2004-54

Final Decision

1. The Custodian certified in their Statement of Information that the site plan under which Mr. Nota operated his business could not be located. The Complainant was informed that this document could not be located.
2. In a June 8, 2004 e-mail the Complainant informed the GRC stating that the town had recently located the Attachment to the1974 Resolution to Seichel and Sons (5/19/74) referencing stipulations under which use variance was granted and she had henceforth received the document.
3. The Custodian did not provide a written response to the request; however because he did not receive the request directly, which is explained in a May 14, 2004 e-mail from the Custodian to Janet Lennahan, his actions did not rise to a level of a knowing and willful violation under the totality of the circumstances in this case.

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 12^th Day of August, 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 Executive Director

Records Requested:

1. Site plan under which Mr. Nota operated his business
2. Attachment to 1974 Resolution to Seichel and Sons (5/19/74)Referencing stipulations under which use variance was granted
3. Certificate of Occupancy that Mr. Nota stated he has on his property

Custodian: John M. Mitch
Request Made:   10/21/03, 2/2/04
Response Made:  10/22/03, 2/9/04
GRC Complaint filed: April 27, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on April 27, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following:

1. Denial of access to a site plan under which Mr. Nota operated his business
2. Denial of access to an Attachment to a 1974 Resolution to Seichel and Sons (5/19/74) referencing stipulations under which use variance was granted
3. Denial of access to a Certificate of Occupancy that Mr. Nota stated he has on his property

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts the following:

1. In response to the request for the site plan under which Mr. Nota operated his business, Arlene Volkay, Board Secretary, states that the current site plan under which Mr. Nota operates his business could not be located. However, she states that Mr. Nota submitted a site plan of existing and proposed conditions and that the Complanant has already been in to review it.
2. In a June 10, 2003 letter from James P. Nolan, Law Director, it is stated that the document the Complainant was seeking could not be located. However, the Mayor instructed Mr. Nolan to conduct a search with the County Clerk on the outside chance that the document was filed there. Mr. Nolan followed up with a July 8, 2003 letter stating that the document could not be located at the County Clerk’s office.
   
   

   However, in a June 8, 2004 e-mail the Complainant wrote to the GRC stating that the town had recently located the Attachment to the1974 Resolution to Seichel and Sons (5/19/74) referencing stipulations under which use variance was granted and she had henceforth received the document.

3. Janet Lennahan replied in writing to the Complainant’s request for a Certificate of Occupancy (C of O) that Mr. Nota stated he has on his property in a February 9, 2004 letter which stated that a C of O was not available because it was not required for the change of ownership since the use was the same. The Complainant responded with letters on February 11, and February 23, 2004 asking for the following three items:
   1. A copy of the statute clarifying that a C of O is not required when the ownership changes on a building when the use of the new owner is deemed the same as the previous owner.
   2. A copy of the C of O on said property of the previous owner to which Mr. Nota’s business was deemed to be the same use.
   3. A copy of all of the C of O’s that have been obtained on this property.

In an attachment to her Denial of Access Complaint the Complainant states that she never received a reply to either of her February letters. In response to these allegations the Custodian states that their office did not receive an OPRA request relative to the letters on 2/11/04 and 2/23/04. He also states that their office was not copied on the letters, as their first knowledge of them was the complaint form. In an effort to track down a record of these letters the Borough Clerk e-mailed the supposed recipients. He received a May 14, 2004 e-mail from Janet Lennahan stating that, after she received the Complainant’s letter of February 11^th she saw her outside of a local eating establishment and verbally responded to her requests. Janet also states that in the past she has given documents to the Complainant’s sister or given verbal information without going through the “request for public records procedure,” because of her friendship with the Complainant’s sister and also because she is a fellow Township employee. Therefore, Ms. Lennahan thought it was ok to respond in an informal manner.

Analysis

The following corresponds directly with the Findings and Recommendations of the Executive Director:

1. The Custodian certified in their Statement of Information that the site plan under which Mr. Nota operated his business could not be located. The Complainant was informed that this document could not be located. Therefore, no further action is required.
2. In a June 8, 2004 e-mail the Complainant informed the GRC stating that the town had recently located the Attachment to the1974 Resolution to Seichel and Sons (5/19/74) referencing stipulations under which use variance was granted and she had henceforth received the document. Therefore, no further action is required.
3. N.J.S.A. 47:1A-5(i) states:  “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.”

As noted in a May 14, 2004 e-mail from the Custodian to Janet Lennahan, the Complainant has not received a written reply to her two letters respectively dated February 11, and February 23, 2004. The Custodian states in a July 14, 2004 letter to the Government Records Council staff that by not having any knowledge of the February 11, 2004 letter, he could not have possibly responded to it since it was neither forwarded to him nor was the Requestor directed to see him. However, in accordance with the above-mentioned sections of the Act, the Custodian of Records has an obligation to respond in writing to the Complainant’s requests.

The information provided to GRC staff indicates that there was only verbal communication responding to the request and no written response was given. The Council should dismiss the case on the basis that while there was no written response to the request, the Custodian’s actions did not rise to a level of a knowing and willful violation under the totality of the circumstances.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

1. April 27, 2004 - Denial of Access Complaint (with attachments)
   1. Letter to the GRC
   
   

2. May 14, 2004 - Statement of Information (with attachments)

   1. Written request from Complainant to Custodian
   2. Written request from Complainant to Custodian
   3. Letter from Complainant to a Twp. Employee
   4. Letter from Complainant to a Twp. Employee
   5. E-mail among twp. employees
   6. Letter from twp. Law Director to Complainant
   7. Letter from twp. Law Director to Complainant
   8. Custodian's reply to written request
   9. Custodian's reply to written request
   10. Letter from Complainant to Custodian
   
   

3. July 15, 2004 - Letter from the Custodian to the GRC

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council finds:

1. The Custodian certified in their Statement of Information that the site plan under which Mr. Nota operated his business could not be located. The Complainant was informed that this document could not be located. Therefore, no further action is required.
2. In a June 8, 2004 e-mail the Complainant informed the GRC stating that the town had recently located the Attachment to the1974 Resolution to Seichel and Sons (5/19/74) referencing stipulations under which use variance was granted and she had henceforth received the document. Therefore, no further action is required.
3. The Custodian did not provide a written response to the request; however because he did not receive the request directly, which is explained in a May 14, 2004 e-mail from the Custodian to Janet Lennahan, his actions did not rise to a level of a knowing and willful violation under the totality of the circumstances in this case.
4. Based on numbers “1” through “3” above the case should be dismissed.

Prepared By: 
Approved By:
Paul F. Dice
Executive Director
Government Records Council

August 3, 2004

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