NJ Seal
State of NJ - Government Records Council Email Grc

2005-247

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Maryann Cottrell
   Complainant
      v.
Borough of Glassboro
   Custodian of Record

Complaint No. 2005-247

 

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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 violated N.J.S.A. 47:1A-5.g. by not providing the Complainant with a written response to her request within the statutorily mandated time frame prescribed under OPRA as well as failing to obtain a written agreement from the Complainant extending the time frame required to respond.
  2. Based on the Custodian’s certifications of February 17, 2006 and March 15, 2006 that she provided the Complainant with records responsive to her request and that no other records responsive exist pursuant to N.J.S.A. 47:1A-1.1, the Custodian would not have unlawfully denied access to the requested records. However, the Custodian’s failure to respond to the Complainant’s request within the statutorily mandated seven (7) business days pursuant to N.J.S.A. 47:1A-5.i., as well as her failure to obtain a written agreement from the Complainant extending the seven (7) business day time frame resulted in a “deemed” denial of the request.
  3. Additionally, as awaiting legal advice is not a lawful reason for a delay in access, the Custodian has not borne the burden of providing a lawful reason for the denial of access to the Complainant’s request pursuant to N.J.S.A. 47:1A-6.

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. 

Final Decision Rendered by the
Government Records Council
On The 11th Day of April, 2006

Vincent P. 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:  April 21, 2006

Return to Top

Findings and Recommendations of the Executive Director

Maryann Cottrell                                            GRC Complaint No. 2005-247
Complainant
          v.
Borough of Glassboro
Custodian of Records

Records Relevant to Complaint: Parking site plans for the following businesses:

  1. Liscio’s Bakery
  2. Matt Blatt
  3. Angelo’s Diner
  4. Down on Main Street
  5. Dalton Agency
  6. Sav-A-Lot
  7. Young Insurance
  8. Auto Magic
  9. Monster Beverage
  10. Caesar’s Lounge

Request Made:  November 24, 2005
Response Made:  March 14, 2006
Custodian:  Patricia Frontino
GRC Complaint filed:  December 7, 2005

Background

November 24, 2005

Complainant’s written Open Public Records Act (“OPRA”) request.  The Complainant seeks parking site plans for the following businesses: Liscio’s Bakery; Matt Blatt; Angelo’s Diner; Down on Main Street; Dalton Agency; Sav-A-Lot; Young Insurance; Auto Magic; Monster Beverage; and Caesar’s Lounge. 

December 7, 2005

Denial of Access Complaint filed with the Government Records Council (“GRC”) with Complainant’s November 24, 2005 OPRA request attached.  The Complainant states that she submitted her OPRA request on November 24, 2005 and claims that she has not received a response from the Custodian. 

December 13, 2005

Offer of Mediation sent to both parties. 

December 13, 2005

Custodian’s Agreement to Mediate.[1]

December 23, 2005

GRC staff sends request for Statement of Information to the Custodian.

December 29, 2005

Custodian’s Statement of Information (“SOI”) with the following attachments:

  • Complainant’s OPRA request dated November 22, 2005
  • November 30, 2005 response from Planning and Zoning Office labeled “Item #9(a)”
  • Response from Planning and Zoning Office labeled “Item #9(b)”

The Custodian certifies that she received the Complainant’s OPRA request on November 22, 2005.  She certifies that as the requested documents are not on file in her office, she forwarded the request to the Construction/Planning and Zoning Office on November 23, 2005.  The Custodian certifies that the Zoning Office did not receive the request until November 28, 2005 due to the Thanksgiving holiday weekend. 

