2006-18

Final Decision

At its March 9, 2006 public meeting, the Government Records Council (“Council”) considered the March 3, 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 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.

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 9^th Day of March, 2006

Vincent Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  March 15, 2006

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Findings and Recommendations of the Executive Director

Records Relevant to Complaint: Termination of parental rights or records of adoption for CoSandra Johnson.
Request Made:  April 6, 2002, April 26, 2003 and April 28, 2003
Response Made:  April 10, 2002 and May 29, 2003
Custodian:  Aileen Williams
GRC Complaint filed:  January 29, 2006

Background

April 6, 2002

Letter from Complainant to Bill Pascrell, Jr., Member of U.S. Congress.  The Complainant is requesting his assistance is obtaining records from the Department of Human Services - Division of Youth and Family Services (“DYFS”) regarding her daughter, CoSandra L. Johnson. 

April 10, 2002

Letter from Congressman Bill Pascrell, Jr., to Complainant.  Mr. Pascrell states that he has enclosed a letter from the Commissioner of the Department of Human Services in response to the Complainant’s request for DYFS records. 

In the Commissioner’s letter dated April 2, 2002, she claims that she has contacted DYFS to research the situation for the Complainant.  She states that in 1999 the Superior Court of Essex County ordered that the Complainant was not to attempt any further legal action without the approval of the presiding judge of the civil part.  As such, the Commissioner states that the Superior Court of Essex County has legal jurisdiction regarding any actions in this matter and therefore DYFS does not have the authority to assist the Complainant with her request. 

May 29, 2003

Letter to Complainant from Sudha Tiwari Kantor, Director of the Department of Human Services’ Office of Legal, Policy & Legislative Affairs.  The Director acknowledges receiving the Complainant’s correspondence dated April 26, 2003 and April 28, 2003 concerning her daughter CoSandra.  The Director states that due to the confidentiality of client records, the Department lacks the authority to assist the Complainant with her inquiries. 

January 29, 2006[1]

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:

• April 10, 2002 letter from Congressman Bill Pascrell, Jr., to Complainant
• April 2, 2002 letter from Gwendolyn L. Harris, Commissioner of the NJ Department of Human Services to Congressman Bill Pascrell, Jr.
• County of Essex’s Juvenile and Domestic Relations Court Docket No. D-2173-76 dated April 27, 1977
• July, 1977 letter from Richard Fassett, Director of East Orange Public Schools’ Pupil Personnel Services to Complainant
• April 6, 2002 letter from Complainant to Congressman Bill Pascrell, Jr.
• August 17, 1977 letter from Jack Wigler, Staff Administrator of the Family Service and Child Guidance Center addressed to “To Whom It May Concern”[2]
• July 1974 Kindergarten Certificate for “Cassandra Johnson”[3] from New Dimensions Learning Center
• April 15, 2003 letter from Gwendolyn L. Harris, Commissioner of the NJ Department of Human Services to Complainant
• May 29, 2003 letter from Sudha Tiwari Kantor, Director of the NJ Department of Human Services’ Office of Legal, Policy & Legislative Affairs to Complainant
• March 4, 1998 letter from Sylvia W. Maloney, Interstate Liaison for the NJ Department of Human Services’ Division of Youth and Family Services to Complainant
• January 9, 1998 letter from Gerald R Gioglio, Adoption Registry Coordinator for the NJ Department of Human Services’ Division of Youth and Family Services to Complainant

The Complainant asserts that DYFS has been denying her access to records regarding her daughter, CoSandra L. Johnson for several years.  She claims that DYFS has been denying her access by stating that adoption and guardianship records can only be accessed through the courts.  The Complainant also claims to have been denied access to the courts.  Additionally, when asked, “Have you filed any action with the N.J. Superior Court concerning this record request or any document sought in it” on the Denial of Access Complaint form filed with the GRC, the Custodian checked the box labeled “Yes.”

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 she 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.

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 she 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 she 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

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