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2005-19

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Yocheved Reiss
   Complainant
      v.
Rutgers University
   Custodian of Record

Complaint No. 2005-19

 

At its May 12, 2005 public meeting, the Government Records Council (Council) considered the May 6, 2005 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, dismissed the case on the basis that:

  1. The Complainant agreed to the payment of the special service charge after being given the opportunity to review and object, pursuant to N.J.S.A. 47:1A-5(c); therefore no further action is required of the Council.
  2. The Complainant received all documents responsive to the request in a timely manner pursuant to the Open Public Records Act.

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 12th Day of May, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date: May 18, 2005 

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Findings and Recommendations of the Executive Director

Yocheved Reiss                                      GRC Complaint No. 2005-19
Complainant
            v.
Rutgers University
Custodian of Records

Records Requested:

Instructors' rosters for every section of Communication 220 and 380 for the last 3 years (of course with student names and SSN's redacted).

Request Made: December 6, 2004
Response Made: December 14, 2004
Custodian: Kate Cahill 
GRC Complaint filed: January 27, 2005

Background

December 6, 2004
Complainant's written Open Public Records Act (OPRA) Request. The Complainant was seeking a copy of instructors' rosters for every section of Communication 220 and 380 for the last 3 years.

January 5, 2005
E-mail from Complainant to Custodian. The Complainant requested a breakdown of the $214.50 the Custodian quoted her as a special service charge for the records.

January 5, 2005 
E-mail from Custodian to Complainant. The Custodian detailed the special service charge to include labor costs to complete the request as 2 hours of gathering data ($46.00) and 4.5 hours to redact the materials ($94.50) by an administrative assistant, as well as 2 hours of review for accuracy by an administrator ($74.00). In addition, the copying cost for the 68 pages of data was $24.50.  The total cost of preparing the documents for the Complainant was $239.00.

January 12, 2005
"Status of Your Records Request" document from Custodian to Complainant. The Custodian stated the records requested would be released upon payment of $239.00.

January 27, 2005

Complainant's Denial of Access Complaint with the following attachments:

  • December 6, 2004 - Complainant's written Open Public Records Act (OPRA) Request
  • January 5, 2005 - E-mail from Complainant to Custodian
  • January 5, 2005 - E-mail from Custodian to Complainant
  • January 12, 2005 - "Status of Your Records Request" document from Custodian to Complainant

The Complainant alleges that she was overcharged for the processing of her

records request and is seeking reimbursement. The Complainant paid $239.00 for the records and states that she does not agree with the $74 charged for two hours of reviewing materials by the Custodian. The Complainant believes that the Custodian did not take 2 hours to review and redact the materials and it was actually done in 35 minutes while she waited. "At 11:30 a.m. on January 12 the documents had not yet been ready to be reviewed, according to (the administrative secretary), and by 12:05 p.m. that day the documents were in my possession." 

February 7, 2005

Mediation sent to both parties.

February 11, 2005
E-mailed declination of mediation from Custodian to Government Records Council(GRC) staff with the following attachment:

  • February 11, 2005 - Letter from Custodian to Complainant. The Custodian explained the OPRA process. The Custodian refuted the claim by the Complainant that the fee was not legitimate and disputes the allegation that the administrative secretary told the Complainant that the records were not ready. The Custodian stated the Complainant was just told that the Custodian was not available and to return in a half an hour.

February 22, 2005
Custodian's Statement of Information with the following attachments:

  • December 6, 2004 - Complainant's written Open Public Records Act (OPRA) Request
  • December 14, 2004 - E-mail from the Custodian to the Complainant. The Custodian verifies the special service charge quoted verbally to the Complainant and confirms the Complainant's decision to wait and consider the charge.
  • January 5, 2005 - E-mail from Complainant to Custodian
  • January 5, 2005 - E-mail from Custodian to Complainant
  • January 10, 2005 - E-mail from Custodian to Complainant. The Custodian verifies that the Complainant agreed to the special service charge and notified the Complainant as to when the documents will be available.
  • February 11, 2005 - Letter from Custodian to Complainant
  • February 22, 2005 - Letter from the Custodian to GRC staff. The Custodian asserted that the Complainant has made an incorrect assumption and the charges assessed were accurate.

