2004-36

Administrative Case Closure

Type of Administrative Closure:  The Complainant appealed the Government Records Council’s (Council) June 10, 2004 Final Decision to the Appellate Division of the Superior Court of New Jersey.  By letter to the Appellate Division Clerk dated March 7, 2005 with a copy to the Government Records Council, the Complainant withdrew his appeal.   

Applicable OPRA Provision:   The OPRA provisions set forth in the Council’s June 10, 2004 Final Decision. 

Effective Date of Disposition:  April 14, 2005
Prepared By: Gloria Luzzatto, Assistant Executive Director
Approved By Executive Director: Paul Dice

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Final Decision

At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 2, 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:

1. Specific details of the information still being sought in his January 22, 2004 request.
2. The Custodian violated N.J.S.A. 47:1A-5 by not responding to the Complainant within the seven-business day timeframe.  The Custodian should have apprised the Complainant that additional time was needed to search for records due to the dated information being sought.  However, the Custodian’s actions did not rise to the level of a knowing and willful violation under the totality of the circumstances.
3. The Custodian certified that all information in existence and responsive to the January 22, 2004 request was provided to the Complainant. 

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:

1. The names of Township engineers from 1976-2003
2. The year Catherine Street was excavated
3. A copy of the old map showing the vacated streets of Elm, Maple and First Ave.  with Cloverdale Rd.

Custodian: Veronica Jasina 
Request Made: January 22, 2004
Response Made: February 19, 2004
GRC Complaint filed: March 16, 2004

Executive Director’s Findings and Recommendations

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 with the addition of “4” and found that:

1. The custodian provided the list of the Township Engineers from 1976 to 2004 in response to the request.
2. The Custodian certified that Catherine Street was a paper street and had not been excavated and there were no maps in the Township’s possession in response to the request. 
3. The requestor was to provide to the Custodian and Executive Director, Paul Dice, within 10 business days from receipt of the Council’s decision the specific details of the information still being sought in his January 22, 2004 request and that a lack of response will result in the case being dismissed. 
4. The Custodian was ordered to provide a certification to the Executive Director within five (5) business days of receipt of the Council’s Interim Decision with an explanation for the delay in responding to the request and why the Council should not consider their actions to be a “knowing and willful” violation under N.J.S.A. 47:1A-11.

On May 6, 2004 in response to Interim Decision, the Complainant maintained that his request remained unfilled with respect to the “Lincoln Farms Maps” and information concerning the date “Catherine Street was excavated.”

On June 1, 2004 the Custodian submitted a certification responding to the Complainant’s May 6, 2004 correspondence and the Interim Decision.  The Custodian certified that the Complainant was provided a list of the Township Engineers and a 1919 subdivision map in response to the Complainant’s January 22, 2004 request.  The Custodian further certified that no information existed on the excavation of Catherine Street. 

Regarding the delay in responding to the Complainant, the Custodian certified that extensive searches of archived material was performed by the Deputy Zoning Officer, the Municipal Clerk and Tax Assessor’s Office in responding to the Complainant’s request.  The Custodian explained that she believed the request was handled in a timely manner considering the dated material being sought. 

The Executive Director respectfully recommends that the Council find that:

1. specific details of the information still being sought in his January 22, 2004 request.
2. The Custodian violated N.J.S.A. 47:1A-5 by not responding to the Complainant within the seven-business day timeframe.  The Custodian should have apprised the Complainant that additional time was needed to search for records due to the dated information being sought.  However, the Custodian’s actions did not rise to the level of a knowing and willful violation under the totality of the circumstances.
3. The Custodian certified that all information in existence and responsive to the January 22, 2004 request was provided to the Complainant. 
4. The case should be dismissed.

Analysis

The legal analysis contained in the April 26, 2004 Findings and Recommendations is incorporated herein by reference.

On June 1, 2004, the Custodian certified that she did not provide a response within the seven-business day timeframe but took eighteen business days to reply to the request.  The Custodian certified that due to the amount of research involved with the request this response was timely.  The Custodian’s failure to respond to the Complainant within this timeframe is a violation of N.J.S.A. 47:1A-5 which states in part the following:

“Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.”

Although the Custodian should have apprised the Complainant that additional time was needed to search for records due to the dated material being sought, the Custodian’s actions did not rise to the level of a knowing and willful violation under the totality of the circumstances.   

In reference to the Complainant’s unfilled request for the “Lincoln Farms Maps”, this information was not referenced in his January 22, 2004 request.  The Custodian certified that all information in existence and responsive to the January 22, 2004 request was provided to the Complainant. 

