2005-129

At its January 27, 2006 public meeting, the Government Records Council ("Council") considered the January 19, 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 The Council, therefore, finds that pursuant to N.J.S.A. 47:1A-9.a and based on N.J.A.C. 7:1D-3.4 and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger, Superior Court of New Jersey, Law Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005), the proposed rule disallowing facsimile transmittal of OPRA requests does apply. Thus, the facsimile request for records submitted by the Complainant is not a valid OPRA request and there is no denial of access.

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 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Robin Berg Tabakin, Secretary
Government Records Council

Findings and Recommendations of Executive Director

Custodian: Rich Yarsinsky[3]
Request Made: May 16, 2005, May 24, 2005, June 10, 2005 and June 13, 2005
Response Made: Nothing in writing[4]
GRC Complaint filed: June 22, 2005

Complainant's faxed Open Public Records Act Request (OPRA). The Complainant is requesting copies of plans from a particular file held by the NJDEP.

Complainant's faxed OPRA Request. The Complainant is seeking a letter from an individual to the NJDEP.

The Complainant states that he faxed his OPRA request on May 16, 2005 and spoke with Alice Ostrowski from the NJDEP shortly after that regarding his request, at which time she stated that the requested document was missing. The Complainant asserts that he then resubmitted the request via facsimile on May 24, 2005 since he did not receive a written reply to his initial request. The Complainant states he again resubmitted his request via facsimile on June 10, 2005 with an additional request for "a 5/10/2005 letter from the NJDEP applicant (Hovnanian) which outlines the 12/21/04 engineering project which are important/necessary for the project review." The Complainant contends that Andrew Gale, project manager wanted him to make an OPRA request to review the file in-person and did not want to fax the information to the Complainant. The Complainant states that Mr. Gale also told him that Ms. Ostrowski was too busy to locate the file just to satisfy the Complainant's OPRA request.

The Complainant asserts that Ms. Ostrowski stated she did not receive the 6/10/05 fax from the Complainant concerning the two OPRA requests but the plans responsive to the original request were still missing. The Complainant states he again[5] faxed copies of his requests from May 16, 2005 and June 10, 2005. The Complainant claims he followed up with Ms. Ostrowski on June 29, 2005 who indicated she was still attempting to locate the requested records. The Complainant states that the reason the records requested are 'conveniently missing/lost and [the Complainant's] OPRA request ignored/unfulfilled' is because the subject of the documents is friends with the NJDEP Commissioner.

Custodian's e-mail to the Government Records Council (GRC) staff. The Custodian indicates he was not aware of the records request, which was faxed directly to the file officer and case manager who told the Complainant that the file had been misplaced. The Custodian indicates that the department has found the file and is forwarding the requested copies to the Complainant.

Custodian's letter to the Complainant with attachment of the "Records Requested." The Custodian states that all requests for records should be to the Records Custodian "in order to trigger the requirements of the public access to government records law." Additionally, the Custodian is attaching copies of the requested records free of charge due to the inconvenience the delay may have caused the Complainant.

The Custodian indicates that he received the records request on July 8, 2005 and the requested documents were mailed to the Complainant on July 12, 2005. The Custodian indicates that the "request for access to documents was not presented properly to the appropriate Records Custodian as required pursuant to N.J.S.A. 47:1A-5.g and N.J.A.C. 7:1D-3.4. Also, an application form was not provided as required pursuant to the OPRA legislation." The Custodian contends that the provisions of the OPRA, N.J.S.A. 47:1A-5.f "clearly indicate that OPRA requests are to be treated formally and through the use of a standard form developed by the agency." The Custodian states that the NJDEP's regulation governing OPRA requests, N.J.A.C. 7:1D-3.4, states only that "[f]orms may be hand delivered during normal business hours, mailed or transmitted electronically by e-mail to the Department Records Custodian." The Custodian claims that the NJDEP's regulation does not allow for facsimile transmittal of OPRA requests because it is difficult to ensure that they are received and/or forwarded to the Records Custodian. The Custodian states that the NJDEP website indicates that requests may be made via email or via internet and the form provides one address where all requests are required to be sent.

The Custodian claims that the request form, required by the Department Records Custodian, was never completed by the Complainant and the request was not directed to the Records Custodian "as required by the OPRA legislation." The Custodian states that instead the Complainant corresponded, via facsimile, directly with the Land Use Regulation Program who made attempts to locate the requested records but could not find them immediately. The Custodian certifies that as soon as the documents were found they were provided to the Custodian who, in turn, gave them to the Complainant.

The Custodian states that because the documents were provided to the requestor on July 12, 2005 the matter is moot and states that "[i]t is well established that questions that have become moot or academic prior to judicial scrutiny generally have been held to be an improper subject for judicial review. Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976) citing Oxfield v. N.J. State Board of Ed., 68 N.J. 301, 303-304 (1975); In re Garaghty, 68 N.J. 209, 212-213 (1975); Sente v. Clifton et. al., 66 N.J. 204 (1974)."

