2004-72

Final Decision

At its August 12, 2004 public meeting, the Government Records Council (Council) considered the August 4, 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 on the basis of:

1. The Custodian responded to the Complainant’s April 19, 2004 request, the only request received by the Department, by disclosing copies of all records responsive to the request on May 25, 2004.
2. The Custodian provided the documents responsive to the portion of the April 19, 2004 OPRA request concerning the pay status of employees who attended the conference; however, the Custodian should have been more clear in supplying a definition of “UN” time and its relevance to the employees pay status. 
3. The Complainant’s request of April 19, 2004 and April 20, 2004 were similar, however, the Department of Corrections’ Custodian certified that the Department did not receive the April 20, 2004 request and responded to the April 19, 2004 request that specifically sought documents concerning the Department of Corrections.
4. The Complainant has not proven that he appropriately conveyed an Open Public Records Act request to the Custodian on April 20, 2004; therefore, the Custodian was not responsible for a request that had not been received. 

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. A listing of attendees of the 24^th Annual Conference on Public Sector Labor Relations Law that was sponsored by the Public Employee Relations Commission and the New Jersey State Bar Association on April 2, 2004.
2. Information on whether the attendees were State employees, and whether they attended in pay status or on their own time or on paid State time, and who paid the conference fee for State employees in attendance. 

Request Made: April 20, 2004
Response Made: May 5, 2004
Custodian:   Kathleen Wiechnick
GRC Complaint filed: June 7, 2004

Background

Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Government Records Council on June 7, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian did not disclose all the records respective to his April 19, 2004 and April 20, 2004 Open Public Records Act (“OPRA”) requests and did not respond to the portion of his request for the name of the compensating party. 

The Complainant states that his request on April 20, 2004 to the New Jersey State Records Custodian seemed to be referred to the Department of Corrections. 

The Complainant asserts many State employees attended the 24^th Annual Conference on Public Sector Labor Relations Law on April 2, 2004, however, he acknowledges only receiving copies of five (5) memorandums authorizing Department of Corrections employees to take “UN” leave to attend the conference.  The Complainant further asserts that he requested, but received no response to his request for the name of the party who paid the employee for the time used to attend the conference. 

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts that her office responded to the April 19, 2004 OPRA request on May 5, 2004 by providing a letter to the Complainant regarding the copy charges for the requested records.  The Custodian further states that on May 25, 2004 she provided the Complainant with the only records that the Department maintained responsive to the Complainant’s request. 

The Custodian certifies that her office never received the April 20, 2004 OPRA request that is at issue in this complaint. 

As a point of reference, the Custodian certifies to the Council staff on June 8, 2004 “UN” time “may be utilized for an employee who [has] been approved to leave from work to attend to union business.”  The Custodian additionally asserts that “UN” time is similar to sick time, vacation or administrative time, where in the State would compensate the employee for this time. 

The Custodian’s counsel states that the conference on April 2, 2004 was not hosted by the New Jersey Department of Corrections; therefore, the Department does not have a list of attendees.  The Custodian’s counsel further conveys that the Custodian disclosed copies of five (5) memorandums on May 25, 2004 that authorized five (5) employees to take “UN” leave to attend the conference. 

The Custodian’s counsel also states that the Complainant’s request to the Department of Corrections differs from the request supplied in the Complainant’s Denial of Access Complaint in the description of the State employees and Department employees and the date. 

Analysis

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

1. N.J.S.A. 47:1A-1.1 maintains that a government record is that, which has been “…made, maintained and kept on file in the course of his or its official business…” The Custodian’s counsel maintains that the Custodian disclosed all records on May 25, 2004 that the Department of Corrections had responsive to the Complainant’s April 19, 2004 OPRA requests.

   The Department of Corrections did not host the April 2, 2004 conference, according to the Custodian’s counsel, and therefore does not have access to the list of conference attendees, even specifically from the Department of Corrections.  The Custodian’s counsel argues that the records disclosed to the Complainant are the only records that the Department has responsive to the request and that the memorandums specifically approve “UN” time for those said employees to attend the conference. 

2. In the copies of memorandums disclosed to the Complainant, the said employees are listed as approved for “UN” time to attend the conference on April 2, 2004.  Although the Custodian could have clarified the definition of “UN” time, she did not violate OPRA as she responded to this portion of the request.



3. The Complainant filed an OPRA request with the Department of Corrections on April 19, 2004 and an online request to the State of New Jersey on April 20, 2004.  Both requests are similar in nature, with the exception that the April 19, 2004 request only pertains to Department of Correction employees and the April 20, 2004 request pertains to all State employees.

   The Complainant acknowledges that his request was sent to the Department of Corrections for a response; however, disputes that the records disclosed to him included all employees who attended the conference.  As the Custodian’s counsel asserts in the Statement of Information, the Custodian responded to the April 19, 2004 request, which she received, by disclosing all records that were “…made, maintained and kept on file…” with the Department.  N.J.S.A. 47:1A-1.1.  It is clear from the Custodian’s counsel’s response that the Custodian would not have records of all State employees who attended the conference on April 2, 2004.  It is unclear if the April 20, 2004 request was received by the Department of Corrections.  

4. 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 Complainant takes issue with his April 20, 2004 OPRA request in his Denial of Access Complaint, however, he has not proven that the online request was submitted by providing a confirmation number or any other proof that the request was sent to the Custodian.  The Custodian certifies that the Department never received the April 20, 2004 request, however, did receive and respond to the April 19, 2004 request.  The Custodian, therefore, should not be held accountable for a request, which has not been conveyed to the Custodian by the Complainant.

Documents Reviewed

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

1. April 19, 2004 – Complainant’s OPRA request to the Department of Corrections
2. April 20, 2004 – Complainant’s online OPRA request to the State of New Jersey
3. May 5, 2004 – Custodian’s response to the Complainant’s June 19, 2004 OPRA request.
4. May 25, 2004 – Custodian’s response to the Complainant’s June 19, 2004 OPRA request with attached copies of requested records
5. June 7, 2004 – Complainant’s Denial of Access Complaint
6. June 10, 2004 – Council’s Offer of Mediation to the Complainant and Custodian
7. June 22, 2004 – Council’s request for Statement of Information from Custodian
8. June 28, 2004 – Custodian’s Statement of Information
9. July 8, 2004 – Custodian’s certification of “UN” time

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Custodian responded to the Complainant’s April 19, 2004 request, the only request received by the Department, by disclosing copies of all records responsive to the request on May 25, 2004.
2. The Custodian did address the portion of the April19, 2004 OPRA request inquiring about the pay status of employees who attended the conference by disclosing the memorandums approving “UN” time for each employee, although, the Custodian should have been more clear in supplying the definition of “UN” time.
3. The Complainant’s request of April 19, 2004 and April 20, 2004 are similar, nonetheless, the Department of Corrections’ Custodian addressed the April 19, 2004 request, which was received by the Custodian, for the records pertaining to the attendees of the April 2, 2004 conference by disclosing copies of all records responsive to the request within the Department of Corrections.
4. The Complainant has not proven that he appropriately conveyed an OPRA request to the Custodian on April 20, 2004; therefore, the Custodian is not responsible for a request that has not been received.
5. Based upon items #1 through #4, this case should be dismissed.

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

August 4, 2004

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