May someone get copies of stuff in a library's collection by using an open records request?

No, at least not in New Jersey, according to the NJ Government Records Council.  Using the state's public records act, Barbara Schwarz asked Rutgers University for records on Barbara Schwarz/Barbara Schwartz, Mark C. Rathburn aka Mark De Rothschild, Scientology or Church of Scientology, L. Ron Hubbard, and former President Dwight David Eisenhower.

When she was turned down, she filed a complaint with the Government Records Council (GRC). On March 10, 2005, the GRC ruled that the library's "inventory" does not fall within the scope of a government record pursuant to the state open records act.

The GRC made a clear distinction between a library's public records and its inventory. A library does not use its inventory in the course of doing business. Instead, it provides open access to it, the very "heart" of library service.

The complainant has 45 days from the date of the decision to appeal.

To read the decision ...

http://www.nj.gov/grc/decisions/2004-183.html

Final Decision

 

Barbara Schwarz    Complainant       v. Rutgers University    Custodian of Record

Complaint No. 2004-183

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 2, 2005 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, dismisses the case on the basis of:

1. The library inventory is not considered part of the body of administrative records and therefore, is not within the scope of the Open Public Records Act.
2. The Custodian certified that no government records responsive to the request were found pursuant to the Open Public Records Act.

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 10^th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Diane Schonyers
Government Records Council

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Findings and Recommendations of the Executive Director

Barbara Schwarz                                                  GRC Complaint No. 2004-183
Complainant
v.
Rutgers University
Custodian of Records

Records Requested:

1. Any records on Barbara Schwarz/Barbara Schwartz
2. Any records on Mark C. Rathburn aka Mark De Rothschild
3. Any records on Scientology or Church of Scientology
4. Any records on L. Ron Hubbard
5. Any records on former President Dwight David Eisenhower

Request Made:   October 2004
Response Made: October 6, 2004 and October 25, 2004
Custodian:   Kate Cahill
GRC Complaint filed: 11/01/2004

Background

November 1, 2004
Complainant’s Denial of Access Complaint disputing the fact that she was denied access to the records requested.
December 22, 2004
In the Statement of Information (SOI) the Custodian states that they have no records responsive to the request and the request was denied based on the fact that the mailing address of the requestor indicates that she is not a citizen of the State of New Jersey.
January 10, 2005
Complainant’s e-mail to the GRC disputing the Custodian’s SOI, in which she states that she should not be denied on the basis that she is not a New Jersey Citizen as well as stating that it is highly unlikely that Rutgers University does not have records responsive to her request.

January 14, 2005      
Custodian’s e-mail to the Complainant stating that the response to her request was referring to a copy of their internal records. The Custodian also states that their libraries are open to the public and an OPRA request is not required to obtain this information.    

Analysis

WHETHER library inventory falls within the scope of a government record pursuant to N.J.S.A. 47:1A-1, et seq.

Library[1] materials, or stated another way, a library’s inventory, does not fall within the scope a government record as established by the Open Public Records Act [OPRA].  The inventory, or the library’s goods and services is defined in Title 18 to include “…textbooks, copyrighted materials… including but not limited to books, periodicals, newspapers, documents, pamphlets, photographs, reproductions, microfilms, pictorial or graphic works… [and/or] other printed or published matter….”  N.J.S.A. 18A:18A-2

Alternatively, the 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 in the course of his or its official business by any officer, …”  N.J.S.A.47:1A-1.1  [emphasis added]

The character and nature of books and other printed materials are common characteristics shared by government records and library materials; nevertheless, there is a clear distinction between these groups.   A government record may be printed material, however, as an essential component of that inherent characterization, the material must be utilized or relied upon by the government agency in the course of carrying out the duties and services they provide to the public.  Libraries do not use their inventories in the course of doing business.  A library does provide open access to library materials, a concept that lies at the very heart of the service a library provides.

Furthermore, while a library grants access to the material it houses (or when appropriate, borrowing rights), the library, or its custodian is not responsible for performing research tasks and gathering materials within the library’s inventory.

The legislature further clarified this issue when it defined a “library record” as “…any document or record, however maintained, the primary purpose of which is to provide for control of the circulation or other public use of library materials.”  N.J.S.A. 18A:73-43.1.  This definition stands on its own to differentiate “library records” from “library materials.”  The mere notion that the legislature considered and articulated this distinction when drafting Title 18 is illustrative of the position that materials and records were intended to be distinct.  Additionally, N.J.S.A. 18A:73-43.2 establishes that “[l]ibrary records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in [certain enumerated] circumstances.”

Based on the foregoing, it is clear that a custodian for a public library has a responsibility to search through administrative records when faced with an OPRA request.  The libraries inventory shall not be considered part of the body of administrative records.  Should a requestor require materials from the library’s inventory, that requestor is in the best position to utilize the resources of that library and should they find success, use the commonly available copy equipment at the library facility to copy what they wish to retain.   

Whether Rutgers University has records responsive to the request pursuant to N.J.S.A. 47:1A-1, et seq.

Based on the Custodian stating that there were no records found responsive to the request, the Complaint should be dismissed.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that:

1. Library inventory should not be considered part of the body of administrative records.
2. The Custodian stating that there were no records found responsive to the request.

Prepared By:

Approved By:

Paul F. Dice
Executive Director
Government Records Council

March 2, 2005

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[1] "Library" means a library maintained by any State or local governmental agency, school, college, or industrial, commercial or other special group, association or agency, whether public or private.  N.J.S.A. 18A:73-43.1.

Comments

[APP]

http://appinterviewsbarbaraschwarz.blogspot.com/

Anonymous Press Pioneer (APP) interviews Barbara Schwarz

[dsaklad@zurich.csail.mit.edu]

Our cities' public libraries routinely skirt or flout FOI Freedom of Information public records principles. Ask for your favoite cities' public libraries' public records. It's important for librarians' collective bargaining unions to have access to the public records of their respective public institutions.

[Barbara Schwarz]

I did not call anybody any names.

Barbara Schwarz

[Mary]

Dear readers - Sorry - I had to delete a couple of comments that were name calling against an individual ... please take that discussion offline. Okay to give opinions related to posts on any side of an issue.

[Barbara Schwarz]

Federal and governmental employees are lazy. They don't want to work and they want to keep their actions secret. Many are also corrupt. That is why they don't respect the open records laws.

For the records, I am not unreasonable. I understand that the Rutger's University can't mail me books and magazines, but they can provide computer printouts of material to the few names in their libraries or of their course material. It would have taken them just a few moments. But they did not do that, as they hate requests for records and they are afraid to break a finger by typing a few names in their records system.

I requested also their business records from the university, e.g. material that is not accessible for the public as general correspondence, legal records, letters, fax transmittal sheets, memoranda, e-mails and so on. And guess what happened? My request for their business records were also denied. And that request was illegally ignored by Rutgers and the GRC.

Rutgers University is building young minds. (Or at least claiming so.) These young minds often become later state or federal employees. With that bad example democratic example by university, what do you think these later federal or state employees are doing when they get a request for records? I tell you: they will unlawfully deny it and democracy will not be served.

The GRC covered for Rutgers. One corrupt hand washed the other one.
I did not request records on Mark Rathburn, but on Mark Rathbun. I wrote to these people so often to correct the name, but they deliberately ignored it. And why is that? Because they have records to the name Mark Ratbun and by altering the name they have an alibi to make them not available. One day, when approached why they did not make the records of Mark Rathbun available, they will claim, oh, we processed under a wrong name... We are so sorry. Yeah right!

They can fool somebody else, but certainly not me. This matter has corruption written all over it.

Barbara Schwarz