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2005-179
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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 DirectorLawrence Simons GRC Complaint No. 2005-179Complainant v. Lakewood Board of Education Custodian of Records Records Relevant to Complaint: To view "all and every special projects [ex-Superintendent] of Lakewood Schools Dr. Cannava has completed or worked on since July 1, 2005 in accordance with his [October 28, 2004] agreement with the Lakewood Board of Education. In addition, a response to [the Complainant's] verbal and written request to [Superintendant of Schools] Ed Luick and Board Attorney Michael Inzelbuch on [August] 30, 2005 asking for identification of how these special projects were completed since Dr. Cannava to the best of [the Complainant's] knowledge no longer lives in N.J. at the Lakewood N. Lakewood Drive home." Background August 29, 2005 Copy of the Complainant's Board of Education ("BOE") presentation. The Complainant discusses the terms of an agreement[1] between the Lakewood Township BOE and it's former Superintendent Dr. Ernest Cannava which he asserts establishes the former Superintendent as a special project consultant while the individual is a resident of the Township. The Complainant asserts that the individual no longer resides in state and questions how the former superintendent was paid $7,196.30 for services while not residing in New Jersey. The Complainant requests that the BOE "identify for the public what special project Dr. Cannava has worked on, and how that was accomplished." September 6, 2005 Complainant's written Open Public Records Act ("OPRA") request. The Complainant is requesting special projects worked on by a certain named individual and identification of how these projects were completed. September 12, 2005 Custodian's written response to the OPRA request. The Custodian states that the request is for information and not records. The Custodian states that the only document on file relating to the matter is the Settlement Agreement with the former superintendent and asks that the Complainant contact the office to schedule a time to view the document on hand. September 20, 2005 Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachments:
The Complainant states that at the BOE meeting held on August 29, 2005 he asked for information relating to an agreement between the Lakewood BOE and former Superintendent Dr. Cannava and was told that the information was not available that evening but the Complainant could meet with the current Superintendent the following morning. The Complainant contends that he had not filed an OPRA request at this point but states that he was verbally told that the information was not available immediately but would be made available within 3 days. The Complainant asserts that when he was not provided with the requested documents he filed an OPRA request September 6, 2005 and received a response on September 12, 2005 notifying him that his request is for information and not public records but he can view the "only document... on file" a copy of the Settlement Agreement with Dr. Cannava. The Complainant states that he did not request the Settlement Agreement but rather, wanted to view all of the special projects Dr. Cannava has worked on that justified his payment from July 1, 2005 through November of 2005. The Complainant asserts that the BOE should have some documentation of work preformed by Dr. Cannava for his bi-monthly payment by the BOE in the amount of $7,196.30. September 29, 2005 Complainant's facsimile transmittal of Asbury Park Press article "Board mum on changes to Cannava deal." The Complainant faxed an article regarding the agreement with Dr. Cannava, who according to the article no longer lives in Lakewood. The article also quotes the Complainant's August 29, 2005 BOE presentation. September 28, 2005 Offer of Mediation sent to Complainant.[2] September 29, 2005 Offer of Mediation sent to Custodian. September 30, 2005 Custodian's signed agreement to mediate with e-mail from Custodian's counsel. The Custodian's counsel states that "while... there exists no further documentation with regard to [the Complainant's] request" the Custodian is willing to enter into mediation in order to "fully appreciate [the Complainant's] request and provide any and all documentation in the most cost effective manner." October 6, 2005 GRC request for Statement of Information ("SOI") sent to the Custodian. October 11, 2005 Custodian's SOI with the following attachments:
The Custodian asserts that the Settlement Agreement with Dr. Cannava, former superintendent, was released to the Complainant September 12, 2005 and a copy of minutes to amend the agreement to a buyout dated September 26, 2005 were released to the Complainant in response to the request. The Custodian asserts that these documents "are the only documents available to date." October 20, 2005 Letter from the Complainant to the GRC. The Complainant asserts that while he is in receipt of the documents stated by the Custodian he has not been provided with documentation relating to the "actual special project or projects that Dr. Cannava has completed or worked on since July 1, 2005" and therefore feels that his request has been totally ignored. The Complainant goes on to state "[i]f Dr. Cannava is receiving a bi-monthly payment from the Lakewood [BOE] under terms of a signed agreement, then there should be documentation of actual work that Dr. Cannava has performed, thus supporting why, we the taxpayers of Lakewood, are paying Dr. Cannava these monies." February 15, 2006 Letter from the GRC to the Custodian. The GRC requests a certified index of all redactions made to the requested closed session minutes to include a general nature description of the document and redactions indicating the claimed statutory exemption for each and an explanation of how each exemption applies to the document. February 22, 2006 Facsimile from the Custodian to the GRC. The Custodian states he is providing all the documents on file relating to the settlement agreement with Dr. Cannava. The Custodian lists documents that reference the agreement since there are no other documents specifically responsive:
