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2005-98
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Final Decision |
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Findings and Recommendations of Executive Director |
Final Decision
At its December 8, 2005 public meeting, the Government Records Council (“Council”) considered the December 2, 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. Decision Distribution Date: December 14, 2005 Findings and Recommendations of Executive DirectorJames Cody, GRC Complaint No. 2005-98Complainant v. Middletown Township Public Schools, Custodian of Records Records Requested:[1] Originally requested August 10, 2004:
Originally requested August 11, 2004
Originally requested August 12, 2004
Custodian: William Doering Background August 10, 2004[4] Complainant’s written Open Public Records Act (OPRA) requests. The Complainant is seeking the following: bids, contracts, agreements, resignations, insurance policies, benefits, checks, reimbursements, and documents regarding construction. August 11, 2004[5] Complainant’s written OPRA requests. The Complainant is requesting records that illustrate how the budget is divided, lawsuits, grant applications, complaints, bills, and standardized test scores. August 12, 2004[6] Complainant’s written OPRA requests. The Complainant is requesting lawsuits and checks. August 31, 2004 Custodian’s response to the Complainant’s August 23, 2004 OPRA requests. The Custodian attached a spreadsheet listing each request and indicates simply whether the request is being denied or requires clarification, as well as what documents were available and a breakdown of the cost for “duplication and labor.” The Custodian also indicated that additional documents and further explanation for any denial or need for clarification would be forthcoming; no further explanation was provided at that time. The Custodian informed the Complainant that $289.32 was required before the requested records could be released. August 31, 2004 Complainant’s e-mail to the Custodian. The Complainant states that he submitted OPRA requests on August 10, 11, and 12 of 2004 and re-requested them on August 23, 2005. The Complainant asserts that he has not yet heard from the Board attorney regarding his requests as promised on August 24, 2004. The Complainant alleges that OPRA indicates that he must have an answer within 24 hours of his request and the request must be fulfilled within 7 days of that date and the Custodian has not complied with either of these deadlines. September 7, 2004 Custodian’s letter to the Complainant “RE: August 23, 2004 OPRA Requests.” The Custodian explains the reasons for denial or requests clarification on each of the Complainant’s OPRA requests.[7]
April 26, 2005 Complainant’s e-mail to the Custodian.[9] The Complainant states that the Board of Education’s adopted fee schedule does not include labor charges, therefore the Custodian should not have charged him for labor on the requests that were made on August 31, 2004. As such the Complainant is requesting immediate reimbursement of the $271.32 paid for labor on his OPRA requests in cash, since he alleges he was forced to pay the fees in cash. April 26, 2005 Complainant’s e-mail to the Custodian, “Re: OPRA Request Charges.” The Complainant is arguing that the Custodian does not have the right to charge for “labor costs.” The Complainant states that the Custodian is asserting the right to charge a special service charge for the “labor” and asserts that OPRA forbids charging for labor. The Complainant goes on to allege that he made 37 requests and only 11 received a reply. The Complainant states that, at the time of the request he was not made aware of any special services or special labor needed to fulfill the request and wishes to be compensated for the $271.32 that he paid to receive the documents requested. April 26, 2005 Custodian’s e-mail to the Complainant, “RE: OPRA Request Charges.” The Custodian asserts that the 37 requests activated on August 23, 2004 are subject to the special service charges outlined in N.J.S.A. 47:1A-5.d. and describes the 37 requests as extraordinary. April 26, 2005 Complainant’s e-mail to the Custodian, “OPRA Request Charges.” The Complainant asserts that the Board of Education’s adopted fee schedule does not include labor charges and the Complainant asserts that he should not have been charged these fees under the fee schedule and the OPRA. The Complainant states he would like to be reimbursed for these fees in cash as he was forced to pay them in cash. April 27, 2005 Complainant’s e-mail to the Custodian, “RE: OPRA Request Charges.” The Complainant indicates that a special service charge is allowed only in those cases where “it takes special equipment that is not ready available to you and not being in your office.” The Complainant states that he submitted 37 requests that were not abnormal and only 11 were fulfilled and the 11 requests. The Complainant asserts that his requests did not require added labor or special technology or equipment that is not readily available. Therefore he would like a reimbursement of the fees paid for labor. April 27, 2005 Custodian’s e-mail to the Complainant, “RE: OPRA Request Charges.” The Custodian indicates that in the frequently asked questions on the Government Records Council (GRC) website it states “special service charges may be set for duplication when the copies take special effort or equipment.”