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2004-67
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Final Decision |
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Supplemental Findings and Recommendations of Executive Director |
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Final Decision |
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Findings and Recommendations of Executive Director |
Final Decision
At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the October 12, 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 case on the basis that the Custodian has complied with the Council’s October 14, 2004 Interim Decision. 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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of the Government Records Council. Supplemental Findings and Recommendations of Executive DirectorHugh Sharkey, GRC Complaint No. 2004-67Complainant v. Borough of Oceanport, Custodian of Records Records Requested: Accounting System Records in electronic medium
Custodian: Patricia L. Varca[1] Background 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 said findings and recommendations with amendments to points “1” and “2” of said findings and recommendations. The Council, therefore, found that:
On October 25, 2004 the Custodian sent a letter to the Complainant informing him that the records requested would cost $45.00 to produce. On November 5, 2004 the Custodian sent a letter to the Government Records Council staff informing them that the requested information was made available on October 27, 2004. Documents Reviewed The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:
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 decision. Prepared By: Executive Director October 12, 2004 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 said findings and recommendations with amendments to points “1” and “2” of said findings and recommendations. The Council, therefore, found that:
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 I attest the foregoing is a true and accurate record of the Government Records Council. Virginia Hook, Secretary Government Records Council Findings and Recommendations of Executive DirectorHugh Sharkey, GRC Complaint No. 2004-67Complainant v. Borough of Oceanport, Custodian of Records Records Requested:
Custodian: Patricia L. Varca[1] Background Complainant’s Case Position The Complainant filed a Denial of Access Complaint with the Government Records Council on May 19, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging denial of Access to the Accounting System Records in an electronic medium, specifically including “Trial Balance at 12/31/03, purchases in 2004, checks issued in 2004, and general ledger posting entries for 2003 and 2004.”[2] The Complainant asserts that the Custodian “willfully and knowingly denied his March 23, 2004 request for records in electronic medium.” He contends that the Borough’s Financial Officer previously provided him a vendor report in electronic format on January 22, 2004. Public Agency’s Case Position In response to the Complainant’s allegations, the Custodian asserts that the requested accounting system records are not available electronically. The Custodian contends that the Deputy Clerk informed the Complainant on March 30, 2004 the records in dispute were not available electronically, but could be viewed in paper format along with the other requested records on April 2, 2004. In the Statement of Information, the Deputy Clerk states that the requested accounting records maintained by the Chief Financial Officer (“CFO”) who states she “did not know how to transfer the records into an electronic format as they were normally stored as a paper copy.” The Deputy Clerk states that the CFO acknowledges prior instances where she sought the assistance of a Borough detective to “configure the information to an excel spreadsheet and saved it to disk” in response to a request from a Council member. The Deputy Clerk states that she reviewed the Complainant’s request with the Borough Attorney and it was his opinion that if the records are retained as a paper copy and the record is supplied in that medium it would meet the requirements of OPRA. The Deputy Clerk states further that she contacted Chris Malloy from the Government Records Council and he repeatedly sited Section C47 1A-5d [sic] “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 medium.” The Deputy Clerk states that, “per this section Mr. Malloy felt if paper copies were provided we would be in compliance.” In an April 6, 2004 letter the Custodian stated that she contacted Borough Attorney, the Open Public Records Council as well as Patricia Varga, Borough Clerk, and they concurred that the records, as provided, comply with the law. Analysis The Complainant is seeking copies of records in electronic format and asserts said denial is a knowing and willful violation of OPRA.
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. If a request is for a record:
the agency may charge, in addition to the actual cost of duplication, a special service charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both. As evidenced in the Deputy Clerk’s statement, the records are routinely maintained in paper format, but there have been prior instances when the Borough has converted some documents into an “excel spread sheet” and downloaded onto a floppy disk when requested. It is not clear from the record whether the Complainant made a request for records in electronic format in the past and received same. However, the Custodian has not met the burden of proving why the requested records cannot be converted into an electronic format pursuant to N.J.S.A. 47:1A-5(d). Therefore, the Custodian should take the necessary steps to provide the requested documents in the medium sought by the Complainant and determine what fees, if any, may be associated in converting the documents as requested. 2. N.J.S.A. 47:1A-5(g), states in part: If the 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. The Deputy Clerk provided an explanation that the requested documents were not available in the electronic medium and could only be provided in the paper format based on advice of the Borough Attorney. While the requested records were not provided in the requested format, the Deputy Clerk’s actions did not unreasonably deny access to the records and did not rise to a knowing and willful violation under the totality of the circumstances. 3. The GRC staff did not advise the Deputy Clerk that providing paper copies would be in compliance with OPRA. The staff simply referred the Custodian to the sections of OPRA that might be relevant in regard to “mediums for copying” and advised her to seek legal counsel to assist with this matter. Documents Reviewed The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council find:
Prepared By: October 12, 2004 |
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