2005-80

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 the denial of access was proper under OPRA since she provided the Complainant with specific reasons for her inability to fulfill the request and the Complainant provided no clarification.
2. The Custodian provided a written response to the April 21, 2005 OPRA request on April 26, 2005.  The Custodian’s response was timely and in conformity with the provisions of the Open Public Records Act.

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)
“Correct written procedure to file a formal complaint against the Old Bridge tax assessor and code enforcer.”
Request Made:  April 21, 2005
Response Made:  No response at time Complaint filed[1]
Custodian:  Rose Marie Saracino
GRC Complaint filed: April 21, 2005

Background

April 21, 2005
Written Open Public Records Act (OPRA) Request - Complainant seeks “Correct written procedure to file a formal complaint against the Old Bridge tax assessor and code enforcer.”

April 21, 2005
Denial of Access Complaint filed by the Complainant stating that he submitted an OPRA request and it was “never answered.”  He submitted a copy of his OPRA request with the complaint.

April 27, 2005
Offer of mediation provided to the Complainant and the Custodian. 

April 28, 2005
The Complaint declined mediation by e-mail. 

May 3, 2005
The Custodian provided a response to the Government Records Council (GRC) staff concerning the complaint.  The Custodian stated that a response to the OPRA request was sent to the Complainant on April 26, 2005 with an accompanying memo from the Township Attorney requesting further clarification from the Complainant pertaining to his request.  In the Attorney’s memo, he stated that clarification was needed from the requestor concerning what he meant by “a formal complaint.”  He inquired whether the requestor was seeking a “criminal complaint,” “ethics complaint,” or “some other type of complaint.”   He further asked that the requestor be more specific in his reference to “Code Enforcer.”

July 21, 2005
E-mail to the Custodian from GRC staff requesting a certification explaining her position in response to the complaint and the OPRA request. 

July 25, 2005
The Custodian stated in response to the July 21, 2005 e-mail that in the April 26, 2005 letter response to the Complainant she was seeking clarification concerning his OPRA request “so we would better be able to answer his request.”  She stated further that she attached the memo from the Township Attorney, which explained what information was needed from him to clarify the request. 

August 1, 2005
The Custodian certified that after sending the April 26, 2005 letter with the memo from the Township Attorney to the Complainant requesting further clarification, she did not receive any response. 

Analysis

WHETHER the Custodian unlawfully denied access to records requested in the April 21, 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 of proving that the denial of access is authorized by law…”

Upon receipt of the OPRA request, the Custodian and Township counsel determined that clarification was needed from the Complainant in order to fulfill the request.  In the Custodian’s April 26, 2005 response to the Complainant, she requested clarification and included the Township counsel’s memo that explained what information was needed.  The Custodian states in her certification that the Complainant did not respond to the request for clarification.  In previous decisions, the Government Records Council found that a denial of access was proper when clarification was needed to fulfill an overbroad request and it was not provided (see Karen Liebel v. Manalapan Englishtown Regional Board of Education, GRC Complaint 2004-51).

In this case, the Custodian has met the burden of proving that the denial of access was proper under OPRA since she provided the Complainant with the specific reasons for her inability to fulfill the request and the Complainant provided no clarification.  

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

N.J.S.A. 47:1A-5(i) 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(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 therefore …”

The Custodian provided a written response to the April 21, 2005 OPRA request on April 26, 2005.  The Custodian’s response was timely and in conformity with the provisions of OPRA.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

1. The Custodian met the burden of proving that the denial of access was proper under OPRA since she provided the Complainant with specific reasons for her inability to fulfill the request and the Complainant provided no clarification.
2. The Custodian provided a written response to the April 21, 2005 OPRA request on April 26, 2005.  The Custodian’s response was timely and in conformity with the provisions of OPRA.

Prepared By: Gloria Luzzatto, Assistant Executive Director

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

August 5, 2005

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