2004-146

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 1, 2005 Findings and Recommendations of the Executive Director including the administrative change of date in the header from “January 13, 2005” to “February 10, 2005” 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 Denial of Access Complaint 1 on the basis of the Complainant’s November 19, 2004 voluntary withdrawal of the request. The Council dismissed Denial of Access Complaint 2 on the basis that the Custodian was proper in withholding the release of the requested record until receiving payment for the copying fee from the Complainant.  

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 10^th  Day of February, 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:

Denial of Access Complaint 1

1. A copy of Sgt. Perez, et. al. investigation report #97708 for 8/10/2004, 8/11/04
2. A copy of Sgt. Perez, et. al. investigation report #97707 for 8/10/2004, 8/11/04
3. A copy of Sgt. Perez, et. al. investigation report #97706 for 8/10/2004, 8/11/04

Denial of Access Complaint 2

1. A copy of the August 31, 2004 one-page report by Sgt. Perez in reference to Disciplinary Reports  #97708, #97707, #97706, for 8-10-04 in which he stated no video footage available

Request Made: 8/12/04 and 9/28/04
Response Made: 10/20/04
Custodian: Kathleen Weichnik – New Jersey Department of Corrections
GRC Complaint filed: 9/10/04, 10/12/04

Background

The Complainant filed two Denial of Access complaints referred to throughout this document as Denial of Access Complaint 1 and Denial of Access Complaint 2. For the purpose of this case the complaints have been combined as they involve similar requests.

Complainant’s Case Position

The Complainant filed Denial of Access Complaint 1 with the Government Records Council on September 10, 2004 and Denial of Access Complaint 2 on October 12, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging a denial of access to the following:

Denial of Access Complaint 1

1. A copy of the following:
   1. Sgt. Perez, et. al. investigation report #97708 for 8/10/2004, 8/11/04
   2. Sgt. Perez, et. al. investigation report #97707 for 8/10/2004, 8/11/04
   3. Sgt. Perez, et. al. investigation report #97706 for 8/10/2004, 8/11/04

Denial of Access Complaint 2

2. A copy of the August 31, 2004 one-page report by Sgt. Perez in reference to Disciplinary Reports  #97708, #97707, #97706, for 8-10-04 in which he stated no video footage available. The Complainant states that he filed this OPRA request with Chief Administrator Lydell Scherer and did not receive a response to his request, verbally or in writing.

The Complainant filed the request on September 28, 2004 but did not receive a response to his request. The Complainant submitted copies of two additional requests, not subject of these complaints, for documents relative to the original requests and has not received a response from the Custodian.[1] The Complainant has not received the requested documents.

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts the following:

1. In reference to Denial of Access 1, no request for records was received from the Complainant until September 30, 2004 when the Government Records Council forwarded the Denial of Access complaint to the Custodian. On November 19, 2004 the Complainant sent a statement to the Custodian withdrawing his request for “1” through “3.”
2. In Denial of Access 2 the Custodian certifies that no request for records was received from the Complainant until the Government Records Council forwarded the Denial of Access complaint to the Custodian on December 21, 2004. On December 22, 2004 the request was received via “truck mail.” The documents requested were made available to the Complainant on December 28, 2004, however the Complainant was unable to pay the statutory copying fee of $0.75 and so the document has not been released. When the fee can be paid the document will be released.

Analysis

The Complainant voluntarily withdrew his request for those records subject of Denial of Access Complaint 1. There was an issue of timeliness, however, there is no further action necessary based on the Complainant’s voluntary withdrawal of the request.

With regard to Denial of Access Complaint 2 the following should be considered:

1. N.J.S.A. 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 asserts he did not receive a response to his September 24, 2004 request for records. The Complainant has shown no evidence that the requests were received by the Custodian or accepted by any official. He states he had been instructed to send his request to the Government Records Council.

Based on the Certification of the Custodian the requests were not received by her office until December 21, 2004 when the request was forwarded to her from the GRC via Deputy Attorney General Lisa Puglisi. The certification goes on to state that the request was received via mail on December 22, 2004 via the institutional mail system. There is no evidence to indicate that the Custodian received this request prior to the December 21, 2004 date. The certification of the Custodian states that the Records Requested “4” was made available to the Complainant on December 28, 2004. The records were made available to the Complainant within seven business days of the receipt of the request and therefore there is no violation of timeliness or denial of access under N.J.S.A.47:1A-1 et. seq. for this portion of the complaint.  

