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2005-256

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Mary Pawar
   Complainant
      v.
Sussex County Soil Conservation District
   Custodian of Record

Complaint No. 2005-256, 2005-257 and 2005-258

 

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 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 with amendments.  The Council, therefore, finds that:

  1. The Custodian provided the Complainant access to the entire file on October 13, 2005, which contained the requested records.  Additionally, since the records were in storage at an off site location and required retrieval, the Custodian appropriately requested that the Complainant schedule a time to review the records, however, the Custodian did not receive a response from the Complainant.   Therefore, it should be concluded that there was not an unlawful denial of access pursuant to N.J.S.A. 47:1A-1, and N.J.S.A. 47:1A-5.g.
  2. While the Custodian counsel’s comments may be viewed as inappropriate, the Complainant was provided access to the file containing those records in existence and responsive to the request and the Council’s authority under OPRA may only “… adjudicate a complaint … concerning a denial of access to a government record by a records custodian.” (Emphasis added.) N.J.S.A. 47:1A-7.b.  However, as the Council stated in Mary Ann Cottrell v. Borough of Glassboro, GRC Case No. 2003-28M (July 2003), the Governing Body, as employer, may elect to review inappropriate conduct of its employees. 

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 11th Day of April, 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 

Decision Distribution Date:  April 21, 2006

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Findings and Recommendations of the Executive Director

Mary Pawar
   Complainant
      v.
Sussex County Soil Conservation District
   Custodian of Record

Complaint No. 2005-256, 2005-257 and 2005-258

 

Records Relevant to Complaint: Records concerning Block 10902, Lots 10 and 12 in Stanhope, New Jersey project[1]
Requests Made:  October 1, 2005, October 3, 2005 and October 6, 2005[2]
Response Made:  November 2, 2005[3]
Custodian:  Winifred Straub
GRC Complaint filed: December 21, 2005

Background

The three (3) referenced cases involve the same Complainant and public agency and are combined for purposes of this finding and recommendations because the records requests and the issue in these cases are similar. 

October 1, 2005, October 3, 2005, October 6, 2005

Complainant’s three (3) written Open Public Records (“OPRA”) requests.[4]  The Complainant’s three (3) requests are attached and all concern the minor subdivision Block 10902, Lots 10 and 12 in Stanhope, New Jersey.   

October 13, 2005

Custodian’s response to the three (3) OPRA requests. The Custodian addresses all three requests in the same response.  The Custodian informed the Complainant that the requested records regarding the Block 10902, Lot 10 and 12, Stanhope project was completed and closed and the files were in storage off site.  The Custodian advised the Complainant that the entire file would be available at the Sussex County Soil Conservation District (“District”) office after the Complainant schedules a time with the Custodian for access to the documents in the file. The Custodian states that copies of the selected documents would be copied upon payment of the fees set forth in the Government Records Request form. 

December 21, 2005

Three (3) Denial of Access Complaints filed with the Government Records Council (“Council”) with the following attachments:

  • Undated records request

In each complaint, the Complainant references the attached request and states that the District did not provide the requested copies. On the complaint form, the Complainant does not indicate the date her requests were provided to the Custodian and states on the complaint form that she received a response from the Custodian November 2, 2005.

December 22, 2005

Offer of mediation sent to the Complainant and Custodian.[5]

January 2, 2006

Custodian Counsel’s response to the complaints with the following attachments:

  • Custodian counsel’s written submission to GRC Complaints 2005-256, 2005-257 and 2005-258.
  • The first and last page of the Statement of Information (“SOI”).  The last page of the SOI contains the signature of the Custodian.
  • Custodian’s October 13, 2005 written response to Complainant’s OPRA request concerning the Block 10902, Lot 10 and 12, Stanhope project.

