2005-49

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. The Custodian certified that the records responsive to the request do not exist; therefore there was no unlawful denial of access.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) does not rise to a 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

Return to Top

Findings and Recommendations of the Executive Director

Records Requested:(as stated by the Complainant)

A copy of the actual long distance telephone bill that would provide evidence that a call was placed in August or September from the 609 area code to the 732 area code.  The actual date and the phone number that originated the supposed call as well as the time of the call and the phone number that the supposed call was placed to are required.
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 a copy of phone records that would prove a phone call was made to him by an official from the  Department of Education .

March 2, 2005
Custodian responded to the request stating that, “ Your latest inquiry was an OPRA request to obtain a copy of a long distance telephone bill to determine if a call was made to you on September 28, 2004…there was a mix up as to when the scheduled meeting was to take place… Therefore, there is no record of any telephone calls made to you…”

March 15, 2005
Denial of Access Complaint filed by the Complainant stating that the Custodian was non-responsive to his request and that the response was delinquent. 

March 30, 2005 
Statement of Information submitted by the Custodian that certified that the requested records do not exist. The certification specifically states, “No such telephone bill exists for August and/or September 2004 that displays a telephone call to Mr. Pusterhofer at the Shrewsbury Board of Education (732-936-9277).”

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:

“all 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.

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 in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof…” N.J.S.A. 47:1A-1.1

The Custodian has certified that the requested record does not exist. Therefore, the requested record can not be released and there was no unlawful denial of access.

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 that seven business days. While the Custodian did violate N.J.S.A. 47:1A-5(i), the violation does not rise to a level of 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. The Custodian has certified that the records responsive to the request do not exist, therefore there was no unlawful denial of access.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) does not rise to a level of a knowing and willful violation of OPRA under the totality of the circumstances.

 Prepared By:  Kimberly Gardner, Case Manager

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

July 8, 2005

Return to Top