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State of NJ - Government Records Council Email Grc

2005-200

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Matthias L. DeMattia
   Complainant
      v.
NJ Department of Environmental Protection
   Custodian of Record

Complaint No. 2005-200

 

At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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 the Complainant’s records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

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 9th Day of March, 2006

Vincent Maltese, Chairman
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:  March 15, 2006

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Findings and Recommendations of the Executive Director

Matthias L. DiMattia                                     GRC Complaint No. 2005-200
Complainant
          v.
NJ Department of
Environmental Protection (DEP)
Custodian of Records

Records Relevant to Complaint:

  1. Name(s) of authors of subject audit report sent to Mr. Ehrlich
  2. Any and all documents that indicate a serious mismanagement of the unit
  3. New policies and procedures put in place that are effective that have not been proposed by me
  4. Evidence that checks are now deposited in compliance with Treasury Guidelines and that additional meaningful corrective actions are being taken

Request Made: May 4, 2005
Response Made:  No response[1]
Custodian: Rich Yarsinsky
GRC Complaint filed: October 27, 2005

Background

May 4, 2005

Complainant’s written Open Public Records Act (“OPRA”) request.

October 27, 2005

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

  • March 29, 2005 – Letter from Gary Sondermeyer to Carol Ehrlich

The Complainant states that on or about May 4, 2005, he sent his OPRA request to a number of individuals, and has not yet received a response.

October 27, 2005

Mediation offered to both parties.[2]

November 4, 2005   

GRC staff request for the Statement of Information (SOI).

November 9, 2005

Custodian’s SOI.

The Custodian states that the Complainant did not follow the proper procedure for filing an OPRA request. He also states that the items requested are not government records for OPRA purposes and have not been requested with sufficient specificity.

The Custodian asserts that the Complainant did not make an OPRA request, and the Complaint can be dismissed on this basis alone. The Custodian references N.J.S.A. 47:1A-5.g. which states, “[a] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically or otherwise conveyed to the appropriate Custodian.” He also states, “[t]he statute directs the custodian of a public agency shall adopt a form for the use of any person who requests a government record held or controlled by the agency.” N.J.S.A. 47:1A-5.f.

The Custodian states that these provisions clearly indicate that OPRA requests are to be treated formally and through use of a standard form developed by the agency. The DEP’s proposed regulations governing OPRA requests, N.J.A.C. 7:1D-3.4, adopts these requirements and states that, forms may be hand delivered during normal business hours, mailed or transmitted electronically by e-mail to the Department Records Custodian.

The Custodian states that the Complainant did not complete the necessary OPRA request form and did not send it to the appropriate Custodian as required by OPRA. And, for these reasons, it is the Department’s position that the GRC lacks jurisdiction over the matters raised in the Complaint.

Analysis

What constitutes a valid OPRA records request?

The Complainant requested the records listed above via e-mail on May 4, 2005 and states that to this date he has not received a response. He filed his Complaint on October 22, 2005. The Custodian claims that the Complainant did not follow the proper procedure for filing an OPRA request. He also states that the items requested are not government records for OPRA purposes and have not been requested with sufficient specificity.

Review of the OPRA statute and its legislative intent lead the Council to conclude that use of the request form is required for all requestors.  The statute provides that the custodian “shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.”  N.J.S.A. 47:1A-5.f.  The statute specifically prescribes what must be on the form:

  1. space for the name, address and phone number of the requestor and a brief description of the government record sought;
  2. space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged;
  3. specific directions and procedures for requesting a record;
  4. a statement as to whether prepayment of fees for a deposit is required;
  5. the time period in which the public agency is required by OPRA to make the record available;
  6. a statement of the requestor’s right to challenge a decision by the public agency to deny access and the procedure for filing an appeal;
  7. space for the custodian to list reasons if a request is denied in whole or in part;
  8. space for the requestor to sign and date the form;
  9. space for the custodian to sign and date the form if the request is fulfilled or denied.

Id.

