2006-04

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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 would not have unlawfully denied access to the requested records as he certifies that he provided the Complainant with records responsive to item #2 of her request, provided the Complainant with information responsive to item #3 and item #5, and that no documents currently exist in response to item #1, item #4, and item #6, except that his failure to respond within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i..

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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.

Final Decision Rendered by the
Government Records Council
On The 11^th Day of April, 2006

Robin Berg Tabakin, Vice Chair
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Catherine Starghill, Executive Director
Government Records Council

Findings and Recommendations of the Executive Director

Request Made: December 13, 2005
Response Made: December 23, 2005 and January 13, 2005
Custodian: Frank Amoresano
GRC Complaint filed: December 28, 2005

Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant seeks the following: any and all documents regarding tickets issued to individuals parked, occupied, dropping people off, loading or unloading illegally in handicapped designated spaces for the year 2005; any and all documents regarding the process of how University handicapped parking tickets are issued; the process of Rowan’s Parking Appeal Board; a report on what tickets were issued to which individuals, if said individuals were found guilty or not guilty, the fine imposed, and if said fine was paid or not; what procedures are used to collect a fine that is outstanding; and to view a Rowan Parking Appeal Board Hearing.

Custodian’s response to the Complainant’s OPRA request. The Custodian acknowledges receiving the Complainant’s December 13, 2005 request. He states that there are some areas of the request that he would like to discuss with the Complainant so that he can respond and requests that she contact him by phone.

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachment: Complainant’s December 13, 2005 OPRA request. The Complainant asserts that she submitted her OPRA request on December 13, 2005 and that to date she has not received any response from the Custodian.

Letter from Custodian to Complainant. In said letter, the Custodian breaks down each request and provides his responses accordingly. The Custodian states that the Complainant first requested any and all documents regarding tickets issued to individuals parked, occupied, dropping people off, loading or unloading illegally in handicapped designated spaces for the year 2005. He asserts that the University parking ticket system is not structured to “easily or readily provide this information.”[2] He states that a reprogramming of the system, which he claims will take at least one half day of the programmer’s time which the Complainant should pay for, is necessary to obtain the requested information.

The Custodian then states that the tickets will have to be reviewed to determine if the ticket involves a vehicle owned by a student or a faculty member. He states that under FERPA, student disciplinary records are not releasable without student consent. He also claims that employee tickets may fall under OPRA’s personnel records exemption but that tickets issued to the public have no restrictions.

In response to the Complainant’s request to view all documents regarding the process of how University handicapped parking tickets are issued, the Custodian states that he has enclosed Resolution # 5 and Resolution # 8.

Regarding the request to view the process of Rowan’s Parking Appeal Board, the Custodian asserts that the Rowan Parking Appeal Board Hearings are closed hearings. He states that an individual appealing a ticket does so in writing identifying why he/she is not responsible for the infraction and then the Board decides the case and notifies the individual in writing.

Additionally, the Custodian states that the Complainant requested a report on what tickets were issued to which individuals, if said individuals were found guilty or not guilty, the fine imposed, and if said fine was paid or not. The Custodian asserts that the Director of Public Safety indicated that no such report is routinely kept and that a special report would have to be created in response to this request.

Regarding the Complainant’s request for procedures used to collect outstanding fines, the Custodian states that students receive notices of fines and if they are ignored a hold is put on their student records. He also states that employees receive notices of fines and if necessary a report is filed with the appropriate Vice President. For non-student and non-faculty fines, the Custodian states that letters are sent, cars may be impounded if found on campus, and collection agencies may be used.

Finally, in response to the request to view a Parking Appeal Board Hearing, the Custodian asserts that these are closed hearings because they may involve confidential student records or employee personnel files.

Custodian’s Statement of Information (“SOI”) with the following attachments:

The Custodian certifies that no requested documents that exist have been withheld from the Complainant. He certifies that he has “reasonably requested payment for programming costs necessary to initially determine what tickets fall within the request.”[3] The Custodian additionally certifies that after such documents are received, a further analysis will be required to determine whether the documents are releasable, which the Custodian certifies he advised the Complainant of in his January 13, 2006 letter. He further certifies that the Complainant requested non-OPRA information such as being able to attend hearings and documents that do not exist.

Whether the Custodian unlawfully denied access to records requested on December 13, 2005 ?

“…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 …” (Emphasis added.)

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.

“[u]nless a shorter time period is otherwise provided by 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 …” (Emphasis added.) N.J.S.A. 47:1A-5.i.

“…If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor 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 therefor …”N.J.S.A. 47:1A-5.g.

