2004-188

Final Decision

At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 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.  The Council dismissed the case on the basis that:

1. Pursuant to N.J.S.A. 47:1.1 the Custodian did release government records. However, the records provided were not responsive to the request and the Custodian certified that the specific records requested do not exist.
2. Pursuant to N.J.S.A. 47:1A-7(b) the Council does not have jurisdiction to determine what constitutes a violation of FERPA.

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 

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Findings and Recommendations of the Executive Director

Records Requested:

Shrewsbury Board of Education approved Gifted and Talented Program identification criteria in effect on April 5, 2000, September 19, 2000, and January 30, 2004.

Request Made: October 5, 2004
Response Made: October 14, 2004
Custodian: Debi Avento
GRC Complaint filed: November 4, 2004

Background

October 5, 2004
Written Open Public Records Act (OPRA) Request - Complainant seeks a copy of the approved Gifted and Talented Program identification criteria in effect on April 5, 2000, September 18, 2000 and January 30, 2004.

October 14, 2004
Custodian’s letter to the Complainant, responding to the OPRA request.

November 4, 2004
Statement of Information (SOI) submitted by the Records Custodian that gave a chronology of request and responses and attachments. Also, the Custodian stated that the Complainant had been given information in response to his request.

February 3, 2005
Complainant’s rebuttal to the Statement of Information stating that there was a “misrepresentation of material fact” in the SOI. He further stated that he did not receive what he requested. He requested “identification criteria” and was instead provided policy.

February 7, 2005
E-mail correspondence from the Complainant stating that he felt that the Custodian violated the Family Education Rights And Privacy Act (FERPA) when she released certain documents to the GRC in her Statement of Information

February 17, 2005
E-mail correspondence from the Complainant stating that he wanted to know what was going to be done by the GRC regarding the alleged FERPA violation.

February 22, 2005
Records Custodian’s certified response to the rebuttal Statement of Information that stated, “the district reiterates that participation in the Gifted and Talented Program at the times in question were determined by student performance and teacher recommendation and that no specific written criteria existed.”

February 23, 2005
E-mail correspondence from the Complainant to GRC staff in response to the Custodian’s certified response to the rebuttal Statement of Information.

Analysis

Whether the Records Custodian violated N.J.S.A. 47:1A-1.1 by not providing the government record responsive to the request?

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

The Custodian did respond to the request by providing documentation. However, the Custodian failed to provide the record responsive to the request. The Complainant was seeking the “written criteria” for the Gifted and Talented program. The Complainant was given “policy” instead of  “criteria”. However, the Custodian has certified in a supplemental correspondence to the GRC staff, that “at the times in question…no specific written criteria existed.” While the Custodian did respond to the request, they did not give records responsive to the request. The Custodian should have notified the Complainant that the records requested did not exist when the request was made. 

WHETHER the Government Records Council pursuant to N.J.S.A. 47:1A-7(b) has jurisdiction over the FERPA violation raised by the Complainant?

The Government Records Council shall:

receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian.  N.J.S.A. 47:1A-7(b)

The Complainant has raised the issue that the Custodian released a document with a student’s identification. He contends that this is a violation of the Family Education Rights And Privacy Act. However, it is not in the Council’s jurisdiction to determine what constitutes a FERPA violation.

Conclusions and Recommendations

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

1. Pursuant to N.J.S.A. 47:1A-1.1 the Custodian did release government records. However, they were not responsive to the request and the Custodian has certified that the specific records requested do not exist.
2. Pursuant to N.J.S.A. 47:1A-7(b) the Council does not have jurisdiction to determine what constitutes a violation of FERPA.

Prepared By:  Kimberly Gardner, Case Manager

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

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