Documents Reviewed

• April 26, 2004 – Interim Decision
• May 6, 2004 – Additional Information provided by the Complainant to the GRC
• June 1, 2004 – Certification from Custodian to GRC

________________________

Paul F. Dice
Executive Director
Government Records Council

June 2, 2004

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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 with the addition of “4.”  Therefore, the Council hereby found that:

1. The custodian provided the list of the Township Engineers from 1976 to 2004 in response to the request.
2. The Custodian certified that Catherine Street was a paper street and had not been excavated and there were no maps in the Township’s possession in response to the request. 
3. The requestor is to provide to the Custodian and Executive Director, Paul Dice, within 10 business days from receipt of the Council’s decision the specific details of the information still being sought in his January 22, 2004 request and that a lack of response will result in the case being dismissed. 
4. The Custodian is ordered to provide a certification to the Executive Director within five (5) business days of receipt of the Council’s Interim Decision with an explanation for the delay in responding to the request and why the Council should not consider their actions to be a “knowing and willful” violation under N.J.S.A. 47:1A-11.

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 

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Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. The names of Township engineers from 1976-2003
2. The year Catherine Street was excavated
3. A copy of the old map showing the vacated streets of Elm, Maple and First Ave.  with Cloverdale Rd.

Custodian: Veronica Jasina 
Request Made: January 22, 2004
Response Made: February 19, 2004
GRC Complaint filed: March 16, 2004

Executive Director’s Findings and Recommendations

On January 22, 2004, the Complainant submitted three separate requests to Barnegat Township’s Custodian of Records for:

1. The names of Township engineers from 1976-2003
2. The year Catherine Street was excavated
3. A copy of the old map showing the vacated streets of Elm, Maple and First Ave.  with Cloverdale Rd.

In the Denial of Access Complaint, the Complainant asserts that the Custodian failed to disclose the following information: the date Catherine Street was excavated and copies of Old Lincoln Farm’s maps.  In two attachments submitted with the Denial of Access complaint, the Complainant provided the following: (1)a letter dated March 28, 2003 from Kenneth Miles providing a written request to the Custodian for the resolution number or ordinance number of Catherine Street and Cloverdale Road; (2)an April 30, 2003 letter from the Custodian in response to the requestor with a copy of the filed map concerning Catherine Street[1].  

The Custodian responded in a February 19, 2004 letter to the Complainant that Catherine Street had not been excavated and that the Township of Barnegat does not possess these requested maps.  He also provided a list of the Township Engineers from 1976 through 2004. 

In the Statement of Information, the Custodian certified that all information responsive to the request was provided.

The Executive Director recommends that the Council find that:

1. In its February 19, 2004 to the Complainant, the Custodian provided a list of Township Engineers from 1976 to 2004 in response to the Complainant’s requests “1”. 
2. The Custodian affirmed in a February 19, 2004 letter to the Complainant and later certified in the Statement of Information that Catherine Street was a paper street and had not been excavated and there were no maps in the Township’s possession in response to request “2” and “3”. 
3. The requestor should provide specific details of the information still being sought, which has not already been provided by the Custodian.  Said response is to be provided to the Custodian and Executive Director, Paul Dice within 10 business days from receipt of the Council's decision.  A lack of a response will result in the case being dismissed. 

Legal Analysis

Under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1.1, a “Government Record” is one that is made, maintained and/or kept on file in the ordinary course of the Custodian's or public official’s course of business.  There is no requirement under OPRA for the Custodian to create a file or paper record to meet the request.  The Custodian affirmed in a February 19, 2004 letter to the Complainant, and later certified in the Statement of Information, that Catherine Street was a paper street and had not been excavated.  In addition, the Custodian has affirmed in a February 19, 2004 that the Tax Assessor does not possess the maps requested by the Complainant.

Documents Reviewed

• January 22, 2004 – Records Request #1
• January 22, 2004 – Records Request #2
• January 22, 2004 – Records Request #3
• March 16, 2003 – Denial of Access form submitted along with attachments
• March 25, 2004 – Mediation offered to both parties
• April 1, 2004 – Mediation accepted by Complainant
• April 1, 2004 – Mediation declined by Custodian (verbal)
• April 1, 2004 – Statement of Information sent to Custodian
• April 7, 2004 – Statement of Information submitted to GRC
• April 30, 2003 – Response by Township Administrator to Complainant
• February 19, 2004 – Letter from Custodian to the Complainant

_________________________

Paul F. Dice
Executive Director
Government Records Council

April 19, 2004

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