2005-197

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:

1. The Custodian certifies there are no records responsive to the request and the Complainant does not dispute same. 
2. While the Custodian provided a written response to the OPRA request stating that there were no records responsive to the request, the response was not provided within the statutorily required time period. Pursuant to N.J.S.A. 47:1A-5.i. a failure to respond to a request within the seven business days, whether or not there are records responsive to the request, is a “deemed” denial of access.   Therefore, the Custodian violated N.J.S.A. 47:1A-5.i. by not responding to the request within the statutorily required time period.
3. Since the Complainant has retracted the portion of his complaint regarding the “Matrix,” there is no action required by the Council.

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:  “Records indicating the appointment of any special counsel to the Government Records Council pursuant to N.J.S.A. 52:17A-13 excluding the undated “Designation” signed by Attorney General Harvey and Acting Governor Codey that designated the firm of Booker, Rabinowitz, etc. as special counsel to the Government Records Council.”
Request Made: October 4, 2005
Response Made: October 23, 2005
Custodian: Mark J. Fleming
GRC Complaint filed: October 24, 2005

Background

October 4, 2005

Complainant’s Open Public Records (“OPRA”) request W17431 submitted to the Custodian for the Office of the Governor.  The OPRA request was for records of any special counsel to the Government Records Council excluding the law firm Booker, Rabinowitz, Trenk, Lubetkin, Tully, DiPasquale & Webster (“Booker, et al”). 

October 23, 2005

Custodian’s response to Complainant’s OPRA request W17431.  In the response, the Custodian states that there were no records responsive to the request.

October 24, 2005

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:

• Complainant’s OPRA request #W17431 dated October 4, 2005
• Custodian’s response to OPRA request #W17431 dated October 23, 2005

The Complainant asserts that the Custodian’s response to his OPRA request was untimely pursuant N.J.S.A. 47:1A-5(i).  He contends further that even if the Custodian received his request of October 4, 2005 on October 5, 2005, the Custodian should have had a response no later than October 14, 2005. However, the Complainant claims that he did not receive a response until October 23, 2005 stating there were no records responsive to his OPRA request. The Complainant therefore asserts that the Custodian was in violation the Open Public Records Act (“OPRA”) and further contends that the   Custodian should be placed on “the matrix.”

November 1, 2005

Offer of mediation sent to the Complainant and Custodian.

November 3, 2005

The Custodian agrees to mediation.

November 5, 2005

The Complainant declines mediation.  Additionally, in his submission, the Complainant questions whether the GRC should adjudicate the subject Denial of Access Complaint since the Office of the Governor who also employs the Custodian appoints the members of the GRC. 

November 29, 2005

The GRC Executive Director responds to the Complainant’s concern regarding the question of whether the GRC should adjudicate the subject complaint.  The Executive Director informed the Complainant that it did not see a conflict for the GRC to adjudicate said complaint.  However, the Complainant was informed that he had the option to initiate proceedings in Superior Court or with the GRC pursuant to N.J.S.A. 47:1A-6 and that if he felt a conflict exists, he could withdraw his compliant and initiate his proceedings in Superior Court.   

November 29, 2005

The Complainant submits a supplemental response the GRC.  He contends that he understood his options under OPRA and elected to file the complaint with the GRC, however, he contends that his right to appeal the GRC’s decision in this case should not be waived because he chose the complaint process through the GRC. 

December 1, 2005

The GRC staff sends the Statement of Information (“SOI”) to the Custodian for completion.

December 7, 2005

The Custodian submits the SOI to the GRC staff.  The following attachments were included with the SOI:

• Custodian counsel’s submission and legal arguments regarding the complaint
• Custodian’s supplement certification to the SOI

The Custodian certifies that he received OPRA request W17431 on October 4, 2005 via e-mail from the Complainant and felt that it was an unusual request since it sought all special counsel designations to the GRC and any documents related thereto excluding the law firm of Booker, et al.  The Custodian further contends that with the exception of the Booker, et al’s law firm as special counsel to the GRC he was unaware of other special counsels designated to the GRC and thus conducted a search to determine if such records existed.  In his search, he claims to have contacted the First Assistant Attorney General Mariellen Dugan and the Assistant Attorney General Lewis Scheindlin who confirmed that the only special counsel designation to the GRC was the Booker, et al law firm.  The Custodian further contends that his written response to the OPRA request was provided to the Complainant on October 23, 2005 stating that the Office of the Governor did not possess any records responsive to the request. The Custodian asserts that the delay in responding to the request was in part due to conducting a search to ascertain whether records responsive to the request existed and “demands of [his] other duties as Deputy Chief Counsel to the Governor.”  

The Custodian’s counsel argues that since there were no records responsive to the request and the Complainant does not challenge this response, the complaint is “baseless” and the Complainant’s request to find the Custodian in violation of OPRA and be placed on the “matrix” should not be granted.  He contends that since the Complainant is not asserting a “knowing and willful” violation pursuant to N.J.S.A. 47A:1A-11.a., there is nothing for the GRC to adjudicate.  He further contends that there was no denial of access because no records responsive to the request exist and argues that the GRC is therefore without the authority under OPRA to “award” the relief sought in the complaint.  He further argues that since the “matrix” is no longer existent, the remedy sought by the Complainant should be denied by the GRC. 

