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2006-54
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 6, 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 20th Day of July, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council. Kathryn Forsyth, Designee of Acting Commissioner Lucille Davy Government Records Council Findings and Recommendations of the Executive Director
Records Relevant to Complaint: Copies of the most recent financial disclosure reports filed by the following public officers:
Request Made: December 26, 2005 and February 6, 2006 Response Made: February 22, 2006 Custodian: Laddie Wyatt GRC Complaint filed: March 7, 2006
Background December 26, 2005 Complainant’s Open Public Records Act (“OPRA”) request. The Complainant seeks copies of the most recent financial disclosure reports filed by the following public officers: Charles Sciarra, Esq.; Joffrey Hill, Esq.; Steven Brister, Esq.; Randy Davenport, Esq.; and Andrew M. Baron, Esq.
February 6, 2006 Complainant resubmits his OPRA request for financial disclosure reports. He states that his fax records indicate that his December 26, 2005 request was received by the City and that to date he has received no response. February 22, 2006 Custodian’s response to the Complainant’s OPRA request. The Custodian states that she does not have any of the requested files except for Steven Brister. She states that the fee for a copy of the requested record is $0.75 and that the document will remain in her office until she has received the appropriate payment. March 7, 2006 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant asserts submitting his OPRA requests on December 26, 2005 and again on February 6, 2006. He states that the only response he received from the Custodian was dated February 22, 2006. Additionally, the Complainant states that he has enclosed a letter dated August 6, 2002 from Thomas J. Cafferty, Esq. to the GRC. The Complainant contends that the Custodian is not permitted to require that he prepay the copy fee charged in order to fulfill his records request and states that he relies on the arguments presented in Mr. Cafferty’s August 6, 2002 letter. He asks that the Council declare that the Custodian has improperly denied or delayed him access to government records. He also requests that the Council order the Custodian to provide him with the requested records without having to prepay the required fee. In Mr. Cafferty’s August 6, 2002 letter to the GRC, he raises some concerns based on the GRC’s Handbook for Records Custodians. Mr. Cafferty contends that some of the information provided in said publication is incorrect. Specifically, Mr. Cafferty states that in the Handbook for Records Custodians, Part II Section One indicates that “a statement as to whether prepayment of fees or a deposit is required.”[1] He claims that this statement is incorrect pursuant to N.J.S.A. 47:1A-5.f. which provides that prepayment is required for anonymous requests exceeding $5.00. Additionally, the Complainant points out that Mr. Cafferty notes that in the “Deposits and Prepayments” section, the Handbook states that “OPRA permits the custodian to require a deposit or prepayment of fees for any request received.”[2] Mr. Cafferty claims that this statement is incorrect as the language of the statute implies that prepayment is only required for anonymous requests.
March 9, 2006 Offer of Mediation sent to both parties. March 9, 2006 E-mail from Complainant to GRC staff. The Complainant declines mediation.[3]
March 10, 2006 Request for Statement of Information sent to the Custodian.
March 22, 2006 Custodian’s Statement of Information (“SOI”) with the following attachments:
The Custodian certifies receiving the Complainant’s request on February 8, 2006. She asserts that the City’s Ordinance MC 1999-8 which was adopted on July 19, 1999 identifies the fees for obtaining copies of records from the City. The fee structure highlighted for the request in question is the first page to tenth page - $0.75 per page. Analysis
Whether the Custodian unlawfully denied access to records requested on December 26, 2005 and February 6, 2006?
OPRA provides that:
“…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.
Additionally, OPRA defines a government record as:
“… 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.
OPRA states that:
“[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed manner shall not exceed the following:
(Emphasis added.) N.J.S.A. 47:1A-5.b.
The City of Plainfield’s municipal ordinance states in part that:
“Pursuant to N.J.S.A. 47:1A-2, the following fees are established for copies of records maintained, and other services performed, by the various agencies of the City of Plainfield. Such fees shall be paid to the custodian of such records…Application in person…First page to tenth page. Per page: $0.75…” (Emphasis added.) MC-1999-8
Additionally, OPRA states that:
“[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor 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 therefor …” N.J.S.A. 47:1A-5.g.
OPRA also provides that:
“[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.
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.
The Complainant asserts submitting his OPRA request on December 26, 2005 and claims to have received no response from the Custodian. He asserts that he resubmitted his request on February 6, 2006 and states that he received a response from the Custodian on February 22, 2006 requiring him to prepay the $0.75 copy fee. The Complainant contends that pursuant to OPRA he is not required to prepay fees required for copying. He claims that anonymous requests are the only requests which require a deposit before receiving the requested documents. The Custodian certifies receiving the Complainant’s request on February 8, 2006. She additionally certifies that the City’s fees for copying are determined pursuant to municipal ordinance MC-1999-8. 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. Here, the Custodian asserts submitting his first OPRA request on December 26, 2005 and claims to have never received a response from the Custodian. The Custodian’s failure to respond to the Complainant’s December 26, 2005 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 copies of government records may be purchased upon payment of the fee prescribed by law or regulation. N.J.S.A. 47:1A-5.b. also provides that “…the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed… first page to tenth page, $0.75 per page…” In this matter, the Custodian asserts that the copy fee for providing the requested documents is $0.75 pursuant to MC 1999-8, and that upon receipt of said fee, she will release the requested records to the Complainant. However, the Complainant contends that he does not have to prepay copy fees in order to receive requested documents. In Santos v. New Jersey State Parole Board, GRC Case No. 2004-74 (August, 2004), the Council held that as “the Custodian did not receive payment for the actual duplication cost of the requested records, [he] was not required under OPRA to release said copies.” Also, in Cuba v. Northern State Prison, GRC Case No. 2004-146 (February, 2005), the Council held that “the Custodian was proper in withholding the release of the requested record until receiving payment for the copying fee from the Complainant.” The same situation applies in the case at issue. The Custodian is awaiting payment for the copy fee associated for providing the requested records, and as such, the Custodian is not required to release said records until payment is received pursuant to N.J.S.A. 47:1A-5.b. Therefore, the Custodian has not unlawfully denied access to the records requested on February 6, 2006 (the Complainant’s resubmission of his December 26, 2005 request) pursuant to N.J.S.A. 47:1A-5.b., Santos and Cuba. However, as the Custodian failed to respond to the Complainant’s December 26, 2005 request (the Complainant’s original OPRA request), she violated N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. which resulted in a “deemed” denial of the request. Conclusions and Recommendations
The Executive Director respectfully recommends the Council find:
Prepared By: Dara Lownie Case Manager
Catherine Starghill Executive Director |
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