2004-192

Final Decision

At its June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 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. The Committee is not a public agency pursuant to N.J.S.A. 47:1A-1.1.
2. The Committee’s records are not government records pursuant to N.J.S.A. 47:1A-1.1.  However, at the time that the Committee gave its records (already redacted) to the Custodian, those records became “government records” because they were then “… kept on file …” pursuant to OPRA.
3. The Custodian should have responded to the Complainant’s request in writing, however, this does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances. 
4. The OPRA does not have jurisdiction over the redactions of the government record disclosed because the redactions were made prior to the document becoming a government record pursuant to N.J.S.A. 47:1A-1.1. 

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 9^th Day of June, 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:

1. “Any and all solicitation letters/flyers, concerning the fireworks for the July 4, 2004 activities, including addresses where donations were sent.”
2. “Copies of the July 4, 2004 contract.”
3. “Any and all bills and receipts for the July 4, 2004 fireworks.”
4. “Copies of any and all payments made for the July 4, 2004 fireworks.” 

Request Made: September 16, 2004
Response Made: Date unknown[1]
Custodian: Ian I. Shore
GRC Complaint filed: November 11, 2004

Background

September 16, 2004
The Complainant filed an Open Public Records Act (“OPRA”) request seeking various records concerning the July 4, 2004 fireworks. 

October 11, 2004
The Complainant sought the balance of the requested records from the Custodian or a written explanation if they were not available. 

November 11, 2004
The Complainant filed a Denial of Access Complaint with the Government Records Council (“Council”) citing that the Custodian wrongfully redacted the address on the bank statement and had concerns about the legibility of two checks.   

November 12, 2004
The Council’s staff sent Mediation information to the Complainant and Custodian.

December 6, 2004
The Custodian filed a Statement of Information that the Complainant received all records responsive to the request.  The Custodian, further, asserted that the Borough did not maintain the records and the redactions were done so by the Fourth of July Parade Committee (“Committee”) and not the Borough.  

May 10, 2005
The Council’s staff sent a letter to the Custodian requesting the Custodian cite the specific reason and legal basis for which redactions were made and inquired as to the existence of more legible copies of the checks. 

May 17, 2005
The Custodian’s Counsel sent a letter to Council’s staff indicating that the bank statement was not redacted by the Custodian, but rather by the Committee, therefore the OPRA citation is irrelevant since the Custodian complied with the law.  The Custodian’s Counsel indicated that the Committee is an independent, volunteer organization that collected private donations for the parade.  The Custodian’s Counsel indicated that the volunteers coordinated with the Borough to facilitate the event, but the Borough did not supervise or control the actions of the Committee, therefore, the records provided were the Committee’s and not the Borough’s records.  The Custodian’s Counsel indicated that the Custodian received the OPRA request from the Complainant and proceeded in compliance of the law by asking the Committee for their records since the Borough did not keep the records.  The Custodian’s Counsel further contends that the records received from the Committee were given to the Custodian who submitted them to the Complainant.  The Custodian’s Counsel indicated that the Mayor and Council appointed members to the Committee, however, they functioned by means of private donations independent from the Borough.  The Custodian’s Counsel further argued that the records only became “government records” once in the possession of the Custodian; therefore, the Custodian is responsible for releasing the records, but is not required to investigate the detail and contents of every record in the Borough.  The Custodian’s Counsel indicated that the images of the checks are directly from the bank and the only images available. 

Analysis
Whether the Fourth of July Parade Committee is a “public agency” pursuant to N.J.S.A. 47:1A-1.1? 

N.J.S.A. 47:1A-1.1 indicates that a public agency is "… any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such the department; Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; any independent State authority, commission, instrumentality or agency.”  And also is “…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 Custodian’s Counsel indicated that although the Mayor and Council appointed members of the Committee, they were volunteers that acted independently of the Borough by collecting private donations for the parade.  The Custodian’s Counsel asserted that the Committee coordinated its actions with the Borough to organize the event, however, they were not under the supervision or control of the Borough.  The Custodian’s Counsel does not believe that the Committee is a public agency pursuant to OPRA. 

The Committee is obviously not an “independent State authority” as it is not an agency within the State of New Jersey.  The Committee, further, is indeed independent, and is not an authority as it is a volunteer committee set up to provide the community with a parade and is completely without a role in the Borough. 

“Webster’s II New Riverside Dictionary”, defines subordinate as “submissive to or controlled by authority.”  Through this definition it can be assumed that an authoritative body would perhaps “control” a subordinate board, moreover, the Committee, as indicated by the Custodian’s Counsel, did not act as a subordinate board, committee or commission of the Borough government.  The Committee of volunteers acting independently from the Borough government should not be considered a public agency pursuant to OPRA and furthermore should not have the legal obligation to respond to OPRA requests. 

WHETHER the Fourth of July Parade Committee records are “government records” pursuant to OPRA? 

