2005-48

Final Decision

At the July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 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 with the amendment that the Custodian be placed on the “Matrix.” Therefore, the Council dismissed the case on the basis that:

1. There was an unlawful denial of access, however the Custodian has certified that the records responsive to the request have been released.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

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 14^th Day of July, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

DeAnna Minus-Vincent, Secretary
Government Records Council 

Decision Distribution Date:  July 27, 2005

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Findings and Recommendations of the Executive Director

Records Requested:(as stated by the Complainant)

“The Results of the investigation and/or any documents, emails or letters prepared by any Department of Education official that would support the accuracy of Mr. Ambrosino’s statements… Emails that would describe the details of the investigation and the findings should be forwarded to the Email address provided in lieu of hard copies.”
Request Made:  February 14, 2005
Response Made: March 3, 2005
Custodian:  Dr. Michael Rush
GRC Complaint filed: March 15, 2005

Background

February 14, 2005
Written Open Public Records Act (OPRA) Request - Complainant seeks documentation regarding the results of an investigation or any documents, e-mails or letters prepared by the NJ Department of Education regarding the Shrewsbury Borough School District passing of the Gifted and Talented Program investigation.

March 2, 2005
Custodian responded to the request stating that the Custodian had corresponded with the Complainant and advised him that the Shrewsbury School passed the monitoring process for the Gifted and Talented Program.

March 15, 2005
Denial of Access Complaint filed by the Complainant stating that the Custodian was non-responsive to his request. The Custodian issued a response that stated that the Shrewsbury School passed monitoring for the Gifted and Talented Program, however they did not release any of the requested documents.

March 30, 2005 
Custodian’s Statement of Information – Custodian certified that the records requested were not released. However, the Custodian provided records with the Statement of Information to the Complainant. Those records were:

1. Correspondence between Mr. Pusterhofer and the staff of NJDOE regarding Shrewsbury Borough’s certification (15 pages)
2. Shrewsbury Borough’s Monitoring Report (44 pages)
3. Shrewsbury Borough’s Board Meeting Minutes (9 pages)
4. Quality Assurance Annual Report (6 pages)

The Custodian also noted in the Statement of Information that all of the records released are public information and should be available at the local level.

June 10, 2005
Letter from GRC staff, to the Records Custodian, that requested a certified explanation for the delay in response to the records request.

June 13, 2005 
Custodian’s certification explaining that there was a delay in response due to out of office traveling.  The Custodian stated that on February 15, 2005, he was out visiting several districts and was not in the office. On the February 16, 2005, he departed for an out of state conference and did not return until February 23, 2005.

Analysis

Whether access was unlawfully denied pursuant to OPRA?

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.

The Custodian identified and released records responsive to Mr. Pusterhofer’s OPRA request with its Statement of Information submitted to both the GRC and the Complainant. The Complainant has acknowledged verbally to the GRC Staff that he has received a copy of the Statement of Information, and does not have a written reply. Therefore, GRC staff has concluded that the released records are acceptable to the Complainant. Since the Custodian released records responsive to the request, to the Complainant with the Statement of Information, access was unlawfully denied.

WHETHER there was a knowing and willful violation of OPRA under the totality of the circumstances?

OPRA provides that:

“Unless 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, provided that the record is currently available and not in storage or archived.

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, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. N.J.S.A. 47:1A-5(i)

The Custodian did not respond in a timely manner. The Custodian did certify that the response was delayed due to extensive business travel. Pursuant to N.J.S.A. 47:1A-5(i), the Custodian should have responded to the Complaint, as soon as possible, but not later than seven business days. While the Custodian did violate N.J.S.A. 47:1A-5(i), the violation does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that:

1. There was an unlawful denial of access, however the Custodian has certified that the records responsive to the request have been released.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) does not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances.

Prepared By:  Kimberly Garnder, Case Manager

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

July 8, 2005

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