[10] The Custodian states that he feels that the OPRA requests were handled reasonably and states that “at the time of [the Complainant] being presented with these charges, [the Complainant] authorized [the Custodian] going forth and paid them.” April 27, 2005 Complainant’s e-mail to the Custodian, “RE: OPRA Request Charges.” The Complainant states that the labor charges incurred for the production of the requested records was unreasonable and questions the fact that he was charged for 6 hours of labor to copy a few contracts. The Complainant states that since the Custodian seems to feel the charges were reasonable and the Complainant does not agree he will be filing a complaint with the GRC. May 16, 2005 Complainant’s Denial of Access Complaint with the following attachments:
The Complainant asserts that he was overcharged for records, denied records, and it took too much time to respond to his request. May 20, 2005 Mediation forwarded to both parties. May 23, 2005 Custodian’s signed Agreement to Mediate. May 27, 2005 Complainant’s e-mailed declination of mediation. June 1, 2005 Custodian’s Statement of Information with the following attachments:
The Custodian states that the Complainant submitted 8 requests on 8/10/2004, 24 requests on 8/11/2004 and 5 requests on 8/12/2004 however these requests were “put on hold 8/17/2004 by [the Complainant] due to the time required for these requests with the opening of schools just a couple weeks away” and all were resubmitted on 8/23/2004. The Custodian asserts that the Complainant was forwarded a response within seven (7) business days and that the information set forth in that response, August 31, 2004 “Custodian’s response to the Complainant’s August 23, 2004 OPRA requests” and the September 7, 2004 “Custodian’s letter to the Complainant ‘RE: August 23, 2004 OPRA Requests,’” outline the responses to each request. The Custodian states that of the 37 requests; 12 were approved, 18 required clarification, and 11 were denied or no document existed and many of the requests were extraordinary on an individual basis and needed review by the Board Attorney. The Custodian states that the August 31, 2004 letter indicated that a more detailed letter was forthcoming regarding the clarification or denials of the requests and that letter was forwarded, as promised, to the Complainant on September 7, 2004. The Custodian asserts that August 31, 2004 letter also requested $289.32 “for copying and labor (special service) charges incurred through that point in time for his requests.” The Custodian states that the Complainant picked up the initial batch of records and paid the $289.32 on November 18, 2004. In regard to the Complainant’s assertion that he was overcharged for the records requested the Custodian states that the $289.32 was for labor and copying “for the 11 documents initially provided, as well as the district already incurring much time and effort with regards to all of the other requests, many of which were extraordinary, through that point- as documented in the August 31, 2004 letter and culminating in the September 7, 2004 letter, both provided to [the Complainant].” The Custodian states that the Complainant is now disputing the labor charges which he had previously agreed to and paid for. The Custodian cites N.J.S.A. 47:1A-5.d allowing for the special service charges for labor. The Custodian contends that while the Complainant was billed for only 4 hours of a secretary’s time at her actual hourly rate, it in fact took over 8 hours for her to work on these requests and instead of the 7 hours of the Custodian’s time actually spent, the Complainant was only charged for 2 hours. The Custodian asserts that a response was provided within seven (7) business days of the August 23, 2005 reactivation of the requests. The follow-up letter was provided on September 7, 2005 after the Board Attorney reviewed a number of the requests, detailing the status of the 26 requests not provided. The Custodian states that “although we received 37 requests from one individual to address in a short period of time, all approved and available documents were provided within 7 days, and a detailed explanatory letter was provided a week later to cover all of his other requests.” The Custodian indicates in the breakdown 8.5 hours of time actually spent fulfilling the request; secretarial time at $29.14 and 7 hours for the business administrator at $77.38 totaled $774.78. The Custodian states he only charged the Complainant 4 hours of secretarial time and 2 hours of business administrator time totaling $271.32. September 9, 2005 GRC staff e-mail to the Complainant, “GRC Complaint 2005-98, Cody v. Middletown Township Public Schools.” The GRC staff asks that the Complainant complete an excel spreadsheet, provided as an attachment, which itemizes each request made and the Custodian’s position, to indicate the date the document requested was received or, if not released, the Complainant’s position on the Denial of Access to the requested record. September 14, 2005 Complainant’s response to the September 9, 2005 GRC staff e-mail to the Complainant.