2006-10

Vesselin Dittrich                          GRC Complaint No. 2006-10 and 2006-11
Complainant
         v.
City of Hoboken
Custodian of Records

Records Relevant to Complaint:

1. All letters from Hoboken residents to the Mayor in his official capacity as Mayor and the Mayor’s responses from July 1, 2005 to present
2. All letters from Hoboken residents to the Mayor in his official capacity as Mayor and the Mayor’s responses from October 1, 2005 to present.

Request Made: November 16, 2005
Response Made: November 23, 2005
Custodian: Michael Mastropasqua
GRC Complaint filed: January 13, 2006[1]

Background

November 16, 2005

Complainant’s written Open Public Records Act (“OPRA”) request.  The Complainant seeks all letters from Hoboken residents to the Mayor in his official capacity as Mayor as well as the Mayor’s responses from July 1, 2005 to present.

November 16, 2005

Complainant’s second OPRA request.  He is seeking all letters from Hoboken residents to the Mayor in his official capacity as Mayor as well as the Mayor’s responses from October 1, 2005 to present.

November 23, 2005

Custodian’s response to Complainant’s November 16, 2005 OPRA requests.  The Custodian states that he is not providing the requested documents because the Complainant’s requests are overly broad.

January 13, 2006

Denial of Access Complaints[2] filed with the Government Records Council (“GRC”) with the following attachments:

• Complainant’s November 16, 2005 OPRA requests
• Custodian’s November 23, 2005 responses

The Complainant states that he provided his OPRA requests to the Custodian on November 16, 2005 and that his requests were denied on November 23, 2005 because the Custodian claimed they were overly broad.  The Complainant also indicates that he has filed action in Superior Court concerning these record requests and lists Docket No. HUD-L-5338-05.[3]  He claims that the court action does not concern these requests, but it does concern the documents sought in them. 

January 23, 2006

Offer of Mediation sent to both parties.

January 25, 2006

Complainant’s faxed Agreement to Mediate.

January 27, 2006

Custodian’s faxed Agreement to Mediate.

February 2, 2006

E-mail from Complainant to GRC staff.  The Complainant states that his Superior Court case HUD-L-5338-05 concerns his request to access letters from residents of Hoboken to the Mayor in his official capacity as Mayor and the Mayor’s responses in 2005.  The Complainant claims that in his responsive pleading and/or further submissions to the court, he will amend the relief sought to only concern the time period of January 1, 2005 to June 30, 2005. 

Analysis

Whether the Council may adjudicate a denial of access complaint when the Complainant has affirmatively asserted on the Denial of Access Complaint form that he has also instituted a Superior Court case regarding access to the same records at issue in the denial of access complaint filed with the Council?

OPRA provides that:

“[a] person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

• institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
• in lieu of filing an action in Superior Court, file a complaint with the Government Records Council…” (Emphasis added.) N.J.S.A. 47:1A-6.

When asked on the Denial of Access Complaint form, “Have you filed any action with the N.J. Superior Court concerning this record or any document sought in it,” the Complainant affirmatively asserted that an action has been filed in Superior Court and indicated Docket No. HUD-L-5338-05.  The Complainant states that this court action does not concern his November 16, 2005 requests; however he states that it does concern the documents sought in said requests.  He states that his Superior Court case concerns access to letters from residents of Hoboken to the Mayor in his official capacity as Mayor and the Mayor’s responses in 2005.  The Complainant claims that he intends to amend the relief sought by the courts to only concern the time period of January 1, 2005 to June 30, 2005.

Pursuant to N.J.S.A. 47:1A-6, a requestor who is denied access may, at their option, institute an action in the Superior Court of New Jersey or file a complaint with the Government Records Council.  The language of the statute is clear that the requestor may either institute an action in Superior Court or file a complaint with the Council, but not do both. According to the Complainant’s Denial of Access Complaint form, he has filed an action with the Superior Court concerning access to the records in the records request at issue in this complaint. 

In Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005) the Council found that it could not adjudicate the complaint because the Complainant affirmatively asserted that she instituted an action in Superior Court regarding access to the same records that are at issue in the denial of access complaint filed with the Council. The facts of the complaint before the Council now exactly mirrors those in Mosee.  Therefore, like in Mosee, the Council is statutorily precluded from adjudicating this complaint. 

Based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council’s decision in Mosee, the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.         

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that based on the fact that the Complainant affirmatively asserted on the Denial of Access Complaint form that he instituted a Superior Court case regarding access to the records that are the subject of this denial of access complaint and the Council’s decision in Mosee v. Atlantic City Police Department, GRC Case No. 2005-33 (September, 2005), the Council is statutorily precluded from adjudicating this complaint pursuant to N.J.S.A. 47:1A-6.

Prepared By:  Dara Lownie, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

March 3, 2006