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2005-188
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Final Decision |
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Findings and Recommendations of the Executive Director |
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:
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. Decision Distribution Date: February 8, 2006 Findings and Recommendations of the Executive DirectorSTATE OF NEW JERSEYGOVERNMENT RECORDS COUNCIL
Findings and Recommendations of the Executive Director January 27, 2005 Council Meeting
Louis Paul Toscano GRC Case No. 2005-188 Complainant
v.
New Jersey Department of Law and Public Safety, Division on Civil Rights Custodian of Records
Records Requested: All information pertaining to Docket No.ET03MB-34726 against former employer AT&T. Request Made: August 15, 2005[1]Response Made: September 9, 2005[2]Custodian: James SincagliaGRC Complaint filed: October 5, 2005
Background
September 2, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”). Attachment to the complaint:
The Complainant states in his Denial of Access Complaint that he filed his OPRA request with the New Jersey Division on Civil Rights (“Division”) Bureau Chief, James Sincaglia, on August 15, 2005. He asserts that the documents provided to him are “bogus.” He asserts further that he submitted a question to Senator Leonard Lance about the operations of the Division and was informed that he had withdrawn his case, which he claims is untrue. He also contends that he telephoned the Division and went to the Division’s office on September 22, 2005 and spoke to a supervisor who was unable to “clear up [the] discrepancy.”
October 12, 2005 Offer of mediation transmitted to the Complainant and the Custodian.
October 13, 2005 Complainant submits agreement to mediate. The Complainant states that he requests the presence of Larry Johnson because “he created the bogus record that I did receive and for which I refuse to pay $9.50.” [3]
October 25, 2005 The Government Records Council (“GRC”) sends the request for the Custodian’s Statement of Information (“SOI”).
November 7, 2005 E-mail from the GRC staff to Custodian’s counsel requesting the SOI.
November 9, 2005 E-mail response from Custodian’s counsel informing the GRC that the SOI will be submitted on November 14, 2005.
November 17, 2005 The Custodian and counsel submitted the SOI with the following attachments:
The Custodian certifies in the SOI that the records requested by the Complainant concern a file closed in 1993. He also certifies that at the time of the OPRA request on September 6, 2005, the file had been destroyed under the Division’s records retention policy. The Custodian contends that the only records in existence concerning the Toscano v. AT&T, Docket No. ET03MB-34726 were computer screens in the Division’s Management Information System that identify the case and its disposition. Copies of the computer screens were provided to the Complainant on September 9, 2005.
Custodian’s counsel states that the Division opened the requested file in 1992 when the Complainant filed a complaint with the Division and in 1993 the case was closed based on the Complainant’s withdrawal of the complaint. He states further that the requested file was destroyed based on the Division’s records retention policy on pg. 2 of said policy in Exhibit A included with the SOI. Counsel asserts that the matter of whether the Complainant withdrew his complaint is outside the jurisdiction of the GRC and if the GRC believes it has jurisdiction, there are no records, other than the computer screens provided to the Complainant on September 9, 2005, in existence that are responsive to the request.
November 20, 2005[4] Complainant’s supplemental submission to the GRC in response to the Custodian’s SOI. The Complainant disputes that he received “every document relevant to the complaint” and also disputes that he voluntarily withdrew his complaint with the Division. He questions the retention policy and why the records were not retained “as if for posterity.” He asserts that he did not file the denial of access complaint because he did not “like the documents” but contends the documents received were not factual and was charged $9.50.
Analysis
OPRA provides that:
“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) 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 provide that a denial of access is lawful. Specifically, OPRA provides that: “… [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.
The Custodian certifies in the Statement of Information that the records requested by the Complainant concern a file closed in 1993. He also certifies that at the time of the OPRA request on September 6, 2005, the file had been destroyed under the Division’s records retention policy. The Custodian contends that the only records in existence concerning the Toscano v. AT&T, Docket No. ET03MB-34726 were computer screens in the Division’s Management Information System that identify the case and its disposition. Copies of the computer screens were provided to the Complainant on September 9, 2005.
No records responsive to the request exist except for the computer screens as certified by the Custodian. Therefore, there is no unlawful denial of access.
Whether the Government Records Council has the authority to determine if the Complainant withdrew his complaint with the Division, which is the subject of the OPRA request for records concerning Docket No. ET03MB-34726?
Pursuant to OPRA, the GRC’s authority is to adjudicate complaints involving a denial of access. OPRA states in relevant part that the Council shall: “….receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian…”(Emphasis added.) N.J.S.A. 47:1-7.b.
The Complainant disputes the Division’s claim that he withdrew the complaint with the Division. Pursuant to N.J.S.A. 47:1A-7.b the Council does not have the authority to determine whether the Complainant withdrew a complaint filed with the Division.
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council find that:
Prepared By:
Approved By: Paul F. Dice Executive Director Government Records Council
Date: January 19, 2005 [1] The Custodian certifies in the Statement of Information that the request was received September 6, 2005. [2] Written response submitted with the Custodian’s Statement of Information. [3] There was no response from the Custodian to the offer of mediation. [4] Correspondence received by the GRC on December 12, 2005. Complainant notes that the letter was returned and was resent to the GRC on December 7, 2005. |
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