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2005-110
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 2006 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, finds 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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. Decision Distribution Date: April 21, 2006 Findings and Recommendations of the Executive DirectorMaryann Allacci GRC Complaint No. 2005-110Complainant v. NJ Division on Civil Rights MDRR Custodian of Records Records Relevant to Complaint: Background April 18, 2005 Written Open Public Records Act (OPRA) Request - Complainant seeks the MDRR reports for 2002-2005 for Lakewood Township. May 18, 2005 The Complainant attached the following documents to her Denial of Access Complaint:
Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant alleges that she was denied access to the requested MDRR reports. The Complainant further alleges that she had to resubmit the request three times before receiving a response to her request. The Complainant asserts that she believes that the records were unlawfully denied pursuant to OPRA. May 27, 2005 GRC staff sent an offer of mediation to both parties. June 23, 2005 GRC staff received a signed agreement to mediate from the Record Custodian’s counsel.[3] July 8, 2005 GRC staff sent a fax to the Custodian’s counsel requesting a Statement of Information. July 8, 2005 Custodian’s counsel sent a letter to GRC staff requesting an extension to file the Statement of Information.[4] July 14, 2005 The Complainant sent a letter to GRC staff revising her original Denial of Access Complaint. The Complainant stated that she had received the requested records, however what remained at issue was why the request was so delinquent in being fulfilled. July 28, 2005 The Custodian’s counsel attached the following information to the Statement of Information:
Statement of Information submitted by the Custodian and Counsel. Counsel alleges that on May 18, 2005 the Complainant submitted a Denial of Access Complaint for records that she received on May 20, 2005. Once all of the documents were given to the Complainant, a representative of MDRR contacted the Complainant to inquire as to her intentions regarding the alleged denial of access complaint. The Division filed an agreement to mediate, however the Complainant did not. Counsel further states that on April 18, 2005 the Complainant allegedly faxed a letter containing her request. On Saturday, April 23, 2005 the Complainant sent an e-mail seeking to confirm receipt of her fax. On April 29, 2005, Ms. Allaci sent two e-mails to MDRR to follow-up on previous transmittals. On May 5, 2005 MDRR staff responded to the three e-mails that were received from the Complainant. The response informed the Complainant that the records would not be available until after May 16, 2006. MDRR staff had been instructed to advise multiple dwelling owners seeking MDRR reports for previous years to advise requestors that the information would not be available until after May 16, 2005. After receiving the request, MDRR staff assumed that the Complainant was an owner and processed the response accordingly. MDRR staff did not recognize the request as an OPRA records request because the request was contained in a letter not mentioning OPRA. Counsel alleges that the Complainant did not use the appropriate process for requesting records. Counsel asserts that the Complainant sent a faxed letter, failed to utilize the request form, and did not address her request to the Custodian. Counsel further alleges that it was not until an April 29, 2005 e-mail from the Complainant that OPRA was mentioned. Counsel maintains that had the Complainant followed the appropriate procedures for requesting the records, the miscommunication and delay in access would not have occurred. Counsel further alleges that due to the assumption of the staff, the Complainant received an incorrect response to the request for records. The Custodian’s counsel maintains that the complaint should be dismissed because even though the Complainant did not follow the appropriate rules[5] for requesting records, all requested records have been released. August 9, 2005 The Complainant submitted a letter to GRC staff in response to the Statement of Information. The Complainant alleges that the MDRR did not answer the request in a timely fashion, did not comply with the letter of the law or spirit of the law and that her request should have been given to the appropriate custodian pursuant to N.J.S.A. 47:1A-5.h. which directs someone in receipt of a request to forward it to the appropriate party. The Complainant acknowledges receipt of the requested records and states that the primary issue in continuing the complaint is “that the agency corrects the processes that gave rise to the obstruction and denial of access.” The Complainant requests that the GRC extend training for all public officer’s and employees of the agency and ensure that there is a system in place for gaining access to public records. August 12, 2005 Custodian’s counsel submitted a letter to GRC staff in response to the August 9, 2005 submission of the Complainant. Custodian’s counsel stated that the Complainant’s statement that the MDRR was not willing to cooperate regarding the settlement of the denial