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2005-87
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its February 17, 2006 public meeting, the Government Records Council (“Council”) considered the February 10, 2006 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 the Custodian did not unlawfully deny access because under OPRA agencies are required to disclose only "identifiable" government records not otherwise exempt pursuant to Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (March 2005) and Bent v. Stafford Police Department, 381 N.J. Super. 30 (October 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. Decision Distribution Date: February 28, 2006 Findings and Recommendations of the Executive DirectorPeter J. Runfolo GRC Complaint No. 2005-87Complainant v. City of Summit Custodian of Records Records Relevant to Complaint:
Request Made: December 28, 2004 Background April 22, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) staff. Complaint included the following attachments:
The Complainant claims that no financial documents such as invoices, vouchers, or checks have been provided to him as proof that the City of Summit spent funds. He claims that he has also been denied access to financial records for funds spent from the County C.D. Program. He states that he has enclosed a letter dated October 10, 2001 in which the Recreation Director allegedly requested funds from the C.D. Program without verification and billing indicating that the project was completed. The Complainant also asserts that on October 22, 2001, the Director of Recreation composed a different set of costs, and claims that items are complete and have been submitted for payment. The Complainant claims that the large difference in costs between May 2, 2000 and October 22, 2001 are false and a violation. He further claims that he has been denied access to the financial documents for this grant. Additionally, the Complainant claims that the City of Summit sent a Request and Authorization for Records Disposal to the State on August 18, 2004 and that on the form, the Clerk indicated that most of the documents requested have been destroyed with permission from the State. The Complainant argues that destroying financial information regarding grants would be a violation. May 2, 2005 Offer of Mediation sent to both parties. May 3, 2005 Complainant’s faxed Agreement to Mediate.[2] May 3, 2005 Letter from Custodian to GRC staff. The Custodian states he is submitting a response to the Complainant’s Denial of Access Complaint. The Custodian claims that based on the Complainant’s wording of his request, staff in the Recreation Department as well as the City Clerk’s Office spent over thirty (30) hours researching for documents free of charge. He argues that the Complainant’s OPRA request did not ask for financial documents. The Custodian states that in an e-mail dated January 5, 2005, the City Clerk’s Office informed the Complainant that he could review all documents they found and identify those documents he wanted copied. He further states that the Complainant did so and that he was provided with documents on January 6, 2005. The Custodian claims that at the time the Complainant viewed all the documents, he did not mention that he was requesting any additional information, or that he was not provided with any information requested. May 10, 2005 GRC staff sends request for Statement of Information to Custodian. May 16, 2005 Custodian’s Statement of Information with the following attachments:
The Custodian states that he received the Complainant’s OPRA request on December 28, 2004 and that the City Clerk’s Office responded to said request on January 5, 2005, not January 6, 2005 as the Complainant alleges. The Custodian certifies that the documents requested by the Complainant do not exist, however attached is a list of documents that the Complainant was provided with and from which he was allowed to choose the documents he wanted copied. He further certifies that the Complainant did not mention any financial documents or request additional information at the time he inspected and copied records as provided by the Custodian. The Custodian states the following is the list of documents that the Custodian was provided:
June 2, 2005 Facsimile from Complainant to GRC staff. The Complainant states that he submitted his Denial of Access Complaint on April 27, 2005 and received information regarding mediation. He claims that he has not received any notification that the Custodian replied and wishes to receive a status update of his complaint. June 21, 2005 Letter from Complainant to GRC staff. The Complainant states that he filed his complaint on April 27, 2005 and submitted his Agreement to Mediate on May 3, 2005. He indicates that he received a copy of an e-mail sent to the Custodian on May 10, 2005 requesting a Statement of Information and has not received a response. He further states that on June 2, 2005 he faxed a request for information regarding his complaint and did not receive a reply. The Complainant requests that staff notify him to bring him up to date regarding this matter. July 11, 2005 GRC staff sends the Custodian’s Statement of Information to the Complainant. July 13, 2005 Letter from Complainant to GRC staff. The Complainant states that he is responding to the Custodian’s May 2, 2005 letter. He asserts that the wording of his December 28, 2004 OPRA request is as follows, “Copies of all letters to and from the City of Summit and the Union County Freeholder Board from 1/1/99 to 12/1/04 pertaining to the Senior Focus Initiative Grant. In addition, all letters and inter office memo’s between your recreation department and the city concerning the Senior Focus Initiative Grant.”