2004-63

Final Decision

At its October 14, 2004 public meeting, the Government Records Council (Council) considered the October 8, 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.  The Council, therefore, dismissed the case finding that:

1. The Custodian’s Counsel has explained that there are no government records responsive to the subject Open Public Records Act (OPRA) request.
2. Although the Complainant submitted what were believed to be informal requests, the requests constituted valid OPRA requests pursuant to N.J.S.A. 47:1A-5(g).
3. The Custodian violated N.J.S.A.47: 1A-5(h) by not directing the requestor to the appropriate records custodian.
4. The Custodian’s violations in “2” and “3” do not constitute a knowing and willful violation under the totality of the circumstances because the N.J. Board of Social Work Examiners believed these requests were informal rather than OPRA requests.

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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Findings and Recommendations of Executive Director

Records Requested:

1. List of people and agencies/organizations receiving 12/01/01 “Amended Verified Complaint.”
2. List of Board approved therapists

Custodian: Kay McCormack
Request Made:   2/18/04, 3/9/04, 5/12/04
Response Made:  2/25/04
GRC Complaint filed: May 12, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on May 12, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following:

Denial of Access to a full list of all individuals and organizations/groups that received the New Jersey Board of Social Work Examiners December 2000 “Amended Verified Complaint” and a list of 4-5 local therapists that the board would approve to provide mental health therapy. The Complainant alleges that the board is outright refusing to answer or respond to any of the questions or issues he is presenting.

In response to Custodian’s counsel’s September 29, 2004 certification the Complainant sent an e-mail to the Government Records Council discussing the certification of Robert Campanelli as well as stating he would be sending further written response.

The Government Records Council received Mr. Hillenbrand’s response to Custodian’s counsel’s September 29, 2004 certification. In his response, Mr. Hillenbrand claims that Ms. Kay McCormack, as well as Mr. Robert Campanelli have been untruthful in their certifications to the Council.

Public Agency’s Case Position

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

In response to the initial and follow up requests to be provided with a list of people/agencies/organizations sent a copy of the Amended Verified Complaint it is maintained by the Board that beyond transmitting info to the national disciplinary databank, DARS, and the Pennsylvania Board of Social Work Examiners at their request, their were no other entities requesting information. Also, in response to Mr. Hillenbrand’s second request to be provided with a list of Board approved therapists available and agreeing for use, the Board states that they maintain no such list.

On July 15, 2004 the Custodian of Records certified to the Government Records Council that in regards to his request for a list of people and agencies/organizations receiving 12/01/01 “Amended Verified Complaint,” the documents were sent to the Complainant’s counsel, the Pennsylvania Board of Social Work Examiners, and the National Disciplinary Action Reporting System.

Finally, in a July 13, 2004 letter from the Custodian to the Complainant they reiterate what was in their certification as well as state that it is the Complainant’s responsibility to provide the Board with potential clinicians from whom he might obtain the professional services directed by his Order.

On September 29, 2004 Custodian’s counsel sent supplemental information stating the following information:

   1.   Robert Campanelli is the Custodian of records for the New Jersey Board of Social   Work Examiners.

   2.   Kay McCormack considered each of Mr. Hillenbrand’s letters to be informal requests for information from the board.

Analysis

The following correspond directly with the Conclusions and Recommendations of the Executive Director:

1.  N.J.S.A. 47:1A-1.1 states that a "Government record" or "record" means 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 any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State.

The records in question were not made, maintained, and kept on file in the course of official business.  Therefore, they do not fall under the definition of a “government record,” and require no action by the Government Records Council.

2.  The Custodian’s Counsel argued that the Complainant never submitted valid OPRA requests to the N.J. Board of Social Work Examiners but rather submitted informal requests.  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 to the appropriate custodian.”

Pursuant to N.J.S.A. 47:1A-5(g), “If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis thereof on the request form and promptly return it to the requestor.”

The requests by the Complainant were valid OPRA requests as they were in writing and mailed to the N.J. Board of Social Work Examiners. In addition, the Custodian failed to respond to the Complainant’s March 9, and May 12 letters in writing (they have certified that they verbally responded to the requests), essentially denying the request. 

3.   If this request lacked specificity or clarity, the Board should have sent a written response to the Complainant addressing this concern.  Additionally, if the request was directed to the wrong person, in this case Kay McCormack, the request should have been directed to the appropriate Records Custodian.

The Custodian failed to provide, in writing, the specific basis for denying the Complainant’s March 9, and May 12 requests.  However, the Custodian’s actions should not be viewed as a knowing and willful violation of the “Act” to unreasonably deny access to the requested information under the totality of the circumstances pursuant to N.J.S.A. 47:1A-5 (i) because the N.J. Board of Social Work Examiners believed these were informal requests rather than OPRA requests.  

Documents Reviewed

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

1. February 18, 2004 – Complainant’s letter to Custodian
2. March 9, 2004 - Complainant’s letter to Custodian
3. May 12, 2004 - Complainant’s letter to Custodian
4. May 12, 2004 – Denial of Access Complaint
5. May 12, 2004 – Offer of mediation to Complainant
6. May 12, 2004 – Offer of mediation to Custodian
7. June 11, 2004 – Custodian’s Statement of Information (w/attachment)
8. July 13, 2004 – Letter from the Custodian to the Complainant
9. July 15, 2004 – Certification of Kay McCormack
10. August 2, 2004 – Letter from the GRC to the Custodian
    1. September 29, 2004 – Custodian’s counsel’s letter brief (w/attachment)
    2. Exhibit A – Civil Action Consent Order
    3. Exhibit B – February 25, 2004 letter from Kay McCormack to Complainant
    4. Exhibit C – July 13, 2004 letter from Kay McCormack to Complainant
    5. Exhibit D – Certification of Kay McCormack
    6. Exhibit E – Certification of Robert Campanelli
11. September 30, 2004 – Complainant’s response to Custodian’s counsel’s letter brief
12. October 5, 2004 – Complainant’s response to Custodian’s counsel’s letter brief

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find the following:

1. The Custodian’s Counsel has explained that there are no government records responsive to this request.
2. Although the Complainant submitted what were believed to be informal requests, the requests constituted valid OPRA requests pursuant to N.J.S.A. 47:1A-5(g).
3. The Custodian violated N.J.S.A.47: 1A-5(h) by not directing the requestor to the appropriate records custodian.
4. The Custodian’s violations in “2” and “3” does not constitute a knowing and willful violation under the totality of the circumstances because the N.J. Board of Social Work Examiners believed these requests were informal rather than OPRA requests.
5. This complaint should be dismissed.

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

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