2004-35

Final Decision

At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 3, 2004 Supplemental 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 the Borough’s Nextel plan does not provide bills containing the individual numbers called or received and that the requested records (itemized cell phone bills for January through December 2003) were not made, maintained and kept on file at the time of the request, since such records never existed.

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 10th Day of June, 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

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: Itemized cell phone bills; January, 2003 thru December 2003
Custodian: Joyce Harrum, Borough Clerk
Request Made:  February 4, 2004
Response Made: February 12, 2004
GRC Complaint Filed: March 24, 2004

Supplemental Recommendations of Executive Director

At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 7, 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 findings and recommendations.  The Council, hereby, orders:

1. The Custodian to explain in a certification whether the requested records (itemized cell phone bills for January through December 2003) were made, maintained, and kept on file at the time of the request, pursuant to N.J.S.A. 47:1A-1 et seq.
   
2. The Complainant to provide proof that she submitted an OPRA request to the Borough of Magnolia dated February 4, 2004 for Itemized cell phone bills; January, 2003 thru December 2003.
   
3. The Custodian to explain why the requested bills were not disclosed immediately pursuant to N.J.S.A. 47:1A-5(e) and why the council should not consider this inaction a knowing and willful violation of the Act.
   
4. The Custodian to explain the justification of any redactions made on the bills provided to the Complainant.

The Custodian and Complainant are to provide their responses to the Executive Director, Paul Dice, as ordered in “1” through “4” above within five (5) business days from receipt of the Interim Decision.

The Custodian responded to the Interim Decision by stating that Mrs. Doukali has since received the phone bills requested without the phone numbers redacted. The Custodian also stated that they “do not request itemized phone bills due to the plan that we have.”

The Complainant responded in a May 20, 2004 letter to the GRC. In this letter Ms. Doukali states that she spoke to Nextel and was informed that “there is a way for a customer to obtain the itemized bill via the Nextel website. Therefore even if the itemized bills were not provided one could request a copy for a fee or by using the Internet website free of charge.” The complainant also states, “if the issue was unavailability of the itemized bill then I would ask why I was not told that back upon my first request or why the custodian did not put that in her letter to me or the GRC.”

On Wednesday June 2, the GRC staff sent an e-mail to the custodian asking for a certification whether the requested records (itemized cell phone bills for January through December 2003) were made, maintained, and kept on file at the time of the request, pursuant to N.J.S.A. 47:1A-1 et seq.

The Custodian certified that the borough’s Nextel plan does not provide bills that list the individual numbers called or received. They also stated that the requested records (itemized cell phone bills for January through December 2003) were not made, maintained and kept on file at the time of the request, since such a records never existed.

The Executive Director respectfully recommends that the Council dismiss the case based on the fact that the Custodian has complied with all aspects of the Interim Decision reached by the GRC.

Analysis

According to N.J.S.A. 47:1A-1.1 a "Government record" or "record" means any paper, written or printed book…that has been made, maintained or kept on file.” In a June 2, 2004 letter from the custodian to the GRC it is stated that, “ the itemized cell phone bills for January-December, 2003 were maintained and kept on file as received from the provider. We do not request itemized bills due to the plan that we have.” Therefore, the custodian has released all information that is made, maintained, and kept on file. Also, the custodian certified that the borough’s Nextel plan does not provide bills that list the individual numbers called or received.

Documents Reviewed

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

• May 20, 2004 – Letter from the Complainant to the GRC
• June 2, 2004 – Letter from the Custodian to the GRC
• June 2, 2004 – E-mail from the Custodian to the GRC
• June 4, 2004 – Certification from the Custodian

________________________

Paul F. Dice
Executive Director
Government Records Council

June 3, 2004

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Interim Decision on Access

At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 7, 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 findings and recommendations.  The Council, hereby, orders:

1. The Custodian to explain in a certification whether the requested records (itemized cell phone bills for January through December 2003) were made, maintained, and kept on file at the time of the request, pursuant to N.J.S.A. 47:1A-1 et seq.
2. The Complainant to provide proof that she submitted an OPRA request to the Borough of Magnolia dated February 4, 2004 for Itemized cell phone bills; January, 2003 thru December 2003.
3. The Custodian to explain why the requested bills were not disclosed immediately pursuant to N.J.S.A. 47:1A-5(e) and why the council should not consider this inaction a knowing and willful violation of the Act.
4. The Custodian to explain the justification of any redactions made on the bills provided to the Complainant.

