2004-33

Final Decision

At its May 13, 2004 public meeting, the Government Records Council (Council) considered the May 6, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. A correction to the Findings and Recommendations was noted under “Response Made: March 16, 2003” and changed to read “Response Made:  March 16, 2004.” The Council voted unanimously to adopt the entirety of said findings and recommendations with modifications.  The Council, therefore, dismissed the case on the basis of:

1. The requested document was not in existence at the time of the request.
2. The custodian provided a verbal rather than a written response as required under OPRA.  The custodian did provide a copy of the title document for Block 48 Lot 44 when it became available.
3. Under the circumstances present in the case, the custodian’s actions did not rise to the level of a knowing and willful violation of OPRA

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Sheet of questions on Block 48 Lot 44 in Township of Montague
Request Made:    November 12, 2003
Response Made: March 16, 2003
Custodian:   Township of Montague
GRC Complaint filed:  March 18, 2004

Executive Director’s Findings and Recommendation

This OPRA complaint involves a request for information concerning Block 48 Lot 44 in Township of Montague. The complainant requested all information received by the search company, specifically:

1. Name of owner or owner’s book and page number through the Hall of Records in Newton, New Jersey.
2. Did you find any living heir or heirs? If so, name or names and addresses and possible phone numbers of all.
3. What was the cost of entire search?  Who is paying for this search? If Montague Township paid for search, is anyone going to reimburse, give name or names of people.
4. If found to be unknown when would this property come up for tax sale?
5. Did you return money to Robert’s family? If not when are you going to return money?
6. As you receive information please contact me do not wait until completed. Contact me as you receive information.

In the complaint, the complainant also stated that he had been told that the document was not existent at the time of his request. The complainant contends that the township received the title report in reference to Block 48 Lot 44 on December 3, 2003, however the document was not provided to him until March 16, 2004.

The complainant asserts that the title report which he received on March 16, 2004 was incorrect indicating the information concerned was the wrong property location.[1].

The custodian’s counsel submitted a Statement of Information in regard to the Denial of Access complaint. In that statement counsel states that the documents were not in possession of the township at the time of the request. While the township received the title report on December 3, 2004, it was not released until March 16, 2004.  The custodian’s counsel stated that the document could not be released at the time of receipt because it had to be reviewed by the Mayor, Township Committee, and the Tax Assessor. Further counsel stated that the document was not “a “government record” as defined by OPRA, as it falls within the deliberative material exception.”

In light of the foregoing, the township did release “all information received by the search company.” This was done after the Mayor, Township Committee, and the Tax Assessor had the opportunity to review the document.

In regard to the questions, the custodian’s counsel states that since the entire report was released to Mr. Cole, he can peruse it at his leisure. It is also stated, “To the extent that Mr. Cole seeks answers to his questions he does not believe are in the title report, Mr. Cole is free to request the “government record” he believes contains those answers, and the Township will process his request accordingly.”

The Executive Director respectfully recommends that the Council dismiss the complaint on the basis of:

1. The requested document was not in existence at the time of the request.
2. The custodian went beyond what was required under OPRA by supplying a copy of the title document for Block 48 Lot 44 when it became available.
3. Under the circumstances present in the case, the custodian’s actions did not rise to the level of a knowing and willful violation of OPRA

Legal Analysis

Pursuant to N.J.S.A. 47:1A-5 a record request must be responded to in writing. Both parties acknowledge there was ongoing dialog between them concerning the request.  However, there is no evidence in the record that a written response was provided by the custodian.   The custodian certified in its statement of information that the document sought was not in existence at the time of the request, but went beyond what was required under OPRA by supplying a copy of the requested title document to the complainant when it became available.  Under the circumstances present in the case, the custodian’s actions did not rise to the level of a knowing and willful violation of OPRA pursuant to N.J.S.A. 47:1A-11.

Since the custodian certified in the Statement of Information that the title report given to the complainant was responsive to the OPRA request of November 12, 2003, the denial of access to the record should be dismissed. The custodian believes that she has released any and all records that the township maintains in regard to the request.

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

November 12, 2003 – Government Records Request

March 18, 2004 – Denial of Access Complaint

April 21, 2004 – Statement of Information

Paul F. Dice
Executive Director
Government Records Council

May 6, 2004

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