2006-20

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

Findings and Recommendations of the Executive Director

Request Made: Unknown[1]
Response Made: January 6, 2005
Custodian: LaShanda Taylor
GRC Complaint filed: January 27, 2006

Letter from Kevin Ryan, Child Advocate to Complainant in response to her request for assistance in gaining access to DYFS records as well as adoption or guardianship records for her daughter CoSandra. Mr. Ryan states that as the State terminated the Complainant’s parental rights in 1978, the events being sought concluded prior to the existence of the Office of the Child Advocate. He also states that the Office will not open a new investigation into this matter. Mr. Ryan advises the Complainant to contact the Administrative Office of the Courts’ Office of Litigant Inquires for information on how to obtain DYFS records.

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

The Complainant claims that she spoke with a representative from the Office of the Child Advocate and inquired about obtaining adoption records for a child who is now an adult. The Complainant claims the representative gave her the name Kevin Ryan. She states that Mr. Ryan responded to her request for records by stating that no records may be accessed except through the Office of Administrative Courts. The Complainant claims that this is incorrect as records held by DYFS can only be accessed by court order. Additionally, the Complainant indicates that she has filed action with the N.J. Superior Court concerning this record request or any documents sought in it as she lists Docket No. ESX-L-2600-98 on her Denial of Access Complaint form.

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?

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

When asked on the Denial of Access Complaint form, “[h]ave 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 by providing Docket No. ESX-L-2600-98.

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.

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.

[1] The Complainant indicates on her Denial of Access Complaint form that her request letter has been misplaced and therefore she is unaware of the date of said request.
[2] Additional submissions were provided to GRC staff by the parties; however they are not relevant to this case.