2004-149

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 4, 2005 Findings and Recommendations of the Executive Director including the administrative change of date on page “2” of “Background” from “September 30, 2005” to “September 30, 2004” and all related documentation submitted by the parties including the e-mail submitted by the Complainant on February 5, 2005. The Council voted unanimously to amend the Executive Director’s recommendations after considering the e-mail submitted by the Complainant on February 5, 2005 and dismiss the case on the basis that the Complainant acknowledged receipt of the requested records.

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 

Return to Top

Findings and Recommendations of the Executive Director

Records Requested:

1. Stature[1] describing what sort of business is to be transacted during Council Work Sessions
2. Stature showing the procedure to advertise the presenting and passing of bonds
3. Copies of the newspaper advertisement related to the $850,000.00 Bond in compliance with stature passed on 2 September 2004 Work Session.

Request Made: 9/15/2004 and 9/21/2004
Response Made: 9/21/2004 and 9/23/2004
Custodian: Patricia Frontino – Borough of Glassboro
GRC Complaint filed:9/27/2004 and 9/28/2004

Background

September 17, 2004

Complainant submitted a written Open Public Records Act (OPRA) Request seeking a copy of statutes relating to Council Work Sessions, a copy of statutes showing the procedure for presenting and passing bonds, a copy of a newspaper advertisement relating to a bond passed on September 2, 2004.

September 21, 2004

Completed Public Record Request forms (2) returned to Complainant with Custodian denying access because the records requested are not maintained by the agency, however they can be found on state website or local library.”

Complainant submitted a written Open Public Records Act (OPRA) Request seeking A “copy of fax or letter asking to advertise the $850,000 bond in the newspaper, open public meeting of 9-2-04.”

September 23, 2004

Letter from the borough solicitor to the Custodian and forwarded to the Complainant states, “The clerks office did not forward notices requested to the Times for publications on the $850,000 bond ordinance. The matter was handled totally from the Borough Solicitor’s office in Woodbury, NJ.”

September 27, 2004

Complainant filed a Denial of Access complaint with the Government Records Council alleging a denial of access to government records.

September 28, 2004

Letter from the Complainant titled “OPRA” questioning the responsibility of the Municipal Clerk for obtaining records from other offices within the municipality with attached denials of access.

September 30, 2004

Offer of Mediation sent to both parties.

September 30, 2005

E-mail “2004-149” from the Complainant to the Case Manager stating that the reason for his denial of access is that Municipal Clerk “listens to a misinformed Solicitor” and that the Complainant is being denied records “because of some grudge the Solicitor” has against him.

October 25, 2004

Statement of Information received from the Custodian stating, “we do not have the Statute books on file in our office, however he could obtain the information on the States’ website or he could go to the local library to obtain the information” and “the requested information was not a document that was made, maintained or kept on file in our office.” 

January 25, 2005

Letter from the Government Records Council staff to the Custodian requesting a legal certification of the following; whether or not the records requested are made, maintained and kept on file within the Borough, a statement regarding the requested bond notices and a statement on the status of the Solicitor as an employee of the Borough. 

January 27, 2005

Letter from the Custodian to the Government Records Council staff, which states, “The statutes requested are not on file, in whole or in part, in the Office of the Borough Clerk.” The letter goes on to state that the procedure for advertising a bond ordinance, which provided through the Solicitor’s office, has been forwarded to the Complainant. Additionally, the Solicitor is an independent contractor. 

January 29, 2005

E-mail “GRC Case 2004-149” from the Complainant questioning the statements made in the Custodian’s January 29, 2005 letter stating that he has not received the information he requested. The statutes he received in response to his request for the advertisement of the bond proves that the Custodian has access to statutes and therefore should have released the information responsive to Records Requested “1” and “2”.  

Analysis

Whether the Complainant was denied access to a government record.

The Open Public Records Act (OPRA) defines a government record in N.J.S.A.47:1A-1.1. Specifically, OPRA states:

"Government record" or "record" means 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.

The Statement of Information completed by the Custodian of Records states that statutes requested are not made, maintained or kept on file by the Borough. In a letter to the Government Records Council staff the Custodian states “the statutes requested are not on file, in whole or in part, in the office of the Borough Clerk.” The Complainant was notified that the statues requested are available at the local library or on the State website. As the requested records are not government records under the definition set forth in N.J.S.A. 47:1A-1.1 there is no record responsive to the request.

The Complainant was notified in writing in September 23, 2004 that the newspaper advertisement requested was not handled by the municipal clerk and was “handled totally from the Borough Solicitor’s office in Woodbury, NJ.” There is no statement regarding documents responsive to the request for the newspaper advertisement, however, the Borough Solicitor provided the Complainant a copy of the statute regarding bond ordinance adoption on January 27, 2005. There is insufficient evidence that the documents requested were lawfully withheld. Therefore, the Custodian should release the requested records to the Complainant in accordance with N.J.S.A. 47:1A-1 et. seq.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council should find:

1. On the basis of the Custodian’s Statement of Information, Records Requested “1” and “2” are not made, maintained and kept on file and are therefore, not government records pursuant to N.J.S.A. 47:1A-1 et. seq. and this part of the Complaint should be dismissed.
2. That the Custodian has not proven any exemption to disclosure for documents responsive to the item “3” of the Complainant’s request thus, documents responsive to said request should be released in accordance with N.J.S.A. 47:1A-1 et. seq.
3. The Custodian should provide a response to the Executive Director in “2” 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

February 4, 2005

Return to Top