The Custodian stated that all records were provided to the Complainant after receipt of a charge of $239 for 68 pages of data and special service charge for extraordinary time and effort. The Complainant was notified verbally and via e-mail on quoted on December 14, 2004. The Complainant agreed to the fee on January 10, 2005 and paid it, receiving the documents on January 12, 2005. 

February 24, 2005
Complainant's e-mailed response to the Statement of Information. The Complainant reiterated that the administrative secretary told her that another 30 minutes was needed to finish redacting and copying the documents. The Complainant went on to state that when the Custodian is not there she normally puts the documents in an envelope with the requestor's name in a "wall pocket outside her office" but on that day the documents were not prepared prior to her arrival. The Complainant went on to state that the "assertion that (the administrative secretary) 'was not aware that the documents were ready' is obviously untrue.'" The Complainant alleged that the Custodian committed a "knowing and willful" violation of the Open Public Records Act when charging the $74 for administrator time.

March 14, 2005
Complainant's e-mail to the GRC staff. The Complainant stated that the information was being requested as part of an investigation for a journalism class into the preferential treatment of athletes at the University. The Complainant goes on to state that the University newspaper refused to publish the story and as a result of it's being written barred students from investigating stories within the University. It is her belief that the $74.00 charge being contested was an attempt to deter the Complainant from retrieving documents and is evidence of a knowing and willful violation of the Open Public Records Act.  

March 17, 2005
Letter from the GRC staff to the Custodian. The Government Records Council requested the following information in the form of a legal certification:

  • What was requested,
  • The volume, nature, size, number, of government records involved,
  • The period of time over which the records were received,
  • Whether some or all of the records sought are archived,
  • The amount of time required for a government employee to locate, retrieve and assemble the documents for copying,
  • The amount of time, level, rate and number, if any, expended by government employees to monitor the inspection or examination,
  • The amount of time required to return documents to their original storage place,
  • The size of the agency,
  • The number of employees available to accommodate documents requests,
  • The availability of information technology, copying capabilities,
  • The level(s) of skill necessary to accommodate the request,
  • The reason(s) that the agency employed the particular level(s) of skill above,
  • A detailed estimate categorizing the hours used to identify, copy or prepare for inspection, produce and return the requested documents, and
  • Who in the agency performed the work associated with each request.

March 24, 2005
Certification of the Custodian in response to the March 17, 2005 letter from the GRC staff to the Custodian. The Custodian provided answers to the above questions, as follows:

  1. The volume, nature, size, number, of government records involved - 68 pages of student rosters totaling 1,184 names with registrar code numbers, student names, social security numbers, grade, credits received, and special permission numbers.
  2. The period of time over which the records were received - Three years.
  3. Whether some or all of the records sought are archived - All.
  4. The amount of time required for a government employee to locate, retrieve and assemble the documents for copying - 8 hours for an administrative level employee of the School of Communication, Information and Library Studies to locate, retrieve, identify, and assemble documents.
  5. The amount of time, level, rate and number, if any, required to be expended by government employees to monitor the inspection or examination - The total time charged was 6.5 hours of administrative time at a rate of $21/hr and 2 hours of management level at $37/hr.
  6. The amount of time required to return documents to their original storage place - 2 hours by a part-time staff member.
  7. The size of the agency - The number of people who worked to complete the request was 2.
  8. The number of employees available to accommodate document requests - 25 full time employees.
  9. The availability of information technology, copying capabilities - Photocopying equipment is available.
  10. What was requested - 68 pages of student rosters for COMM 220 and COMM 380.
  11. The level(s) of skill necessary to accommodate the request - Administrative and management.
  12. The reason(s) that the agency employed, or intends to employ, the particular level(s) of skill above - Administrative staff member to copy redact and make copies of redacted data, management level staff to review and identify information to be redacted and check for accuracy.
  13. A detailed estimate categorizing the hours needed to identify, copy or prepare for inspection, produce and return the requested documents - Approximately 8 hours administrative level from School of Communication, Information and Library Studies to locate, retrieve, identify and assemble documents; 6 hours administrative level in the Office of the Boards of Governors and Trustees to copy and redact; 4 hours management level (Assistant Secretary to the Boards of Governors and Trustees) to prepare, identify and inspect. The Custodian notes that the Complainant was undercharged as "a gesture of kindness."
  14. Who in the agency will perform the work associated with each request - Secretary Assistant III in School of Communication, Information and Library Studies; Administrative Secretary II in Office of the Boards of Governors and Trustees and Assistant Secretary to the Boards of Governors and Trustees.
    The Custodian goes on to explain that, while the Complainant alleged that the review and redaction of the documents requested took only the 35 minutes between when the Complainant came to the office at 11:30 a.m. and her return at 12:05 p.m., the administrative secretary was not aware that the information was ready for pick up. At no time was the Complainant told that 30 minutes were needed for redaction of documents; she was told that the Custodian was out of the office. Additionally, the Custodian stated that the Complainant was provided with an under-estimate of 2 hours for the Custodian's time when the "actual time spent was closer to 4 hours."

