2004-62

Final Decision

1. The Council already determined at the June 8, 2004 public meeting that the Custodian acted appropriately by disclosing Exhibit III as soon as it became available to the Custodian and after seeking legal counsel. 
2. The Custodian should have disclosed Exhibit IV on May 19, 2004 with the other copies of requested records or notified the Complainant when the record would be available as the Complainant requested in his April 26, 2004 and May 7, 2004 requests for “a copy of the schedule setting forth all of the operating costs for the Police Department for the budget years 2003 and 2004.” 
3. Regarding the disclosure of Exhibit IV, the Custodian’s actions did not constitute a knowing and willful violation of the Open Public Records Act under the totality of the circumstances. 

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, and 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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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: 

1. Information from the relevant government records setting forth details of all operating costs for the South Harrison Police Department for the budget years 2003 and 2004.
2. Information from the relevant government records setting forth the specific costs relative to operating the South Harrison Police Department for FOCA numbers 23-210-02, 23-215-02, 23-220-02, 23-225-02, 25-240-01 (including a separate amount for holiday pay and overtime pay), 25-240-02 and 31-460-02 for budget years 2003 and 2004.  There may be relevant costs in other accounts as well, so please provide the same information for those other accounts. 

Request Made:  May 7, 2004
Response Made: May 19, 2004
Custodian:   Nancy Kearns, Township Clerk
GRC Complaint Filed:   May 12, 2004

Background

At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the July 2, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  Corrections were noted in item “3” of the Recommendations of the Executive Director from “May 12, 2004” to read “May 19, 2004.”  The Council voted unanimously to adopt items “1” through “4” of said findings and recommendations with the noted correction and to review item “5” of said findings and recommendations at the August 12, 2004 public meeting.  Therefore, the Council found that:

1. The Custodian fulfilled item #1 of the June 10, 2004 Interim Decision by providing a certification that the Complainant received copies of all the records respective to his requests dated April 26, 2004[1] and May 7, 2004.
2. Regarding item #2 of the June 10, 2004 Interim Order, the Custodian failed to respond in writing to the Complainant’s May 7, 2004 Open Public Records Act (“OPRA”) request. However, her failing to do so is not to be found to be a knowing and willful violation under the totality of the circumstances.
3. Regarding item #3 of the June 10, 2004 Interim Order, the Custodian certifies in the Statement of Information that she “immediately” gave access to the 2003 Annual Financial Statement and the 2004 Township Budget, which were available to her; however, the 2004 Police Department Budget was a separate record created for a Councilman and not immediately available to the Custodian. The Custodian forwarded the 2004 Police Department Budget to the Complainant on May 19, 2004. 
4. Items 1 through 3 were dismissed. 
5. The Council will review the supplemental information provided on July 2, 2004 by the Complainant at the August 12, 2004 Council’s public meeting.  In the interim, the Custodian will be provided the opportunity to respond to the Complainant’s supplemental information. 

Complainant’s Case Position

The Complainant filed supplemental information dated June 28, 2004[2] for the Council to consider in this case.  The Complainant takes issue that not all the budget information related to the South Harrison Township Police Department budget was made available to him immediately as provided for in OPRA.  

The Complainant also argues that the Custodian and Chief Financial Officer, Mr. Thomas Sager, denied the existence of records, labeled Exhibit III and IV, that are central to the South Harrison Police Department.  The Complainant asserts that the records labeled Exhibit III and Exhibit IV, which contain Police Department budget information, were withheld from him.  Specifically, the Complainant states that Exhibit III was created by the Chief Financial Officer and was given to a Committeeman through the Custodian, therefore, proving that she had knowledge of the record’s existence.  Further, the Complainant argues that he never received Exhibit IV from the Custodian, but did receive it through the Chief of Police, who claimed to have received it from the Custodian.  The Custodian, according to the Complainant, had Exhibit IV on her desk prior to May 4, 2004, but denied the existence of the record and did not include Exhibit IV with the copies he received on May 19, 2004.  

The Complainant additionally argues that the Custodian made false statements in the Statement of Information dated May 27, 2004 regarding police budget information in stating that “…documents do not need to be created…” and “Mr. Campbell replied that it would only take ten (10) minutes.”  The Complainant states that these statements are false. 

