2005-191

Final Decision

At its November 10, 2005 public meeting, the Government Records Council (“Council”) considered the November 4, 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, finds that:

1. Mosee v. Atlantic City Police Department, GRC Complaint No. 2005-33 as well as N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7(g).

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 10^th Day of November, 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:  November 22, 2005

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Findings and Recommendations of Executive Dir

Records Requested: Any public records concerning medical treatment received by Mr. Saraceni
Request Made:  June 24, 2005
Response Made:  June 27, 2003
Custodian: Dean H. Wyks
GRC Complaint filed: September 14, 2005

Background

February 9, 2005

Complainant’s Denial of Access Complaint with the following attachment:

• Denial of Access to records – June 27, 2005

The Complainant states that the Prosecutor has withheld medical records from him therefore denying him the rights to due process under the law. The Complainant also states that he has a Superior Court case pending “concerning this record request or any document sought in it”[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 at action has been filed in Superior Court and indicated docket number 96-11-2572.

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 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 Complaint No. 2005-33 the Council found that they lacked jurisdiction in 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 as well as N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7(g). 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 that:

1. The Council does not have jurisdiction to make a determination in this Complaint pursuant to Mosee v. Atlantic City Police Department, GRC Complaint No. 2005-33 as well as N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7(g).

Prepared By: Chris Malloy, Case Manager

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

November 4, 2005

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