complainant received all the records responsive to his request.  

Government Records Council’s Position

At its December 9, 2004 meeting, the Council tabled the Executive Director’s Findings and Recommendations.  The Council asked the staff to inquire if the Town’s Attorney is a full-time employee of the Town or if the Town’s Attorney is a private contractor. 

On December 27, 2004, the Case Manager, Erin M. Knoedler, spoke with the Town’s clerk, who informed her that the Town’s Attorney is a private contractor and not a full-time Town Solicitor. 

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 “[i]f the [C]ustodian is unable to comply with a request for access, the [C]ustodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.”  The Custodian asserts that the Town’s Fire Official verbally responded to the Complainant by stating that the Town’s Attorney needed to review the records for potential redactions.  Pursuant to the Open Public Records Act (“OPRA”), the Custodian should have responded to the Complainant’s request in writing.
  2. "Unless a shorter time period is otherwise provided by statue, regulation, or executive order, a [C]ustodian 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.”  N.J.S.A. 47:1A-5(i).  The Custodian contends that the Complainant’s OPRA request was received on September 1, 2004 and that a verbal response was given on September 14, 2004.   Although the Custodian asserts that she responded to the Complainant’s request, it was not within the statutory seven-business day time period pursuant to N.J.S.A. 47:1A-5(i).
  3. The Custodian and Complainant both acknowledge that the Complainant received all the records responsive to his September 1, 2004 OPRA request on September 16, 2004.
  4. Under N.J.S.A. 47:1A-7(e) or N.J.S.A. 47:1A-11 (a), the Council does not have the authority to impose a penalty on an attorney who provides legal advice to a Custodian regarding the disclosure of government records.  The act of regulating attorney conduct is strictly within the jurisdiction of the New Jersey Supreme Court as granted by the New Jersey Constitution.  See Taylor v. Hoboken Bd of Ed., 187 N.J.Super. 546 (App. Div. 1983).

Documents Reviewed

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

  1. September 1, 2004 – Complainant’s OPRA request
  2. September 16, 2004 – Complainant’s Denial of Access Complaint Form
  3. September 16, 2004 – Custodian’s response to the September 1, 2004
  4. September 17, 2004 – Council’s Offer of Mediation to Complainant and Custodian
  5. September 17, 2004 – Custodian’s Agreement to Mediate
  6. October 8, 2004 – Council’s request for Statement of Information
  7. October 12, 2004 – Custodian’s Statement of Information

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

  1. The Council should notify the Custodian that a response to a request is to be provided in writing pursuant to N.J.S.A. 47:1A-5(g). 
  2. The Council should place the Custodian on the Government Records Council Matrix, as she did not comply with the OPRA statutory seven-day time frame in responding to the Complainant’s records request. 
  3. The Complainant received all the records responsive to his September 1, 2004 request. 
  4. The Council does not have the jurisdiction to impose penalty on an attorney who provides legal advise to a Custodian regarding the disclosure of government records as this action is strictly under the jurisdiction of the New Jersey Supreme Court. 
  5. Based upon items 1-4 above, the Council should dismiss the complaint. 

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

January 4, 2005


[1] The Complainant received a verbal response to his September 1, 2004 request on September 14, 2004 and received the requested records on September 16, 2004.  The statutory seven-business day deadline pursuant to OPRA would have been September 10, 2004 unless for reasons otherwise indicated by the Custodian (i.e. records archived or in storage, etc.).  

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