2004-75

Final 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
Government Records Council
On The 9th Day of September, 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 Executive Director

1. Audio tape copy of 5/27/04 Freeholder meeting held in Eatontown
   
2. Transcript of 5/27/04 Freeholder meeting held in Eatontown

Background

At the August 12, 2004 public meeting, the Government Records Council (“Council”) considered the August 4, 2004 Executive Director's Findings and Recommendations and all related documents submitted by the parties, including the change made to said findings and recommendations to read “Complainant” instead of “Custodian” under number “2” of the Analysis. The Council voted unanimously to adopt said findings and recommendations with the modification that the case would not be dismissed until the Custodian complied with the Council's decision. The Council therefore ordered:

1. The Custodian shall disclose the audiotape responsive to the request subject to redactions, if any, in accordance with N.J.S.A. 47:1A-1 et seq.
2. The Custodian shall comply with “1” above within ten days from receipt of the Council's decision and provide written confirmation to the Executive Director.

The Complainant informed the Government Records Council by e-mail that the requested audiotape was picked up from the Monmouth County Board of Freeholders office on August 26, 2004.

Public Agency's Case Position

The Complainant was informed on August 23, 2004 that the requested audiotape was available.

Analysis

The August 4, 2004 Findings and Recommendations are incorporated by reference in this analysis. The Complainant was provided the requested audiotape on August 26, 2004

Documents Reviewed

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

1. August 25, 2004 - Custodian's letter to the GRC .
2. August 26, 2004 - Complainant's e-mail to the GRC

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 August 12, 2004 Interim Decision.

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

August 30, 2004

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Interim Decision on Access

1. The Custodian shall disclose the audiotape responsive to the request subject to redactions, if any, in accordance with N.J.S.A. 47:1A-1 et seq.
2. The Custodian shall comply with “1” above within ten days from receipt of the Council’s decision and provide written confirmation to the Executive Director.

Interim 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 Executive Director

Records Requested:

1. Audio tape copy of 5/27/04 Freeholder meeting held in Eatontown

2. Transcript of 5/27/04 Freeholder meeting held in Eatontown
   

Custodian: James S. Gray
Request Made:   June 1, 2004
Response Made:  June 1, 2004
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 the following:

1. Denial of Access to a copy of the audiotape of a 5/27/04 Freeholder meeting held in Eatontown. The Complainant states that she received a June 1, 2004 fax from the Custodian of Records stating that under advice from county counsel the tape could not be made available for release. The Complainant also says that she called the Custodian on June 2, 2004 and was informed that the county counsel had advised that they could release a copy of the tape, but were under no legal obligation to do so. They were not, therefore, going to honor her request. The Complainant believes that there is politically damaging information on the audiotape that she believes would not make it to the transcription. She states that she does not want a synopsis of the meeting.

Public Agency’s Case Position

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

1. A copy of the audiotape was not made available to the Complainant because the   tape is only used to assist the Clerk in preparing the minutes. They also state that the County of Monmouth is not legally required to tape record any of the Freeholder meetings. They tape record only as a means to construct and transcribe a verbatim, permanent record of activity, which has occurred at either workshop or regular public meetings. The Custodian also references N.J.S.A. 10:14-14, (The Open Public Meetings Act) stating that the statute does not require a verbatim recording of such meetings.

   The Custodian states that if the Council rules they must release the tapes, Freeholders will be confronted with two options. They will have to either stop tape recording all meetings and provide only a synopsis, or, they will have to hire a court stenographer at the public’s expense who can provide a verbatim transcript.

   Finally, the Custodian believes the public can best be served by being provided with verbatim written copies of the meeting minutes on a timely basis, which in this case has already been done. 

2. A transcribed copy of the 5/27/04 meeting minutes were provided to the Complainant on 6/24/04

Analysis

The following corresponds directly with the Findings and Recommendations of the Executive Director:

1. N.J.S.A. 47:1A-1.1 states, "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 …” In this case, the audiotape of the Freeholders was in fact made, maintained, and kept on file and therefore subject to public access unless exempt from “such access by: P.L.1963, c.73 (C.47: 1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order …”  The Custodian did not declare any of the exemptions under N.J.S.A. 47:1A-1 et seq. and the reference to  N.J.S.A. 10:14-14, (The Open Public Meetings Act) does not provide an exemption to the disclosure of audiotapes of meeting minutes.  Therefore, the Custodian should disclose the audiotape responsive to the request with appropriate redactions pursuant to N.J.S.A. 47:1A-1 et seq.
   
   
2. Although not an issue in the complaint, a transcribed copy of the 5/27/04 meeting minutes were provided to the Complainant on 6/24/04, and therefore, requires no further action by the Council.

Documents Reviewed

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

1.  June 1, 2004 – Complainant’s records request
2.  June 7, 2004 – Denial of Access Complaint (w/attachments)
3.  June 15, 2004 – Offer of mediation to Complainant
4.  June 15, 2004 – Offer of mediation to Custodian
5.  July 1, 2004 – Custodian’s Statement of Information (w/attachment)

 Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends the Council find that:

1. The Custodian should disclose the audiotape responsive to the request subject to appropriate redactions in accordance with N.J.S.A. 47:1A-1 et seq.
2. The case should be dismissed

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

July 20, 2004

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