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2005-219
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
Final Decision
At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 2006 Supplemental 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 based on the Custodian’s March 17, 2006 certification, the Custodian has complied with the Council’s February 17, 2006 Interim Order by releasing the requested photographs to the Complainant on March 13, 2006; however, he failed to do so within the fifteen (15) calendar days ordered 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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. Decision Distribution Date: April 21, 2006 Supplemental Findings and Recommendations of the Executive DirectorBrian Pincus (Joy DeSanctis) GRC Complaint No. 2005-219Profile Consultants, Inc. Complainant v. Newark Police Department Custodian of Records Records Relevant to Complaint: Copies of the photographs taken by Officer Rogers at the scene of the motor vehicle accident which occurred on June 20, 2005 at the intersection of Broad Street and Pennington Street in Newark, NJ. Background February 17, 2006 Government Records Council’s (“Council”) Interim Order. At its February 17, 2006 public meeting, the Council considered the February 10, 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, found that:
March 17, 2006 Custodian’s response to the Council’s Interim Order. The Custodian certifies that he sent the attached letter dated March 13, 2006 to the Complainant via certified mail and included the requested photographs of the motor vehicle accident involving Ethan Tony. Analysis Whether the Custodian complied with the Council’s February 17, 2006 Interim Order? Based on the Custodian’s March 17, 2006 certification, the Custodian has complied with the Council’s February 17, 2006 Interim Order by releasing the requested photographs to the Complainant on March 13, 2006, however he failed to do so within the fifteen (15) calendar days ordered by the Council. Conclusions and Recommendations The Executive Director respectfully recommends the Council find that based on the Custodian’s March 17, 2006 certification, the Custodian has complied with the Council’s February 17, 2006 Interim Order by releasing the requested photographs to the Complainant on March 13, 2006; however, he failed to do so within the fifteen (15) calendar days ordered by the Council. Prepared By: Dara Lownie, Case Manager Approved By: April 4, 2006 Interim Order
At the February 17, 2006 public meeting, the Government Records Council (“Council”) considered the February 10, 2006 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:
Interim Decision Rendered by the Findings and Recommendations of the Executive DirectorBrian Pincus (Joy DeSanctis) GRC Complaint No. 2005-219Profile Consultants, Inc. Complainant v. Newark Police Department Custodian of Records Records Relevant to Complaint: Copies of the photographs taken by Officer Rogers at the scene of the motor vehicle accident which occurred on June 20, 2005 at the intersection of Broad Street and Pennington Street in Newark, NJ. Background October 24, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) staff. Complaint included the following attachments:
The Complainant states that on September 15, 2005 he requested pictures of a motor vehicle accident involving one of his company’s clients. He claims that a check was enclosed as was previously advised by the Newark Police Department. He states that his request letter was returned with the check and a statement that the Police Department (“PD”) does not provide any photographs. The Complainant claims that he was then referred to the PD’s Community Affairs Department. He claims that between the dates of September 26, 2005 and October 11, 2005, his office made several phone calls to the PD in an attempt to obtain the photos. He states that he was repeatedly told that the Department’s equipment was broken and that it was unknown when it would be repaired. The Complainant claims that between the dates of October 11, 2005 and October 24, 2005 his office tried to contact the PD to see when the photo lab equipment would be fixed and when the requested photos would become available. He claims that on October 24, 2005 he contacted the Newark PD Community Affairs Department and requested to speak to a supervising attorney however claims that the clerk would not transfer the call or provide her name. The Complainant claims that he spoke to the clerk and she advised that the photos would take one year and that she would send a letter to that effect, as that is all she is required to do under OPRA. He states that he advised her that he needed the photos in a timely manner and then asked for her name and claims that she then hung up the phone. He claims that he again called back to request her name and she again hung up the phone. The Complainant alleges that he called back several times with no response and no voicemail. He claims that he then attempted to call from a different number and the clerk answered and allegedly admitted that she did not answer his previous calls because she recognized his number. The Complainant claims that he again asked for her name and she again hung up. The Complainant states that he called again and the clerk gave her name and the name of the supervising attorney. He claims that he asked her to spell the names for the record and that she refused and again hung up the phone. The Complainant states that he called the clerk a final time and advised that he would be filing a complaint against the PD. He claims that the clerk threatened to charge him with harassment if he continued to call back. On October 24, 2005 the Complainant states that he contacted the PD’s Chief’s Office to report the actions of the clerk. He claims that he spoke to a Lieutenant who advised that he would speak to the clerk as well as inform the Complainant of the timeframe for the photos however the matter “is a bureaucratic situation and largely out of his control.”[1] November 28, 2005 Offer of Mediation sent to both parties.