February 22, 2006 E-mail from the GRC to the Custodian. The GRC requests that the Custodian provide a legally certified index as requested in the February 15, 2006 letter from the GRC to the Custodian. February 22, 2006 Letter from the Custodian to the Complainant. The Custodian advises the Complainant that the redacted executive session minutes are available for his review. February 23, 2006 Certification of the Custodian. The Custodian states that there are no documents that exist responsive to the Complainant's request for all and every special project Dr. Cannava has completed or worked on since July 1, 2005 and a response to the Complainant's request for identification of how these special projects were completed. The Custodian has listed executive session minutes relating to the settlement agreement that were made available to the Complainant on February 22, 2006. March 13, 2006 Facsimile from the Complainant to the GRC. The Complainant questions why the Custodian had not previously supplied him with the redacted minutes in the original response to the OPRA request. The Complainant goes on to assert that these documents "shed no additional light on the [his] original request" and states that the documents he originally requested have still not been supplied to him. March 14, 2006 Facsimile from the Complainant to the GRC. The Complainant forwarded copies of newspaper articles relating to the settlement with Dr. Cannava. March 20, 2006 Letter from the GRC to the Complainant. The GRC requests that the Complainant notify the GRC whether or not the redactions mentioned in the March 13, 2006 facsimile from the Complainant to the GRC are at issue in his complaint. March 20, 2006 Letter from the GRC to the Custodian. The GRC asks that the Custodian provide, in the form of a legal certification, the reasons for the delay in access to the minutes released to the Complainant on February 22, 2006. March 21, 2006 Letter from the Complainant to the GRC. The Complainant "do[es] not take exception with the redaction themselves" because the Complainant feels that these documents do not respond to his request. The Complainant states that the documents requested have still not been provided to him. The Complainant takes issue with the fact that the minutes released on February 22, 2006 were not included in the October 11, 2005 SOI submission to the GRC. March 22, 2006 Certification of the Custodian. The Custodian certifies that the additional minutes provided to the Complainant on February 22, 2006 "were not provided to the Complainant because he did not request them." The Custodian goes on to certify that no documents exist responsive to the Complainant's September 6, 2005 OPRA request. Analysis Whether there was an unlawful denial of access to records responsive to the Complainant's September 6, 2005 OPRA request? 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 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 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 therefor ..."N.J.S.A. 47:1A-5.g. The Complainant asserts that he has been denied access to documents relating to all and every special project Dr. Cannava has completed or worked on since July 1, 2005 and a response to his request for identification of how these special projects were completed. The Complainant was provided the Settlement Agreement and redacted executive session minutes regarding this agreement. The Complainant "do[es] not take exception with the redaction themselves" because the Complainant feels that these documents do not respond to his request. The Complainant states that the documents requested have still not been provided to him. The Complainant takes issue with the fact that the minutes released on February 22, 2006 were not included in the October 11, 2005 SOI submission to the GRC. The Custodian responded to the Complainant's request on September 12, 2005, within the statutorily required seven (7) business days pursuant to N.J.S.A. 47:1A-5.i, informing the Complainant that the request is for information and not records. The New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1." (Emphasis added.) Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March 2005). The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files." (Emphasis added.) Id. at 549. Further, in Bent v. Stafford Police Department, 381 N.J. Super 30, 37 (October 2005) [1][3], the Superior Court references Mag in that the Court held that a requestor must specifically describe the document sought because OPRA operates to make identifiable government records "accessible." "As such, a proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents."[2][4]In the case at hand the Complainant's request was for "any and all projects" and does not pertain to an "identifiable" record. Therefore, there was no unlawful denial of access. The Custodian went on to state in the September 12, 2005 response that there is only one document on file relating to the settlement with Dr. Cannava which is the Settlement Agreement and asked that the Complainant contact the office to schedule a time to view the document on hand. The Custodian certified that no other documents exist responsive to the Complainant's request however, redacted minutes relating to the Settlement Agreement were provided to the Complainant on February 22, 2006. The Custodian goes on to certify that the minutes were not originally provided in response to the request because they were not responsive to the request. The Complainant asserts that while he is in receipt of the minutes released on February 22, 2006 and Settlement Agreement released September 12, 2005 he has not been provided with documentation relating to the "actual special project or projects that Dr. Cannava has completed or worked on since July 1, 2005." The Complainant feels that the minutes and Settlement Agreement provided do not respond to his request. The Complainant states that the documents requested have still not been provided to him. OPRA allows for the public to request government records. N.J.S.A. 47:1A-1.1 defines a government record as any record "that has been made, maintained or kept on file ... or that has been received ..." by a public agency. Per the Custodian's March 22, 2006 certification, no documents exist responsive to the Complainant's September 6, 2005 OPRA request. Therefore there are no government records that were made, maintained, and kept on file in the course of official business responsive to the Complainant's request pursuant to N.J.S.A. 47:1A-1.1. Given the facts of this case and pursuant to the decision in Mag Entertainment, LLC there was no unlawful denial of access to records in this case. Additionally, based on the fact that the Custodian did properly respond to the Complainant's request within the statutorily required seven (7) business day time frame indicating that the only document responsive to the Complainant's request is the Settlement Agreement and the Custodian's certification that no other documents exist responsive to this request, this complaint should be closed with no further action. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that
Prepared By: Colleen McGann, Case Manager Approved By: April 7, 2006 |
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