2005-168

Final Decision

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 the it does not have jurisdiction to make a determination in this complaint pursuant to Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) as well as N.J.S.A. 47:1A-6.  Specifically, OPRA provides that a person who is denied access to a government record by the custodian of the record, at the option of the requestor, may (1) institute a proceeding to challenge the custodian's decision by filing an action in Superior Court or, in lieu of filing an action in Superior Court, (2) file a complaint with the Council.  N.J.S.A. 47:1A-6. 

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

Decision Distribution Date: February 8, 2006

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Findings and Recommendations of the Executive Director

Records Requested:  A copy of all worksheets and calculations for any assessments at 932 Revere Drive.
Request Made:  August 27, 2005
Response Made: August 27, 2005
Custodian:  Bernard Murdoch
GRC Complaint filed: August 31, 2005

Background

August 31, 2005

Denial of Access Complaint filed with the Government Records Council (GRC) staff.  Complaint included the following attachments:

• Complainant's August 27, 2005 OPRA request
• Letter from Office of the Tax Assessor to Complainant dated August 26, 2005

The Complainant states that he provided his OPRA request to the Custodian on August 27, 2005 and that his request was denied on August 27, 2005.  The Complainant also indicates that he has filed action with the NJ Superior Court concerning this record request.[1] 

Analysis

WHETHER the Council has jurisdiction over a case when the Complainant has asserted affirmatively on the Denial of Access Complaint that there is a Superior Court case pending which also addresses the subject matter of the Denial of Access Complaint?                                                                                            

OPRA provides that:

“A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

• institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
• in lieu of filing an action in Superior Court, file a complaint with the Government Records Council…” (Emphasis added.) N.J.S.A. 47:1A-6.

Additionally, OPRA states:

“The council shall not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches.” (Emphasis added.) N.J.S.A. 47:1A-7.g.

When asked on the Denial of Access Complaint form, “Have you filed any action with the N.J. Superior Court concerning this record or any document sought in it,” the Complainant asserted affirmatively that an action has been filed in Superior Court.

Pursuant to N.J.S.A. 47:1A-6, a requestor who is denied access may, at their option, institute an action in the Superior Court of New Jersey or file a complaint with the Government Records Council.  The language of the statute is clear that the requestor may choose one or the other. According to the Complainant's Denial of Access Complaint, he has filed an action with the Superior Court concerning this record request or any document sought in it. Also, in Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) the Council found that it lacked jurisdiction of the Complaint because the Complainant asserted affirmatively that there was an action in Superior Court. Based on the foregoing, the Government Records Council (GRC) lacks jurisdiction to adjudicate this case. 

Based on the fact that the Complainant asserted affirmatively on his Denial of Access Complaint that he has a Superior Court case pending addressing the subject matter of this Denial of Access Complaint as well as the Council's decision in Mosee, the Council does not have jurisdiction to make a determination in this matter pursuant to N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7.g.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find the Council does not have jurisdiction to make a determination in this complaint pursuant to Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) as well as N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7.g.

Prepared By:  Dara Lownie, Case Manager

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

January 19, 2006

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