Additionally, the Custodian certifies receiving a response from the Planning and Zoning Office on November 30, 2005.  In said response, the Custodian certifies that the Planning and Zoning Office indicated that more information was needed in order to provide the site plan for (1) Matt Blatt Auto, and stated that there are no records for (2) Liscio’s Bakery, (3) Angelo’s Diner, and (4) Down on Main Street.  The Custodian certifies that the Zoning Office also stated that the Complainant could make an appointment to view records for (5) Dalton Agency, (6) Sav-A-Lot, (7) Auto Magic, and (8) Monster Beverage, and wrote “Box #5”[2] for (9) Young Insurance and “Box # 7”[3] for (10) Caesar’s Lounge.  The Custodian states that she was unsure if this response was adequate, so she certifies that on November 30, 2005 she forwarded a copy of the Complainant’s request and the Zoning Office’s response to Timothy Scaffidi, the Borough’s Solicitor.  She further certifies that as she had not received a response from the Solicitor by December 5, 2005, her staff called his office and left messages for a return call on two separate occasions. 

The Custodian also certifies that she was unaware of the time that had passed on this request until her staff advised her on December 7, 2005 that they were still waiting for a response from the Solicitor.  The Custodian certifies that later that day the Solicitor reviewed the documents and advised that the Custodian should obtain a clearer response from the Planning and Zoning Office for the properties identified as “Box # 5” and “Box # 7.”  The Custodian additionally certifies that she then contacted the Zoning Office and staff amended its response and indicated that site plans for Young Insurance and Caesar’s Lounge were available to be reviewed.  She certifies that she then received a phone call from the Complainant in which the Complainant allegedly stated that a response to her request was late and that she had filed a complaint with the GRC.  The Custodian further certifies that staff informed the Complainant that the requested documents were available for pickup free of charge but she would have to schedule an appointment with the Planning and Zoning Office to view the files.  Additionally, the Custodian certifies that the Complainant scheduled an appointment to view the requested documents on December 9, 2005, and on said date requested a copy of a page from one of the files and was provided with such free of charge. 

February 15, 2006

Letter from GRC staff to Custodian.  Staff requests a document index of the records responsive to the Complainant’s November 24, 2005 OPRA request. 

February 17, 2006

Certification signed by the Custodian with the following attachments:

  • February 17, 2006 Inter-Office Memo from the Planning and Zoning Office to Custodian
  • Listing of Complainant’s requested businesses

The Custodian certifies that the requested records were made, maintained, kept on file, or stored in the Planning and Zoning Office, which is in a separate building from her office in the Municipal Building.  She also certifies that on or about the week of December 12, 2005, the Complainant reviewed the files for the following businesses: (1) Monster Beverage; (2) Auto Magic; (3) Matt Blatt Auto; (4) Sav-A-Lot; and (5) Dalton Agency.  The Custodian certifies that these files contained correspondence, review letters, and site plans.  Additionally, she certifies that files for the following businesses were not provided to the Complainant because they could not be located: (6) Liscio’s Bakery; (7) Angelo’s Diner; (8) Down on Main Street; (9) Young Insurance; and (10) Caesar’s Lounge. 

March 13, 2006

Letter from GRC staff to Custodian.  GRC staff requests a signed certification from the Custodian indicating whether the Borough maintained, at the time of the Complainant’s request, the parking site plans for Young Insurance and Caesar’s Lounge.  GRC staff notes the discrepancies in the Custodian’s submissions when in her Statement of Information, she certifies that the Planning and Zoning Office advised her that the site plans for Young Insurance and Caesar’s Lounge were available for viewing; however, in her February 14, 2006 submission to the GRC, she certifies that site plans for Young Insurance and Caesar’s Lounge could not be located. 

March 15, 2006

Letter from Custodian to GRC staff.  The Custodian certifies that the attached letter from the Planning and Zoning Office dated March 14, 2006 details which documents were provided to the Complainant, when they were provided, and which documents are now available for the Complainant, in compliance with the GRC’s March 13, 2006 letter.  She additionally certifies that another attached letter dated March 14, 2006 was sent to the Complainant. 