[12] The Complainant contends that the issue in this case is that he was charged labor costs on this request totaling $154.36. The Complainant states that the OPRA only allows for a special service charge when extraordinary equipment is needed to complete the request and that was not the case. The Complainant states that he received a letter stating the requests needed clarification but the requests were not fulfilled. October 19, 2005 GRC staff e-mail to the Complainant. The GRC staff requests that the Complainant indicate if the Denial of Access complaint encompasses all 37 requests resubmitted on August 23, 2004 or just those for which copies have been included with the Complaint. The GRC staff states that if there are copies of requests that were not submitted with the Denial of Access Complaint that should be part of the Complaint the Complainant must forward copies of those documents. The GRC staff also asked if the Complainant responded to the Custodian’s requests for clarification. The GRC staff indicates that a response to this e-mail must be received no later than October 24, 2005 or the case will be determined based on the submissions made thus far.[13] November 18, 2005 GRC staff e-mail to the Complainant. The GRC staff requests clarification as to whether or not the Complainant had, in fact, submitted the requests on August 10, 11 and 12 of 2004 and then put them on hold as of August 12, 2004 and reactivated them on August 23, 2004 as the Custodian claims. The GRC staff also notifies the Complainant that a lack of response will result in the Council considering all of the 37 requests that are subject of this complaint as one request, just as the Custodian addressed them.[14] Analysis Whether access was unlawfully denied to the requesteddocuments pursuant to N.J.S.A. 47:1A-1 et. seq.? The 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 in the following way: “ … 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 responsibility for proving a claimed exemption on the Custodian. N.J.S.A. 47:1A-6 states in relevant part: “… [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. N.J.S.A. 47:1A-5.i explicitly states: “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... 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…” (Emphasis added) N.J.S.A. 47:1A-5.g provides that: “…If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor …” The Complainant requested a number of documents on August 10, 11 and 12 of 2004, rescinded his request and resubmitted them on August 23, 2004. The Custodian responded to each of the items requested on August 31, 2004 in a spreadsheet listing each of the requests and whether the request was approved, denied or needed clarification. The Custodian then sent out further explanation to the Complainant addressing each of the requests individually, clarifying the reasons for denial or detailing what exactly needed to be clarified in order to fulfill the request. In GRC Case 2003-154, Linderman v. Department of Community Development the Custodian requested clarification from the Complainant in order to fulfill the records request however, the Complainant did not provide clarification and as a result the Complaint was dismissed. Additionally, the New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1." (Emphasis added.) Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March 2005). The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files." (Emphasis added.) Id. at 549. In this case, the Custodian notified the Complainant via letter on August 31, 2004 that certain portions of the request required clarification. The Custodian then followed up on that letter September 7, 2004, further establishing what needed to be clarified by the Complainant in order to fulfill the request. The Custodian therefore, fulfilled the statutory obligation to respond to the request in writing to those requests that needed clarification within seven (7) business days of the resubmission of these requests on August 23, 2004. The Complainant has declined to confirm or deny whether clarification was made regarding these requests. Considering that the Custodian did respond in a timely manner to those requests that required clarification and the Complainant did not provided the requested clarification there was no denial of access to those records that required clarification from the Complainant. The Custodian responded on August 31, 2004 to Records Requested “9,” “29,” “31,” “34,” and “36” indicating that the requested records were not available or were not public records and that a letter was forthcoming providing an explanation. The Custodian then provided further explanation in writing on September 7, 2004. N.J.S.A. 47:1A-5.i. indicates that a Custodian has seven (7) business days to respond to a request for access providing a specific lawful basis in the event of a denial. Because the Custodian did not provide a specific legal basis for the denial to these records within the statutorily prescribed seven (7) business days there is a violation of N.J.S.A. 47:1A-5.i. as well as N.J.S.A. 47:1A-6 which places the burden on the Custodian to prove a