2004-209

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 2, 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 hereby finds that:

1. The Custodian shall release a copy of the Township’s Ethics Code in its current form pursuant to N.J.S.A. 47:1A-1 et seq.
2. The Custodian shall release records, if in existence, regarding the response Ms. Ward made on establishing a quorum pursuant to N.J.S.A. 47:1A-1 et seq. 
3. Notification of the completion of items #1 and #2 shall be sent to the Executive Director within five (5) business days.
4. Upon completion of items #1- #3 to the satisfaction of the Executive Director, the case will be summarily dismissed. 

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 March, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
Diane Schonyers

Government Records Council

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Findings and Recommendations of the Executive Director

Records Requested:

1. “Any, written, ordinance, document, statute, letter, paper form, any legal document, any legal form of written communications, smoke signals, hieroglyphics, Rosetta stone etchings and or any marks on any paper not to eliminate a paper napkin for:
   1. The establishment of the Attorney of Record for the Ethics Committee.
   2. The recent answer you provided visa vi OPRA, how a quorum established?” 

Request Made: December 6, 2004
Response Made: December 7, 2004               
Custodian:   Rose-Marie Sarancino[1]
GRC Complaint filed: December 6, 2004

Background

December 6, 2004
The Complainant submits a written Open Public Records Act (“OPRA”) Request seeking any records responsive to “the establishment of the Attorney of Record for the Ethics Committee and the recent answer [Ms. Ward] provided visa vi OPRA, how a quorum established?”  The Complainant asserts in his request that Ms. Ward, Deputy Clerk, has lied in responding to his request. 

December 6, 2004
The Complainant files a Denial of Access Complaint with the Government Records Council (“GRC”) claiming that the Custodian did not respond to his OPRA request.  The Complainant also attaches a signed Agreement to Mediate. 

December 7, 2004
The Custodian’s Counsel responds to the Complainant’s December 6, 2004 OPRA request.  In response to the request for the Township’s Code of Ethics, the Custodian’s Counsel states that a letter dated September 29, 2004 to the Acting Director of the Division of Local Government Services sought clarification on the codification of the Township’s Ethics Code.  The Custodian’s Counsel stated that the Complainant would receive a response upon receipt of a response from the State of New Jersey.  The Custodian’s Counsel further states that the second portion of his request is not seeking a document and that OPRA does not provide for Records Custodian’s to answer questions.  The Custodian’s Counsel asserts that if the Complainant is seeking a particular record, he should specify the record and if it exists, it will be supplied.  The Custodian’s Counsel additionally requests that the Complainant send future requests directly to Rose-Marie Saracino, Township Clerk, in light of the Complainant’s allegation that Ms. Ward lied to the Complainant. 

December 17, 2004
The GRC staff submits a letter to the Complainant and Custodian offering the mediation process. 

January 25, 2005
The Custodian’s Counsel states again that that a letter dated September 29, 2004 to the Acting Director of the Division of Local Government Services sought clarification on the codification of the Township’s Ethics Code.  The Custodian’s Counsel stated that the Complainant would receive a response upon receipt of a response from the State of New Jersey.  The Custodian’s Counsel further states that the second portion of his request is not seeking a document and that OPRA does not provide for Records Custodian’s to answer questions.  The Custodian’s Counsel asserts that if the Complainant is seeking a particular record, he should specify the record and if it exists, it will be supplied. 

Analysis

Whether the Custodian properly denied access to the Ethics Code for the Township of Old Bridge. 

N.J.S.A. 47:1A-1.1 provides that a government 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 states that the Township was seeking approval from the Division of Local Government Services prior to codifying the Ethics Code and upon receipt of a response from the State a response would then be forwarded to the Complainant.  Notwithstanding, the unapproved status of the Township’s Ethics Code, it remains a record that is “…made, maintained and kept on file…” with the Township even at the time of the request and should have been released in that form to the Complainant along with the notification that the Township was waiting for State approval.  OPRA does not differentiate between records in their final form and records in draft form. 

WHETHER the Custodian properly responded to the Complainant’s request for the answer provided by Ms. Ward for how a quorum is established. 

N.J.S.A. 47:1A-1.1 provides that a government 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 states that the Complainant did not seek a government record, but rather sought answers to a question; therefore, the Custodian had no obligation to respond to his request, as it was not a proper OPRA request.   In Michael Bent v. Stafford Township Police Department, GRC case 2004-78, 2004, the Council decided that a request consisting of questions does not meet the criteria for being an OPRA request.  The Complainant, however, sought records regarding a response made by Ms. Ward in respect to a quorum being established.  The Custodian’s Counsel did not specify if the Township has any records responsive to his request.  The Custodian’s Counsel should have notified the Complainant to the existence of any records regarding a response made by Ms. Ward regarding establishing a quorum, furthermore, if a record exists, it should be disclosed pursuant to OPRA.  

Conclusions and Recommendations

The Executive Director respectfully recommends that:

1. The Council find that the Custodian should release a copy of the Township’s Ethics Code in its current form pursuant to N.J.S.A. 47:1A-1 et seq. 
2. The Council find that the Custodian should release records, if in existence, regarding the response Ms. Ward made on establishing a quorum pursuant to N.J.S.A. 47:1A-1 et seq. 
3. Notification of the completion of items #1 and #2 should be sent to the Executive Director within five (5) business days. 
4. If items #1- #3 are completed to the satisfaction of the Executive Director, the case shall be summarily dismissed. 

Prepared By: Erin Knoedler, Case Manager

Approved By:

Paul F. Dice
Executive Director
Government Records Council

March 2, 2005

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