2004-161

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the January 27, 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.  The Council, therefore, dismissed the case on the basis that:

1. The Custodian provided the Complainant with an appropriate response explaining that the requested record was non-existent and therefore could not be released.
2. The Custodian and Custodian’s Counsel responded in a timely manner.

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:A copy of camera record covering metal detector at lobby of Educational Department building for August 10, 2004 between 6:00PM and 6:20PM, in particular showing Prince A. Cuba (above) passing through; record for initial inspection and particular extracts for copying.
Request Made:   September 27, 2004
Response Made: November 17, 2004
Custodian:   Kathleen Wiechnik
GRC Complaint filed: 10/20/2004

Background

September 27, 2004
Written Open Public Records Act (OPRA) Request.  Complainant seeks a copy of “camera record covering metal detector at lobby of Educational Department building for August 10, 2004 between 6:00PM and 6:20PM, in particular showing Prince A. Cuba (above) passing through; record for initial inspection and particular extracts for copying.”

October 20, 2004
Complainants Denial of Access Complaint. Complainant filed a Denial of Access Complaint stating that he received no response to his records request.

October 20, 2004
Offer of mediation sent to the Complainant and the Custodian

October 21, 2004
Letter from the Custodian’s counsel to the Government Records Council (GRC) staff, carbon copied to the Custodian and the Complainant.

Counsel for the Department of Corrections stated that the Government Records Unit did not receive the request of Prince A. Cuba. Therefore, they do not agree to mediate.

November 17, 2004
Letter sent to the Complainant from the Custodian carbon copied to Desiree Gray, OPRA Liaison, NSP and OPRA Records File.

The custodian stated that, “there is no record maintained by the Department of Corrections covering the lobby of the Educational Department Building on the date of August 10, 2004. Accordingly, your request for this record cannot be fulfilled.”

November 23, 2004
Statement of Information submitted by Custodian’s counsel.   This statement included the fact that the OPRA request of the Complainant was not submitted to the Government Records Unit. Also, counsel stated that the Custodian was not aware of the request until a copy was sent from the Government Records Council staff.  Furthermore, counsel stated that the liaison at Northern State Prison had informed the Government Records Unit that, “there was no operable video equipment in the Educational Department on August 11, 2004. Therefore, there was no videotape responsive to Cuba’s request.”

November 24, 2004
Certification of the Custodian. This certification was submitted in conjunction with the Statement of Information. The Custodian certified that the information submitted by her legal counsel was correct. Furthermore, she certified that the letter informing the Complainant that the requested record did not exist was sent to the Complainant. 

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 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 devise, 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.   The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.”

The Custodian and Custodian’s counsel have certified the requested record does not exist. The “video equipment” was not operable on August 10 or 11, 2004.

Pursuant to the definition of a “government record”, specifically that it “…has been made, maintained or kept on file…” the denial was lawful.

The Custodian did respond in an appropriate manner by informing the Complainant that the requested record does not exist.

WHETHER the Custodian responded in an appropriate and timely manner pursuant to OPRA.

The Open Public Records Act states in N.J.S.A. 47:1A-5(i) that a custodian has to respond to a request, “…as soon as possible, but no later than seven business days…”

“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…”

The Custodian and Custodian’s counsel have certified that the request was not received by their office, until the Government Records Council staff faxed it to their attention on October 20, 2004. At that time, a request for an extension of time to investigate and respond to the Denial of Access Complaint was requested by the Custodian’s counsel. The Government Records Council did authorize an extension of time due to the high influx of cases involving the Department of Corrections.

Pursuant to the Custodian’s certification, on November 15, 2004 investigations and internal communication was done to investigate the Denial of Access Complaint. On November 16, 2004, it was determined that the requested record did not exist due to inoperable equipment, and the Complainant was notified of the same on November 17, 2004.

The Custodian did not violate the time standards set forth in N.J.S.A. 47:1A-5(i). Once she became aware of the Complaint, her legal counsel requested and was granted an extension of time to respond to this complaint. The Custodian has certified that she was not aware of the request on the date of its submission.

Conclusions and Recommendations

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

1. The Custodian provided the Complainant with an appropriate response explaining that the requested record was non-existent and therefore could not be released.
2. The Custodian and Custodian’s Counsel responded in a timely manner.

Prepared By: 

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

January 27, 2005

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