2005-95

At its October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 7, 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:

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 28^th Day of October, 2005

Diane Schonyers, Vice-Chair
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

Findings and Recommendations of the Executive Director

Records Requested: Copies of Tax Book pages 1 through 5
Request Made: May 10, 2005
Response Made: May 10, 2005[1]
Custodian: Rola Dahboul – Township of Weehawkin
GRC Complaint filed: May 18, 2005

Letter from the Custodian to the Complainant. The Custodian informed the Complainant that the fee for the records requested is $3.75 and that the requested records are available for pick up.

Complainant’s Denial of Access Complaint with the attachment of the May 12, 2005 letter from the Custodian to the Complainant. The Complainant states that he went to the Tax Collector’s office where he viewed the current tax book and requested copies of the first five pages. The Complainant alleges that he was told by an employee there that they were too busy to copy the records he requested and that the copy machine was broken. The Complainant states that he then went to the Clerk’s office to file an Open Public Records Act (OPRA) request for the records and was told that he would be contacted later. The Complainant states that all that needed to be done to fulfill his request was to bring the tax book down to the Clerks office for copying but the person in the Tax Collector’s office would not allow the book to leave her office.

The Complainant asserts that the records were available immediately and should have been released to him at that time. The Complainant indicates that the Custodian sent a letter two days later to inform him that the records were available for pick up but by that time the records were of no use to him because he had copied the information by hand.

Statement of Information submitted by the Custodian’s counsel.[2] The Custodian’s counsel states that “all records requested were made available within two (2) days of the request, by written notice to the Complainant.” The Custodian’s counsel asserts that the Complainant was offered the opportunity to inspect and hand copy the requested records immediately, completed an OPRA request form and was offered copies of the requested documents within the statutorily prescribed 7-business days.

Complainant’s e-mailed declination of mediation.[3]The Complainant states that he had viewed the tax book and the “complaint is based on the fact that copies which should have also been immediately available were denied.”

E-mail from the Government Records Council (GRC) staff. The GRC staff requested a certification of the Custodian addressing the facts of the case and the agency’s position as set forth in the Statement of Information.[4]

WHETHER access was unlawfully denied to the requested copies of the Tax Book?

“…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” N.J.S.A. 47:1A-1.

“…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 in the course of his or its official business…” (Emphasis added.) N.J.S.A. 47:1A-1.1.

The OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:

“…The 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 indicates that he was denied access to the requested records because he was not provided copies immediately. The Complainant states he was given the opportunity to review and copy the records by hand but the woman in the Tax Collector’s office informed him that she was unable to make copies at that time because the copy machine was broken and she was too busy. The Complainant states that he then went and made an OPRA request for the records at the Clerk’s office and was told he would be contacted. The Complainant and the Custodian state that the Complainant was notified in writing on May 12, 2005, two days after the request was made, that the records were available for pick-up. The Complainant states that by that time the records were of no use to him because he already hand-copied the pages.

The OPRA states that records should be readily available to the public for inspection, copy or examination. In this case both the Custodian and the Complainant assert that the records were immediately offered to the Complainant for his examination and hand-copying. Additionally, copies of the records were made available to the Complainant within two days of the request. Therefore there is no evidence of a denial of access to the requested records.

Based on the assertion by the Custodian and the Complainant that the records were immediately accessible to the Complainant for review and copies were made available within 2 days of the receipt of the request there is no denial of access pursuant to the OPRA.

Whether the Custodian responded to the Complainant’s request for copies of the Tax Book within the statutorily required time period pursuant to the OPRA?

“Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived...” N.J.S.A. 47:1A-5.i.

“…A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record…” N.J.S.A. 47:1A-5.g.

The Open Public Records Act (OPRA) provides for “immediate access” to certain documents. Specifically, OPRA states:

“Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.” (Emphasis added.) N.J.S.A. 47:1A-5.e.

The Complainant indicates in the Denial of Access Complaint that he should have been provided copies of the requested pages of the Tax Book immediately as they were immediately available for his review. The Custodian asserts that the Complainant was given the opportunity to review the Tax Books and make copies by hand at the time of his request but was told that he would be contacted when the paper copies had been prepared for pick-up. The Complainant and the Custodian both state that notification was sent to the Complainant in writing, two days after receipt of the request informing the Complainant that the documents were ready for pick-up.

The OPRA stipulates that a Custodian must provide or deny access to a record as soon as possible but no later than seven (7) business days from the receipt of the request. The Complainant was permitted to view the requested records immediately and was informed that they were ready for pick up on May 12, 2005. The Complainant contends that the Custodian was in violation of the OPRA in not providing copies of the requested records immediately. While the OPRA does provide for immediate access to certain types of records copies of the Tax Books are not included under this portion of the statute, thus immediate access does not apply. Therefore, the Custodian acted in accordance with the OPRA in providing the Complainant immediate access to review the requested Tax Book and making copies available to the Complainant within two days of the request.

The Custodian has acted in accordance with the OPRA by providing copies of the requested Tax Book pages within the statutorily required seven business day period pursuant to N.J.S.A. 47:1A-5.i.

[1] As stated by the Complainant in the Denial of Access Complaint
[2] The Custodian provided a signed copy of page 3 of the Statement of Information on September 13, 2005.
[3] No written response to mediation by the Custodian.
[4] The Custodian provided a signed copy of page 3 of the Statement of Information on September 13, 2005.