2004-141

Final Decision

At its July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 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 amended to place the Custodian on the “Matrix.”  The Council, therefore, dismissed the case on the basis of:

1. The Custodian certified that there were no records responsive to the questions presented in the Complainant’s OPRA request.
2. While the Custodian failed to provide a timely written response pursuant to N.J.S.A. 47:1A-5(e) and 5(g), her actions did not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstance.

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 14^th Day of July, 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:  July 20, 2005

Return to Top

Findings and Recommendations of the Executive Director

Records Requested:  1. Budget only – no reports. The total cost to date for three police officers and three police cars arriving at 114 Pendelton Pl. Old Bridge, NJ on June 26, 2004, July 7, 2004 and August 2, 2004.  Total Cost and Benefit to the Taxpayers.
Request Made: August 30, 2004
Response Made:  October 1, 2004
Custodian:  Rose-Marie Saracino, Township Clerk
GRC Complaint filed: September 14, 2004

Background

August 30, 2004
Complainant submitted a written Open Public Records Act (OPRA) Request seeking budget information only, no reports of the total cost to date for three police officers and three police cars arriving at 114 Pendelton Pl. Old Bridge, NJ on June 26, 2004, July 7, 2004 and August 2, 2004. Also, his request asked what was the total cost or benefit to the taxpayer’s.

September 9, 2004
Date of receipt noted on OPRA request form by Custodian.

September 14, 2004
Denial of Access Complaint filed asserting a denial of access to his OPRA request and no response to request.

September 17, 2004
The offer of mediation provided to the parties.  Agreement to mediate received from the parties.[1]

October 1, 2004 
Letter from Custodian to the Complainant advising him that there are no records on file responsive to his request, therefore no documentation could be supplied.  The Custodian also stated that his request was asking questions, which did not constitute a request for a government record.  The Custodian stated further that there were no records on file in response to the Complainant’s questions.

October 7, 2004 
Letter and Statement of Information from the Custodian to the Government Records Council (GRC) explaining there were no records responsive to the request.

June 13, 2005
The Custodian submitted a certification to the GRC, explaining that a verbal response was given to the Complainant on September 9, 2004 and that the response from the Complainant was “okay.”  Subsequently, the Custodian certified “we then decided to put all answers in writing to this complainant and did so on October 1^st, 2004.”

Analysis

WHETHER there was an unlawful denial of access pursuant to the Open Public Records Act (OPRA)? 

OPRA provides that …“all government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions…” N.J.S.A. 47:1A-1

OPRA defines a “government record” as:

“…any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof…” (emphasis added)

 N.J.S.A. 47:1A-1.1

The Custodian stated that the Complainant’s request was asking questions, which she contends does not constitute a request for a government record pursuant to OPRA. She further certified in her Statement of Information that there were no records responsive to the questions presented in the Complainant’s OPRA request.  Thus, there was no unlawful denial of access in this matter. 

Whether the Custodian responded in writing and in a timely manner pursuant to N.J.S.A. 47:1A-5(e) and 5(g)?

OPRA provides that “[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.” N.J.S.A. 47:1A-5(e).

OPRA also provides that “…[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor...”  N.J.S.A. 47:1A-5(g)

Although the Custodian provided a response to the Complainant’s request, the Custodian’s first response was given verbally and on the eight day. The Custodian stated in her certification that the Complainant was “okay” with the response. The Custodian did provide a written response, however, but not until October 1, 2004. While the Custodian failed to provide a timely written response pursuant to N.J.S.A. 47:1A-5(e) and 5(g), her actions should not be considered as rising to the level of a knowing and willful violation of OPRA under the totality of the circumstance.

Conclusions and Recommendations

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

1. The Custodian certified that there were no records responsive to the questions presented in the Complainant’s OPRA request.
2. While the Custodian failed to provide a timely written response pursuant to N.J.S.A. 47:1A-5(e) and 5(g), her actions should not be considered as rising to the level of a knowing and willful violation of OPRA under the totality of the circumstance.

Prepared By: Marion Davies, Staff Associate

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

 July 8, 2005

Return to Top

Administrative Case Disposition

Case Disposition:

All of these cases in the process of mediation with Ms. Fran Snyder.
Ms Snyder will be meeting with both parties on November 10,2004

Date of Disposition:  varying dates since all of the case came in on different dates

Case Manager: Marion Davies

Return to Top