[3] The Complainant claims that he has continued to be denied financial documents and that there must have been some financial reports from the City to the Union County Freeholder Board. He further claims that legal guidelines would require correspondence such as letters, memos or invoices to document the proper use of grant money. The Complainant argues that the City must also prove via written documentation that the grant money was spent following all regulations. The Complainant claims that the City stated they were in possession of financial documents concerning the Senior Focus Initiative Grant. He states that withholding these documents is a violation, and if the City is not in possession of said documents, it is also a violation. Additionally, the Complainant asserts that the Administration of Aging requires grantee’s to file financial reports semiannually as well as a final report ninety (90) days following the conclusion of a project. He also claims that on a Standard Form 269, seven (7) financial reports are required per grant. The Complainant asserts that he never received said form. The Complainant states that the Custodian claimed over thirty (30) hours of research in locating the requested documents he received on January 6, 2005. The Complainant claims that the Recreation Department wrote a note to the City Clerk on December 30, 2004 regarding this request. He asserts the note read as follows, “David, here is any info regarding this request. As I said Vito may have more. Reagan and Joyce handled most of it. This took 3.5 hours to find. Can we bill him? These are all copies.”[4] The Complainant claims the note was signed by the Recreation Director. Further, the Complainant notes that the Custodian stated that the documents were provided at no charge. The Complainant claims that this is false, as he was charged $15.50. He also asserts that he was not provided with copies of checks, purchase orders, or invoices and that he did express his concern about the lack of financial documents at the Clerk’s Office and was told, “[t]hat’s all we have.”[5] The Complainant claims that the City Clerk is withholding the financial documents. December 2, 2005 E-mail from GRC staff to Complainant. Staff states that the Complainant’s July 13, 2005 letter references exhibits which are not enclosed. Staff requests that the Complainant submit said exhibits should he still maintain copies. December 10, 2005 Letter from Complainant to GRC staff. The Complainant states that he has enclosed the following documents:
The Complainant asserts that his request to the City of Summit specifically requested ALL letters to and from the City of Summit and the Union County Freeholder Board. The Complainant claims that both financial and programmatic reporting is required by statute for all ADA grant programs. He further claims that there is a budget for the Senior Focus Initiative Grant and that there should be vouchers, invoices, or check stubs on file. The Complainant states that he is enclosing three (3) other documents that he feels may assist his case, including the Union County Board of Chosen Freeholders Senior Focus Application. December 29, 2005 Letter from GRC staff to Custodian. Staff requests a legal certification from the Custodian addressing whether or not the City of Summit maintains any financial documents on file on the same subject matter as the other records requested by the Complainant on December 28, 2004. December 30, 2005 Letter from Custodian to GRC staff. The Custodian asserts that the Complainant’s request did not ask for financial documents. He claims that the Complainant was provided with a list of all documents located responsive to his request and was provided with the copies he chose on January 6, 2005. The Custodian claims that at the time the documents were provided to the Complainant, he did not indicate that he was unsatisfied with the information provided to him. Further, the Custodian states that the Complainant did not come back to request additional information. The Custodian apologizes if this matter is based on a misunderstanding of wording and states that the Complainant is welcome to expand his request. He also states that since he was never asked to specifically provide financial documents he is unable to determine at this time if the City maintains said documents. Additionally, he states that staff has been out of the office due to the holidays therefore he may need additional time searching for these documents. January 5, 2006 E-mail from Custodian to GRC staff. The Custodian states that he is fairly comfortable that he will be able to submit his response to the GRC by January 6, 2006 unless he is given too many “to-dos”[6] by the Council at the organization meeting. January 9, 2006 Letter from Custodian to GRC staff. The Custodian thanks staff for understanding the constraints relating to his delay in responding to staff’s December 29, 2005 letter. He states