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2004-99

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Jay Kohlman,
   Complainant
      v.
East Orange,
   Custodian of Record

Complaint No. 2004-99

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the October 7, 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 with the amendment that the Government Records Council Staff will counsel the Custodian on her obligations pursuant to N.J.S.A. 47:1A-5(g) and the Custodian’s name will be listed on the “Matrix.”  The Council, therefore, dismissed the case on the basis of:

  1. All available documents responsive to the request were provided to the Complainant and there was no response from the Complainant to the contrary.
  2. The Custodian violated N.J.S.A. 47:1A-5(g) by not providing a written response to the Complainant.  However, the Custodian’s action did not rise to a level of a knowing and willful violation of the Open Public Records Act under the totality of the circumstances.

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 December, 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

Jay Kohlman,                                                    GRC Complaint No. 2004-99 
 Complainant
v.
East Orange Township,
Custodian of Records

Relevant Records Requested:

  1. Copy of East Orange City Council’s affirmative resolution permitting the City to initiate Tax Certificate foreclosure lawsuits against the following properties and /or persons.[1]
  2. Copies of Summons, Complaint in Foreclosure, and Proof of Service, if applicable, for lawsuits initiated by the City of East Orange, in Superior Court of New Jersey, Essex County, against the following properties and/or persons.[2]

Request Made:    6/18/2004
Response Made:    Verbal Response
Custodian:   Cynthia Brown
GRC Complaint Filed:  7/16/2004

Background

Complainant’s Case Position

The Complainant filed a denial of access complaint on July 16, 2004 pursuant to N.J.S.A.47:1A-1 et seq. stating that he was not notified of when the requested documents would be released to him. He stated that the only response he received was a verbal statement from the Custodian who maintained that the request was received on July 1, 2004.

After filing the denial of access complaint, the Complainant verbally acknowledged to the Government Records Council Staff (“GRC”) that he received documents from the Custodian. 

Public Agency’s Position

In response to the Complainant’s allegations, the Custodian asserts that the Complainant’s request was received on June 28, 2004.  The Custodian states in an August 19, 2004 letter to the GRC that after speaking with various employees of the township and to her knowledge, Mr. Branch, the Assistant Municipal Clerk, “advised Mr. Kohlman that he was attempting to secure the information requested.”  She stated further that all available records were compiled but had not been provided to the Complainant, since she thought the case was going to mediation. On August 23, 2004 the Custodian sent a letter to the Complainant stating what records were available and the cost of those records. The letter also stated that information for “unit # 501 and 503 were not in suit.”  The Custodian states that on August 30, 2004, all available records responsive to the request were mailed to the Complainant.  

Analysis

N.J.S.A. 47:1A-5(g) states in pertinent part:

“A Custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record.

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.”

While the Custodian failed to provide a written response to the Complainant, there was verbal communication concerning the OPRA request acknowledged by both parties. Specifically, the Complainant acknowledged contact with the “city” to determine when the requested documents would be available and the Custodian states in the August 19, 2004 letter that “to her knowledge” the Assistant Municipal Clerk informed the Complainant that he was “attempting to secure to information requested.”  In an August 23, 2004 letter, the Custodian informed the Complainant all available records responsive to his request were available upon receipt of payment of the duplication fee.  On August 30, 2004 the requested documents were mailed to the Complainant. 

The Custodian’s failure to respond to the Complainant in writing to explain why she was unable to comply with the request within the statutory time period violates of N.J.S.A. 47:1A-5(g).  However, the GRC Staff does not find that the Custodian’s actions rise to a level of a knowing and willful violation of OPRA under the totality of the circumstances.

After the GRC staff was informed that the requested documents were provided to the Complainant attempts were made to contact the Complainant to see if his needs were satisfied. Contact was attempted via telephone on September 2, 3, 7, 10, and 13, 2004. The staff finally had success in contacting the Complainant on September 14, 2004. The Complainant verbally agreed to contact Asst. Executive Director, Gloria Luzzatto by September 17, 2004 to discuss whether the documents he received satisfied his request. As of October 5, 2004, the Complainant has not contacted the Government Records Council office.  The GRC Staff sent a letter via UPS overnight delivery to the Complainant on October 5, 2004 confirming that he had received all available documents responsive to his request and no response was received. 

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

  1. July 16, 2004 – Denial Of Access Complaint Form
  2. July 22, 2004 – Offer of mediation to the Complainant and the Custodian
  3. July 28, 2004 – Custodian’s Agreement to Mediate
  4. August 19, 2004 – Letter from the Custodian to GRC staff
  5. August 23, 2004 – Letter to Complainant from Custodian outlining what records are available and the cost
  6. August 31, 2004 – Statement of Information
  7. October 5, 2004 – Letter to the Complainant from GRC staff regarding his failure to respond

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council should dismiss the on the basis that:

  1. All available documents responsive to the request were provided to the Complainant and there was no response from the Complainant to the contrary. 
  2. The Custodian violated N.J.S.A. 47:1A-5(g) by not providing a written response to the Complainant.  However, the Custodian’s action did not rise to a level of a knowing and willful violation of the Open Public Records Act under the totality of the circumstances.

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

October 7, 2004



[1] The specific list of  properties and addresses are located in GRC file #2004-99.
[2] The specific list of properties and addresses are located in GRC file #2004-99.

 

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