Public Agency’s Case Position

In response to the Complainant’s allegation that Exhibit III was withheld from the Complainant and was not provided to the Complainant on May 4, 2004, the Custodian states that she did not receive a copy of the record until May 4, 2004. 

The Custodian asserts in her Statement of Information that she was not aware of the existence of Exhibit III until she made an inquiry to the Chief Financial Officer and was given a copy of the record on May 4, 2004.  The Custodian states that she sought legal advice on May 5, 2004 as to the release of the record and was told to release the record on May 6, 2004. 

Regarding the Complainant’s allegation that Exhibit IV was on her desk prior to May 4, 2004 and was withheld, the Custodian states Exhibit IV was a budget worksheet provided to the Committee for the review of the budget and that she had forgotten about the record at the time of the Complainant’s request. 

The Custodian states that the Chief of Police, Robert Goslin, contacted her to locate a copy of Exhibit IV for himself and also that the Complainant was also seeking to receive a copy.  The Custodian asserts that she also faxed a copy of Exhibit IV to the Township Attorney for legal advice on the disclosure of the record.  According to the Custodian, the Township Attorney stated that the record was disclosable if the Complainant should file a request for the record. 

The Custodian asserts that the Complainant never filed an OPRA request for a copy of Exhibit IV; therefore, she has not made the record available to him.  

Analysis

The following corresponds directly with the “Findings and Recommendations of the Executive Director” listed below.

1. “Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective bargaining negotiations agreements and individual employment contracts, and public employee salary and overtime information.”  N.J.S.A. 47:1A-5(e).  The Custodian certifies in the Statement of Information that she “immediately” gave access to the 2003 Annual Financial Statement and the 2004 Township Budget, which were available to her; however, Exhibit III was a separate record created for a Councilman and not immediately available to the Custodian. The Custodian certifies that she forwarded a copy of Exhibit III to the Complainant on May 19, 2004.
2. “If a custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.”  N.J.S.A. 47:1A-5 (g).  The Custodian failed to indicate to the Complainant whether or not she will disclose a copy of Exhibit IV because she stated that she had “forgotten” about Exhibit IV’s existence.
3. Although the Custodian should have disclosed Exhibit IV, under the totality of the circumstances, she should not be found to have knowingly and willfully violated OPRA.
4. The Custodian was not circumventing the access to government records by the Complainant, but rather did not fully provide a response to the Complainant’s request by the absence of Exhibit IV.

Documents Reviewed

The following additional records were reviewed in preparation for this “Supplemental Findings and Recommendations of the Executive Director”

1. June 28, 2004 – Complainant’s supplemental information for the Council with attachments specifically including Exhibit III and Exhibit IV
2. July 15, 2004 – Council’s staff’s letter to the Custodian seeking a response the to the Complainant’s June 28, 2004 supplemental information.
3. July 28, 2004 – Custodian’s response to the Complainant’s supplemental information date June 28, 2004
4. August 4, 2004 – Complainant’s response to Custodian’s July 28, 2004 response

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Custodian certifies in the Statement of Information that she “immediately” gave access to the 2003 Annual Financial Statement and the 2004 Township Budget, which were available to her; however, Exhibit III was not available to her at the time of the request.  The Council has already determined at the June 8, 2004 public meeting that the Custodian acted appropriately by disclosing Exhibit III as soon as it was made available to her and after seeking legal counsel. 
2. The Custodian should have disclosed Exhibit IV on May 19, 2004 with the other copies of requested records or notified the Complainant when the record would be available as the Complainant requested in his April 26, 2004 and May 7, 2004 requests “a copy of the schedule setting forth all of the operating costs for the Police Department for the budget years 2003 and 2004.” 
3. Regarding the disclosure of Exhibit IV, The Custodian should not be found as having knowingly and willfully violated OPRA under the totality of the circumstances. 
4. Based upon items #1 through #3, the case should be dismissed. 

