Final Decision
|
Dina Parave-Fogg
Complainant
v.
Lower Alloways Creek Township
Custodian of Record
|
Complaint No. 2006-63
|
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 as the Custodian certifies that no records responsive to the Complainant's March 6, 2006 request exist, the Custodian would not have unlawfully denied access to the requested records pursuant to N.J.S.A. 47:1A-1.1, except that the Custodian's failure to provide the Complainant with a written response to her request within the statutorily mandated seven (7) business days resulted in a "deemed" denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. Additionally, the Custodian should have obtained a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond to the records request as she was aware that she was awaiting a written response from the Chief of Police.
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
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
Return to Top
Findings and Recommendations of the Executive Director
|
Dina Parave-Fogg
Complainant
v.
Lower Alloways Creek Township
Custodian of Record
|
Complaint No. 2006-63
|
Records Relevant to Complaint: Request and Authorization for Records Disposal Form in accordance with N.J.S.A. 47:3-15 et seq. for the destruction of test results.
Request Made: March 6, 2006
Response Made: March 15, 2006 and March 23, 2006
Custodian: Lisa Montagna
GRC Complaint filed: March 16, 2006
Background
March 6, 2006
Complainant's Open Public Records Act ("OPRA") request. The Complainant is seeking a copy of the Request and Authorization for Records Disposal Form in accordance with N.J.S.A. 47:3-15 et seq. for the destruction of test results.
March 15, 2006
E-mail from Complainant to Custodian. The Complainant inquires if the Custodian has received a response from the Chief of Police regarding the Complainant's March 6, 2006 OPRA request for the Request and Authorization for Records Disposal Form in accordance with N.J.S.A. 47:3-15 et seq. She states that she would like something in writing from the Custodian and indicates that she will stop by later in the afternoon to pick it up.
March 15, 2006
Custodian's response to the Complainant's OPRA request. The Custodian states that she is still awaiting a written response from the Chief of Police and claims that she will notify the Complainant immediately upon receipt of such.
March 16, 2006
Denial of Access Complaint filed with the Government Records Council ("GRC") with the following attachments:
- Letter from Chief of Police to Complainant dated February 28, 2006
- E-mail from Complainant to the Division of Archives and Records Management (DARM) dated March 2, 2006
- E-mail from DARM staff to Complainant dated March 3, 2006
- E-mail from Complainant to Custodian dated March 15, 2006
- E-mail from Custodian to Complainant dated March 15, 2006
The Complainant claims that on March 6, 2006 she submitted an OPRA request for the Request and Authorization for Records Disposal Form for the destruction of test results in accordance with N.J.S.A. 47:3-15 et seq. She asserts that this request is subsequent to a previous complaint before the GRC regarding these test results. The Complainant states that she received a letter from the Chief of Police dated February 28, 2006 in which he indicates that the Complainant's test results had been destroyed. Following receipt of said letter, the Complainant states that she contacted DARM as she believed these records were to be considered government records.
On March 2, 2006, the Complainant asserts she contacted DARM by e-mail and requested the record retention time for unsuccessful candidates. She claims that staff e-mailed her back on March 3, 2006 and stated that the retention time for unsuccessful applicants is three (3) years. The Complainant states that on March 6, 2006, she contacted DARM staff via telephone regarding her recent correspondence and claims that staff strongly advised her to request a Request and Authorization for Records Disposal Form.
Further, the Complainant states that she contacted GRC staff on March 14, 2006 to inquire as to how the seven (7) business day response time is calculated. She asserts that on March 15, 2006, nine (9) days after she submitted her OPRA request, she e-mailed the Custodian to see if the Chief of Police had provided a written response to her request. The Complainant states that the same day, March 15, 2006, the Custodian e-mailed her back and advised that the Chief had not yet provided a written response, but stated that she would advise the Complainant as soon as she received said response.
March 22, 2006
Offer of Mediation sent to both parties. Neither party agreed to mediate this complaint.
March 22, 2006
E-mail from Custodian to GRC staff. The Custodian states that she is in receipt of this complaint and states that she has already notified the Complainant that she is awaiting a written response from the Chief of Police and that once said response is received, she will forward it to the Complainant.
March 22, 2006
E-mail from Custodian's counsel to GRC staff. Counsel states that he spoke with the Chief of Police who indicated that he would provide a written response to the Complainant's request. Counsel claims that once the Chief sends said response to the Custodian, the Custodian will forward it to the Complainant.
