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2006-75

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Jeffrey Mourning

    Complainant

         v.

Department of Corrections

    Custodian of Record

Complaint No. 2006-75

 

 

 

At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 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:

 

  1. Cuba v. NJ Department of Corrections, GRC Case No. 2004-146 (February 2005), and the fact that the Custodian’s reason for withholding the records in that case mirrors the Custodian’s reason for withholding the records in this case, there was no unlawful denial of access to said records.
  2. Pursuant to the fact that the Custodian certified that she did not receive the Complainant’s OPRA request until January 20, 2006 and consequently responded in a timely manner on January 24, 2006, she is not in violation of N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.
  3. Pursuant to the fact that the employee who received the request did not advise the Complainant properly, thereby preventing the Complainant’s request from reaching the Custodian, that employee in the Ombudsman’s office (Bruce Tarin) is in violation N.J.S.A. 47:1A-5.h.

 

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. 

 

 

Interim Order Rendered by the

Government Records Council

On The 10th Day of August, 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, Vice Chairman & Secretary
Government Records Coun

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Findings and Recommendations of the Executive Director

Jeffrey Mourning                                             GRC Complaint No. 2006 -75
Complainant[1]

 

            v.

 

Department of Corrections (“DOC”)          

Custodian of Records [2]

 

 

Records Relevant to Complaint: Copies of all written complaints to Mr. Bruce Tarin from December 2003 to November 1, 2005 requesting Mr. Tarin’s assistance in getting the Complainant proper medical treatment for Hepatitis C.

Request Made: November 4, 2005

Response Made: February 1, 2006[3]

Custodian: Michelle Hammel

GRC Complaint filed: January 27, 2006

 

Background

 

November 4, 2005

            Complainant’s Open Public Records Act (“OPRA”) request asking for the records enumerated above.

 

January 24, 2006

            Letter from the Complainant to the Custodian of Records. The Complainant states that Bruce Tarin, Omnsbudsman at the Bayside State Prison, has refused to comply with his records request dated November 4, 2005. The Complainant asks the Custodian to assist him in obtaining the requested records maintained by Bruce Tarin.

 

January 27, 2006

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

 

  • November 4, 2005 - Complainant’s OPRA request
  • February 1, 2006 – Payment Notification and Authorization of OPRA request

 

            The Complainant states that on November 4, 2005, pursuant to OPRA, he requested that Linda Hundt, Business Manager, and Bruce Tarin, Ombudsman at the Bayside State Prison, send and provide him with copies of all of his written complaints to Bruce Tarin, whereby the Complainant requested his (Bruce Tarin’s) assistance in helping him (the Complainant) obtain proper medical treatment for Hepatitis C. The Complainant alleges that the Custodian exceeded the “thirty (30) day time period provided by OPRA.”[4] The Complainant states that he is being denied the requested records because he does not have the necessary $2.25 in his account and is indigent.  

 

February 1, 2006

            Custodian’s response to the Complainant. The Custodian informs the Complainant that the requested records are available for $2.25. The Complainant subsequently approves the deduction of $2.25 from his inmate account in order to pay for the requested records. However, the Custodian then denies the request on the basis that the Complainant does not have sufficient funds in his account to pay for the requested records.

 

April 19, 2006

            Mediation offered to both parties. The Custodian declined mediation of this complaint.

 

May 1, 2006  

            Request for Statement of Information sent to the Custodian.

 

April 7, 2006

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

 

  • November 4, 2005 - Complainant’s OPRA request
  • January 24, 2006 – Letter from the Complainant to the Custodian
  • February 1, 2006 – Payment Notification and Authorization of OPRA request

           

            The Custodian states that on January 24, 2006 her office received the Complainant’s letter dated January 20, 2006 with the accompanying OPRA request dated November 4, 2005. The Custodian references the Complainant’s claim that he submitted his OPRA request to the Ombudsman’s office in November 2005, which she states is not the correct office to send an OPRA request. The Custodian states that the Government Records Unit did not receive a copy of the request until January 24, 2006, when it received the Complainant’s letter. Upon receipt of the request in January, the Custodian states that the Government Records Unit obtained the documents responsive to the request from the Department’s Ombudsman’s Office. The Custodian states that there are three one page documents responsive to the request. The Custodian goes on to state that on February 1, 2006, the Complainant approved the deduction of $2.25 out of his inmate account to pay for the three pages of documents responsive to his request.

           

            The Custodian goes on to state that the Complainant did not have sufficient funds in his inmate account to pay the copying costs, and therefore, his request was denied on February 1, 2006, which the Custodian states, was within the seven (7) business day requirement pursuant to OPRA.

