2004-66

Final Decision

1. The Complainant did not prove that he did file a written Open Public Records Act request or any other type of written request with the New Jersey State Parole Board.
2. The Complainant acknowledged, in writing, as having received records on June 23, 2004 responsive to a portion of his request.
3. The Custodian provided a certification dated July 13, 2004 that her office did not receive a written Open Public Records Act request from the Complainant.

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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Findings and Recommendations of the Executive Director

Records Requested:

1. Hearing Officer’s Recommendation
2. Final Decision of the Parole Board
3. All Mental Health/Substance Abuse Reports that were used in the Parole Board’s deliberation

Request Made: Between August 25, 2003 and September 24, 2003
Response Made: No response
Custodian:   Carla Shabazz
GRC Complaint filed: January 10, 2003[1]

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on January 10, 20031 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian made no response to his Open Public Records Act (“OPRA”) request.

The Complainant claims to have submitted several written requests to the New Jersey Parole Board Chairperson for the Hearing Officer’s Recommendation, the Final Decision of the Board and all Mental Health/Substance Abuse Reports used by the Board in making their decision. 

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts that her office received no written OPRA request. 

In the Statement of Information, dated June 18, 2004, the Custodian’s counsel affirms that the Custodian did not receive a written OPRA request from the Complainant.  The Custodian provided a certification to the Council on July 13, 2004 in support of that position.

Custodian’s counsel asserts that the Complainant’s written requests for the specific records were administrative requests with the New Jersey State Parole Board.  The Custodian’s counsel, nonetheless, provided a signed “Acknowledgement of Receipt” dated June 23, 2004, in which, the Complainant acknowledges receiving the Hearing Officer’s Recommendation report prepared on October 2, 2003 and the Final Decision of the Board prepared on October 15, 2003. 

On July 7, 2004, the Council’s staff sent a letter to the Complainant seeking clarification as to the receipt of the requested records and if the OPRA request was fulfilled.  To date, staff has received no response from the Complainant. 

Analysis

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

1. N.J.S.A. 47:1A-5(g) provides that “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.”  The Custodian differentiates the administrative request and an OPRA request.  Nonetheless, the Custodian provides a certification to the Council on January 13, 2004, affirming that the Complainant never filed a written OPRA request.  The Complainant does not provide a written OPRA request in his Denial of Access Complaint or a response from the Council’s staff inquiring about his submission of a written OPRA request.   The Complainant, additionally, does not provide any other type of written request.
   
   
2. OPRA provides that “[t]he public agency shall have the burden of proving that         the denial of access is authorized by law.”  N.J.S.A. 47:1A-6.  The Custodian has met the burden of proving that the Complainant did receive the records responsive to his request a side from not filing a written OPRA request.

Documents Reviewed

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

1. 1 – Complainant’s Denial of Access Complaint (Council received May 18, 2004)
2. May 20, 2004 – Council’s Offer of Mediation to Complainant and Custodian
3. May 26, 2004 – Council’s request for Statement of Information to Custodian
4. June 18, 2004 – Custodian’s Statement of Information
5. July 7, 2004 – Council’s staff’s letter to Complainant seeking clarification of records received
6. July 7, 2004 – Council’s staff’s e-mail to Custodian’s counsel seeking certification from Custodian regarding the absence of a written request
7. July 14, 2004 – Custodian’s certification (dated July 13, 2004) and Custodian’s counsel’s cover letter

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Complainant did not prove that he did file a written OPRA request or any other type of written request with the New Jersey State Parole Board.
2. The Complainant acknowledges, in writing, as having received records on June 23, 2004 responsive to his request.
3. The Custodian provides a certification dated July 13, 2004 that her office did not receive a written OPRA request from the Complainant.
4. Based upon items #1 through #3 immediately above, the case should be dismissed.

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

August 6, 2004   

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