2. N.J.S.A. 47:1A-5(h) states,

Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.

The Complainant asserts that he submitted his OPRA request to the Office Administrator. The Complainant states he was instructed, via an undated and unsigned “New Jersey Department of Corrections Inmate Request System Staff Corrective Action Form,” to send his request to the Government Records Council, PO Box 819, Trenton NJ 08625.  The Custodian’s certification states that the request was forwarded to the Inmate Correspondence Coordinator who did not accept the request and rather directed the Complainant to forward the request to the Government Records Unit. The Custodian states that the Complainant did not follow proper procedure for filing an OPRA request because it was not submitted to the Custodian. The New Jersey Department of Corrections adopted form states that “if you submit the request form to any other officer or employee of the Department of Corrections, that officer or employee does not have the authority to accept your request form on behalf of the Department of Corrections and you will be directed to the record custodian.”

The Complainant states he was directed to the Government Records Council and not the Custodian. Based on the certification of the Custodian there is a procedure in place within the Department of Corrections meant to direct the requestor to the proper Custodian. The employee who received the request did not advise the Complainant properly, thereby preventing the Complainant from directing his request to the Custodian in violation N.J.S.A. 47:1A-5(h). However, there is no evidence that this miscommunication is a result of any intentional action by the Custodian to delay the release of records. As such, there is no evidence that the Custodian knowingly and willfully violated N.J.S.A. 47:1A-1 et. seq. under the totality of the circumstances.   

3. N.J.S.A. 47:1A-5(b) states,

   A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record.

   Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following:

   • first page to tenth page, $0.75 per page;
   • eleventh page to twentieth page, $0.50 per page;
   • all pages over twenty, $0.25 per page.

The Custodian’s certification states that the record requested is available for the Complainant upon payment of the statutory $0.75 copying fee. As the Complainant has not paid this fee the record has not been released, however, when the fee is paid the record will be released to the Complainant. The Custodian is proper in withholding the requested document until the fee has been paid by the Complainant.  

Documents Reviewed

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

1. September 10, 2004 – Denial of Access Complaint
   1. No date - Staff Corrective Action Form
   2. August 12, 2004 - Government Records Request Form
2. October 7, 2004 – Mediation sent to Complainant and Custodian
3. October 12, 2004 – Denial of Access Complaint
   1. September 28, 2004 – Government Records Request Form
4. October 25, 2004 – Complainant declination of mediation
5. November 22, 2004 – Letter from the Complainant to GRC
   1. November 19, 2004 – Complainant’s Withdrawal of the August 12, 2004 Request
   2. August 24, 2004 – Department of Corrections Administrative Remedy Form
   3. August 24, 2004 - Government Records Request Form
   4. September 28, 2004 - Government Records Request Form
6. November 23, 2004 – Statement of Information from Custodian
   1. August 12, 2004 - Government Records Request Form
   2. November 23, 2004 – Certification of Custodian
      1. November 19, 2004 - Complainant's Withdrawal of the August 12, 2004 Request
7. December 16, 2004 – Request for certification of the Custodian
8. December 16, 2004 – Request for certification of the Office Administrator
9. December 16, 2004 – GRC letter to the Complainant
10. January 3, 2005 – Certification of the Custodian
    1. November 19, 2004 – Complainant’s Withdrawal of the August 12, 2004 Request
    2. No date – Copy of the Department of Corrections Government Record Request form
    3. December 28, 2004 – Custodian’s letter to Complainant
11. January 10, 2005 – GRC letter to Complainant
12. January 27, 2005 – E-mail to the Custodian’s counsel

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council:

1. Dismiss Denial of Access Complaint 1 on the basis of the November 19, 2004 voluntary withdrawal of the request by the Complainant.
2. Dismiss Denial of Access Complaint 2 on the basis that the Custodian was proper in withholding the release of the requested record until receiving payment for the copying fee from the Complainant.

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

February 1, 2005

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