2005-78

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 with the amendment that the Custodian be placed on the matrix for not responding within the statutory time period under OPRA.  The Council, therefore, finds that:

1. The Custodian has certified that the records responsive to the request were released.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g) 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 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 the Executive Director

Records Requested:(as stated by the Complainant)
“Review past Open Space Applications for Palisades Park (re: Tussi Park) – the last several years.”
Request Made:  March 21, 2005
Response Made:  April 12, 2005[1]
Custodian:  James Sattely, Jr.
GRC Complaint filed: April 18, 2005

Background

March 21, 2005
Written Open Public Records Act (OPRA) Request - Complainant seeks to review the last several years of Open Space Applications for Palisades Park.

April 18, 2005
Denial of Access Complaint filed by the Complainant stating that the receptionist in the Custodian’s office was not aware of OPRA. He also stated that although he requested to review records, he was told that he would have to pay for copies. He reiterated that the request was to view records and that pursuant to the OPRA, he does not have to pay to review. On April 11, 2005 he left a message inquiring about the status of his request. On April 12, 2005 he visited the office and was told by the Custodian that his request was not processed because he refused to pay for the records. The Complainant explained to the Custodian that the records request was to view and he did not have to pay to view records. The Complainant stated that training about OPRA needs to be done with the Bergen County Planning and & Economic Development Office.

April 28, 2005
Offer of mediation sent to the Complainant and the Custodian.

May 3, 2005
Statement of Information submitted to GRC staff stating that there was a misunderstanding regarding the records request and therefore there was a delay in processing the request. The Custodian also certified that all records responsive to the request were provided to the Complainant for review on April 12, 2005. Subsequent to his review, the complainant paid the $6.00 copy fee and copies were mailed to him on April 13, 2005.

May 11, 2005
Letter and photocopy attachment of return to sender envelope was sent to GRC staff from the Custodian. The letter stated that the Custodian did try to copy the Complainant on the Statement of Information, however the Complainant refused to accept the mail that was sent. 

Analysis

Whether the Custodian responded to the OPRA request within the statutorily required seven business days?

OPRA provides that:

“[u]nless a shorter time period is otherwise provided b 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 …” 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 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 therefore …”N.J.S.A. 47:1A-5(g)

The Custodian did not respond in the statutory time frame of seven business days, however he has certified that there was a miscommunication in his office that caused the delay in response. Once, the Custodian was aware that the request was still pending, he did provide and has certified that access has been given to the requested records.  While the Custodian did violate N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g), the violation does not rise to a 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 find:

1. The Custodian has certified that the records responsive to the request were released.
2. The Custodian’s violation of N.J.S.A. 47:1A-5(i) and N.J.S.A. 47:1A-5(g) does not rise to the 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

August 5, 2005

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