that the City does not feel that the Complainant was denied access to records based on the wording of his request. He states that the Complainant was provided with the information gathered and from which able to choose the documents he wished to have copied. The Custodian asserts that nowhere in the Complainant’s request was the word “financial” used in reference to the documents requested. The Custodian states that as indicated several times prior, the Complainant is welcome to expand or clarify his request in order to obtain information beyond what he originally requested. He also states that paperwork in the Treasurer’s folder entitled “2000 Supplemental Renovations to Rec Center Garage #2448” indicate expenses charged to the ordinance. Additionally, the Custodian claims that of possible interest to the Complainant are the bid proposal and the contract relating to the improvements of Summit’s Recreation Center. In response to staff’s question of whether the City maintains any financial documents relating to the same subject matter of the records requested by the Complainant on December 28, 2004, the Custodian states that such documents do exist as maintained in the Office of the Treasurer. Analysis Whether the Custodian unlawfully denied access to records requested on December 28, 2004? OPRA 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. Additionally, 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 … or that has been received …”(Emphasis added.) N.J.S.A. 47:1A-1.1. OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states “… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6. The Complainant asserts that he submitted his OPRA request to the City of Summit on December 28, 2004. He claims to have been denied access to financial documents such as invoices, vouchers, or checks, which he asserts are required to be maintained on file. The Custodian states that the Clerk’s Office responded to the Complainant’s request on January 5, 2005 after spending several hours searching its files and on January 6, 2005 provided the Complainant with a list of all documents responsive to his request from which he could choose those documents he wanted copied. The Custodian further states that the wording of the Complainant’s request does not mention any financial documents. The Complainant claims that he raised his concern for the lack of financial documents at the Clerk’s Office and was told that the documents provided were all the documents the Custodian had. The Custodian states that the Complainant did not come back to request additional documents and at this time is welcome to expand his request beyond what he originally requested on December 28, 2004. OPRA places the burden of proving a lawful denial of access on the Custodian pursuant to N.J.S.A. 47:1A-6. In this case the Custodian states that based on the wording of the Complainant’s December 28, 2004 request, his office provided the Complainant with all the records responsive to said request on January 6, 2005 and that the Complainant was able to choose the documents he wanted copied. The Custodian asserts that the Complainant did not mention financial documents in his OPRA request or when he viewed the documents provided to him on January 6, 2005. Further, in Bent v. Stafford Police Department, 381 N.J. Super 30, 37 (October 2005)[7], the Superior Court references Mag in that the Court held that a requestor must specifically describe the document sought because OPRA operates to make identifiable government records “accessible.” “As such, a proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents.”[8] In the case at hand, the Complainant does not specifically request financial documents in his OPRA request but claims that he has been denied access to such. By not specifically requesting these documents on his request form, his request is unclear and the Custodian is unable to identify those documents in order to make them accessible and therefore provided the Complainant with what he thought were all the records responsive. As the Complainant’s original request was made on December 28, 2004 and his Denial of Access Complaint was not filed until April 22, 2005, he had the opportunity to return to the Custodian in order to refine his request, however he did not. Based on the Superior Court rulings in Mag and Bent, the Complainant’s request in this case was overbroad and unclear in that he was seeking financial documents, however he did not clearly request specific documents. Therefore there was not a denial of access as the documents at issue could not be clearly identified as government records “made, maintained, or kept on file” pursuant to N.J.S.A. 47:1A-1.1 because the Complainant’s request was overbroad and unclear. Conclusions and Recommendation The Executive Director respectfully recommends that the Council find that the Custodian did not unlawfully deny access because under OPRA agencies are required to disclose only "identifiable" government records not otherwise exempt pursuant to Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534 (March 2005) and Bent v. Stafford Police Department, 381 N.J. Super. 30 (October 2005). Prepared By: Dara Lownie, Case Manager Approved By: February 10, 2006 [1] As stated in item F of Denial of Access Complaint. |
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