2005-05

Final Decision

At its May 12, 2005 public meeting, the Government Records Council (Council) considered the May 6, 2005 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 certified that all records responsive to the request were released to the Complainant.
2. The Custodian did violate N.J.S.A. 47:1A-5(i) by not responding to the records request in a timely manner. However, the violation does not rise to a level of a knowing and willful violation of OPRA under the totality of the circumstances.
3. The Custodian’s name/Public Agency will be added to the Matrix.

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 12^th Day of May, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date: May 18, 2005 

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Findings and Recommendations of the Executive Director

Records Requested:
Check #s 107543, 106988, 106989

Request Made:   December 10, 2004
Response Made: January 3, 2005
Custodian:   Nicole L. Tedeschi
GRC Complaint filed: January 10, 2005

Background

December 10, 2004
Written Open Public Records Act (OPRA) Request - Complainant seeks a copy of check #s 107543, 106988, 106989

December 20, 2004
Custodian verbally notified the Complainant that the records were available for inspection and/or copying

January 3, 2005
The Complainant was provided access to check #106988 and was informed that check #s107543 and 106989 were voided.

January 5, 2005
The Complainant submitted a revised request, which asked for explanation regarding the voided checks.

January 14, 2005
The Complainant was notified that the January 3, 2005 request was available.

January 20, 2005
The Complainant requested that the information be faxed to her.           

Analysis

Whether the Records Custodian violated N.J.S.A. 47:1A-1.1 by not providing the government record responsive to the request?

OPRA provides that all, “government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions…” N.J.S.A. 47:1A-1.

OPRA defines a government record as, " 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 or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” N.J.S.A. 47:1A-1.1

The Custodian initially responded to the Complainant that one of the checks requested existed (106988) and the other two (107543 and 106989) were voided. Since the Complainant was notified that the two checks were voided, the Complainant submitted another request seeking clarification of the two voided checks. After the second request, the Finance Department located the two checks. The Custodian notified the Complainant about the availability of these two checks. The Custodian has certified that all records responsive to the request have been released.

Whether the Custodian violated N.J.S.A. 47:1A-5(i) by not responding to the request in a timely manner?

OPRA provides that, “[U]nless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.

The Custodian did violate N.J.S.A. 47:1A-5(i) by not providing a response to the request in the mandated seven-business day time frame. The Custodian has certified that the records responsive to this request are maintained by the Finance Department. Therefore, the delay was caused because the Finance department did not respond to the Custodian in a timely manner. The Custodian should be advised that it is her responsibility to respond to the Complainant, “as soon as possible, but not later than seven business days.”

The Custodian’s violation of N.J.S.A. 47:1A-5(i) does not rise to a level of knowing and willful violation under the totality of the circumstances. 

Conclusions and Recommendations

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

1. The Custodian has certified that all records responsive to the request have been released the Complainant.
2. The Custodian did violate N.J.S.A. 47:1A-5(i) by not responding to the records request in a timely manner. However, the violation does not rise to a level of a knowing and willful violation of OPRA under the totality of the circumstances.

Prepared By:  Kimberly Gardner, Case Manager

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

May 6, 2005

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