2004-58

Final Decision

At its October 14, 2004 public meeting, the Government Records Council (Council) considered the September 24, 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 complaint on the grounds that the Custodian has complied with the Council’s September 9, 2004 Interim Decision and the Complainant responded that he did not wish to have the requested documents converted as sought in his original request

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 20th Day of October, 2004

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 (as stated by the Complainant):

1. All agenda and minutes from regular, agenda/workshop and any other types of   meetings held by the Perth Amboy City Council from December 1, 2004 through to the date of this request, March 17, 2004[1]. Included within this request are minutes from any executive or closed sessions held during that period.
2. Any resolutions authorizing any closed sessions (in accordance with N.J.S.A. 10:4-13) held during the above time period to the extent that those resolutions are not already fully set out in the meeting minutes.
3. Any correspondence, memoranda or other documents, including email, in the possession of the City or any of its subordinate bodies, officials, agencies or employees (including but not limited to the Department of Law- City Attorney) authored since January 1, 2003 that relates in any way to the City’s loitering ordinance, the validity of that ordinance, or the issue raised in any of the letters written to the City of its agencies, appointees, officials or employees, by the Libertarian Party of Somerset and Middlesex regarding the validity of the loitering ordinance.

Request Made:    3/17/2004 Revised request submitted on 3/18/2004
Response Made: 3/24/2004
Custodian:   City of Perth Amboy – Elaine Kiczula
GRC Complaint Filed:  May 8, 2004

Background

The Government Records Council  (“Council”) heard this case at its September 9, 2004 public meeting and issued the following interim decision:

1. The Custodian is to certify to the Council Staff that an inquiry was made to the Complainant to determine whether the documents provided to the Complainant were in a medium satisfactory to him.  If the Complainant still seeks said documents to be converted as indicated in his complaint, the Custodian shall inform the Complainant of the medium conversion costs and then provide the documents in the medium requested.
2. The Custodian legally certified that the records responsive to the December 8, 2003 meeting minutes were provided to the Complainant, and the Complainant has acknowledged this fact.  Therefore, no further action is needed.
3. Although the Custodian did not fully explain the fee charge for the copies, the Custodians actions did not rise to a level of knowing and willful violation of the Open Public Records Act under the totality of the circumstances.

The Custodian shall respond to the Executive Director in “1” above within ten (10) business days from receipt of this Interim Decision. 

Complainant’s Case Position

In the Complainant’s September 20, 2004 e-mail, he acknowledges a telephone voicemail message from the Custodian on September 16, 2004 that inquired whether he wanted the requested records converted into a “computer-readable medium” and was advised the copying conversion would be outsourced.  The Complainant informed the Custodian that he did not want the requested records converted since he felt the cost of conversion would be “prohibitive.”

Public Agency’s Position

The Custodian’s September 21, 2004 certification states that she left a telephone voicemail message for the Complainant on September 16, 2004 asking if the documents provided were in a medium satisfactory to him and if not they would be converted to the electronic medium originally sought in his request.  She stated further that he was informed that the medium conversion would need to be outsourced and she would need to get the costs associated to the medium conversions.  In a September 20, 2004 e-mail from the Complainant, the Custodian was informed that he did not wish to have the documents converted. 

Analysis

The August 3, 2004 Findings and Recommendations are incorporated by reference in this analysis.  The Custodian has complied with the Council’s September 9, 2004 Interim Decision and the Complainant responded that he did not wish to have the requested documents converted as sought in his original request.  Therefore, no further action is required and the Council should dismiss the case.

Documents Reviewed

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

1. September 20, 2004 – Complainant’s e-mail response to Custodian
2. September 21, 2004 – Custodian’s certification responding to Council’s Interim Decision

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the council dismiss the case on the basis that the Custodian has complied with the Council’s September 9, 2004 Interim Decision and the Complainant responded that he did not wish to have the requested documents converted as sought in his original request.

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

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Interim Decision on Access

At the September 9, 2004 public meeting, the Government Records Council (“Council”) considered the August 30, 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 and to incorporate the following as an amendment to said findings and recommendations:  “The Custodian is to certify to the Council Staff that an inquiry was made to the Complainant to determine whether the documents provided to the Complainant were in a medium satisfactory to him.  If the Complainant still seeks said documents to be converted as indicated in his complaint, the Custodian shall inform the Complainant of the medium conversion costs and then provide the documents in the medium requested.” Therefore, the Council hereby finds that:

1. The Custodian is to certify to the Council Staff that an inquiry was made to the Complainant to determine whether the documents provided to the Complainant were in a medium satisfactory to him.  If the Complainant still seeks said documents to be converted as indicated in his complaint, the Custodian shall inform the Complainant of the medium conversion costs and then provide the documents in the medium requested.
2. The Custodian legally certified that the records responsive to the December 8, 2003 meeting minutes were provided to the Complainant, and the Complainant has acknowledged this fact.  Therefore, no further action is needed.
3. Although the Custodian did not fully explain the fee charge for the copies, the Custodians actions did not rise to a level of knowing and willful violation of the Open Public Records Act under the totality of the circumstances.