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

August 4, 2004

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Interim Decision on Access

At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the July 2, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  Corrections were noted in item “3” of the Recommendations of the Executive Director from “May 12, 2004” to read “May 19, 2004.”  The Council voted unanimously to adopt items “1” through “4” of said findings and recommendations with the noted correction and to review item “5” of said findings and recommendations at the August 12, 2004 public meeting.  Therefore, the Council hereby finds that:

1. The Custodian fulfilled item #1 of the June 10, 2004 Interim Decision by providing a certification that the Complainant received copies of all the records respective to his requests dated April 26, 2004[1] and May 7, 2004.
2. Regarding item #2 of the June 10, 2004 Interim Order, the Custodian failed to respond in writing to the Complainant’s May 7, 2004 Open Public Records Act (“OPRA”) request. However, her failing to do so should not be found to be a knowing and willful violation under the totality of the circumstances.
3. Regarding item #3 of the June 10, 2004 Interim Order, the Custodian certifies in the Statement of Information that she “immediately” gave access to the 2003 Annual Financial Statement and the 2004 Township Budget, which were available to her; however, the 2004 Police Department Budget was a separate record created for a Councilman and not immediately available to the Custodian. The Custodian forwarded the 2004 Police Department Budget to the Complainant on May 19, 2004. 
4. Items 1 through 3 are dismissed. 

Decision Distribution Date:  July 15, 2004

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested: 

1. Information from the relevant government records setting forth details of all operating costs for the South Harrison Police Department for the budget years 2003 and 2004.
2. Information from the relevant government records setting forth the specific costs relative to operating the South Harrison Police Department for FOCA numbers 23-210-02, 23-215-02, 23-220-02, 23-225-02, 25-240-01 (including a separate amount for holiday pay and overtime pay), 25-240-02 and 31-460-02 for budget years 2003 and 2004.  There may be relevant costs in other accounts as well, so please provide the same information for those other accounts. 

Request Made:  May 7, 2004
Response Made: May 19, 2004
Custodian:   Nancy Kearns, Township Clerk
GRC Complaint Filed:   May 12, 2004

Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Custodian fulfilled item #1 of the June 10, 2004 Interim Decision by providing a certification that the Complainant received copies of all the records respective to his requests dated April 26, 2004[1] and May 7, 2004.
2. Regarding item #2 of the Interim Order, the Custodian failed to respond in writing to the Complainant’s May 7, 2004 Open Public Records Act (“OPRA”) request. However, her failing to do so should not be found to be a knowing and willful violation under the totality of the circumstances.
3. Regarding item #3 of the Interim Order, the Custodian certifies in the Statement of Information that she “immediately” gave access to the 2003 Annual Financial Statement and the 2004 Township Budget, which were available to her; however, the 2004 Police Department Budget was a separate record created for a Councilman and not immediately available to the Custodian. The Custodian forwarded the 2004 Police Department Budget to the Complainant on May 12, 2004. 
4. The case should be dismissed. 
5. The Council will forgo a decision concerning the supplemental information provided on July 2, 2004 by the Complainant.  The Custodian will be provided the opportunity to respond to the same.  The Council will review this matter at the August 12, 2004 public meeting. 

Background

At the June 10, 2004 public meeting, the Government Records Council (“Council”) considered the June 4, 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. Therefore, the Council ordered that:

1. The Custodian is to provide a certification explaining in detail what records were provided and that which was not provided to the Complainant in response to the May 7, 2004 request.
2. The Custodian is to provide a certification explaining the reason no written response was provided to the Complainant’s May 7, 2004 OPRA request.
3. The Custodian is to provide a certification explaining whether the complainant was granted “immediate access” to the budgets and if not, the reason for said denial.

Responses to numbers “1,” “2,” and “3” above were to be provided to the Executive Director within five (5) business days from receipt of the Council’s Interim Decision.

Public Agency:

In a certification dated June 21, 2004, the Custodian certified that the Complainant received all the records responsive to his request.  The Custodian contends that on April 23, 2004, the Complainant appeared in her office and received the 2003 Annual Financial Statement and 2004 Township Budget.  In a letter dated May 5, 2004, the Custodian affirms that the Salary Ordinance O-04-01, 2004 Police Department Budget, South Harrison Township Appropriations and Balances and Russell Marino’s Financial Disclosure Statements from 1999 through 2003 were disclosed to the Complainant in response to his request of April 26, 2004. 

The Custodian asserts that the April 26, 2004 request, which is not at issue in this complaint and the May 7, 2004 request were the same OPRA requests.  The Custodian states that she did not respond in writing to the May 7, 2004 request because the Complainant stated in the May 7, 2004 request that he would be picking up the records that same day.  The Complainant, in the May 7, 2004 request, did request that the Custodian contact him by telephone so he may arrange a time to pick up the information.  The Custodian contends that she did not telephone the Complainant as she expected him to appear to pick up the copies of the record the same day as the request was received. 

