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2006-24
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its May 11, 2006 public meeting, the Government Records Council (“Council”) considered the May 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 provided a lawful reason for the denial of access of three of the records requested pursuant to the Custodian’s burden of proof obligation established and mandated under N.J.S.A. 47:1A-6., and released the one document that was not legally exempt from disclosure within the time frame mandated under OPRA. Thus, there was no unlawful denial of access to the requested records pursuant to the provisions of OPRA. 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. Decision Distribution Date: May 18, 2006 Findings and Recommendations of the Executive DirectorBrian D. Asarnow GRC Complaint No. 2006-24Complainant v. Department of Labor and Workforce Development Custodian of Records Records Relevant to Complaint:
Request Made: January 19, 2006 Background January 19, 2006 Complainant’s Open Public Records Act (OPRA) request asking for the records enumerated above. January 24, 2006 Letter from the Custodian to the Complainant outlining his position in reference to the documents requested. January 26, 2006 The Complainant amends item number one (1) of his request and now asks for any/all letters within the past six months from superiors directing that employees of the Department of Labor and Workforce Development and Division of Employer Accounts begin issuance of Delinquent Records notices to employers going back to 1999 and based upon N.J.S.A. 43:21-1, N.J.S.A. 34:5A-1 and any other statute. January 27, 2006 Custodian’s response to the Complainant’s January 26, 2006 amendment. The Custodian states that there are no “…letters… (to) ‘begin issuance of Delinquent Records’ notices…” because these actions are taken in compliance with law and not at the discretion of any individual.” February 6, 2006 Denial of Access Complaint filed with the Government Records Council (GRC) with the following attachments:
The Complainant states that he filed his records request on January 19, 2006. He states that he received the Custodian’s response which included “irrelevant court cases and hearing procedures.” The Complainant claims that the records request is limited in scope and does not involve research, only a printing out of existing records. The Complainant states that after speaking with the Custodian on January 25, 2006; he faxed the Custodian an amendment to item one (1) of the request. The Complainant states that when he called the Custodian to see if he received the amendment to item one (1), the Custodian took the same position that regular, automatic enforcement occurs by statute without the need for special letters directing enforcement action. February 6, 2005 Mediation offered to both parties. Neither party agreed to mediation of this Complaint. February 16, 2006 GRC staff sent request for the Statement of Information (SOI). March 2, 2006 Custodian’s SOI with attachments:
The Custodian includes the January 24, 2006 letter to the Complainant which outlines his position in reference to the Complainant’s requests. He states that he received the initial OPRA request on January 19, 2006, and the amendment to item one (1) on January 26, 2006. In reference to the Complainant’s first request, the Custodian refers the Complainant to N.J.S.A. 43:21-1, et seq, The Unemployment Compensation Law and N.J.S.A. 34:5A-1 et seq, The Worker and Community Right to Know Act. The Custodian informs the Complainant that the notices he has referred to in his first request are issued in accordance with the statutes cited and there is no “letter of authorization and approval from a department head because these actions are taken in compliance with law and not at the discretion of any individual. In reference to the Complainant’s second (2nd) request, the Custodian references Michael Bent v. Township of Stafford, 381 N.J. Super. 30; 884 A.2d 240, (October 21, 2005) and MAG Entrn’t, LLC v. Div. of Alcoholic Beverage Control 375 N.J. Super 534, 546-49 (App. Div 2005) which states OPRA “is not intended as a research tool…to force government officials to identify and siphon useful information.” Id. The Custodian informs the Complainant that his request does not meet the standard for a proper OPRA request in that the documents he is requesting are not readily identifiable and his request is of the nature of a blanket request for a class of various documents. Further, the Custodian states that OPRA requires government agencies to provide individuals with eligible records, it does not, however, require that agencies perform searches or research to trace documents. In reference to the third (3rd) item requested by the Complainant which was “the name of the employee who sent the notice of 1/13/06…,” the Custodian states that the mailing of a letter or notice by an individual is an action, and as such does not fall under the definition of a government record as defined by OPRA. The Custodian therefore asserts that there is no record responsive to this request. Finally, in reference to the fourth (4th) item requested, the Custodian informs the Complainant that he is enclosing the text of N.J.A.C. 12:16-22, Hearings, which is the basis under which any appeals to the Division of Employer Accounts would be conducted. Analysis Whether the Custodian unlawfully denied access to anyof the records requested? 