In the March 14, 2006 letter from the Office of Planning and Zoning to the Custodian, Janice LaRue states that on or about the week of December 12, 2005, the Complainant reviewed the files which contained site plans for the following businesses: (1) Monster Beverage; (2) Auto Magic; (3) Matt Blatt Auto; (4) Sav-A-Lot; and (5) Dalton Agency.  Ms. LaRue also states that files for (6) Liscio’s Bakery, (7) Angelo’s Diner, and (8) Down on Main Street do not exist.  She further states that the files for (9) Young Insurance and (10) Caesar’s Lounge were not available at the time of the request as the Code Enforcement building was moving and the files could not be located.  Ms. LaRue states that as a follow-up to GRC staff’s March 13, 2006 letter, the Construction Official searched the files in the new building and located the files for Young Insurance and Caesar’s Lounge. 

In the Custodian’s March 14, 2006 letter to the Complainant, she indicates that the site plans for Young Insurance and Caesar’s Lounge have been located.  She advises the Complainant to contact Janice LaRue in the Planning and Zoning Office to set up an appointment to review the requested documents. 

Analysis

Whether the Custodian unlawfully denied access to the parking site plans requested on November 24, 2005?

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, 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

“[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 Complainant asserts that she submitted her OPRA request on November 24, 2005 and that as of December 7, 2005, she had not received any response from the Custodian.  The Custodian certifies receiving the Complainant’s OPRA request on November 22, 2005.  She certifies that as the requested files are not located in her office, she forwarded the Complainant’s request to the Planning and Zoning Office on November 23, 2005, but certifies that the Office did not receive the request until November 28, 2005 due to the Thanksgiving holiday weekend. 

The Custodian additionally certifies that she received a response from the Planning and Zoning Office on November 30, 2005 regarding the availability of the requested parking site plans.  She certifies that she was unsure of the adequacy of the Office’s response for Young Insurance and Caesar’s Lounge (identified as Box #5 and Box # 7), and so the Custodian certifies that she forwarded the Complainant’s request to the Borough Solicitor on November 30, 2005.  Further, the Custodian certifies that she did not receive a response from the Solicitor until December 7, 2005 when he advised that she obtain a clearer response from the Planning and Zoning Office regarding the two (2) businesses in question.  So, the Custodian then certifies that she contacted the Planning and Zoning Office and staff amended the Office’s response to indicate that the files for Young Insurance and Caesar’s Lounge are available for the Complainant to view. 

Additionally, on December 7, 2005, the Custodian certifies that the Complainant contacted her by phone to advise that the Custodian’s response to her request was late and that she had filed a complaint with the GRC.  The Custodian informed her that the requested site plans are available for her review and advised that she contact the Planning and Zoning Office to set up an appointment.  The Custodian certifies that on or about the week of December 12, 2005 the Complainant was provided with the files, including parking site plans for the following businesses: (1) Monster Beverage; (2) Auto Magic; (3) Matt Blatt Auto; (4) Sav-A-Lot; and (5) Dalton Agency.  She certifies that the Complainant was not provided with the following files as they do not exist: (6) Liscio’s Bakery; (7) Angelo’s Diner; and (8) Down on Main Street.  Further, the Custodian certifies that the files for (9) Young Insurance and (10) Caesar’s Lounge were not provided until March 14, 2006 as they could not initially be located due to the move of the Code Enforcement building. 

OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt.  Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.

OPRA also mandates that a custodian must either grant or deny access to requested records within seven (7) business days from receipt of said request.  As also prescribed under N.J.S.A. 47:1A-5.i., a custodian’s failure to respond within the required seven (7) business days results in a “deemed” denial.  In this case, the Complainant asserts submitting her request on November 24, 2005 and did not receive a written response until March 14, 2006 well beyond the seven (7) business day timeframe.   Despite verbal communication between both parties, the Custodian’s March 14, 2006 response still goes well beyond the time period prescribed under OPRA resulting in a “deemed” denial.