In the Statement of Information, dated May 27, 2004, the Custodian contends that the Complainant did not appear in her office on May 7, 2004, however, he did attend the Township Council Meeting on May 12, 2004, at which point, the Custodian tried to give the Complainant copies of the records requested, however, he did not accept the records then.  The Custodian stated that the Complainant returned to her office on May 19, 2004 to pick up the records he requested. 

The Complainant submitted supplemental information on July 2, 2004 regarding the existence of records that he was informed to have been non-existent. 

Analysis

1. The Custodian provided certifications in accordance with the June 10, 2004 Interim Order confirming that the Complainant received copies of all records responsive to the April 26, 2004 and May 7, 2004 OPRA requests. 

2. “If a custodian is unable to comply with a request for access, the custodian shall indicated the specific basis therefore on the request form and promptly return it to the requestor.”  N.J.S.A. 47:1A-5 (g).  The Custodian stated that she did not respond in writing or by telephone to the Complainant’s May 7, 2004 OPRA request.  She contends that, as indicated in the request, the Complainant was to return the same day to pick up the copies of the requested records; therefore, she felt that to be sufficient.  Even though the Complainant’s request dated May 7, 2004 indicated that he was to pick up the copies the following day, the Custodian should have responded to the request in writing.  

N.J.S.A. 47:1A-11 provides that a Custodian “…who knowingly and willfully violates [OPRA] …and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to civil penalty…” Although the Custodian did not respond, in writing, to the Complainant’s May 7, 2004 OPRA request, she understood the request to be similar to an earlier request of April 26, 2004 and had accumulated the copies of the responsive records for each to be pick up by the Complainant as indicated in his May 7, 2004 OPRA request.  The Custodian should have responded separately, in writing, to each OPRA request. However, she should not be found to have “…knowingly and willfully…” violated OPRA “…under the totality of the circumstances…”

The Custodian expected to see the Complainant on May 7, 2004, the same day the request was made, to pick up the copies of the records responsive to the request, however, the Complainant did not appear.  In the request, the Custodian was asked to contact the Complainant by telephone to arrange for him to pick up the records, however, the Complainant also indicated that he would appear in the office on the same day.  The burden was placed on the Custodian to fulfill the request, however, she made additional attempts after May 7, 2004 to reach the Complainant and supply him with copies of the records, therefore not attempting to circumvent OPRA.  Specifically, on May 12 2004, the Custodian saw the Complainant at a Township Council Meeting and asked him to take the copies of the records at that time.  The Complainant refused to accept the copies and asserted that he had filed a Denial of Access Complaint with the Council. 

After Council staff’s recommendation on May 18, 2004, the Complainant accepted the copies from the Custodian on May 19, 2004. 

3. The Custodian stated that the 2003 Annual Financial Statement and the 2004 Township Budget were immediately given to the Complainant.  Such action is in keeping with the OPRA provision that “Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective bargaining negotiations agreements and individual employment contracts, and public employee salary and overtime information.”  N.J.S.A. 47:1A-5(e).

In regard to the 2004 Police Department Budget, the Custodian certifies that the record was created for a Councilman and not in her possession.  She asserts that she received a copy of the document on May 4, 2004 and sought legal advise on May 5, 2004 as to the disclosure of the record.  The Custodian was prepared to release a copy of the record to the Complainant on May 7, 2004, however, he did not return to her office at that time.   

The Complainant eventually received the information on May 19, 2004 when he returned to pick up the copies from the Custodian. 

5. The Complainant submitted supplemental information to the Council on July 2, 2004 as to the existence of records that he had been previously notified did not exist.  In order to process this portion of the complaint expeditiously, the Council should request the Complainant file another Denial of Access Complaint form. 

Documents Reviewed

In addition to the documentation listed on the June 4, 2004 Findings and Recommendations of the Executive Director, the Council’s staff considered the Custodian’s June 21, 2004 response to the Council’s June 10, 2004 Interim Order. 

Conclusion

Based upon the Custodian’s certifications dated June 21, 2004 and the Statement of Information dated May 27, 2004, the Complainant has received all the records responsive to his OPRA requests.  The Custodian should have sent a written response to the Complainant regarding his May 7, 2004 request, however, under the circumstances she should not be found as “…knowingly and willfully…” violating OPRA.  Additionally, the Custodian supplied all budget information to the Complainant that was available to her at the time and eventually forwarded the rest of the budget information by May 12, 2004.  The Council should dismiss this case. 