March 28, 2005
E-mail from the Complainant to the GRC staff. The Complainant questions discrepancies in the March 24, 2005 Certification of the Custodian. The Complainant stated that the March 24 detailed estimate shows 8 hours to gather the documents when the original breakdown indicated 2 hours, 6 hours for redaction when the original breakdown indicated 4.5 and 4 hours for the Custodian to review the documents when original breakdown indicated 2 hours. While the Custodian noted the reason for the third discrepancy there is no indication of the reason for the other two discrepancies. 

May 5, 2005
E-mail from the Custodian to the GRC. The Custodian stated she charged what was believed to be accurate at the time of the calculation of the charge and after further discussion with those who processed the request it was found that each individual expended more time than was quoted by the Custodian at the time the Complainant was charged.

Analysis

Whether the Custodian actually incurred the 2 hours charged as a special service charge to prepare, identify and inspect the requested documents?

OPRA provides that the Custodian may apply a special service charge to extraordinary requests; allowing for the Complainant to review the charge prior to agreeing to payment. Specifically, N.J.S.A. 47:1A-7(c) states that: 

"The requestor shall have the opportunity to review and object to the charge prior to it being incurred. ..." N.J.S.A. 47:1A-5(c).

The Complainant questions the length of time expended by the Custodian in preparing the requested documents for release and believes that she has been overcharged for the $74.00 for 2 hours of management level time the Custodian states she expended in completing the document request. The Complainant believes that the Custodian did not take 2 hours to review and redact the materials.  She believes the Custodian only spent 35 minutes preparing the documents because they were not ready at 11:30 a.m. but upon her return at 12:05 p.m. the same day the documents were available.

The Custodian certifies that, while the Complainant alleges that the review and redaction of the documents requested took only the 35 minutes between when the Complainant came to the office at 11:30 a.m. and her return at 12:05 p.m., the Complainant bases this on an inaccurate assumption. The Custodian certifies that the process of review and redaction is not done in one continuous block of time and is completed over the span of a day or days depending on the request and the process had already been completed prior to the Complainant arriving to retrieve her documents. The Custodian certifies that the request actually took closer to 4 hours rather than the 2 hours charged.

The Complainant was made aware of the amount of the special service charge via e-mail on December 14, 2004 and was given a breakdown of the charge, at her request, via e-mail on January 5, 2005. The Complainant agreed to the special service charge and paid it in full. There is no evidence of an objection to the charge prior to payment.

Pursuant to N.J.S.A. 47:1A-5(c), given that the Complainant was allowed time to review and object to the special service charge and chose to pay the full amount of the charge, this portion of the complaint should be dismissed.

WHETHER the Custodian's actions constitute a knowing and willful violation of OPRA under the totality of the circumstances?

OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically OPRA states:

If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in section 12 of P.L.2001, c.404 (C.47:1A-6). N.J.S.A. 47:1A-7(e).

The Complainant contends that the $74.00 charge for the Custodian's time was an attempt to deter her from receiving the requested documents because she was requesting them as part of an investigative journalism project. The Complainant did receive all requested records within 2 days of agreement to the special service charge.

In consideration of the fact that the Complainant received all requested documents in a timely manner, the Council should find that the Custodian's actions do not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

  1. N.J.S.A. 47:1A-5(c); therefore this portion of the complaint should be dismissed.
  2. The Complainant received all documents responsive to the request in a timely manner; therefore, the actions of the Custodian do not rise to a level of knowing and willful pursuant to OPRA under the totality of the circumstances.

Prepared By: Colleen McGann, Case Manger

Approved By:

Paul F. Dice
Executive Director
Government Records Council

May 6, 2005

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