The Custodian asserts that she submitted her OPRA request on December 13, 2005 and claims to have received no response from the Custodian. The Custodian certifies responding to said request on December 23, 2005 and January 13, 2006. He further certifies that no existing documents have been withheld from the Complainant. His January 13, 2006 letter to the Complainant provides the following responses to the Complainant’s requests (the Custodian certifies to this in his Statement of Information):

Item Requested by the Complainant	Response Given by the Custodian
Any and all documents regarding tickets issued to individuals parked, occupied, dropping people off, loading or unloading illegally in handicapped designated spaces for 2005	Ticket system not structured to readily provide this information. A reprogramming of the computer system is required. Student tickets are not releasable under FERPA without student consent. Employee tickets may be exempt under OPRA’s personnel records exemption.
All documents regarding the process of how handicapped parking tickets are issued	Resolution # 5 and Resolution # 8
To view the Rowan University Parking Appeal Board’s process	Closed hearings. Individuals appeal in writing and the Board decides the case and notifies the appellant in writing.
A report on what tickets were issued to which individuals, if said individuals were found guilty or not guilty, the fine imposed, and if said fine was paid or not.	No such report is routinely kept. A special report would have to be created.
What procedures are used to collect a fine that is outstanding	Students and employees receive notices indicating fines. If ignored a hold may be placed on a student’s records and a report may be filed with an employee’s appropriate Vice President. Non-student and non-faculty fines are sent via letter, collection agencies may be used and cars may be impounded if found on campus.
To view a Rowan Parking Appeal Board Hearing	Closed hearings because they may involve confidential student records or employee personnel files.

As such, OPRA does not obligate a Custodian to create a document in response to a records request. In this case, the Custodian would have had to create government records in response to the Complainant’s request for tickets issued for handicapped violations as well as a report of what tickets were issued to which individuals, if said individuals were found guilty or not, the fine imposed, and if said fine was paid, as the Custodian certifies that these documents do not currently exist. Additionally, as the Complainant’s requests for the process of Rowan’s Parking Appeal Board, what procedures are used to collect a fine that is outstanding, and to view a Rowan Parking Appeal Board Hearing are all requests for information rather than identifiable government records, the Custodian was not obligated to provide such information under OPRA as he did in his January 13, 2005 letter to the Complainant.

Additionally, N.J.S.A. 47:1A-5.g. states that a custodian must provide a written response to a records request and N.J.S.A. 47:1A-5.i. mandates that said response must be within seven (7) business days upon receiving a request for records. Here, the Complainant asserts that she submitted her OPRA request on December 13, 2005. However the Custodian did not respond to the Complainant’s December 13, 2005 OPRA request until December 23, 2005, which is the eighth business day following receipt of the request. On December 23, 2005, the Custodian states that he attempted to seek clarification of the request and when he did not receive any clarification from the Complainant, he submitted another written response on January 13, 2006. Both responses go beyond the statutorily mandated seven (7) business day time frame prescribed under OPRA creating a “deemed” denial of the request pursuant to N.J.S.A. 47:1A-5.i.

OPRA places the burden on the Custodian to prove that a denial of access is lawful pursuant to N.J.S.A. 47:1A-6. In the Custodian’s January 13, 2006 response to the Complainant, he itemizes each of the Complainant’s requests and either grants or denies access. Specifically, the Custodian provides the Complainant with two (2) resolutions responsive to her request for records regarding the process of how handicapped tickets are issued.

The Custodian also provides the Complainant with information responsive to her requests to view the University’s Parking Appeal Board’s process and the procedures used to collect outstanding fines, even though OPRA does not require him to do so as these are requests for information, not records.

The Custodian denies the Complainant’s request to view a Rowan Parking Appeal Board Hearing by stating that hearings are closed because they may involve confidential student records or employee personnel files. In his Statement of Information, the Custodian also states that this request is not an OPRA request as the Complainant is requesting to view a Board Hearing.

Finally, in response to the Complainant’s request for tickets issued to individuals parked illegally in handicapped designated spaces and a report on what tickets were issued to which individuals, if said individuals were found guilty or not, the fine imposed, and if said fine was paid or not, the Custodian certifies that government records would have to be created in order to satisfy these requests. OPRA does not require Custodians to create documents in response to records requests.

Thus, the Custodian would not have unlawfully denied access to the requested records as he certifies that he provided the Complainant with records responsive to item #2 of her request, that he provided the Complainant with information responsive to item #3 and item #5, and that no documents currently exist in response to item #1, item #4, and item #6, except that his failure to respond within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i.

The Executive Director respectfully recommends the Council find that the Custodian would not have unlawfully denied access to the requested records as he certifies that he provided the Complainant with records responsive to item #2 of her request, provided the Complainant with information responsive to item #3 and item #5, and that no documents currently exist in response to item #1, item #4, and item #6, except that his failure to respond within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i..

[1] Neither party agreed to mediate this case.
[2] As stated in Custodian’s January 13, 2006 letter.
[3] As stated in Custodian’s Statement of Information.