2004-205

Final Decision

At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 1, 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 of the Custodian’s certification that all records responsive to the request that are made, maintained, and kept on file were released to 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 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 
Decision Distribution Date:  April 20, 2005

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Findings and Recommendations of the Executive Director

Records Requested:

1. Copies of audio tapes from planning board/township committee meetings for 12/2/03, 10/19/04, 10/25/04

Request Made: 11/04/04
Response Made: 11/19/04   
Custodian: Betty Jane Hunt (Township Clerk) Lora Olsen (Clerk)
GRC Complaint filed: 11/29/2004

Background

November 29, 2004
Complainant’s Denial of Access Complaint to the Government Records Council accompanied by a letter stating that she made the request on November 4, 2004 and received a November 19, 2004 phone call from Betty Jane Hunt stating that the tapes were ready but would cost $38.40. It is also stated that a large part of the 10/19/04 meeting was missing, specifically “tape labeled #2 was blank.” According to the Complainant, there are “seven tapes with some audible discourse, lots of noise, and one missing tape.”

December 20, 2004
Offer of Mediation sent to both parties.

January 11, 2005
Letter from the Complainant to the GRC stating that although the fee for the copying of the audiotape was refunded, the complaint has not been resolved. 

January 27, 2005
Custodian’s (Lora Olsen) Statement of Information stated that all of the tapes requested were released. And, the township committee did not tape their meetings at that time. The planning board meeting began at 7:30 P.M. and the joint meeting began at 9:00 P.M. Ms. Olsen states that the tape labeled # 2 was blank, and perhaps this was the joint session portion.

February 9, 2005
Letter from the Complainant to the GRC (including the written minutes from the 10-19-04 joint township/planning board) pointed out that a statement in the approved minutes “directly contradicts Lora Olsen’s supposition in her January 21 response to the GRC that the joint meeting wasn’t taped.”

March 29, 2005
Custodian’s response to the Complainant’s February 9, 2005 letter stating, “I stand corrected as it has recently come to light that on tape 1, near the very end of the same, the Clerk announced the joint session and the discussion with Engineer Clerico was begun. Why there was no continuation onto tape 2, I have no further insight. The fact remains that tape two is blank.” The Custodian also states that a committee has been formed to review the matter.

Analysis

Whether the Complainant has been unlawfully denied access to Government Records?

  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 has certified that the requested audiotapes that were denied do not exist.

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

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss the case that the Custodian has certified that she has released all records responsive that are made, maintained, and kept on file.

Prepared By:  Chris Malloy, Case Manager    

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 1, 2005

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