The Custodian and Complainant are to provide their responses to the Executive Director, Paul Dice, as ordered in “1” through “4” above within five (5) business days from receipt of the Interim Decision.

Interim Decision Rendered by the
Government Records Council
On The 13th Day of May, 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 

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Itemized cell phone bills; January, 2003 thru December 2003
Custodian: Joyce Harrum, Borough Clerk
Request Made:  February 4, 2004
Response Made: February 12, 2004
GRC Complaint Filed: March 24, 2004

Recommendations of Executive Director

This Open Public Records Act (“OPRA”) complaint filed March 24, 2004 alleges denial of access to itemized cellular phone bills for January 2003, thru December 2003

The Custodian states in a February 12, 2004 letter to the Complainant that according to the Government Records Council (“GRC”), she is “not permitted to release the cell phone bills.” The Custodian attaches a copy of the statute for reference. The Custodian states that the Complainant had previously received the cell phone bills with the numbers blocked out. It is also referenced that the Complainant’s request for the bond proposal and all bids for 2003 municipal bonds (not referenced in the Denial of Access Complaint) has been forwarded to their Bond counsel.

The Complainant addresses in a March 24, 2004 letter to the GRC that she does not wish to mediate this case. The Complainant asserts that she received redacted copies of the phone bills. However, she also claims they were not responsive to her request. She also claims that she filed a second request for the same information sought in her January 22, 2004 request. She contends that the phone bills requested are not privileged information and further claims that she should have been granted immediate access pursuant to N.J.S.A. 47:1A-5(e).

The Complainant also addresses the fact that the phones in question are Nextel cell phones bought and paid for by the taxpayers of Magnolia for use in, “performance of the mayor, council and other borough employees’ official and public duties.” The Complainant believes the Mayor and Council do not have an expected right to privacy in regard to these numbers. They also contend that N.J.S.A. 47:1A-5 remedies any privacy issue by directing the custodian to redact unlisted phone numbers.

In the Custodian’s Statement of Information they inform the GRC that the request for the bond proposal and all bids for 2003 municipal bonds have been provided. The Custodian also states that based on N.J.S.A. 47:1A-1, the GRC staff would advise her not to release the information.

The GRC staff did not advise the Custodian whether or whether not to release the information. The staff simply pointed the Custodian in the direction to the sections of OPRA that might be relevant in regard to cell phone bills. The Custodian was advised to seek legal counsel to assist with this matter. 

The Complainant stated in a May 4, 2004 e-mail to the GRC that she still has not received the documents she is looking for.

The Executive Director respectfully recommends that the Council:

1. Order the Custodian to explain in a certification whether the requested records (itemized cell phone bills for January through December 2003) were made, maintained, and kept on file at the time of the request, pursuant to N.J.S.A. 47:1A-1 et seq.
2. Order the Complainant to provide proof that she submitted an OPRA request to the Borough of Magnolia dated February 4, 2004 for Itemized cell phone bills; January, 2003 thru December 2003.
3. Order the Custodian to explain why the requested bills were not disclosed immediately pursuant to N.J.S.A. 47:1A-5(e) and why the council should not consider this inaction a knowing and willful violation of the Act.
4. Order the Custodian to explain the justification of any redactions made on the bills provided to the Complainant.

Analysis

No Analysis needed at this time. 

Documents Reviewed

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

• January 22, 2004 – Records Request to Custodian
• February 12, 2004 – Letter from the Custodian to the Complainant
• March 24, 2004 – Denial of Access Complaint
• March 24, 2004 – Letter from the Complainant to the GRC
• March 25, 2004 – Mediation Agreements sent to the Custodian
• March 25, 2004 – Mediation Agreements sent to the Complainant
• March 31, 2004 – Complainant declines Mediation
• April 8, 2004 – Custodian’s Statement of Information
• April 28, 2004 – Letter from the GRC to the Custodian
• May 4, 2004 – E-mail from the Complainant to the GRC
• May 5, 2004 – E-mail from the GRC to the Custodian

_________________________

Paul F. Dice
Executive Director
Government Records Council

May 7, 2004

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