________________________

Paul F. Dice
Executive Director
Government Records Council
June 30, 2004

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Interim Decision on Access

1. The Custodian is to provide a certification explaining in detail what records were provided and that which was not provided to the Complainant in response to the        May 7, 2004 request.
2. The Custodian is to provide a certification explaining the reason no written response was provided to the Complainant’s May 7, 2004 OPRA request.
3. The Custodian is to provide a certification explaining whether the complainant was granted “immediate access” to the budgets and if not, the reason for said denial.

Responses to numbers “1,” “2,” and “3” above are to be provided to the Executive Director within five (5) business days from receipt of the Council’s Interim Decision.

Interim 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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Findings and Recommendations of the Executive Director

Relevant Records Requested: 

1. Information from the relevant government records setting forth details of all operating costs for the South Harrison Police Department for the budget years 2003 and 2004. 
2. Information from the relevant government records setting forth the specific costs relative to operating the South Harrison Police Department for FOCA numbers 23-210-02, 23-215-02, 23-220-02, 23-225-02, 25-240-01 (including a separate amount for holiday pay and overtime pay), 25-240-02 and 31-460-02 for budget years 2003 and 2004.  There may be relevant costs in other accounts as well, so please provide the same information for those other accounts. 

Request Made:  May 7, 2004
Response Made: May 19, 2004
Custodian:   Nancy Kearns, Township Clerk
GRC Complaint Filed:   May 12, 2004

Executive Director’s Findings and Recommendations

This complaint alleges a violation of the Open Public Records Act (“OPRA”) regarding records requested from the Township of South Harrison regarding various records concerning the police department’s budget for 2003 and 2004. 

The complainant alleges that in a letter dated May 7, 2004; he requested information setting forth details of all operating costs for the South Harrison Police Department for 2003 and 2004.  Additionally, the complainant alleges that he requested information from the relevant government records setting forth the specific costs relative to operating the South Harrison Police Department for FCOA numbers 23-210-02, 23-215-02, 23-220-02, 23-225-02, 25-240-01 (including a separate amount for holiday pay and overtime pay), 25-240-02 and 31-460-02 for 2003 and 2004 budget years and any additional information pertaining to operating costs for the police department.  The complainant includes in his Denial of Access Complaint, an OPRA request dated April 26, 2004; however, he is not grieving this request in this complaint.  The complainant contends in his OPRA request of May 7, 2004 that he should have immediate access to budgets pursuant to OPRA.  The complainant contends that, to date, the custodian has not responded to his May 7, 2004 OPRA request. 

On April 23, 2004, the custodian claims to have received a request from the complainant seeking the 2003 and 2004 Township budgets and Annual Financial Statement.  The custodian contends that the complainant received both records the same day. 

In the Statement of Information, the custodian asserts that the complainant sent an OPRA request to her attention dated April 26, 2004.  The custodian contends that the complainant was seeking information regarding the 2003 and 2004 salary ordinances, specific costs for police department operations, including FCOA numbers and other relevant costs in other accounts, summary schedule for total cost structure for the operation of the police department for 2003 and 2004 and the Financial Disclosure Statements for Russell Marino for 1999-2003.  The custodian claimed that she prepared the copies of the salary ordinances and the Financial Disclosure Statements for the complainant to pick up.  The custodian asserts that she was advised by the Municipal Financial Officer that the South Harrison Township Budget Appropriations & Balances would show the total costs expended for 2003, however, this record would not be available for 2004 as the costs have not all been incurred.  Additionally, the custodian claims that she was advised that the total cost structure and summary schedule for the police department could be found in the Township budgets for 2003 and 2004. 

The custodian asserts that the complainant appeared in her office on May 4, 2004 to pick up the documents he requested.  The custodian stated that he refused to take the salary ordinances because he claimed to have copies of them already.  Regarding the Budget Appropriations and Balances and the Financial Disclosure Statements, the custodian claims that the complainant stated that the documents were not responsive to his request.  The custodian asserts that the complainant said he would pay for the salary ordinances only and that he would be sending another OPRA request and would be back on May 7, 2004 to pick up the records requested. 

