2004-144

Final Decision

At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 Supplemental 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 the Custodian complied with the Council’s January 13, 2005 decision.

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 April, 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:  April 20, 2005

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Supplemental Findings and Recommendations of Executive Director

Union City Parking Authority,
 Custodian of Records

Records Requested:

1. Parking Authority meeting minutes from August 12, 2004
2. Financial Report from the Parking Authority for 2003-2004 fiscal year
3. List of applicants for parking spaces (City Hall and Office) Lot 12

Request Made: August 16, 2004
Response Made: August 24, 2004[1]
Custodian: James Madonna
GRC Complaint filed: 09/16/2004

Background

January 13, 2005
At its January 13, 2005 public meeting the Government Records Council (Council) considered the January 7, 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 will be listed on the “Matrix.”  The Council found that:

1. The Custodian should release records responsive to “1” and “2” of the “Records Requested” in the findings and recommendations in accordance with N.J.S.A. 47:1A-1 et. seq.
2. While the Custodian did not respond to the Complainant’s request in writing,     there was verbal communication and the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-5(i) under the totality of the circumstances.
3.  The requested record in “3” of the “Records Requested” in the findings and recommendations has been released to the Complainant and this portion of the complaint should be dismissed.
4. The Custodian’s name will be listed on the “Matrix” and,
5. The Custodian shall comply within ten (10) business days from receipt of the Council’s decision and provide confirmation this to the Executive Director.

January 28, 2005
The Attorney for the Custodian sent a legal certification to the Government Records Council staff informing them that the following requested information was mailed to the Complainant on January 14, 2005:

1. Budgeted statement of Revenues and Expenses for the period ending November 30, 2005
2. Audit of financial statement for the years ended November 30, 2003 and 2002
3. Minutes to the August 12, 2004 meeting of the Union City Parking Authority

Analysis

Based on the legal certification received on January 28, 2005 the Custodian has complied with the Council’s January 13, 2004 decision.

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis that the Custodian has complied with the Council’s January 13, 2005 decision.

Prepared By: Colleen McGann, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 7, 2005

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Interim Decision on Access

At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 7, 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 will be listed on the “Matrix.”  The Council, therefore, found that:

1. The Custodian failed to prove that records responsive to “1” and “2” of the “Records Requested” in the findings and recommendations were released to the Complainant, therefore, the records should be released in accordance with N.J.S.A. 47:1A-1 et. seq.
2. While the Custodian did not respond to the Complainant’s request in writing there was verbal communication and the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-5(i) under the totality of the circumstances.
3. The requested record in “3” of the “Records Requested” in the findings and recommendations has been released to the Complainant and this portion of the complaint should be dismissed.
4. The Custodian’s name will be listed on the “Matrix.”
5. The Custodian shall comply with “1” directly above within ten (10) business days from receipt of the Council’s decision and provide confirmation this to the Executive Director.

Interim Decision Rendered by the
Government Records Council
On The 13^th 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 

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Findings and Recommendations of the Executive Director

Records Requested:

1. Parking Authority meeting minutes from August 12, 2004
2. Financial Report from the Parking Authority for 2003-2004 fiscal year
3. List of applicants for parking spaces (City Hall and Office) Lot 12

Request Made: 08/16/2004
Response Made: On or about 8/24/2004
Custodian: James Madonna, Director – Union City Parking Authority
GRC Complaint filed: 9/16/2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on September 16, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following:

1. Denial of Access to Parking Authority meeting minutes from the August 12, 2004 meeting. The Complainant states he did not receive a written response to his request. After making a call to the agency on or about August 24, 2004 he was told that the records were not being released without clearance from the attorney. When the Complainant contacted the Custodian again on September 16, 2004 the Custodian verbally informed the Complainant that the attorney had not yet given permission to release the records. As of December 22, 2004 the Complainant has still not received the requested record.  
2. Denial of Access to the Financial Report from the Parking Authority for the 2003-2004 fiscal year. The Complainant did not receive a written response to his request and after contacting the Custodian on or about August 24, 2004 the Complainant was informed on September 16, 2004 that the attorney had not given permission to release the documents. The Complainant states he has not received the record in question.
3. Denial of Access to the list of applicants for parking spaces (City Hall and Office) Lot 12. The Complainant alleges he did not receive the requested document until after he filed his Denial of Access complaint with the Government Records Council. The document that was released to him was a partial list of applicants and it was missing the addresses and date of application for parking. The Complainant asserts that this information should not have been redacted. When the Complainant questioned the attorney about the redactions he was verbally informed that the information was not released as it was deemed confidential. However, the Complainant did not receive an explanation as to what privilege was being claimed for that information.