denial of access was lawful. It is found that, in the case of the records that needed clarification, there is no denial of access to records because the Custodian did properly respond to those requests in writing within the statutorily required seven (7) business days, indicating to the Complainant that clarification was necessary but did not receive a response. Additionally, the Custodian did violate N.J.S.A. 47:1A-5.i and -5.g and N.J.S.A. 47:1A-6 by not providing a specific lawful basis for the denial of access to Records Requested “9,” “29,” “31,” “34,” and “36” within the statutorily prescribed seven (7) business days. Whether the Custodian properly responded to the Complainant’s request for contracts, bills pursuant to N.J.S.A. 47:1A-5.e and N.J.S.A. 47:1A-5.g? The Open Public Records Act (OPRA) provides for “immediate access” to bills. 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 Additionally, 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 thereof…” Encompassed in the August 23, 2004 records request the Complainant asked for a number of bills and contracts. The Custodian responded on August 31, 2004, indicating to the Complainant which of these documents was available for his review and which documents needed further clarification. At that time, the Custodian informed the Complainant that Records Requested “3,” “6,” “7,” “21,” and “23” were available for his review. The Custodian also responded to the Complainant indicating that Records Requested “16,” “17” and “33” needed further clarification and that a letter was forthcoming. That letter was sent to the Complainant on September 7, 2004. Contrary to N.J.S.A. 47:1A-5.e, which indicates that “immediate access” must ordinarily be granted to these types of records, the Custodian did not make available the requested records until August 31, 2004 and the Complainant was not provided explanation of extraordinary circumstances that would justify a delay in access to these records. Additionally, the Custodian did not immediately inform the Complainant that clarification was needed in order to fulfill the request. While the Custodian did not ultimately deny access to the bills and contracts included in the request, there was a violation of N.J.S.A. 47:1A-5.e and N.J.S.A. 47:1A-5.g due to the untimely response of the Custodian regarding these records. Therefore, the Custodian violated N.J.S.A. 47:1A-5.e and N.J.S.A. 47:1A-5.g in not providing immediate access or an immediate response to the request for contracts and bills pursuant to the OPRA. WHETHER the Custodian properly charged the Complainant a special service charge for fulfillment of the requests? OPRA provides that: “Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge… The requestor shall have the opportunity to review and object to the charge prior to it being incurred.” (Emphasis added.) N.J.S.A. 47:1A-5.c. The Complainant indicates in the Denial of Access Complaint that he does not think he was appropriately charged labor costs for the records he received. The Complainant asserts that his requests did not require added labor, special technology or equipment that is not readily available which he states are required for the implementation of a special service charge. The Custodian states that the $289.32 was for labor and copying “for the 11 documents initially provided, as well as the district already incurring much time and effort with regards to all of the other requests, many of which were extraordinary, through that point - as documented in the August 31, 2004 letter and culminating in the September 7, 2004 letter, both provided to [the Complainant].” The Custodian states that the Complainant is now, many months later, disputing the labor charges which he had previously agreed to and paid. The GRC determined in case 2005-19, Reiss v. Rutgers University that pursuant to N.J.S.A. 47:1A-5.c., the Complainant was given the opportunity to object to the special service charge prior to the cost being incurred and agreed to and paid the charge, therefore reimbursement of the charge after the fact was not justified. In the case at hand, the Custodian certifies and has provided documents to show that the Complainant was made aware of the amount and breakdown of the special service charge via letter on August 31, 2004. The Complainant agreed to the charges and paid them in full. The Complainant has not indicated that he objected to the charge at the time it was quoted to him. The Complainant paid for and received documents. There is no evidence of an objection to the charge prior to payment. Pursuant to N.J.S.A. 47:1A-5.c. and given that the Complainant was allowed time to review and object to the special service charge, but instead agreed to and paid the full amount of the charge, this portion of the Complaint should be dismissed. Conclusions and Recommendations The Executive Director respectfully recommends the Council find:
Prepared By: Colleen McGann, Case Manager Approved By: December 2, 2005 [1] The Complainant made 37 separate requests, however copies of only 12 of the OPRA requests were included with the Denial of Access Complaint. ‘*’ indicates those requests submitted with the Complaint. |
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