Although the statute does not expressly state that OPRA requests must be on the form adopted by the agency pursuant to N.J.S.A. 47:1A-5.f., principles of statutory construction show that the Legislature intended use of this form by all requestors to be mandatory.  In interpreting a statute, it is axiomatic that “each part or section [of the statute] should be construed in connection with every other part or section so as to produce a harmonious whole.”  Matturi v. Bd. of Trustees of JRS, 173 N.J. 368, 383 (2002), quoting In re Passaic Cty. Utilities Auth., 164 N.J. 270, 300 (2000).  In addition, a construction which renders statutory language meaningless must be avoided.  Bergen Comm. Bank v. Sisler, 157 N.J. 188, 204 (1999).  See also G.S. v. Dept. of Human Serv., 157 N.J. 161, 172 (1999). (a statute should be interpreted so as to give effect to all of its provisions, without rendering any language inoperative, superfluous, void, or insignificant).

As noted, N.J.S.A. 47:1A-5.f. requires that custodians adopt a request form, and sets forth a detailed list of what the form must contain.  The next subsection of the statute provides:

If 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 thereof.  (Emphasis added.)   N.J.S.A. 47:1A-5.g.

The form to which N.J.S.A. 47:1A-5.g. refers is the form required by N.J.S.A. 47:1A-5.f.  In providing, in 5.g., that the custodian “shall” sign and date the form, indicate the basis for denial on the form, and return the form to the requestor, the Legislature evidenced its clear intent that it is mandatory for the form to be used by requestors.  See Harvey v. Essex Cty. Bd. Of Freeholders, 30 N.J. 381, 391-92 (1959) (the word “shall” in a statute is generally mandatory).  The express requirement that the custodian use the request form in denying an OPRA request, construed together with the preceding statutory requirement that the custodian adopt a request form, demonstrates that the Legislature intended that this form would be used for all OPRA requests.  If all requestors are not required to submit requests on the form prescribed by the statute, then the statutory provisions requiring the custodian to sign and date the form, and return it to the requestor, would be meaningless.  Indeed, a custodian would be unable to fulfill these express requirements of N.J.S.A. 47:1A-5.g. if the requestor does not use the form in submitting his request.

Accordingly, nothing in OPRA suggests that some requestors may forgo using the official request form.  In enacting the form requirement, the Legislature has expressed its policy that use of the form promotes clarity and efficiency in responding to OPRA requests, consistent with OPRA’s central purpose of making government records “readily accessible” to requestors.  N.J.S.A. 47:1A-1. 

The Appellate Division has indicated that the statute’s form requirement serves the additional purpose of prompting the legislative policy that a requestor must specifically describe identifiable records sought.  See Mag Entertainment LLC v. Div. of ABC, 375 N.J. Super 534, 546 (App. Div. 2005) (an open-ended request that fails to identify records with particularity is invalid).  In Bent v. Twp. of Stafford Police Dept., 381 N.J. Super. 30, 33 (App. Div. 2005), the Court held that the requestor’s general request for information violated this policy and was therefore invalid.  In reaching this conclusion, the Court noted that OPRA mandates that the request form provide space for a “brief description” of the record request.  Id.  Similarly, in Gannett New Jersey Partners L.P. v. County of Middlesex, 379 N.J. Super. 205, 213 (App. Div. 2005), the Court specifically pointed to the same statutory request form requirement in determining that OPRA does not authorize requestors to make blanket requests for agency records.

Accordingly, based on the language of the statute, as well as judicial recognition of the importance of the statutory request form, it is determined that the statute requires all requestors to submit OPRA requests on an agency’s official OPRA records request form. OPRA’s provisions come into play only where a request for records is submitted on an agency’s official OPRA records request form. 

Therefore, the Complainant’s records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that the Complainant’s records request was not a valid OPRA request and as such the Custodian’s refusal to fulfill the records request does not amount to an unlawful denial of access pursuant to the provisions of OPRA.

Prepared By:  Chris Malloy, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

March 3, 2006            


[1] As stated by the Complainant in his Denial of Access Complaint.
[2] Neither party agreed to mediation of this Complaint.

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