The Custodian shall respond to the Executive Director in “1” above within ten (10) business days from receipt of this Interim Decision. 

Interim Decision Rendered by the
Government Records Council
On The 9th Day of September, 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 (as stated by the Complainant):

1. All agenda and minutes from regular, agenda/workshop and any other types of   meetings held by the Perth Amboy City Council from December 1, 2004 through to the date of this request, March 17, 2004[1]. Included within this request are minutes from any executive or closed sessions held during that period.
2. Any resolutions authorizing any closed sessions (in accordance with N.J.S.A. 10:4-13) held during the above time period to the extent that those resolutions are not already fully set out in the meeting minutes.
3. Any correspondence, memoranda or other documents, including email, in the possession of the City or any of its subordinate bodies, officials, agencies or employees (including but not limited to the Department of Law- City Attorney) authored since January 1, 2003 that relates in any way to the City’s loitering ordinance, the validity of that ordinance, or the issue raised in any of the letters written to the City of its agencies, appointees, officials or employees, by the Libertarian Party of Somerset and Middlesex regarding the validity of the loitering ordinance.

Request Made:    3/17/2004 Revised request submitted on 3/18/2004
Response Made: 3/24/2004
Custodian:   City of Perth Amboy – Elaine Kiczula
GRC Complaint Filed:  May 8, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on May 8, 2004 pursuant to N.J.S.A. 47:1A-1.1 et. seq. alleging the following:

1. Failure to provide records in the medium requested – Complainant requested electronic records, but was provided paper records.
2. Improper denial of closed session meeting minutes – Custodian requested that the Complainant specify exactly which subject matters he was seeking from the closed session minutes. Complainant feels that it is the burden of the Custodian to redact minutes that are not disclosable.
3. December 8, 2003 meeting minutes were not included with the released information. Via E-mail between the two parties copied to the Government Records Council staff, the records were released to the Complainant on June 23, 2004.
4. Custodian’s “dilatoriness” caused an improper delay. The Custodian did not release records until five weeks after the request was submitted.  “If the Custodian would have identified the amount of the deposit and stated that the records needed to be paid for in full prior to their being released, the delay would not have occurred.” Specifically Mr. Paff has stated that there was correspondence as follows:
   1. March 17, 2004 – Records request
   2. March 18, 2004 – Revised records request
   3. March 24, 2004 (postmark) – Undated letter in response to request seeking a 75% deposit, but did not identify amount of deposit
   4. March 29, 2004 – Letter to Custodian – requesting dollar amount of deposit
   5. April 5, 2004 – Custodian’s Response – dollar amount of the deposit.
   6. April 12, 2004 – Letter to Custodian – clarifying portions of request and enclosing the deposit.
   7. April 22, 2004 – Custodian’s Invoice for balance due for the request
   8. April 23, 2004 – Letter to Custodian that contained the balance due.
   9. April 26, 2004 – Custodian mailed documents to requestor.

Public Agency’s Case Position

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

1. Documents are not kept in a word processor or electronic format. Once     approved they are deleted and maintained in paper format only.
2. “Closed session minutes were not released because Mr. Paff did not specifically indicate the information he sought. It is unduly burdensome to require the custodian of records to go through four (4) months of Closed Session minutes and redact topics that were still being determined and not finalized or which should not be disclosed to the public pursuant to N.J.S.A. 10: 4-12(b).”
3. The records responsive to item three listed above were released to the Complainant on June 23, 2004.
4. There was ongoing communication with Mr. Paff regarding his request, clarification of requests, and costs until the records were released. The Custodian stated that the time-line for communication was as follows:
   1. March 18, 2004 – Received request (never received 3/17/04 request)
   2. March 24, 2004 – Undated letter sent to Mr. Paff with response to the records request
   3. March 29, 2004 – Letter received from Mr. Paff
   4. April 5, 2004 – Letter sent to Mr. Paff – giving dollar amount of deposit and further response to the request
   5. April 12, 2004 – Letter received from John Paff with check for $23.06 (deposit)
   6. April 22, 2004 – Invoice sent to Mr. Paff with balance of $9.94
   7. April 23, 2004 – Letter and check for $9.94 received from Mr. Paff
   8. April 26, 2004 – All documents mailed to Mr. Paff with an invoice showing a zero balance
   9. May 10, 2004 – Receipt of Complaint from GRC
   10. May 12, 2004 - Letter to Mr. Paff stating that March 10, 2004 minutes were available and the cost for reproduction
   11. May 13, 2004 – Response received from Mr. Paff stating that he thought that he had already received the March 10, 2004 minutes
   12. May 18, 2004 – Letter to Mr. Paff explaining that there was a mistake, the March 10, 2004 minutes were included in the original packet.
5. Per the Government Records Council staff’s request, the Custodian has certified that there are no other outstanding documents responsive to the Complainants March 17, 2004 request.

