2004-42

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. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council dismissed the case on the basis of:

1. The custodian certified that the records requested for units #3 and #5 were provided to the complainant pursuant to N.J.S.A 47:1A-1.1 et seq. 
2. The custodian certified that the record requested for unit #2 was not provided because according to the City’s files, no one occupied the unit, therefore the record was not “…made, maintained or kept on file…” as requested by the complainant (N.J.S.A. 47:1A-1.1 et seq). 
3. There are no provisions in OPRA that addresses the validity of a record. 

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 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:  Certificates of Occupancy for units #2,3 and 5 at 14 South Frontenac Avenue, Margate, NJ 08402, currently listed. 
Request Made:    January 29, 2004
Response Made: April 2, 2004
Custodian:   Mary Siracusa, City Solicitor
GRC Complaint Filed:   March 15, 2004

Executive Director’s Recommendations

This complaint alleges a violation of the Open Public Records Act (“OPRA”) regarding records requested from the City of Margate pertaining to certificates of occupancy for units 2, 3 and 5 at 14 Frontenac Avenue, Margate, NJ 08402 (currently listed). 

The complainants claim that an OPRA request was sent as certified mail to the City of Margate on January 29, 2004 requesting the certificates of occupancy for units 2, 3 and 5, however, the custodian never responded.  On April 20, 2004, the requestor (Ms. Penn) verbally asserted to the GRC staff, that the records requested were never received from the City of Margate. 

The custodian asserts, in a letter to the GRC dated April 2, 2004, that the records requested were provided to the complainants on April 2, 2004 with the exception of the certificate of occupancy for unit #2 as according to the City’s records, no one is currently occupying this unit.  The custodian also claims, by way of background, that the complainants are involved in an ongoing dispute with their landlord and the City of Margate surrounding fire and safety code violations.  Further, the custodian asserts that the landlord’s attorney, citing an OPRA exemption, claimed that the records should not be released because the information could jeopardize the safety of other tenants.  In the Statement of Information, the custodian certifies that the records were provided to the complainants on April 2, 2004 with the exception of the certificate of occupancy for unit #2 because the City’s records indicate that no one occupied this unit. 

On April 22, 2004, the GRC staff requested written clarification from the complainants as to their claims that they never received the records they requested.  The complainants’ response, received on May 4, 2004, asserted that they did receive the certificates of occupancy for units #3 and #5.  The complainants assert, however, that the certificate of occupancy was not signed for unit #3 and questions the validity of the record.  The complainants dispute the argument that the certificate of occupancy for unit #2 could not be provided because the OPRA request was made in January 2004 when the unit was occupied.  The complainants, additionally, claim that the certificate of occupancy received for unit #5 pertains to tenants that no longer occupy the unit and have not for quite some time.  The complainants’ claim that the OPRA request reflects those certificates of occupancy requested for current listed tenants therefore the current certificate of occupancy should have been provided.  The complainants dispute the claim that releasing the information to them would create a safety concern to other tenants and further assert that these claims are surrounding a suit filed in court and are not pertinent to OPRA.   

The Executive Director respectfully recommends the following that the Council dismiss this complaint based on the following:

1. The custodian certified that the records requested for units #3 and #5 were provided to the complainant pursuant to N.J.S.A 47:1A-1.1 et seq. 
2. The custodian certified that the record requested for unit #2 was not provided because according to the City’s files, no one occupied the unit, therefore the record was not “…made, maintained or kept on file…” as requested by the complainant (N.J.S.A. 47:1A-1.1 et seq). 
3. There are no provisions in OPRA that address the validity of a record. 

Legal Analysis

N.J.S.A. 47:1A-1.1 et seq defines a government record as “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards, thereof…”  The custodian certified that the record requested for unit #2 did not exist because no on occupied the unit, according to the City’s records. 

The custodian certified that the certificates of occupancy for units #3 and #5 were provided to the complainant in response to the OPRA request dated January 29, 2004.  As to the complainant’s argument that the record for unit #3 was not valid because it was not signed, is not within the jurisdiction of the GRC, as OPRA does not contain a provision addressing the validity of records provided by custodians. 

Documents Reviewed

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

• March 15, 2004 – Denial of Access Complaint filed
• March 30, 2004 – Offer of Mediation sent to complainants and custodian
• April 2, 2004 – Custodian’s letter to GRC with supplemental information
• April 12, 2004 – GRC request for Statement of Information
• April 22, 2004 – GRC request for complainants statements in writing confirming that no documents were received
• April 23, 2004 – GRC follow-up on request for Statement of Information
• April 27, 2004 – Supplemental letter provided by the requestor regarding the GRC letter dated April 22, 2004
• April 28, 2004 – Statement of Information with supplemental information

________________________

Paul F. Dice
Executive Director
Government Records Council

May 6, 2004

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