Additionally, OPRA provides that if a Custodian is unable to comply with a records request, he must notify the Complainant in writing indicating a lawful reason for same.  N.J.S.A. 47:1A-5.g.  Here, the Custodian knew that she needed additional time in order to adequately respond to the Complainant’s request as she was seeking legal advice from the Borough Solicitor, however she failed to notify the Complainant in writing of same.  Although it is reasonable that a custodian would seek legal advice prior to responding to a request for records, the Custodian is still obligated to adhere to the provisions of OPRA.  The Custodian could have tried to obtain a written agreement from the Complainant in order to extend the time period required to respond; however she failed to do so.  This failure resulted in the Custodian’s delay in a written response to the Complainant beyond the time period prescribed under OPRA.  In Paff v. Bergen County Prosecutor’s Office, GRC Case No. 2005-115 (March 2006), the Custodian knew he needed additional time in order to respond to the Complainant’s request, but failed to obtain a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond.  The Council held that the Custodian’s failure to obtain a written agreement extending the seven (7) business day time period resulted in a “deemed” denial of the request.

The Custodian certifies that she was unaware of how much time had passed as she waited for advice from the Borough Solicitor. Seeking legal advice does not automatically extend the statutory timeframe allowed to respond to a records request pursuant to OPRA.  In Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005), the Council held that the Custodian was in violation of N.J.S.A. 47:1A-5.i. for failing to respond in a timely manner even though the Custodian asserted the delay was caused by his efforts to obtain legal advice.  The same applies in this case - while seeking legal advice is reasonable, the Custodian should have sought permission from the Complainant to respond to the request some time beyond the statutory seven (7) business day time period prescribed under OPRA.  Therefore the Custodian is in violation of N.J.S.A. 47:1A-5.i. for failing to respond to the Complainant’s request within the statutorily mandated seven (7) business days and such failure results in a “deemed” denial.

OPRA places the burden of proving a lawful denial of access on the Custodian.  Based on the Custodian’s certifications of February 17, 2006 and March 15, 2006 that she provided the Complainant with records responsive to her request and that no other records responsive exist, pursuant to N.J.S.A. 47:1A-1.1, the Custodian would not have unlawfully denied access to the requested records. However the Custodian’s failure to respond to the Complainant’s request within the statutorily mandated seven (7) business days pursuant to N.J.S.A. 47:1A-5.i., as well as her failure to obtain a written agreement from the Complainant extending the seven (7) business day time frame resulted in a “deemed” denial of the request.  Moreover, as awaiting legal advice is not a lawful reason for a delay in access, the Custodian has not borne the burden of providing a lawful reason for the denial of access to the Complainant’s request pursuant to N.J.S.A. 47:1A-6. 

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that

  1. The Custodian violated N.J.S.A. 47:1A-5.g. by not providing the Complainant with a written response to her request within the statutorily mandated time frame prescribed under OPRA as well as failing to obtain a written agreement from the Complainant extending the time frame required to respond.
  2. Based on the Custodian’s certifications of February 17, 2006 and March 15, 2006 that she provided the Complainant with records responsive to her request and that no other records responsive exist pursuant to N.J.S.A. 47:1A-1.1, the Custodian would not have unlawfully denied access to the requested records. However the Custodian’s failure to respond to the Complainant’s request within the statutorily mandated seven (7) business days pursuant to N.J.S.A. 47:1A-5.i., as well as her failure to obtain a written agreement from the Complainant extending the seven (7) business day time frame resulted in a “deemed” denial of the request.
  3. Additionally, as awaiting legal advice is not a lawful reason for a delay in access, the Custodian has not borne the burden of providing a lawful reason for the denial of access to the Complainant’s request pursuant to N.J.S.A. 47:1A-6.

Prepared By: Dara Lownie, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

April 4, 2006   


[1] The Complainant did not agree to mediate this case. 
[2] As stated in Custodian’s Statement of Information.
[3] As stated in Custodian’s Statement of Information.

Return to Top