2005-76

Final Decision

At its January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 2006 Supplemental 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 based on the fact that the Custodian has certified that all documents in question have either been provided, or do not exist, she has borne the burden of proving that there was no unlawful denial of access to any of the records requested on April 15, 2005.

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 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
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:  February 8, 2006

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Supplemental Findings and Recommendations of Executive

Records Requested:  Full file for permits 01-221, 03-103, 02-262, 04-002 including but not limited to: inspections, final inspections, violations penalty, copy of checks to pay fines, plans, reports, letters, e-mails, plans, notes, insurance certificates, everything, notices, certifications of compliance, all approvals.[1]
Custodian: Linda Martin
Request Made: April 15, 2005
Response Made: April 22, 2005
GRC Complaint filed: April 25, 2005

Background

August 12, 2005

At its August 11, 2005 public meeting, the Government Records Council (GRC) considered the August 5, 2005 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, found that:

1. The Custodian met the burden of proving that all documents responsive to the request have been provided (aside from the document that she certifies was “not in the control of the Town of Guttenberg as it was lost.”)
2. Pursuant to N.J.S.A. 47:1A-7 the GRC does not have jurisdiction to perform an audit of records under the control of the Records Custodian.

August 28, 2005

Complainant’s e-mail to the GRC. In reference to his original request, he states that he still has not received the following:

1. the copy of the check to pay the penalty
2. the inspection reports
3. the permit associated with the penalty
4. all other documents related to the violation notice.

November 1, 2005     

GRC staff’s letter to the Custodian. The letter states that the Council will open the case for reconsideration solely for the purpose of determining exactly what documents were transmitted and what documents were received in reference to the original request. The letter asks that the Custodian legally certify to the aforementioned information.

November 29, 2005

The Custodian’s certification in response to the GRC staff’s November 1, 2005 letter. The Custodians states that there was no copy of the check on file that paid said violation. The Custodian further alleges that that the inspection reports were already sent to the Complainant in response to his original request. The Custodian explains that the permit was also provided to Mr. Deluca and as explained in the Statement of Information, was provided unsigned as it was a printout from the building department computer. And, as to the fourth issue in the August 24, 2005 e-mail, the Custodian certifies that there are no other documents on file in relation to the specific violation notice.   

Analysis

Whether the Custodian unlawfully denied access to any of the records from the April 15, 2005 OPRA request?

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 government records are  “ … 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…”

In response to the November 1, 2005 GRC staff letter, the Custodian certifies that there was no copy of the check on file that paid said violation. The Custodian further certifies that the inspection reports were sent to the Complainant in accordance with his first request. The Custodian explains that the permit was also provided to Mr. Deluca, and as previously explained was provided unsigned as it was a printout from the building department computer. And, as to the fourth issue in the August 24, 2005 e-mail, the Custodian certifies that there are no other documents on file in relation to the specific violation notice.            

The OPRA puts the burden of proving that the denial of access is authorized by law on the Custodian. Also, the OPRA defines a government records as one that is “…made, maintained or kept on file, or that has been received …” The Custodian certifies that every document in question has either been provided or does not exist, and therefore, she has met the burden of proving that there was not an unlawful denial of access to any of the records in question.

Based on the fact that the Custodian has certified that all documents in question have either been provided, or do not exist, she has borne her burden of proving that there was no unlawful denial of access to any of the records requested on April 15, 2005.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that based on the fact that the Custodian has certified that all documents in question have either been provided, or do not exist, she has borne her burden of proving that there was no unlawful denial of access to any of the records requested on April 15, 2005.

Prepared By: Chris Malloy, Case Manager

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

January 19, 2006

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Final Decision

At its August 11, 2005 public meeting, the Government Records Council (“Council”) considered the August 5, 2005 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 met the burden of proving that all documents responsive to the request have been provided (aside from the document that she certifies was “not in the control of the Town of Guttenberg as it was lost.”)
2. Pursuant to N.J.S.A. 47:1A-7 the GRC does not have jurisdiction to perform an audit of records under the control of the Records Custodian.