December 23, 2005

Complainant’s supplemental submission in response to the Custodian and counsel’s SOI with the following attachments:

1. New Jersey Practice, Administrative Law and Practice 2d, §§ 1.7 and 3.7 of 37
2. Copy of letter from Complainant to the GRC dated July 16, 2005 regarding Paff v. Township of Plainsboro, GRC Complaint No. 2005-29 and Moore v. Township of Old Bridge, GRC Complaint No. 2004-141
3. “Supplement to comments offered at the November 10, 2005 meeting of the Government Records Council”

The Complainant does not dispute that the Custodian found no records responsive to his request, but argues that the response was not provided within the statutorily required time period pursuant to N.J.S.A. 47:1A-5.i.  He further states that since the GRC has discontinued the use of the “matrix,” his remedy of the Custodian being placed on the “matrix” no longer has practical importance in this case.  He disputes the Custodian counsel’s assertion that because there was no denial of access the Council has nothing to adjudicate in this case. The Complainant asserts that although a literal reading of N.J.S.A. 47:1A-7.e. may appear to support the Custodian’s position, he references “§§ 1.7 and 3.7 of 37 New Jersey Practice, Administrative Law and Practice 2d (Lefelt, Miragliotta and Prunty)” and asserts the legislatures intent in reference to the cited sections in the Administrative Law and Practice and contends that the “council’s authority should not be limited to that which is permitted by a strict and literal reading of N.J.S.A. 47:1A-7.”  He references “Paff v. New Jersey Dept. of Labor, Bd. of Review, 379 N.J.Super. 346, 352 (App. Div. 2005)” and contends that the court held that the “Council has a ‘significant role in the administration of OPRA’ and its authority to adjudicate cases is not narrow.”  The Complainant contends that the issue in his complaint is whether the Custodian’s response to his request six days beyond the statutory time period violated OPRA and states that he seeks the GRC’s decision regarding this issue.  He states that the GRC has found custodians in violation of OPRA even when no record was withheld at the time of adjudication and references “Tina Renna v. County of Union, GRC Complaint No. 2005-172.” 

Analysis

Whether the Custodian’s delayed response to the W17431 records request beyond the statutorily require seven (7) business day time period constitutes a denial of the request under OPRA? 

The 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, the 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.

The 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 further 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 Custodian certifies that he felt the request was unusual since it sought all special counsel designations to the GRC excluding the law firm of Booker, et al and that the delay in responding to the request was in part due to conducting a search to ascertain whether records responsive to the request existed and the “demands of [his] other duties as Deputy Chief Counsel to the Governor.” He further certifies that in finding no records responsive to the request he provided a written response to the Complainant’s OPRA request on October 23, 2005 stating that the Office of the Governor did not possess requested records.  The Custodian’s counsel asserts that there was no denial of access because no records responsive to the request exist and argues that the GRC is without the authority under OPRA to “award” the relief sought in the complaint.  He further argues that since the “matrix” is no longer existent, the remedy sought by the Complainant should be denied by the GRC.

In the Complainant’s December 23, 2005 submission to the GRC, the Complainant does not dispute the Custodian’s assertion that there are no records responsive to his request but asserts that the Custodian violated OPRA by not responding to his request within the statutorily required time period pursuant to N.J.S.A. 47:1A-5.i.  He further disputes the Custodian counsel’s assertion that since there was no records responsive to the request the GRC has nothing to adjudicate in this case.   He cites the Renna case, a prior decision of the GRC, that he contends found the custodian in violation of OPRA when not responding to a records request with the statutorily required time period even when no record was withheld at the time of adjudication.  He further states that since the GRC has discontinued the use of the “matrix,” his remedy of the Custodian being placed on the “matrix” no longer has practical importance in this case.

Based on the Custodian’s certification, there are no records responsive to the request and the Complainant does not dispute same.  While the Custodian provided a written response on October 23, 2005 to the Complainant’s October 4, 2005 OPRA request stating that there were no records responsive to the request, the response was not provided within the statutorily required time period.  Pursuant to N.J.S.A. 47:1A-5.i.  a failure to respond to a request “as soon as possible, but not later than the seven business days after receiving the request,” whether or not there are records responsive to the request, is “deemed a denial of the request.”   In prior decisions of the GRC, a failure to respond within the statutorily required time period when there were no records responsive to a request was a “deemed” denial of access pursuant to OPRA. Tina Renna v. County of Union, GRC Complaint No. 2004-162 (February 2005) and Daryle Pitts v. Department of Health and Senior Services, GRC Complaint No. 2005-70 (August 2005).  Thus, the Custodian violated N.J.S.A. 47:1A-5.i. by not responding to the request within the statutorily required time period. 

Since the Complainant has retracted the portion of his complaint regarding the “Matrix,” there is no action required by the Council.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

1. The Custodian certifies there are no records responsive to the request and the Complainant does not dispute same. 
2. While the Custodian provided a written response to the OPRA request stating that there were no records responsive to the request, the response was not provided within the statutorily required time period.  Pursuant to N.J.S.A. 47:1A-5.i.  a failure to respond to a request within the seven business days, whether or not there are records responsive to the request, is a “deemed” denial of access.   Therefore, the Custodian violated N.J.S.A. 47:1A-5.i. by not responding to the request within the statutorily required time period. 
3. Since the Complainant has retracted the portion of his complaint regarding the “Matrix,” there is no action required by the Council.

Prepared By: Gloria Luzzatto, Assistant Executive Director

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

Date:    January 19, 2005

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