Ms. Ostrowski states that she received a faxed request from her supervisor requesting a "copy of the Cancellation Letter from file 0236-02-0002.1 and the engineering plans for the project." Ms. Ostrowski certifies that she called the Complainant to inform him that copies of the plans would cost $5.00 per page which he agreed to. Ms. Ostrowski certifies that she found the Letter of Interpretation for the file but neither she nor Andrew Gale of the Land Use Regulation Program could locate the Cancellation Letter responsive to the request. Ms. Ostrowski indicates that because the file is considered opened, staff has access to the file. Ms. Ostrowski certifies that the reason the Cancellation Letter could not be located was because it was with the secretary pool awaiting mailing. Ms. Ostrowski asserts that once the file was located on July 11, 2005 she attempted to contact the Complainant via telephone but his number had been disconnected. Ms. Ostrowski states that the documents were forwarded to the Custodian on July 11, 2005.

Complainant's letter to the GRC staff. The Complainant is responding to the Custodian's Statement of Information in which the Custodian indicates he received the request on July 8, 2005 however, Ms. Ostrowski admits she received the request from her supervisor on June 14, 2005. The Complainant states that if Ms. Ostrowski is responsible for handling records requests the fact that the Custodian did not receive the information until July 8, 2005 indicates "a critical failure by the NJDEP to manage its paperwork flow." The Complainant questions when Ms. Ostrowski's supervisor, Mr. Fedorowycz received the request if Ms. Ostrowski did not receive anything until almost a month after the May 16, 2005 request. The Complainant raises the issue of timeliness and the fact that his request was not responded to in writing as stated in the OPRA. The Complainant goes on to state that while the OPRA requires an agency to adopt a form for records requests nothing in OPRA requires that form to be used to constitute a valid OPRA request and that his request was appropriately conveyed in writing, via facsimile, pursuant to the OPRA. The Complainant contends that the NJDEP is responsible for responding to faxed requests regardless of whatever regulations it has adopted. The Complainant "assert[s] that [his] rights under the statute [OPRA] trump the barriers to access that the NJDEP has attempted to erect via it[s] rulemaking authority."

Certification of Mark Fedorowycz, Supervisor, Land Use Regulation Program. Mr. Fedorowycz certifies that he received the fax from the Complainant on June 13, 2005 and forwarded same to Ms. Ostrowski on June 14, 2005 asking her to fulfill the request. Mr. Fedorowycz states he physically went through Ms. Ostrowski's file of fax requests and saw no other request from the Complainant. Mr. Fedorowycz asserts that he was advised that Ms. Ostrowski continued to look for the file and contacted the Complainant via telephone on a number of occasions between that date and July 11, 2005 to inform him that they were trying to locate the requested file. Mr. Fedorowycz states this was his last involvement with the request. Mr. Fedorowycz contends that he received a fax, sometime in July regarding this request, immediately informed the Custodian for NJDEP and Kati Wessling[7] of the fax and requested an update from Ms. Ostrowski who stated she had not yet located the file. Mr. Fedorowycz certifies that at that time he contacted both head secretaries to elicit their help in locating the file and sometime on July 11, 2005 the documents were located by the Supervisor of the Inland Regulation secretarial pool. At that time, according to Mr. Fedorowycz, the necessary copies were made and forwarded to the Custodian.

Complainant's letter to the GRC staff. The Complainant states that the Department has indicated that the request was received on June 14, 2005 and no written response was given to the Complainant within the seven business-day period mandated by statute.

Whether the Complainant's faxed request for records constitutes a valid OPRA request?

"[t]he provisions of [OPRA] shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [OPRA]; 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…" (Emphasis added.)

"[i]n light of the fact that State departments and agencies have proposed rules exempting certain government records from public disclosure, and these regulations have been published for public comment, but cannot be adopted prior to the effective date of the Open Public Records Act, State agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed and published, and the records exempted from disclosure by those proposed rules are exempt from disclosure by this Order..." (Emphasis added.) (Executive Order 21, Governor James E. McGreevey, July 8, 2002).

Executive Order 26, adopted on August 13, 2002, rescinded paragraphs 2 and 3 of Executive Order 21. However, the paragraphs rescinded are not relevant for the analysis of state agencies' proposed OPRA rules. The one relevant paragraph in Executive Order 26 is paragraph 6 which states:

"[t]he remaining provisions of Executive Order No. 21 are hereby continued to the extent that they are not inconsistent with this Executive Order…" (Executive Order 26, Governor James E. McGreevey, August 13, 2002).

The Complainant states he faxed a written request for records to the DEP on May 16, 2005 but did not receive a written response to his request. The Custodian indicates that the 'request for access to documents was not presented properly to the appropriate Records Custodian as required pursuant to N.J.S.A. 47:1A-5.g and N.J.A.C. 7:1D-3.4. The Custodian states that the NJDEP's regulation governing OPRA requests, N.J.A.C. 7:1D-3.4, states only that '[f]orms may be hand delivered during normal business hours, mailed or transmitted electronically by e-mail to the Department Records Custodian.' The Custodian claims that the NJDEP's regulation does not allow for facsimile transmittal of OPRA requests because it is difficult to ensure that they are received and/or forwarded to the Records Custodian. The Custodian states that the NJDEP website indicates that requests may be made via email or via Internet and the form provides one address where all requests are required to be sent.