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 11^th Day of August, 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:  August 19, 2005

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Findings and Recommendations of Executive Dir

Records Requested:  Full file for permits 01-221, 03-103, 02-262, 04-002
Custodian: Linda Martin
Request Made:  April 15, 2005
Response Made:  April 22, 2005
GRC Complaint filed: April 25, 2005

Background

April 15, 2005
The Complainant’s Open Public Records Act (“OPRA”) request seeking the records stated above.

April 25, 2005
The Complainant’s Denial of Access Complaint to the Government Records Council.  The Complainant includes a letter to the Custodian stating that he has not received the notice of violation and order to terminate issued 02/01/05, for “No Electrical Final Inspection on Berm Lighting,” the copy of the check to pay the violation, the results of the final inspection and all other documents relating to this notice. He states, “When I was in your office Friday April 22, 2005, I was told that this would be faxed to my home. All of the above were listed on my April 15, 2005 request.”

April 28, 2005
Mediation offered to both parties.

May 18, 2005
The Custodian’s Statement of Information to the Government Records Council (“GRC”). The Custodian states, “Mr. DeLuca requested numerous records from the Guttenberg Building Department. After those records were provided, he requested a specific Notice of Violation that had not been provided. The Building Department then reviewed its’ records and determined that there was a violation as they found the actual Notice of Violation in the computer of the Building Department but could not find the signed hard copy.” The Custodian also states that she then provided a copy print of the computer notice (the copy was provided on April 25, 2005), which was not signed and did not have the permit number, which is usually completed after the permit is issued. Finally, the Custodian states that, “after being advised of the situation Mr. DeLuca then complained that it was an unsigned notice even though he knew full well that the hard copy was not in the control of the Town of Guttenberg as it was lost.”

June 14, 2005
The Complainant’s e-mail to the GRC stating, “This is the second time in one year that the Town of Guttenberg has “lost” documents.” The Complainant also faxed a list stating, “These are the other “lost” documents from 2-5-04 that I mentioned. Can I request an audit?”     

Analysis

WHETHER the Custodian unlawfully denied access to any of the records from the April 15, 2005 OPRA request?

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 or proving that the denial of access is authorized by law…”

In response to the April 15, 2005 OPRA request the Custodian certifies that, “Mr. DeLuca requested numerous records from the Guttenberg Building Department. After those records were provided, he requested a specific Notice of Violation that had not been provided. The Building Department then reviewed its’ records and determined that there was a violation as they found the actual Notice of Violation in the computer of the Building Department but could not find the signed hard copy.”

The Custodian also certifies that she then “provided a copy print of the computer notice which was not signed and did not have the permit number which is usually completed after the permit is issued. After being advised of the situation, Mr. DeLuca then complained that it was an unsigned notice even though he knew full well that the hard copy was not in the control of the Town of Guttenberg as it was lost.”

Thus, based on the Custodian certifying that all documents responsive to the request have been provided (aside from the document that she certifies was “not in the control of the Town of Guttenberg as it was lost.”) she has meet the burden of proving that there was not an unlawful denial of access to the records requested.

WHETHER the Government Records Council has the jurisdiction to perform an audit of records under the control of Records Custodians?

N.J.S.A. 47:1A-7(b): provides that “[t]he Government Records Council shall:  establish an information mediation program … receive, hear, review and adjudicate a complaint … issue advisory opinions … prepare guidelines and an informational pamphlet for use by records custodians … prepare an informational pamphlet explaining the public’s right of access to government records … prepare lists for use by records custodians … make training opportunities available for records custodians and other public officers and employees … and operate an informational website and a toll-free hotline …”

In a June 14, 2004 submission to the GRC the Complainant inquires as to whether he can request an audit for records. Pursuant to N.J.S.A. 47:1A-7 the GRC does not have jurisdiction to perform an audit of records under the control of Records Custodians.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

1. The Custodian certified that all documents responsive to the request have been provided (aside from the document that she certifies was “not in the control of the Town of Guttenberg as it was lost.”)
2. Pursuant to N.J.S.A. 47:1A-7 the GRC does not have jurisdiction to perform an audit of records under the control of Records Custodians.

Prepared By: Chris Malloy, Case Manager

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

August 5, 2005

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