 

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 also states that:

 

            “…a public agency has a responsibility and an obligation to safeguard    from public access a citizen’s personal information with which it has    been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy…” (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.

      N.J.S.A. 47:1A-5.b. states:

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 matter shall not exceed the following:

  • first page to tenth page, $0.75 per page;
  • eleventh page to twentieth page, $0.50 per page;
  • all pages over twenty, $0.25 per page.

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.

 

            Upon receipt of the request in January, the Custodian states that the Government Records Unit obtained the documents responsive to the request from the Department’s Ombudsman’s Office. The Custodian states that there are three one page documents responsive to the request. The Custodian goes on to state that on February 1, 2006, the Complainant approved the deduction of $2.25 out of his inmate account to pay for the three pages of documents responsive to his request.

           

            The Custodian states that the Complainant did not have sufficient funds in his inmate account to pay the copying costs, and therefore, his request was denied on February 1, 2006, which the Custodian states, was within the seven business day requirement pursuant to OPRA.

 

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.

           

            In Cuba v. NJ Department of Corrections, GRC Case No. 2004-146 (February 2005), the Council found that the Custodian was properly withholding the record responsive to the request until they received payment for the copying fee from the Complainant.

            Based upon the Council’s decision in Cuba, and the fact that the Custodian’s reason for withholding the records in that case mirrors the Custodian’s reason for withholding the records in the immediate case, there was no unlawful denial of access to any of the records requested.

Whether the Custodian responded to the November 4, 2005 OPRA request within the statutorily required seven (7) business days?

OPRA 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 provides that:

“...[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

 

Also, OPRA directs any employee of a public agency to forward any request they receive to the Custodian of Records. Specifically, OPRA states,

 

            “…Any officer or employee of a public agency who receives a request for  access to a government record shall forward the request to the custodian of  the record or direct the requestor to the custodian of the record…”         N.J.S.A. 47:1A-5.h.

 

The Complainant states that he made his OPRA request on November 4, 2005 and did not receive a timely response pursuant to OPRA.

 

             The Custodian certifies that on January 24, 2006 her office received the Complainant’s letter dated January 20, 2006 with the accompanying OPRA request dated November 4, 2005. The Custodian references the Complainant’s claim that he submitted his OPRA request to the Ombudsman’s office in November 2005, which she states is not the correct office to send an OPRA request. The Custodian states that the Government Records Unit did not receive a copy of the request until January 24, 2006, when it received the Complainant’s letter.

           

            OPRA requires a Custodian to grant or deny access to a government record in writing, as soon as possible, but not later than seven (7) business days after receiving the request.

 

            Pursuant to the fact that the Custodian certified that she did not receive the Complainant’s OPRA request until January 20, 2006 and consequently responded in a timely manner on January 24, 2006, she is not in violation of N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.

 

            However, OPRA requires that any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record

 

            Although the Custodian properly responded to the request for records, the employee who received the records request should have directed or forwarded the request to the Custodian or directed the requestor to the Custodian once he received the records request.

 

            Pursuant to the fact that the employee who received the request did not advise the Complainant properly, thereby preventing the Complainant’s request from reaching the Custodian, that employee in the Ombudsman’s office (Bruce Tarin) is in violation N.J.S.A. 47:1A-5.h.

 

Conclusions and Recommendations

 

The Executive Director respectfully recommends that the Council find that:

 

  1. Cuba v. NJ Department of Corrections, GRC Case No. 2004-146 (February 2005), and the fact that the Custodian’s reason for withholding the records in that case mirrors the Custodian’s reason for withholding the records in this case, there was no unlawful denial of access to said records.
  2. Pursuant to the fact that the Custodian certified that she did not receive the Complainant’s OPRA request until January 20, 2006 and consequently responded in a timely manner on January 24, 2006, she is not in violation of N.J.S.A. 47:1A-5.i. or N.J.S.A. 47:1A-5.g.
  3. Pursuant to the fact that the employee who received the request did not advise the Complainant properly, thereby preventing the Complainant’s request from reaching the Custodian, that employee in the Ombudsman’s office (Bruce Tarin) is in violation N.J.S.A. 47:1A-5.h.

 

 

 

 

           

 

           

 

                       

Prepared By:  Christopher Malloy

                       Case Manager

 

 

 

Approved By:

Catherine Starghill, Esq.

Executive Director

 



[1] No legal representation

[2] Represented by the Division of Law (DOL)

[3] The Custodian certifies that her office did not receive the Complainant’s letter and request until January 24, 2006.

[4] Pursuant to N.J.S.A. 47:1A-5.i. the Custodian of Records is to grant or deny access to government records as soon as possible, but not later than seven (7) business days after receiving the request.

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