March 24, 2006
E-mail from Custodian to GRC staff. The Custodian states that attached is the Chief's response to the Complainant's OPRA request that will be forwarded to the Complainant.
In the Chief's letter to the Custodian dated March 23, 2006, he states that on March 6, 2006, the Complainant filed an OPRA request for a Request and Authorization for Records Disposal relating to a test administered for the position of dispatcher. The Chief asserts that there are no records responsive to this request in his office.
March 30, 2006
Request for Statement of Information sent to the Custodian.
April 3, 2006
Custodian's Statement of Information ("SOI") with the following attachments:
- Letter from Chief of Police to Custodian dated March 23, 2006
- Complainant's OPRA request dated March 6, 2006
- Complainant's OPRA request dated March 24, 2006
- Letter from Custodian to Complainant dated April 4, 2006
The Custodian states that the Complainant made an OPRA request for a Request and Authorization for Records Disposal Form. The Custodian certifies that the requested record has not been provided to the Complainant as the Chief of Police asserts in his March 23, 2006 letter that no such document exists on file.
Analysis
Whether the Custodian unlawfully denied access to the requested record?
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 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.
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.
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.
The Complainant asserts submitting an OPRA request on March 6, 2006 for a Request and Authorization for Records Disposal Form regarding the destruction of testing materials. She claims that after not receiving any response from the Custodian, she contacted the Custodian via e-mail on March 15, 2006 requesting a written response to her OPRA request from the Chief of Police. The Complainant states that on March 15, 2006 she received a response e-mail from the Custodian indicating that the Custodian was still awaiting a written response from the Chief; however, once said response was received, it would be forwarded to the Complainant. The Custodian certifies that in a letter dated March 23, 2006, the Chief of Police advised the Custodian that no Request and Authorization for Records Disposal Form exists on file in his office.
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 Complainant asserts submitting her request on March 6, 2006 and states that she only received a response from the Custodian after she sent the Custodian an e-mail dated March 15, 2006 requesting a written response. However, the Complainant did not receive an official response denying her request until March 23, 2006, which is well beyond the seven business day time frame required to respond mandated under OPRA.
Additionally, if the Custodian required additional time beyond the seven (7) business day time period required by OPRA in order to satisfy the Complainant's request, she should have obtained a written agreement from the Complainant in order to do so. In Paff v. Bergen County Prosecutor's Office, GRC Case No. 2005-115 (March 2006), the Custodian knew he needed additional time in order to respond to the Complainant's request, but failed to obtain a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond. The Council held that the Custodian's failure to obtain a written agreement extending the seven (7) business day time period resulted in a "deemed" denial of the request.
However, in the Chief of Police's March 23, 2006 letter to the Custodian, he asserts that there are no records responsive to the Complainant's request. The Custodian certifies to this in her Statement of Information. In Cottrell v. Township of Washington, GRC Case No. 2005-248 (May, 2006), the Council held that although the Custodian certified that no records responsive to the Complainant's request existed, the Custodian's failure to provide a written response to said request resulted in a "deemed" denial thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. The same applies in the case at hand. As the Custodian certifies that no records responsive to the Complainant's March 6, 2006 request exist, the Custodian would not have unlawfully denied access to the requested records pursuant to N.J.S.A. 47:1A-1.1, except that the Custodian's failure to provide the Complainant with a written response to her request within the statutorily mandated seven (7) business days resulted in a "deemed" denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. Additionally, the Custodian should have obtained a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond to the records request as she was aware that she was awaiting a written response from the Chief of Police.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that as the Custodian certifies that no records responsive to the Complainant's March 6, 2006 request exist, the Custodian would not have unlawfully denied access to the requested records pursuant to N.J.S.A. 47:1A-1.1, except that the Custodian's failure to provide the Complainant with a written response to her request within the statutorily mandated seven (7) business days resulted in a "deemed" denial, thus violating N.J.S.A. 47:1A-5.g. and N.J.S.A. 47:1A-5.i. Additionally, the Custodian should have obtained a written agreement from the Complainant extending the seven (7) business day time frame required under OPRA to respond to the records request as she was aware that she was awaiting a written response from the Chief of Police.
Prepared By:
Dara Lownie
Case Manager
Catherine Starghill
Executive Director
Return to Top
|
