2005-248

At its May 11, 2006 public meeting, the Government Records Council (“Council”) considered the May 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 as the Custodian certifies that no records responsive to the Complainant’s November 4, 2005 request exist, the Custodian would not have unlawfully denied access to the requested records pursuant to N.J.S.A. 47:1A-1.1, except that the Custodian’s failure to provide the Complainant with a written response to each individual request within the statutorily mandated seven (7) business days resulted in a “deemed” denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.

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 11^th Day of May, 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

Findings and Recommendations of the Executive Director

Request Made:  November 4, 2005
Response Made:  November 4, 2005
Custodian:  Jennica Bileci
GRC Complaint filed: December 7, 2005

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is seeking a copy of the ADA Transition Plan and asks who the ADA Coordinator is as well as his/her job description.

Denial of Access Complaint filed with the Government Records Council (“GRC.”) The Complainant states that she submitted her OPRA request on November 4, 2005 and has not received a response from the Custodian. She states that she was attempting to obtain a copy of the ADA Transition Plan and the name of the ADA Coordinator.

Letter from Custodian’s counsel to GRC staff. Counsel states that while the Township would be interested in mediation, he believes the Complainant does not wish to participate and therefore this complaint would proceed to the next step. He states that he is awaiting further instructions from the GRC regarding this matter. Ultimately, neither party agreed to mediation.

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

The Custodian acknowledges receiving two (2) OPRA requests from the Complainant on October 26, 2005 and another on November 4, 2005. The Custodian certifies that she provided the Complainant with the requested documents on November 4, 2005, which was within seven (7) business days of receiving the Complainant’s October 26, 2005 and November 4, 2005 requests. She certifies that she provided the Complainant with all the records responsive that were in her possession on November 4, 2005. The Custodian certifies that the only document responsive to the Complainant’s ADA Committee request was the “ADA Committee” form which names the members of the committee. She additionally certifies that she provided the Complainant with a listing of police officer’s names.

The Custodian certifies that there are no other records responsive to the Complainant’s requests and states that OPRA does not require her to respond to written questions. She further certifies that she informed the Complainant that she received all documents responsive to her request.

Letter from GRC staff to Custodian. Staff requests that the Custodian provide a document index regarding the Complainant’s November 4, 2005 OPRA request.

Letter from Custodian to GRC staff. The Custodian states that no documents exist in response to the Complainant’s November 4, 2005 request.

Whether the Custodian unlawfully denied access to the records requested on November 4, 2005?

“…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.

“… 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.)

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.

“[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.

“[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 4, 2005 and claims that she did not receive a response from the Custodian. The Custodian certifies receiving the Complainant’s requests on October 26, 2005 and November 4, 2005. The Custodian also certifies that on November 4, 2005 she provided the Complainant with a copy of the requested ADA Committee form and a listing of police officer’s names, which are responsive to the Complainant’s October 26, 2005 requests. She further certifies that there are no other records responsive to the Complainant’s requests and that she is not obligated to respond to written questions. In her March 22, 2006 submission to the GRC, the Custodian asserts that there are no records responsive to the Complainant’s November 4, 2005 request.

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 Custodian certifies providing the Complainant with records responsive to her requests on November 4, 2005, however the records provided are only responsive to the Complainant’s October 26, 2005 requests which are not the subject of this complaint. In this case, the Complainant asserts submitting her request on November 4, 2005 and claims to have never received a response from the Custodian. The Custodian’s failure to respond to the Complainant’s November 4, 2005 request within the statutorily mandated seven (7) business days resulted in a “deemed” denial of the request pursuant to N.J.S.A. 47:1A-5.i. 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 asserts that there are no records responsive to the Complainant’s November 4, 2005 request and that she is not obligated to respond to written questions. However she failed to notify the Complainant of such in writing thus violating N.J.S.A. 47:1A-5.g.

In Russomano v. Township of Edison, GRC Case No. 2002-86 (July 2003), the Council held that “[w]hile it is true that the OPRA request sought only information and not specific records, the custodian was still obligated to respond to the request in seven business days, either rejecting the request as defective under OPRA or advising the requestor of the specific date by which a response would be provided.” The same applies here, as the Custodian is not obligated to fulfill the Complainant’s requests for information, however she is still obligated under the provisions of OPRA to provide a written response to the request.

The Custodian asserts that her November 4, 2005 response to the Complainant is responsive to the Complainant’s October 26, 2005 and November 4, 2005 requests. However, OPRA requires that custodians respond to each individual request submitted by a requestor. In Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[2] (January, 2006), the Council held that “OPRA does not limit the number of times a requestor may ask for the same record even when the record was previously provided.” Therefore although the Custodian provided the Complainant with a response to her October 26, 2005 requests, the Custodian is still obligated under OPRA to provide a written response to her November 4, 2005 request.

As the Custodian certifies that no records responsive to the Complainant’s November 4, 2005 request exist, the Custodian would not have unlawfully denied access to the requested records pursuant to N.J.S.A. 47:1A-1.1, except that the Custodian’s failure to provide the Complainant with a written response to each individual request within the statutorily mandated seven (7) business days resulted in a “deemed” denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that as the Custodian certifies that no records responsive to the Complainant’s November 4, 2005 request exist, the Custodian would not have unlawfully denied access to the requested records pursuant to N.J.S.A. 47:1A-1.1, except that the Custodian’s failure to provide the Complainant with a written response to each individual request within the statutorily mandated seven (7) business days resulted in a “deemed” denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i.

[1] As stated on November 4, 2005 OPRA request.
[2] Caggiano v. Borough of Stanhope, GRC Case No. 2005-211, 2005-226, 2005-227, 2005-228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235, 2005-250, 2005-252 (January, 2006.)