was incorrect. The MDRR had agreed to enter into mediation regarding the case, however the Complainant did not want to mediate. August 25, 2005 Letter from the Custodian’s counsel stating that new Counsel will be handling the remainder of the complaint and all future correspondence should be directed to her attention. Analysis WHETHER the Custodian unlawfully denied access to the requested records? OPRA provides that “…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. Additionally, 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 … or that has been received …” (Emphasis added.) N.J.S.A. 47:1A-1.1. OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states “…[t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6. OPRA also 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 … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i. Additionally, OPRA states that “...[i]f 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 custodian shall sign and date the form and provide the requestor with a copy thereof …” (Emphasis added.) N.J.S.A. 47:1A-5.g. The Complainant has acknowledged that she has received the records responsive to the request. Therefore, access is no longer at issue in this complaint. Specifically the Complainant has stated that her primary interest in continuing the complaint is that the agency corrects the processes that gave rise to the obstruction of access. The Complainant asserts that she submitted her OPRA request to the MDRR on April 18, 2005. The Custodian’s counsel certifies that the MDRR did not receive said request until April 25, 2005 claiming that the Complainant’s failure to use the agency’s official OPRA request form and follow proper procedures delayed the recognition of the fax as an OPRA records request. Counsel certifies that the MDRR staff provided the Complainant with a written response on May 5, 2005 in which staff stated that they were not able to pull files at this time because of their heavy workload and that the Division would be able to supply the requested information after May 16, 2005. Additionally, counsel certifies that the delay in responding to the Complainant’s request was due, in part, to the staff’s confusion in recognizing the Complainant’s fax as an OPRA request for records. Counsel alleges that had the procedures outlined for making an OPRA request to the Division been followed, there would not have been a delay in access. OPRA mandates that a custodian must either grant or deny access to requested records within seven (7) business days of receipt of said request. As also prescribed under N.J.S.A. 47:1A-5.i., a custodian’s failure to respond within the required seven (7) business days results in a “deemed” denial. In this matter, the Complainant submitted her request on April 18, 2005, 2005 and did not receive a written response until May 5, 2005, well beyond the seven (7) business day timeframe. The Custodian’s counsel certifies that as the Complainant’s request was not submitted on an official OPRA request form, it may have caused a delay in recognizing the Complainant’s fax as an OPRA records request. Taking into account the delay, the Custodian’s May 5, 2005 response still goes well beyond the time period prescribed under OPRA creating a “deemed” denial. Additionally, OPRA provides that if a Custodian is unable to comply with a records request, he must notify the Complainant in writing indicating a lawful reason for same. N.J.S.A. 47:1A-5.g. Here, the staff indicated that the delay in access was due to their workload. Therefore, the staff failed to give a lawful reason for the delay in access. The Custodian could have tried to obtain a written agreement from the Complainant in order to extend the time period required to respond; however they failed to do so. This failure resulted in the Custodian’s delay in a written response to the Complainant beyond the time period prescribed under OPRA. The Custodian’s counsel maintains that the proper procedures for making an OPRA request are posted on the website. Counsel asserts that if the request had been made following the appropriate guidelines as set forth on the web, the miscommunication and processing of this request would not have taken place. By not making the requested records “readily accessible” the Custodian has violated N.J.S.A. 47:1A-1. Moreover, the Custodian has not borne the burden of providing a lawful reason for the denial of access at the time of the request pursuant to N.J.S.A. 47:1A-6, thus violating N.J.S.A. 47:1A-5.i. and N.J.S.A. 47:1A-5.g. The Complainant has provided written correspondence to GRC staff stating that she has received all records responsive to the request. The Complainant stated that she wanted to pursue the complaint for training purposes for the MDRR staff. However, the MDRR has procedures set forth regarding OPRA requests to the agency. The Complainant did not review those procedures and therefore there was a delay in gaining access. The MDRR did correspond with her to inform her of when the records would be available and they did release the records. What constitutes a valid OPRA request? The Complainant asserts that she submitted his records request on April 18, 2005. She claims that on May 5, 2005 she received a response from the Custodian indicating that the MDRR would not fulfill his request until May 16, 2006. The Custodian certifies that proper policy for submitting OPRA requests is provided on the Division’s website. She also certifies that had the proper procedures been followed, the record request would have been acknowledged as an OPRA request. Review of the OPRA statute and its legislative intent lead the Council to conclude that use of the request form is required for all requestors. The statute provides that the custodian “shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.” N.J.S.A. 47:1A-5.f. The statute specifically prescribes what must be on the form:
