2004-31

Final Decision

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.

Return to Top

Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: Report # 2003 84662
Request Made:  3/1/2004
Response Made: No response made
Custodian:  Neil Ward
GRC Complaint Filed:  3/22/2004

Recommendations of the Executive Director

At the April 26, 2004 public meeting, the Government Records Council (“Council”) considered the April 19, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby ordered that:

The Executive Director respectfully recommends that the Council:

1. Determine that the Custodian’s lack of response be considered a denial of access pursuant to N.J.S.A.47: 1A-5(i).
2. Order the Custodian to disclose all requested information pursuant to N.J.S.A. 47:1A-1 et seq.
3. Order the custodian to disclose the requested documents to the Complainant within five business days of the Custodian’s receipt of the Council’s order.

The Government Records Council received a May 3, 2004 letter from Peter J. Cresci to the Complainant Margaret Wolenski in regards to the “April 30, 2004 Government Records Council decision.” It states that Mr. Cresci sent Ms. Wolenski the redacted document that she requested in her original complaint form.

The Government Records Council staff then sent a May 18, 2004 e-mail to Ms. Wolenski asking her to let us know if her request had indeed been satisfied. Ms. Wolenski had not responded by May 25, 2004, which prompted another e-mail from the GRC staff May 25, 2004 stating that Ms. Wolenski needed to respond to the GRC by May 28, 2004 or the case would be closed. There was no response received from Ms. Wolenski.

The Executive Director respectfully recommends that the Council dismiss the complaint on the basis that the Complainant did not respond to the above-mentioned May 25, 2004 e-mail from the Government Records Council staff.

Analysis

No legal analysis is needed. 

Documents Reviewed

• April 26, 2004 – GRC’s Interim Decision
• April 26, 2004 – Letter to the GRC from Peter J. Cresci (Document Complainant requested included to the GRC)
• May 3, 2004 – Letter from Peter J. Cresci to the Complainant
• May 18, 2004 – E-mail from the GRC staff to the Complainant
• May 25, 2004 – E-mail from the GRC staff to the Complainant

Paul F. Dice
Executive Director
Government Records Council
June 2, 2004

Return to Top

Interim Decision on Access

At the April 26, 2004 public meeting, the Government Records Council considered the April 19, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said finding and recommendations. Therefore, the Council hereby orders:

1. The Custodian’s lack of response is considered a denial of access pursuant to N.J.S.A.47: 1A-5(i).
2. The Custodian to disclose all requested information pursuant to N.J.S.A. 47:1A-1 et seq.
3. The Custodian to disclose the requested documents to the Complainant within five business days of the Custodian’s receipt of the Council’s Interim Decision.

Interim Decision Rendered by the
Government Records Council
On The 26th Day of April, 2004

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 

Decision Distribution Date:  April 30, 2004

Return to Top

Findings and Recommendations of the Executive Director

Relevant Records Requested: Report # 2003 84662
Request Made:    3/1/2004
Response Made: No response made
Custodian:   Neil Ward
GRC Complaint Filed:  3/22/2004

Recommendations of the Executive Director

By the Open Public Records Act (“OPRA”), a complaint was filed March 22, 2004 in which the Complainant alleges that an OPRA request filed March 1, 2004 remains unfilled.  A request made on April 1, 2004 for the custodian’s statement of information was unanswered and no additional information has been provided from the custodian in response to the complaint. Thus, the custodian has offered no defense in this case.

The Executive Director respectfully recommends that the Council:

1. Determine that the Custodian’s lack of response be considered a denial of access pursuant to N.J.S.A.47: 1A-5(i).
2. Order the Custodian to disclose all requested information pursuant to N.J.S.A. 47:1A-1 et seq.
3. Order the custodian to disclose the requested documents to the Complainant within five business days of the Custodian’s receipt of the Council’s order.

Legal Analysis

The custodian never responded to the complainant’s request and as such, the custodian’s lack of response should be considered a denial of access. N.J.S.A.47: 1A-5(i).

The custodian has offered no proof that the records sought are not disclosable. Therefore, the Council should consider N.J.S.A. 47:1A-1 which reads “…any limitations on the right of access accorded by P.L. 1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public’s right of access.” Notwithstanding any arguments to the contrary by the custodian, and considering that the record does not clearly indicate that access should be denied, the documents should be deemed accessible.

Documents Reviewed

• March 1, 2004 – Memo to the GRC from the Requestor
• March 1, 2004 – Records Request to the Custodian
• March 22, 2004 - Denial of Access Complaint form
• March 22, 2004 – Mediation Agreements sent to the Requestor
• March 22, 2004 – Mediation Agreements sent to the Custodian
• April 1, 2004 – Statement of Information request sent to the Custodian

_______________________

Paul F. Dice
Executive Director
Government Records Council
April 19, 2004

Return to Top