2006-25

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:

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 May, 2006

Vincent P. 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:  November 16, 2005 and November 28, 2005
Response Made:  November 17, 2005
Custodian:  Linda Martin
GRC Complaint filed: December 23, 2005

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is seeking the certificate of approval for the fire safety system at 7000 Blvd. East, Tower I. If no certificate of approval exists, then the Complainant seeks all documents relating to why no certificate exists as well as fines and checks for fines.

Complainant’s second OPRA request. The Complainant is seeking all documents relating to the inspection of the pool pump room at 7000-7002-7004 Blvd. East, including all fines, letters, reports, checks to pay fines, and violations.

Building Department’s response to the Complainant’s OPRA request for a certificate of approval for 7000 Blvd. East. The Construction Official/Zoning Officer states that no final inspections were done and therefore no certificate of approval exists.

Building Department’s response to the Complainant’s second OPRA request for documents relating to the pool pump room located at 7000-2002-7004 Blvd. East. The Construction Official/Zoning Officer states that his office did not encounter any unsafe conditions at the location in question, therefore no documentation exists.

Letter from Complainant to Construction Official. The Complainant states that he is unsatisfied with the Construction Official’s response and claims that there should be documents on file relating to his requests as he requested “all documents” pertaining to each request for inspection records. He asks why the Custodian has not provided him the documents he is requesting. The Complainant states that he is resending his OPRA requests and that if he does not receive a response by December 2, 2005, he will file a complaint with the Government Records Council.

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

The Complainant asserts that the Construction Official/Zoning Officer has continually denied him access to public records. He states that both of his requests ask for all documents relating to two (2) inspections performed by the Building Department. The Complainant states that the Construction Official did not provide any documents in response to his requests. He claims that the Construction Official should maintain these documents on file as per Building Officials and Code Administrators International, Inc. (BOCA) codes and International Building codes. The Complainant additionally claims that the Construction Official is denying him access to records as a personal vendetta.

Offer of Mediation sent to both parties. Neither party agreed to mediate this case.

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

The Custodian certifies that she received the Complainant’s OPRA requests on November 16, 2005. She certifies that as advised to the Complainant, there are no records responsive to these requests. The Custodian additionally certifies that the Building Department advised the Complainant on November 17, 2005 that there were no records responsive to these requests. Following said response, the Custodian states that the Complainant argued that the requested documents should exist and asked why these documents have not been provided to him. The Custodian asserts that as she is not required to produce documents she does not have or provide the Complainant with answers to his written questions, this complaint should be dismissed.

Whether the Custodian unlawfully denied access to the records requested on November 16, 2005 and November 28, 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.

“...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore 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 thereof …” N.J.S.A. 47:1A-5.g

The Complainant asserts submitting his OPRA requests on November 16, 2005. He states that on November 17, 2005 he received two (2) responses from the Construction Official/Zoning Officer in which the Construction Official denied both requests by claiming that no documents exist. The Complainant states that on November 28, 2005 he sent a letter to the Construction Official claiming that some of the requested documents should exist, asking why the requested documents were not provided, and indicating that he was resending his requests.

The Custodian certifies that none of the requested documents exist and that the Complainant was notified of such on November 17, 2005 following his November 16, 2005 OPRA requests. She additionally certifies that she did not respond to the Complainant’s questions as she is not required to and the Complainant had already been notified that no documents existed in response to his requests.

OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt. Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.

OPRA also mandates that a custodian must either grant or deny access to requested records within seven (7) business days from receipt of said request. As also prescribed under N.J.S.A. 47:1A-5.i., a custodian’s failure to respond within the required seven (7) business days results in a “deemed” denial. In this case, the Custodian certifies that the Construction Official responded to the Complainant’s November 16, 2005 request on November 17, 2005, only one day after the request was made. However, the Custodian failed to respond to the Complainant’s November 28, 2005 letter and resubmission of his request. While the Custodian contends that she is not obligated to respond to the Complainant’s written questions, she is still statutorily obligated to provide a response to the Complainant’s resubmission of his request. The Custodian’s failure to respond to the Complainant’s November 28, 2005 resubmission of his request within the statutorily mandated seven (7) business days resulted in a “deemed” denial pursuant to N.J.S.A. 47:1A-5.i.

Additionally, OPRA provides that if a custodian is unable to comply with a records request, he must notify the Complainant in writing indicating a lawful reason for same. N.J.S.A. 47:1A-5.g. While the Complainant received a written response to his November 16, 2005 request, he did not receive same for his November 28, 2005 request. The Custodian asserts that she is not required to respond to questions and states that the Complainant had already been informed that there were no records responsive to his request. While OPRA does not obligate Custodians to respond to written questions such as the Complainant’s question as to why he was not provided with the requested documents, OPRA does require custodians to respond to each individual record request. As the Custodian failed to provide a written response to the Complainant’s November 28, 2005 resubmission of his request, the Custodian violated N.J.S.A. 47:1A-5.g.

Pursuant to N.J.S.A. 47:1A-6, the Custodian certifies that there are no records responsive to the Complainant’s requests. She also certifies that on November 17, 2005 the Complainant was notified of such and states that she is not obligated to produce documents that she does not have or provide answers to the Complainant’s written questions. In Russomano v. Township of Edison, GRC Case No. 2002-86 (July 2003), the Council held that “[w]hile it is true that the OPRA request sought only information and not specific records, the custodian was still obligated to respond to the request in seven business days, either rejecting the request as defective under OPRA or advising the requestor of the specific date by which a response would be provided.” The same applies here, as the Custodian is not obligated to fulfill the Complainant’s requests for information, however she is still obligated under the provisions of OPRA to provide a written response to the request.

Moreover, the Custodian is obligated to provide a written response to the Complainant’s November 28, 2005 resubmission of his request regardless of the fact that he had already requested this information and been denied access. In Caggiano v. Borough of Stanhope, GRC Case No. 2005-211 et seq.[1] (January, 2006), the Council held that “OPRA does not limit the number of times a requestor may ask for the same record even when the record was previously provided”, or in the case at issue, previously denied. Therefore, regardless of the fact that the Complainant had already requested documents and been denied access, the Custodian is still obligated to provide a written response to each request. As such, the Custodian’s response that the Complainant had already been advised that the requested documents do not exist is not a lawful reason for a denial of access pursuant to the Custodian’s burden of proof obligation established and mandated under N.J.S.A. 47:1A-6.

Therefore, as the Custodian certifies that no records responsive to the Complainant’s request exist, there would not have been an unlawful denial of access. However the Custodian violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. by failing to provide the Complainant with a written response to his November 28, 2005 request within the statutorily mandated seven (7) business days therefore creating a “deemed” denial. Additionally, the Custodian’s response that the Complainant had already been advised that the requested documents do not exist is not a lawful reason for a denial of access pursuant to the Custodian’s burden of proof obligation established and mandated under N.J.S.A. 47:1A-6.

[1] Caggiano v. Borough of Stanhope, GRC Case No. 2005-211, 2005-226, 2005-227, 2005-228, 2005-229, 2005-230, 2005-231, 2005-232, 2005-233, 2005-234, 2005-235, 2005-250, 2005-252 (January, 2006.)