Although the statute does not expressly state that OPRA requests must be on the form adopted by the agency pursuant to N.J.S.A. 47:1A-5.f., principles of statutory construction show that the Legislature intended use of this form by all requestors to be mandatory. In interpreting a statute, it is axiomatic that “each part or section [of the statute] should be construed in connection with every other part or section so as to produce a harmonious whole.” Matturi v. Bd. of Trustees of JRS, 173 N.J. 368, 383 (2002), quoting In re Passaic Cty. Utilities Auth., 164 N.J. 270, 300 (2000). In addition, a construction which renders statutory language meaningless must be avoided. Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204 (1999). See also G.S. v. Dept. of Human Serv., 157 N.J. 161, 172 (1999). (a statute should be interpreted so as to give effect to all of its provisions, without rendering any language inoperative, superfluous, void, or insignificant). As noted, N.J.S.A. 47:1A-5.f. requires that custodians adopt a request form, and sets forth a detailed list of what the form must contain. The next subsection of the statute provides: If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof. (Emphasis added.) N.J.S.A. 47:1A-5.g. The form to which N.J.S.A. 47:1A-5.g. refers is the form required by N.J.S.A. 47:1A-5.f. In providing, in 5.g., that the custodian “shall” sign and date the form, indicate the basis for denial on the form, and return the form to the requestor, the Legislature evidenced its clear intent that it is mandatory for the form to be used by requestors. See Harvey v. Essex Cty. Bd. Of Freeholders, 30 N.J. 381, 391-92 (1959) (the word “shall” in a statute is generally mandatory). The express requirement that the custodian use the request form in denying an OPRA request, construed together with the preceding statutory requirement that the custodian adopt a request form, demonstrates that the Legislature intended that this form would be used for all OPRA requests. If all requestors are not required to submit requests on the form prescribed by the statute, then the statutory provisions requiring the custodian to sign and date the form, and return it to the requestor, would be meaningless. Indeed, a custodian would be unable to fulfill these express requirements of N.J.S.A. 47:1A-5.g. if the requestor does not use the form in submitting his request. Accordingly, nothing in OPRA suggests that some requestors may forgo using the official request form. In enacting the form requirement, the Legislature has expressed its policy that use of the form promotes clarity and efficiency in responding to OPRA requests, consistent with OPRA’s central purpose of making government records “readily accessible” to requestors. N.J.S.A. 47:1A-1. The Appellate Division has indicated that the statute’s form requirement serves the additional purpose of prompting the legislative policy that a requestor must specifically describe identifiable records sought. See Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534, 546 (App. Div. 2005) (an open-ended request that fails to identify records with particularity is invalid). In Bent v. Twp. of Stafford Police Dept., 381 N.J. Super. 30, 33 (App. Div. 2005), the Court held that the requestor’s general request for information violated this policy and was therefore invalid. In reaching this conclusion, the Court noted that OPRA mandates that the request form provide space for a “brief description” of the record request. Id. Similarly, in Gannett New Jersey Partners L.P. v. County of Middlesex, 379 N.J. Super. 205, 213 (App. Div. 2005), the Court specifically pointed to the same statutory request form requirement in determining that OPRA does not authorize requestors to make blanket requests for agency records. Accordingly, based on the language of the statute, as well as judicial recognition of the importance of the statutory request form, it is determined that the statute requires all requestors to submit OPRA requests on an agency’s official OPRA records request form. OPRA’s provisions come into play only where a request for records is submitted on an agency’s official OPRA records request form. Therefore, the Complainant’s records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA. Moreover, the Custodian was not obligated to fulfill the Complainant’s request, however they chose to do so and have certified that all records responsive to the request have been released. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Kimberly Gardner, Case Manager Approved By: April 4, 2006 [1] Records have been given to the Complainant. Access is no longer the issue. |
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