2005-59

Final Decision

At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 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. Therefore, the Council hereby finds that:

1. The Custodian has met the burden of proving that there was no unlawful denial of access and that the Complainant was provided access to all records responsive to the request.
2. The Custodian did not respond in a timely manner 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. Also, pursuant to N.J.S.A. 47:1A-5(g) the Custodian should have provided a written response to the Complainant when he/she is unable to comply with the request.
3. Pursuant to N.J.S.A. 47:1A-7(b), the GRC does not have the authority over the condition of records sent by the Custodian of Records.

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 8^th Day of September, 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:  September 19, 2005

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Findings and Recommendations of Executive Dir

Records Requested: DVRS (Division of Vocational Rehabilitation Services) case record from 1985-2000 presuming it has not been destroyed, and in particular, results from testing done at Drexel University by Dr. Arnold Farley in 1986.
Request Made:  February 18, 2005
Response Made:  no response[1]
Custodian: Associate of Thomas G. Jennings
GRC Complaint filed: March 21, 2005

Background

March 21, 2005

Complainant’s Denial of Access Complaint with the following attachment:

• February 18, 2005 – Complainant’s written OPRA request

The Complainant states that on March 14, 2005 he contacted “DVRS headquarters and asked for Mr. Jennings.” He states that after explaining why he needed the record he was advised to obtain the record by writing to the local DVR office, which the Complainant states “had already been undertaken five years ago, as well as writing to New Jersey Protection and Advocacy.”

March 29, 2005

Mediation sent to both parties[2]

May 24, 2005

E-mail from the Government Records Council (GRC) staff to the Complainant. The GRC staff informs the Complainant that in recent correspondence with the NJ Department of Labor the GRC was informed that the requested records were released to the Complainant in accordance with the complaint. The staff also asked the Complainant to inform the GRC if he had received the records and wishes to withdraw the Complaint.

May 24, 2005

Complainant’s response to the GRC’s May 24, 2005 e-mail. The Complainant states, “It cost me $85 to obtain this record, a stack of hundreds of documents arranged in no chronological order whatsoever.” The Complainant also states that if this is a reflection of how the actual record actually appeared, then it is no wonder he received poor service as a DVRS client, otherwise, he must believe that the lack of chronology was a deliberate act of retaliation for requesting the records in the first place.

July 21, 2005 

GRC staff’s e-mail to the Complainant to confirm his receipt of the requested records and to determine whether the Complainant wished to withdraw his complaint.

July 21, 2005

Complainant’s response to the staff’s July 21, 2005 e-mail. The Complainant states that he was not inclined to withdraw his complaint. He states, “[c]onsidering the price of the record and the lack of professionalism exhibited during the lifespan of my DVRS case, this was one simple task they could have gotten right.”

August 12, 2005

Custodian’s Statement of Information. The Custodian states that they received the request on February 18, 2005. He also states that on April 6, 2005 he sent the Complainant a copy of the Vocational Evaluation Report (1986) by Dr. Farley. And, on April 26, 2005 he sent the Complainant a copy of his entire record as maintained by DVRS. The Custodian also states, “All records were provided to Mr. Toscano as per his request. The initial delay in sending the entire case record was due to difficulties in contacting Mr. Toscano, and in making the necessary arrangements to deliver the voluminous record, spanning over a decade.”

Analysis

WHETHER the Custodian unlawfully denied access to the records requested on February 18, 2005?

N.J.S.A. 47:1A-1: 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-1.1: provides that “ … 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-6: provides that “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…”

The Custodian certifies that on April 6, 2005 he sent the Complainant a copy of the Vocational Evaluation Report (1986) by Dr. Farley. And, on April 26, 2005 he sent the Complainant a copy of his entire record as maintained by DVRS. The Custodian also states that all records were provided to Mr. Toscano as per his request.

The Custodian has met the burden of proving that there was no unlawful denial of access and that the Complainant was provided access to all records responsive to his request.

WHETHER the Custodian responded to the OPRA request within the statutorily required seven business day period?

N.J.S.A. 47:1A-5(i) 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(g) provides that “....[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore 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 thereof …

The Custodian states that he received the request on February 18, 2005. He also states that on April 6, 2005 he sent the Complainant a copy of the Vocational Evaluation Report (1986) by Dr. Farley. And, on April 26, 2005 he sent the Complainant a copy of his entire record as maintained by DVRS. Finally, the Custodian states, “All records were provided to Mr. Toscano as per his request. The initial delay in sending the entire case record was due to difficulties in contacting Mr. Toscano, and in making the necessary arrangements to deliver the voluminous record, spanning over a decade.”

 Based on the above, the Custodian did not respond in a timely manner. 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. Also, there is no indication that the Custodian provided a written response until the documents were provided to the Complainant on April 26, 2005.  Pursuant to N.J.S.A. 47:1A-5(g) the Custodian should have provided a written response to the Complainant when he/she is unable to comply with the request.

WHETHER the Government Records Council has authority over the condition of records sent by the Custodian of Records?

N.J.S.A. 47:1A-7(b): provides that “[t]he Government Records Council shall … receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record …”

The Complainant states, “[i]t cost me $85 to obtain this record, a stack of hundreds of documents arranged in no chronological order whatsoever.” The Complainant then states that if this is a reflection of how the actual record actually appeared, then it is no wonder he received poor service as a DVRS client, otherwise, he must believe that the lack of chronology was a deliberate act of retaliation for requesting the records in the first place. The Complainant also states, “Considering the price of the record and the lack of professionalism exhibited during the lifespan of my DVRS case, this was one simple task they could have gotten right.”

Pursuant to N.J.S.A. 47:1A-7(b), the GRC does not have the authority over the condition of records sent by the Custodian of Records.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

1. The Custodian has met the burden of proving that there was no unlawful denial of access and that the Complainant was provided access to all records responsive to the request.
2. The Custodian did not respond in a timely manner 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. Also, pursuant to N.J.S.A. 47:1A-5(g) the Custodian should have provided a written response to the Complainant when he/she is unable to comply with the request.
3. Pursuant to N.J.S.A. 47:1A-7(b), the GRC does not have the authority over the condition of records sent by the Custodian of Records.

Prepared By: Chris Malloy, Case Manager

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

September 2, 2005

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