Custodian’s counsel contends that there was not a denial of access since the Custodian’s October 13, 2005 response to the Complainant’s three (3) OPRA requests invited the Complainant to inspect and receive copies of the documents contained in the file regarding the Block 10902, Lot 10 and 12, Stanhope project.  Counsel contends that the Complainant never responded.  Counsel asserts that the complaint is “frivolous, as there was no denial of access.”  Counsel states that the Complainant is the next-door neighbor to Mr. Caggiano and “drank the ‘Kool-aid’ given to her by Mr. Caggiano” concerning an alleged conspiracy by the District.  He states further that Mr. Caggiano was prohibited from contacting the District under court order and believes that Mr. Caggiano used the Complainant to file the requests referenced in the complaints.  He states that Mr. Caggiano filed Denial of Access Complaints with the Council regarding similar records requests made to the District.[6]  He asserts further that the Complainant did not respond to the District to inspect and or copy documents and “the district office can only speculate as to the influence of Mr. Caggiano on the Complainant’s unwillingness or inability to follow-up on the district’s invitation.”  Counsel states that the documents concerning the Stanhope project were being held at his law office due to the court order against Mr. Caggiano.  In the counsel’s submission, he lists each item in the Complainant’s requests and provides a response indicating whether the record exists, does not exist, requires clarification or is not a government record.    

January 7, 2006

Letter from Complainant to Council in response to the Custodian’s SOI.   The Complainant states that the conduct and comments of Custodian’s counsel in the January 2, 2006 submission to the Council is “unprofessional conduct” and the “Board should consider placing an official reprimand in his file for such misconduct.”  The Complainant states that the Custodian’s invitation to review the entire file when counsel’s indications that many of the records do not exist would have been “ a waste of [her] time.” 

February 24, 2006

E-mail from Council to Custodian requesting a legal certification to explain when the OPRA requests were received, the Custodian’s response given to the Complainant and whether the Custodian received a reply from the Complainant.

February 25, 2006

Custodian’s counsel responds to Council’s e-mail and questions the need for a certification from the Custodian because he felt the Custodian’s signature on the SOI attached to his January 2, 2006 submission should be sufficient. 

February 27, 2006

Council responds to Custodian’s counsel.  It was explained that the Custodian did not submit a completed SOI and only completed the first and last page of the SOI form.  

February 27, 2006

Custodian’s legal certification.  The Custodian certifies that she received three (3) records requests “by telecopier from Mr. Thomas Caggiano” on October 7, 2005, that was signed by the Complainant and dated October 1, 2005, October 3, 2005 and October 6, 2005.  The Custodian certifies further that she spoke with the Complainant on October 13, 2005 and provided a written response confirming her conversation with the Complainant on the same date.  She states that in the written response to the Complainant, she confirmed to the Complainant that the District would make the entire file containing the requested documents available to the Complainant for inspection and copying.  The Custodian states further that the District received the Complainant’s January 7, 2006 submission to the GRC and has received no further communication from the Complainant. 

March 17, 2006

Custodian provides the Council with copies of the Complainant’s OPRA requests dated October 1, 2005, October 3, 2005 and October 6, 2005.

Analysis

Whether the Custodian unlawfully denied access to the requested records in the Complainant’s three (3) OPRA requests dated October 1, 2005, October 3, 2005 and October 6, 2005?

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 when the records are in storage or archived, the Custodian is to so advise the requestor and arrange to make the records accessible.  Specifically, OPRA states

“… [I]f the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record…” N.J.S.A. 47:1A-5.g.

The Complainant contends that the Custodian did not provide copies of the requested records and states further that it would be “a waste of [her] time” to review the entire file when the January 2, 2006 submission by the Custodian’s counsel indicated many of the requested records did not exist.  The Custodian certifies that in her October 13, 2005 written response to the Complainant, she confirmed her verbal conversation with the Complainant that the file containing the requested records was in storage at an off site location and the Custodian would make the entire file available to the Complainant for inspection and copying after the Complainant made arrangements to do so.  However, the Custodian received no response from the Complainant to schedule a time to review the file. While the Custodian counsel’s January 2, 2006 submission indicates that some of the requested records do not exist and other requested records are accessible or required clarification, access to the records was not unlawfully denied, as the records were made accessible to the Complainant pursuit to OPRA on October 13, 2005.  It is also evident in the counsel’s review of the file that some of the items in the requests were unclear and required clarification.

In this regard, the New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful informationRather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination."  N.J.S.A. 47:1A-1."  (Emphasis added.)  Mag Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 (March 2005).  The Court further held that "[u]nder OPRA, agencies are required to disclose only "identifiable" government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files."  (Emphasis added.)  Id. at 549.