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 OPRA defines a government record as follows: “ … 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. Also, OPRA states that: “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...” N.J.S.A.47:1A-5.i. Further, OPRA states that the Custodian has to prove that a denial of access is authorized by law. 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. The Custodian certifies that he received the original request on January 19, 2006, and responded on January 24, 2006 within the time frame mandated under OPRA. In response to the first request, the Custodian states that there is no letter of authorization and approval from a department head. In reference to the second request, the Custodian cites Michael Bent v. Township of Stafford, 381 N.J. Super. 30; 884 A.2d 240, (October 21, 2005) and MAG Entrn’t, LLC v. Div. of Alcoholic Beverage Control 375 N.J. Super 534, 546-49 (App. Div 2005) which states OPRA “is not intended as a research tool…to force government officials to identify and siphon useful information.” Id. Therefore, the Custodian denies this part of the request on the basis that the documents the Complainant is requesting are not readily identifiable and his request is of the nature of a blanket request for a class of various documents. In reference to the third item requested the Custodian informs the Complainant that the mailing of a letter or notice by an individual is an action, and as such does not fall under the definition of a government record as defined by OPRA. The Custodian therefore asserts that there is no record responsive to this request. And, in response to the forth item, the Custodian discloses to the Complainant a copy of N.J.A.C. 12:16-22, Hearings, which the Custodian states is the basis under which any appeals to the Division of Employer Accounts would be conducted. Dealing with the first item requested, the Custodian has certified that that there is no letter of authorization and approval from a department head. Based on the definition of a government record pursuant to N.J.S.A. 47:1A-1.1., and the fact that the Custodian has certified that a letter does not exist, he has borne his burden of proving that the denial of access is authorized by law pursuant to N.J.S.A. 47:1A-6. In respect to the second item requested, the Custodian has asserted Bent as well as MAG in defending his position that the documents the Complainant is requesting are not readily identifiable and his request is of the nature of a blanket request for a class of various documents. Based on the Superior Court rulings in Mag and Bent, the Complainant’s request in this case was overbroad and unclear based on the fact that the Custodian would seemingly have to do research to find documents “inclusive and containing the name and address of employer, date notice sent, and years claimed delinquent and payments owed,” as well as, “only the first 250 reports for each county starting with employers whose name begin with the letter “A”. In regard to the third item requested “the name of the employee who sent the notice of 1/13/06…”, the Custodian’s defense that there is no record to provide the Complainant is lawful because “the name of the employee” is not a request for a government record pursuant to OPRA. Finally, in response to the fourth (4th) request, the Custodian has released the text of N.J.A.C. 12:16-22, Hearings, which is the basis under which any appeals to the Division of Employer Accounts would be conducted. Therefore, the Custodian has released the document responsive to this request. Based on the fact that the Custodian has lawfully defended his position in denying access to items one (1), two (2) and three (3), as well as released the document responsive to the fourth (4th) request within the time frame mandated under OPRA, the Council should find that there was no unlawful denial of access to the requested records pursuant to the provisions of OPRA. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that based on the fact that the Custodian has lawfully defended his position in denying access to items one (1), two (2) and three (3), as well as released the document responsive to the fourth (4th) request within the time frame mandated under OPRA, there was no unlawful denial of access to the requested records pursuant to the provisions of OPRA. Prepared By: Chris Malloy, Case Manager Approved By: May 4, 2006 [1] Numbers one (1) through four (4) are as stated by the Complainant on his records request form. |
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