Public Agency’s Case Position

In response to the Complainant’s allegations, an undated letter from the attorney for the Union City Parking Authority received by the Government Records Council staff on October 25, 2004 states that, “the Union City Parking Authority has fully complied with the document request by the above referenced individual.”

Analysis

The Complainant in this case asserts that he was denied access to the records he requested. He states he was not provided with a written response to his request or a specific reason for the Custodian’s denial of access and redactions to the information received. He did not receive a timely response to his request.

1. 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 therefor on the request form and promptly return it to the requestor.

On or about August 24, 2004 it was verbally relayed to the Complainant during a phone call initiated by same, that the Custodian was awaiting the township counsel’s permission to release the records. No specific reason for the delay was provided to the Complainant. The Custodian has not provided evidence of any statute, law or regulation exempting these records from disclosure. A letter to the Government Records Council staff, received on October 25, 2004, from the township’s counsel states that all records requested have been released, however, there is insufficient evidence to support this statement. Therefore, the Custodian should release the requested records to the Complainant in accordance with N.J.S.A. 47:1A-1 et. seq.

2. 47:1a-5(i) states,

Unless a shorter time period is otherwise provided by statute, regulation, or executive order, 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 not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor.

The Complainant did not receive a written response to his Open Public Records Act request. According to the Complainant there was verbal communication between both parties and it was conveyed that the custodian had not been given permission to release the documents requested. No specific reason for the denial was provided to the Complainant and he has not received the requested records. The list of applicants for parking spaces was received after the Denial of Access complaint was filed. No reason for the delay was provided to the Complainant. As the Complainant acknowledges verbal notification that the records could not be released at that time and was given a reason, the Custodian’s actions do not rise to a level of a knowing and willful violation of N.J.S.A. 47:1a-5(i) under the totality of the circumstances. 

3. The Complainant asserts that the information that was released regarding the “list of applicants for the parking spaces at the 12^th Street parking lot” was incomplete. He states this list “was missing addresses and date of application.” However, the original Open Public Records Act request was for a “list of applicants for parking spaces (City Hall and Office).” There is no evidence of a request for the addresses and dates of application for the applicants. Therefore the Complainant has received all documents responsive to this request and no further action is needed.    

Documents Reviewed

1. September 16, 2004 - Denial of Access Complaint
2. Ausust16, 2004 – Request for Records
3. September 23, 2004 – Complainant Offer of Mediation
4. September 23, 2004 – Custodian Offer of Mediation
5. October 13, 2004 – Request for Statement of Information
6. October 25, 2004 – Letter from Township Counsel
7. December 20, 2004 – Request for Certification from Custodian
8. December 22, 2004 – email from Complainant

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find:

1. That the Custodian has failed to prove that records responsive to “1” and “2” of the “Records Requested” above were released to the Complainant, therefore, the records should be released in accordance with N.J.S.A. 47:1A-1 et. seq.
2. While the Custodian did not respond to the Complainant’s request in writing there was verbal communication and the Custodian’s actions do not rise to the level of a knowing and willful violation of N.J.S.A. 47:1A-5(i) under the totality of the circumstances.
3. The record requested “3” has been released to the Complainant and this portion of the complaint should be dismissed.
4. The Custodian should provide a response to the Executive Director in “1” above within ten (10) business days from receipt of the Council’s decision.

Prepared By:

Approved By:
Paul F. Dice
Executive Director
Government Records Council
January 7, 2005

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