In the GRC case Phillip Boggia v. Borough of Oakland, 2005-36 (October 2005), the Council found that OPRA was not intended to require a custodian to do research in providing access to government records.  Also, in Michael Bent v. Stafford Township Police Department, 381 N.J. Super. 30, 884 A.2d 240 (October 21, 2005), the Court found that the general request for information neither identified nor described with any specificity the records sought.  Therefore, there was no unlawful denial of access. 

The Custodian provided the Complainant access to the entire file, which contained the requested records on October 13, 2005.  Additionally, since the records were in storage at an off site location and required retrieval, the Custodian appropriately requested that the Complainant schedule a time to review the records, however, the Custodian did not receive a response from the Complainant.   Therefore, it should be concluded that there was not an unlawful denial of access pursuant to N.J.S.A. 47:1A-1, and N.J.S.A. 47:1A-5.g.

The Complainant challenges the Custodian counsel’s comments in the January 1, 2006 submission to the Council as “unprofessional conduct.” The counsel’s comments made in the Custodian’s January 1, 2006 submission in response to the Complainant’s Denial of Access Complaints were unnecessary, as well as inappropriate, and have no bearing in the determination of these complaints before the Council.   While the counsel’s comments may be viewed as inappropriate, the Complainant was provided access to the file containing those records in existence and responsive to the request and the Council’s authority under OPRA may only “… adjudicate a complaint … concerning a denial of access to a government record by a records custodian.” (Emphasis added.) N.J.S.A. 47:1A-7.b.  In the GRC case Mary Ann Cottrell v. Borough of Glassboro, GRC Case No. 2003-28M (July 2003) the Council found that even if the custodian’s manner was less than polite, there was no denial of access and therefore, no basis under OPRA for the Council to reprimand the custodian.  However, the Council stated that the Governing Body, as employer, may elect to review the allegations of inappropriate conduct. 

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that:

  1. The Custodian provided the Complainant access to the entire file on October 13, 2005, which contained the requested records.  Additionally, since the records were in storage at an off site location and required retrieval, the Custodian appropriately requested that the Complainant schedule a time to review the records, however, the Custodian did not receive a response from the Complainant.   Therefore, it should be concluded that there was not an unlawful denial of access pursuant to N.J.S.A. 47:1A-1, and N.J.S.A. 47:1A-5.g.
  2. While the Custodian counsel’s comments may be viewed as inappropriate, the Complainant was provided access to the file containing those records in existence and responsive to the request and the Council’s authority under OPRA may only “… adjudicate a complaint … concerning a denial of access to a government record by a records custodian.” (Emphasis added.) N.J.S.A. 47:1A-7.b.  However, as the Council stated in Mary Ann Cottrell v. Borough of Glassboro, GRC Case No. 2003-28M (July 2003), the Governing Body, as employer, may elect to review inappropriate conduct of its employees. 

Prepared By: Gloria Luzzatto, Operations Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

April 4, 2006


[1] The three (3) records requests are attached to these findings and recommendations.   The Government Records Council was unable to identify the specific records in the requests.
[2] Copies of the records requests attached to the Denial of Access Complaints were undated.  Copies of the requests provided by the Custodian are dated October 1, 2005, October 3, 2005 and October 6, 2005 and are identical to the requests attached to the complaints.  The Custodian’s certification and Counsel’s submission state that the three (3) requests were received on October 7, 2005. All copies of the requests are date stamped received on October 7, 2005.
[3] The Custodian provided a copy of the written response and certifies that the written response to all three requests were made on October 13, 2005. 
[4] The records requests attached to the Complainant’s Denial of Access Complaints were undated.  The Custodian provided the Council with copies of the dated requests.  Complainant’s OPRA requests are dated October 1, 2005 (GRC Complaint No. 2005-256), October 3, 2005 (GRC Complaint No. 2005-258) and October 6, 2005 (GRC Complaint No. 2005-258).  The Custodian’s certification states that the Custodian received the three (3) records requests on October 7, 2005. 
[5] There was no response to the offer of mediation by either party. 
[6] Mr. Caggiano’s filed GRC Complaints No. 2005-215, 2005-225 and 2005-241.  These complaints were voluntarily withdrawn February 23, 2006. 

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