2006-46

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:  February 7, 2006
Response Made:  February 15, 2006 and February 16, 2006
Custodian:  Antoinette Battaglia
GRC Complaint filed: February 21, 2006

Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant is seeking copies of e-mails to or from Councilman James Warden referencing Joseph Elcavage from the West Milford Township computer system as well as the Councilman’s personal e-mail accounts from January 1, 2005 to present.

Custodian’s response to the Complainant’s OPRA request. The Custodian states that Councilman Warden has advised that he has never opened any e-mails in his Township e-mail account and that he has not sent any e-mails from this account. The Custodian states that according to the Township attorney, unopened e-mails are not considered public records. She claims that the best way to provide these e-mails is to print out the screen showing the list of unopened e-mails. She states that she will contact the Complainant when she is able to gain access to the Councilman’s e-mail account.

Regarding the Councilman’s personal e-mail account, the Custodian states that Councilman Warden has advised her that he does not use his personal e-mail account for Township business but that he does have one e-mail pertaining to Township matters. The Custodian states that she will contact the Complainant once she receives this e-mail from the Councilman.

Custodian’s subsequent response to Complainant’s OPRA request. The Custodian states that she has been granted access to the Councilman’s e-mail account. She claims that there are two hundred seventy (270) received e-mails and of those, fifteen (15) have been opened, which were received between January 31, 2005 and March 5, 2005. The Custodian states that there are no e-mails in the sent box. She states that printouts of the computer screens are available in her office.

Additionally, the Custodian states that the one e-mail from the Councilman’s personal e-mail is also available for review or purchase. She also states that the Councilman has provided her with a letter confirming that he only has one e-mail in his personal e-mail account that pertains to Township matters.

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

The Complainant asserts submitting his OPRA request on February 7, 2006. He states that on February 15, 2006 he received a response from the Township Clerk claiming that Councilman Warden has not read the majority of his e-mails since March 2005 and that he only maintained one e-mail relating to Township business on his personal e-mail account. The Complainant claims that this is incorrect because the Township’s practice is to forward e-mails that are sent to an individual’s Township e-mail address to his/her personal e-mail account if that request is made. The Complainant claims that it appears “prima facia”[2] that Councilman Warden has chosen this option.

The Complainant states that he is citing Councilman Warden as “de-facto”[3] Custodian of Records as it appears that the Custodian herself does not have access to the Councilman’s personal e-mail account. He claims that the Councilman has only provided one document from his e-mail account because the Complainant was copied on it and knows that it exists.

Additionally, when asked “[h]ave you filed any action with the N.J. Superior Court concerning this record request or any document sought in it” the Complainant checked the box labeled “yes.”

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?

“[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 checking the box labeled “yes.”.

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 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.

[1] Additional submissions were provided to GRC staff by the parties; however they are not relevant to this case.
[2] As stated on Denial of Access Complaint.
[3] As stated on Denial of Access Complaint.