N.J.S.A. 47:1A-1.1 provides that a “[g]overnment 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…”

The Custodian’s Counsel asserted that the Custodian asked the Committee to produce their records, as they were not “made, maintained and kept on file” with the Borough because the Committee is an independent volunteer committee.  The Custodian disclosed the records received by the Committee even though it is the Custodian’s Counsel’s position that the records are not government records pursuant to OPRA as the agency is not a public agency as defined by OPRA.  However, at the time that the Committee gave its records (already redacted) to the Custodian those records became “government records” because they were then “… kept on file …” pursuant to OPRA.

OPRA is very clear that government records are “…made, maintained and kept on file in the course of his or its official business…” The Committee’s records are not made, maintained or kept on file with the Borough or any of its affiliated public agencies and therefore are not government records pursuant to OPRA. 

WHETHER the Custodian responded to the Complainant’s September 16, 2004 OPRA request lawfully pursuant N.J.S.A. 47:1A-5(i)? 

N.J.S.A. 47:1A-5(i) provides that “[u]nless 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. 

N.J.S.A. 47:1A-11 provides that “[a] public official, officer, employee or custodian who knowingly and willfully violates P.L.1963, c.73 (C.47: 1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…”

The Custodian and Complainant both acknowledge a response given to the September 16, 2004 OPRA request, however, neither party indicated that the response was made in writing. 

Pursuant to OPRA, the Custodian should have responded to the Complainant’s OPRA request in writing, however, both parties agree that a response was made to the OPRA request and therefore the violation of OPRA does not rise to a level of a knowing and willful violation under the totality of the circumstances. 

WHETHER the redactions made to the bank statement were lawful pursuant to N.J.S.A. 47:1A-5(g)? 

N.J.S.A. 47:1A-5(g) provides that “[i]f the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47: 1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.”

The Custodian indicated the Committee prior to releasing the information to the Borough made the redactions to the bank statement. 

While the Custodian normally would have to cite the legal basis and reason for making redactions to the requested records, the Borough did not have the records prior to the redactions nor did they make the redactions.  The Committee itself is not to be considered a public agency pursuant to OPRA and therefore does not have to explain the redactions made to their records prior to releasing them to the Borough.   

The requested records were redacted prior to becoming “government records,” therefore, OPRA does not have jurisdiction over records that are redacted prior to becoming government records.  The records “made, maintained and kept on file” are the same records that were released to the Complainant. 

WHETHER the Custodian met his burden of proving that the denial of access to the address on the bank statement is warranted and whether the two (2) checks provided are acceptable pursuant to OPRA?

N.J.S.A. 47:1A-6 provides that “[t]he public agency shall have the burden of proving that the denial of access is authorized by law.” 

The Custodian indicated that he did not redact the address from the Committee’s bank statement, but rather the Committee redacted the address without providing a reason for the redactions.  The Custodian’s Counsel indicated that the Committee, which is not a public agency, made the redactions and that the records did not become “government records” until the Borough received the records.  The Custodian’s Counsel, therefore, asserted that the redacted records are the only government records in existence with the Borough and that they were released to the Complainant. 

While the Custodian is not clear on the OPRA provision prohibiting the addresses from being redacted, it is reasonable to assume that the Committee is not a public agency as provided by OPRA and in addition the Committee’s records are not “…made, maintained and kept on file…” with the Borough and therefore are not government records pursuant to OPRA.  Pursuant to N.J.S.A. 47:1A-7(b), the Council does not have jurisdiction over the redactions because the redactions were made prior to the record becoming a government record pursuant to OPRA. 

The Custodian’s Counsel further asserted that the two (2) checks released to the Complainant were those provided to the Committee from the bank and that no other records were available.

Although the Complainant has questioned the legibility of the record of the two (2) checks, the Custodian indicated that the Committee had no other records responsive to the request.  The Custodian, furthermore, asserted that the records given to the Complainant are the only records the Borough has “…made, maintained or kept on file…” 

The Custodian finally indicated that the Custodian should not have to research the Borough for every record that enters the Borough. Although the Custodian should not have to conduct research to fulfill an OPRA request, the Custodian may need to inquire of other departments within the Borough for records “made, maintained and kept on file” outside of the Custodian’s office.  The Custodian is the designated records keeper for the entire Borough. 

Conclusions and Recommendations

The Executive Director respectfully recommends that:

1. The Council should find that the Committee is not a public agency pursuant to N.J.S.A. 47:1A-1.1.
2. The Council should find that the Committee’s records are not government records pursuant to N.J.S.A. 47:1A-1.1.  However, at the time that the Committee gave its records (already redacted) to the Custodian, those records became “government records” because they were then “… kept on file …” pursuant to OPRA.
3. The Council should find that the Custodian should have responded to the Complainant’s request in writing, however, this does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances. 
4. The Council should find that OPRA does not have jurisdiction over the redactions of the government record disclosed because the redactions were made prior to the document becoming a government record pursuant to OPRA. 
5. The Council should dismiss the case based on items one (1) through (4). 

Prepared By: Erin Knoedler, Case Manager 

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

June 3, 2005

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