[2] December 6, 2005 GRC staff sends request for Statement of Information to PD Supervisor. December 12, 2005 GRC requests that the requestor sign and return the Denial of Access Complaint. December 19, 2005 Requestor submits his signed Complaint form. January 4, 2006 GRC staff resends request for Statement of Information to PD Supervisor. January 9, 2006 GRC staff sends request for Statement of Information to Custodian. January 11, 2006 GRC staff resends request for Statement of Information to Custodian. January 13, 2006 Custodian’s Statement of Information with the PD Supervisor’s Statement of Events attached. The PD Supervisor states that the Complainant’s OPRA request was received on September 15, 2005 and denied on the same day by the Crime Scene Unit Deputy Chief. She asserts that on or around October 7, 2005 the Complainant called the PD to inquire as to why his request was denied. She claims that staff handling the Complainant’s inquiry was not aware of the reasons for the denial at the time, but after making an inquiry, discovered that the request is permitted under OPRA and not exempt under the criminal investigatory exemption. The Supervisor states that PD staff called the Complainant to inform him that the photos were releasable however the photograph equipment was broken and staff was unsure when the photos would be released. The Supervisor additionally states that on or around October 11, 2005, Joy DeSanctis from Profile Consultants, Inc. contacted the PD and was also informed that the equipment was not working and staff was unsure as to when the photos would be released. Further, the Supervisor states that on or around October 24, 2005 Joy DeSanctis from Profile Consultants, Inc. again called the PD to inquire about the status of the photographs. She claims that she advised Ms. DeSanctis that a request had been processed for the photos but the machine was broken and that the PD was not aware of when the machine would be fixed. She additionally claims that she informed Ms. DeSanctis that the PD was accepting bids from vendors to either fix or replace the machine. The Supervisor alleges that Ms. DeSanctis became agitated because she was not being given a timeframe for the release of the photos so the Supervisor states she told Ms. DeSanctis she would get them next year and that she was going to hang up the phone because of the way she was being treated. The Supervisor states that she hung up and Ms. DeSanctis called back citing OPRA and the Supervisor again hung up the phone. Again the Supervisor states that Ms. DeSanctis called back and asked for the Supervisor’s name. She states that she gave her name, the name of the attorney and the name of the PD staff that previously called the Complainant and then advised that she was going to hang up and did so. She states that Ms. DeSanctis called back one more time for the spelling of the names and the Supervisor claims that she told Ms. DeSanctis to stop harassing her and to stop calling. The Custodian certifies that the Supervisor’s statements are true to the best of his knowledge. He also certifies that pursuant to N.J.S.A. 47:1A-1.1 he is the Custodian of Records for the PD since he is the City Clerk. Analysis Whether the Custodian unlawfully denied access to the photographs requested on September 15, 2005? 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 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 also provides that “[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium...” (Emphasis added.) N.J.S.A. 47:1A-5.d. OPRA also states that “[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record…” (Emphasis added.) N.J.S.A. 47:1A-5.b. Additionally, OPRA provides 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 to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request…” (Emphasis added.) N.J.S.A. 47:1A-5.i. The Complainant states that he submitted his OPRA request for photographs of a motor vehicle accident to the Newark PD on September 15, 2005. He also states that his request was returned to him denied because the PD indicated that it does not provide any photographs. The Complainant claims that following the denial of his request, he called the PD to inquire about the denial. The Custodian certifies that staff handling the Complainant’s call discovered that the photos in this request were not exempt under the criminal investigatory exemption. The Custodian certifies that PD staff called the Complainant to inform him that the requested photos were releasable but that the photo lab equipment was broken and staff was unsure when it would be repaired. He additionally certifies that on or around October 24, 2005, Joy DeSanctis from Profile Consultants, Inc called to inquire about the status of the request. The Custodian certifies that the PD Supervisor advised Ms. DeSanctis that the request had been processed but the lab equipment was broken. He also certifies that the Supervisor informed Ms. DeSanctis that the PD was accepting bids from vendors to either fix or replace the equipment. N.J.S.A. 47:1A-1.1 defines a government record and also provides a list of exemptions to public access such as records that are considered criminal investigatory records. As the Custodian certifies that the requested photos do not fall under the criminal investigatory record exemption, they are therefore subject to public access under OPRA. OPRA also provides that custodians must prove that the denial of access is authorized by law pursuant to N.J.S.A. 47:1A-6. Here, the Custodian certifies that the PD is unable to duplicate the requested photos because its photo lab equipment is broken and staff in unaware of when it will be repaired. Broken equipment is not a lawful reason for denying access to a record request because the Custodian should be able to provide copies pursuant to N.J.S.A. 47:1A-5.d. This section of OPRA states that “…[i]f the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium…” Additionally, N.J.S.A. 47:1A-5.b. provides that a person may purchase copies of records “…upon payment of the actual cost of duplicating the record…” The Council has interpreted this provision of OPRA to allow custodians to outsource the copying of requested records and charge the requestor the associated actual cost of doing so. In Burns v. Borough of Collingswood, GRC Case No. 2004-217 (April, 2005), the Complainant requested hard and electronic copies of records and was only provided with hard copies. The Council decided that the Custodian should have tried to reach an agreement on another meaningful medium and if no agreement could be reached, the Custodian should have converted the records into the medium requested subject to the actual cost that may be involved in converting the medium pursuant to N.J.S.A. 47:1A-5.d. The same ruling should apply in this case. As the Custodian certifies the PD’s photo lab equipment is broken, the Custodian should have tried to reach an agreement on another meaningful medium and if no agreement could be reached, the Custodian should have outsourced the duplication of the requested records and charged the Complainant the actual cost associated with doing so pursuant to N.J.S.A. 47:1A-5.d. and N.J.S.A. 47:1A-5.b. Further, the Custodian should have done so within the statutorily mandated seven (7) business days as prescribed under N.J.S.A. 47:1A-5.i. Pursuant to N.J.S.A. 47:1A-6, the Custodian has not borne his burden of proving that the denial of access to the requested photographs is authorized by law. The Custodian should have outsourced the duplication of the requested records and charged the Complainant the actual cost associated with doing so pursuant to N.J.S.A. 47:1A-5.d. and N.J.S.A. 47:1A-5.b. Therefore, the Custodian unlawfully denied access to the requested records by not appropriately responding within the statutorily mandated seven (7) business day timeframe pursuant to N.J.S.A. 47:1A-5.i. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Dara Lownie, Case Manager Approved By: February 10, 2006 |
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