2004-32

Final Decision

1. The requested photograph was never “made, maintained or kept on file”.
2. The Custodian violated N.J.S.A. 47:1A-5 when the response to the request was made to the requestor’s attorney rather than the requestor on the presumption that he was represented by legal counsel.  The Custodian is advised through this Final Decision that absent a letter of legal representation, a response is to be made to the requestor. 
3. The Custodian has satisfied her duties pursuant N.J.S.A. 47:1A-1 et seq.

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 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: Requested a copy of a police photo and if this said photo could not be produced, Complainant is seeking a written explanation for not producing this photo
Custodian: Janice Capuano
Request Made: February 9, 2004
Response Made: February 12, 2004
GRC Complaint filed: March 15, 2004

Executive Director’s Findings and Recommendations

The Complainant made a written request to the Netcong Borough Police Department for a copy of a police photo from his arrest.  On the arrest report filed against him, the Police Department indicated that a photograph had been taken.  The Complainant requested a copy of it or a written explanation from the Custodian if a photograph was never taken.  The Complainant contends that he did not receive a response to his request.  Additionally, the Complainant stated that the Custodian had no request forms available at the time of his request.

The Police Department certified in a March 30, 2004 Statement of Information (referenced in a February 10, 2004 letter to the Custodian’s Counsel) that the photograph does not exist and that the Complainant was aware of this from his court proceedings.  The Police Department indicated that Sgt. Van Houten, who wrote the arrest report, failed to take a photograph because there was no film in the camera.  On February 12, 2004, the Custodian’s Counsel sent a letter to the Complainant’s attorney, Mr. Thomas Russo, indicating that the photograph did not exist and asking that he advise his client accordingly. 

The Executive Director respectfully recommends that the Council find that:

1. The requested photograph was never “made, maintained or kept on file”.
2. The Custodian violated N.J.S.A. 47:1A-5 when the response to the request was made to the requestor’s attorney rather than the requestor on the presumption that he was represented by legal counsel.  The Custodian should be made aware that absent a letter of legal representation, a response is to be made to the requestor. 
3. The Custodian has satisfied her duties pursuant N.J.S.A. 47:1A-1 et seq.
4. The complaint should be dismissed. 

Legal Analysis

In the March 30, 2004 Statement of Information, the Custodian has certified that the photograph requested never existed.  Pursuant to N.J.S.A. 47: 1A 1.1, a government record is any information 

…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 any political subdivision thereof.

The photograph was not “made, maintained or kept on file” and as such, a government record did not exist.

The Custodian violated N.J.S.A. 47:1A-5 when the response to the request was made to the requestor’s attorney rather than the requestor.  The Custodian should have responded to the requestor pursuant to N.J.S.A. 47:1A-5 which states that  “If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis thereof on the request form and promptly return it to the requestor”.  Based on the Custodian’s knowledge that Mr. Russo represented the Complainant in his court proceedings regarding his arrest report, the Custodian presumed that the response to the requestor’s legal counsel was proper.  We ask that the Council consider the Custodian’s actions in this case as not rising to a knowing and willful violation under OPRA.   

Documents Reviewed

• February 9, 2004 – Records Request
• February 24, 2004 – Correspondence between Complainant and GRC staff
• March 15, 2004 – Denial of Access filed
• March 23, 2004 – Mediation forms sent to Custodian and Complainant
• March 29, 2004 – Mediation approved by Custodian and Custodian’s Counsel
• March 30, 2004 – Statement of Information sent to Custodian
• March 30, 2004 – Statement of Information submitted to GRC by Custodian (12 pgs.)

________________________

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

Return to Top