Analysis

The following correspond directly with the Findings and Recommendations of the Executive Director

1. Pursuant to N.J.S.A. 47:1A-5(d), “a Custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium.” The custodian has legally certified that the requested records are not maintained in the medium requested. Therefore they were supplied in paper format, which is the method by which they are maintained. However, the Custodian did not provide an explanation of why the records could not be converted or the cost of conversion for providing the records in the requested medium.
2. N.J.S.A. 47:1A-6 states that, “ The public agency shall have the burden of proving that the denial of access is authorized by law.” N.J.S.A. 47:1A-5(g) states, “if a Custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L. 1963, v. 73 (C.47:1A-1.1 et. seq) as amended and supplemented, the custodian shall delete or excise from a copy…”
3. The Custodian has not met their burden of proving that the denial of access to the closed session minute’s portion of the request is lawful. The Custodian’s response to the request was that the request was “unduly burdensome”, and that the Complainant needs to be more specific. It is not the responsibility of the Complainant to identify specific information, only the document they are seeking. It is the responsibility of the Custodian to provide a document with appropriate redactions if the document is releasable. Moreover, the Open Public Records Act makes provisions for extraordinary circumstances. The Custodian has failed to identify how  ”burdensome” relates to “an extraordinary expenditure of time and effort” pursuant to N.J.S.A. 47:1A-5(c). N.J.S.A. 47:1A-5(c) allows a Custodian to utilize a Special Service Charge for requests that appear to be extensive. Also, N.J.S.A. 47:1A-5(g) states “If a request for government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor…”
4. The Custodian’s response to the requestor has not provided substantial proof that they have met their burden of proving that the denial of access was authorized by law. Furthermore, ”burdensome” is not a lawful response to the Complainant regarding the closed session minute’s portion of the request. Therefore, the Custodian should release the minutes with appropriate redactions pursuant to N.J.S.A. 47:1A-1.1 et. seq.
5. The Custodian has submitted legal certification that the December 8, 2003 meeting minutes responsive to this portion of the complaint have been released to Mr. Paff as of June 23, 2004. Also, in e-mail written by the Complainant and responded to by the Custodian, which was copied to the Government Records Council staff, the release of records was acknowledged.
6. Pursuant to N.J.S.A. 47:1A-5(g), “ a request for access to a government record shall be in writing and hand delivered, mailed, transmitted electronically or otherwise conveyed.” The Complainant chose to fax his records request. Once the request was received, pursuant to N.J.S.A. 47:1a-5(g) “a Custodian shall promptly comply with a request to inspect, examine, copy or provide a copy of a government record.” The Custodian did respond within the time period prescribed time period pursuant to N.J.S.A. 47:1A-5(i), which states, “…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 no later than seven business days.” In this case the Custodian did respond within seven business days, however the response lacked a full explanation of costs associated with the request. The response included the fact that there would be a seventy five percent deposit, but failed to state the cost of the record. The Custodian did not explain these fees until the Complainant contacted her office requesting to know the amount of the deposit. Once the deposit was paid, she failed to tell the Complainant that the total cost of records would be due before he could obtain the records. After the Custodian received the deposit and finished gathering the records, she told the Complainant he would have to make final payment for the records before he could obtain them. The Custodians failure to explain the costs associated with the request for records caused a delay in the Complainant obtaining the records and violated N.J.S.A. 47:1A-5(i). However, both parties stated that there was ongoing communication between them regarding the request and the copying cost for the records. Based on the communication between the two parties, in an effort to explain the copying cost and records request, the GRC staff finds that the Custodians actions does not rise to the level of a knowing and will violation pursuant to N.J.S.A. 47:1A et seq. under the totality of the circumstances. 
7. At the request of the Government Records Council staff, the Custodian has legally certified that excluding the closed session meeting minutes, there are no other outstanding documents that are responsive to the request which have not been released.

Documents Reviewed

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

1. May 8, 2004 – Denial of Access Complaint[2]
2. May 10, 2004 – Offer of Mediation
3. May 10, 2004 – Complainant’s decline of mediation
4. May 27, 2004 – Statement of Information [3]
5. June 17, 2004 – Request for legal certification to the Government Records Council
6. June 22, 2004 – Letter response to request for legal certification
7. June 22, 2004 – E-mail correspondence between the Custodian and Complainant regarding the June 23, 2004 release of the December 8, 2004 meeting minutes.
8. July 8, 2004 – E-mail correspondence explaining legal certification details
9. July 12, 2004 – Legal certification of Custodian

Conclusions and Recommendation of the Executive Director

The executive director respectfully recommends that the Council find that:

1. The Custodian needs to explain why records could not be converted and the cost for conversion pursuant to N.J.S.A.   47:1A-1 et seq.
2. The Custodian should release any and all information pertaining to closed session meeting minutes, with appropriate redactions pursuant to N.J.S.A. 47:1A-1.1 et. seq.
3. The Custodian has legally certified that the records responsive to the December 8, 2003 meeting minute’s have been provided to the Complainant, and the Complainant has acknowledged this fact, this issue should be dismissed.
4. Although the Custodian did not fully explain the fee charge for the copies, the Custodians actions did not rise to a level of knowing and willful violation of the Open Public Records Act under the totality of the circumstances.

Prepared By: 
Approved By:
Paul F. Dice
Executive Director
Government Records Council
August 30, 2004

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