In an unpublished opinion of the New Jersey Superior Court (the only legal authority on point in this matter), it has been determined that paragraph 6 of Executive Order 26 "continues to permit a department or agency within State [g]overnment to adopt rules and regulations and to permit the operation of a proposed rule or regulation prior to its final adoption. Therefore, pursuant to Paragraph 4 of Executive Order 21, State departments and 'agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed ...'" Newark Morning Ledger Co., Publisher of the Star-Ledger v. Division of the State Police of the New Jersey Department of Law and Public Safety, Superior Court of New Jersey, Law Division - Mercer County, Docket No.: MER-L-1090-05 (Decided July 5, 2005) at page 11.

In that case, the court went on to state that "[i]t appears, from the language of both Executive Orders, that these provisions were added to provide sufficient time for departments and agencies within State government to evaluate their records, propose regulations and withhold certain documents from public inspection pending the adoption of the proposed rules. While this process may be at variance with the normal regulatory process, one can only conclude that the Executive Branch, understanding the broad scope of OPRA, felt it was appropriate to have agencies and departments, within State government, undertake a careful review and analysis of its records to determine, for purposes of security and safety, those records to be considered confidential." Id. at 12.

The court further held that "[r]ecognizing the time delay inherent in the normal rule adoption process, Executive Order 21 and Executive Order 26 included language to permit custodians of records to deny access, based on the proposed rule, pending final adoption. Now, three years after the passage of OPRA, for the court, the continued efficacy of that practice raises some concerns." Id.

The court concluded, however, that "[w]hile [it] does not know the status of this proposed regulation, under Executive Order 21, paragraph 4 and Executive Order 26, paragraph 6, resolution of that issue is not required. ... the court assumes that the proposed rule change is still pending." Id. at 13.

The Custodian asserts that the request is not valid under the proposed regulation N.J.A.C. 7:1D-3.4. "The provisions of OPRA may be superseded by "regulations promulgated under the authority of any ... Executive Order of the Governor" pursuant to N.J.S.A. 47:1A-9.a. As such, the proposed regulation asserted by the Custodian which prohibits faxed requests from "triggering" the requirements of OPRA may supersede OPRA's requirement that all requests for access to government records be "in writing, and hand-delivered, mailed, transmitted electronically, or otherwise conveyed" pursuant to N.J.S.A. 47:1A-5.g. and the Council's interpretation of this provision to indeed include facsimile requests. The Council found, in Schwarz v. New Jersey Department of Human Services, GRC Case No. 2004-60 (February 2005) that the Department of Human Services' proposed rule does not fall within the category addressed by Executive Order 21 and thus, provides no justification for the Department of Human Services to not consider the Complainant's e-mail as a valid OPRA request therefore, the Custodian violated N.J.S.A. 47:1A-5(g) by not recognizing the Complainant's e-mail as an OPRA request. However, in the unpublished opinion of the New Jersey Superior Court discussed above, it has since been determined that paragraph 6 of Executive Order 26 "continues to permit a department or agency within State Government to adopt rules and regulations and to permit the operation of a proposed rules or regulations prior to its final adoption. Therefore, pursuant to Paragraph 4 of Executive Order 21, public "agencies are hereby directed to handle all government records requests in a manner consistent with the rules as they have been proposed..."

Pursuant to N.J.S.A. 47:1A-9.a and based on N.J.A.C. 7:1D-3.4 and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger the proposed rule disallowing facsimile transmittal of OPRA requests does apply. Therefore, the facsimile request for records submitted by the Complainant is not a valid OPRA request and there is no denial of access.

The Executive Director respectfully recommends the Council find that pursuant to N.J.S.A. 47:1A-9.a and based on N.J.A.C. 7:1D-3.4 and the unpublished decision in Newark Morning Ledger Co., Publisher of the Star-Ledger the proposed rule disallowing facsimile transmittal of OPRA requests does apply. Therefore, the facsimile request for records submitted by the Complainant is not a valid OPRA request and there is no denial of access.

[1] According to the Denial of Access Complaint '1' was submitted via facsimile on May 16, 2005, May 24, 2005, June 10, 2005 and June 13, 2005.
[2] According to the Denial of Access Compliant '2' was submitted via facsimile on June 10, 2005 and June 13, 2005 along with the resubmission of '1.'
[3] The denial of Access Complaint states that the records request was faxed to Alice Ostrowski and Mark Fedorowycz.
[4] The Complainant does not definitively indicate when verbal responses were received.
[5] The Complainant does not indicate what date.
[6] Neither party agreed to mediate this case.
[7] Does not state who this is.