The custodian acknowledges receipt of another OPRA request on May 7, 2004 requesting information from relevant government records setting forth details of all operating costs for the police department for 2003 and 2004 and government records setting forth the specific costs relative to operation the police department.  The custodian claimed to have sent the request to counsel, who advised her that the complainant’s May 7, 2004 OPRA request was the same as the April 26, 2004 OPRA request and the records that do not exist cannot be released.  According to the custodian, the complainant did not return to her office to receive the records he requested on April 26, 2004.  The custodian claims, however, that she spoke with the complainant at a Township Council meeting on May 12, 2004 and inquired if he wanted the records he requested.  The custodian claims that the complainant informed her about his complaint to the Government Records Council and that he could not pick up the copies of the records now.  The custodian contends that on May 13, 2004 she received the Denial of Access Complaint form from the Government Records Council and the Offer to Mediate. 

On May 19, 2004, the custodian affirms that the complainant returned to her office, after speaking with someone on the Council’s staff, to pick up the records that the Township was to release to him pursuant to his April 26, 2004 request.  The custodian contends that she released the 2003 & 2004 Salary Ordinances and Benefits, 2003 Budget Appropriations and Balances, Financial Disclosure Statements for Russell Marino 1999-2003, 2004 Police Department Budget Worksheet (handwritten) and a letter from her outlining the enclosed documents. 

The Executive Director respectfully recommends the following:

1. N.J.S.A. 47:1A-1.1 provides that a government record is defined as “…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 any copy thereof, that has been made, maintained or kept on file in the course of his or its official business…”  In the Statement of Information, the custodian contends that the complainant received the records responsive to his request by May 19, 2004, however, it is unclear if the records released are responsive to the May 7, 2004 OPRA request, specifically, items #1 and #2 above.  The Council should order the custodian to provide a certification within five (5) business days explaining in detail if the OPRA request of May 7, 2004 was responded to specifically regarding items #1 and #2 above and the records supplied to the complainant.   
   
2. In the Statement of Information, the custodian did not indicate if a written response was made regarding the complainant’s May 7, 2004 OPRA request.  “If a custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor” [N.J.S.A. 47:1A-5 (g)].  The Council should order the custodian to provide a certification within five (5) business days explaining the reason no written response was provided to the complainant’s May 7, 2004 OPRA request. 
   
3. The complainant raises the issue of “immediate access” in his May 7, 2004 request pertaining to the budgets of 2003 and 2004.  OPRA provides that “[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information” [N.J.S.A 47:1A-5 (e)].  The Council should order the custodian to provide a certification within five (5) business days as to whether or not the complainant was granted “immediate access” to the budgets and an explanation if the complainant was denied “immediate access” to the budgets.    

Analysis

N.J.S.A 47:1A-1.1 provides that a government record is defined as “…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 any copy thereof, that has been made, maintained or kept on file in the course of his or its official business…”  The custodian contends that some records were released to the complainant, however, it is unclear by the custodian’s Statement of Information, if all the responsive government records that are “…made, maintained and kept on file…” in the Township were disclosed regarding the complainant’s May 7, 2004 OPRA request.

“If a custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor” (N.J.S.A. 47:1A-5 (g)).  No indication is made in the Statement of Information that the custodian provided a written response to the complainant’s May 7, 2004 OPRA request.

OPRA provides that “[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information” (N.J.S.A 47:1A-5 (e)).   The complainant grieves the issue of “immediate access” in his May 7, 2004 OPRA request.  It is unclear in the Statement of Information, if the custodian denied “immediate access” to the budgets or if another issue prohibited “immediate access” of the budget records. 

Documents Reviewed

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

• April 26, 2004 – Original OPRA request made by complainant
• May 5, 2004 – Custodian’s response to April 26, 2004 OPRA request
• May 7, 2004 – Complainant’s second OPRA request
• May 12, 2004 – Denial of Access Complaint form
• May 12, 2004 – Offer of Mediation sent to complainant and custodian
• May 18, 2004 – Custodian’s Offer of Mediation
• May 18, 2004 – Request for Statement of Information
• May 19, 2004 – Council’s staff’s letter extending Statement of Information deadline to May 28, 2004.
• May 27, 2004 – Statement of Information with attachments

Paul F. Dice
Executive Director
Government Records Council

June 4, 2004

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