Dear Nutley Township, (Health Department)
This is a request for public records made under OPRA and the common law right of access. I am not required to fill out an official form. Please acknowledge receipt of this message.
A list of all deceased Nutley residents in which COVID-19 was listed as a cause of death.
Dear Nutley Township,
On June 2, 2020, I sent an OPRA request for a list of deceased Nutley residents in which COVID-19 is listed as a cause of death. To date, I have not received a reply nor have I been provided with the requested information. Compliance with my request is past due and I am sending this e-mail as a good faith reminder.
This correspondence shall serve as Nutley Township (the “Township”)’s
response to your request for access to government records pursuant to the
Open Public Records Act, N.J.S.A. 47:1A-1.1, et seq. (“OPRA”), which was
sent on June 2, 2010 at 2:39 AM and received by the Township on June 3,
2020 during regular business hours. Below is a list of each request for
access and the Township’s response to the same:
“A list of all deceased Nutley residents in which COVID-19 is listed as a
cause of death.” Under N.J.A.C. 8:57-1.14(c), such reports regarding
communicable diseases which “contain demographic and medical information
related to the Department's investigations and epidemiological studies of
communicable diseases . . . shall not be considered ‘government records’
subject to public access or inspection within the meaning of N.J.S.A.
47:1A-1, et seq.” Instead, such reports shall be considered: “Records
concerning morbidity, mortality and reportable diseases of named persons
required to be made, maintained or kept by any State or local governmental
agency” within the meaning of Executive Order 9, §2(c) (Hughes, September
30, 1963). N.J.A.C. 8:57-1.14(c). Executive Order 9, §2 states that such
records “shall not be deemed to be public records subject to inspection
and examination and available for copying pursuant to the provisions of
[N.J.S.A. 47:1, et seq.].” N.J. Exec. Order No. 9, §2(c) (Sept. 30, 1963).
Moreover, in responding to an OPRA request, the Custodian is only required
to produce those records in her custody or control at the time of the
request. See Paff v. Twp. of Blairstown, GRC Complaint No. 2009-53 (Feb.
23, 2010). With respect to the list of COVID-19 related deaths, the
Township does not receive or maintain such records in the ordinary course
of its business. You may direct your request to the New Jersey Office of
Vital Statistics and Registry. Otherwise, your request is denied.
To the extent that you have also requested access to the above government
records under the common law, your stated interest in obtaining the
records must be balanced against the Township of Nutley’s interest in
nondisclosure. See Loigman v. Kimmelman, 102 N.J. 98 (1986). The
foregoing response to your request for access to government records
incorporates the aforementioned balancing test. Please note that "a
party's status as a litigant does not enlarge its access to government
records under OPRA”. MAG Entm't, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 545-46 (App. Div. 2005). The Township of
Nutley reserves the right to raise any other grounds for denial not raised
in this response. Failure of the Township of Nutley to assert an
exemption or privilege does not act as a waiver of any grounds for
denial. Furthermore, a reviewing Court or the Government Records Council
("GRC") may deem a denial of access to be authorized on grounds other that
those advanced by a custodian. See Paff v. Twp. of Plainsboro,
A-2122-05T2, 2007 WL 957289, at *2 (App. Div., Apr. 2, 2007), affirming,
Paff v. Township of Plainsboro, GRC Complaint No. 2005-29 (March 2006).
If your request for access to a government record has been denied or
unfilled, you have a right to challenge the decision by the Township of
Nutley to deny access. At your option, you may either initiate a
proceeding in the Superior Court of New Jersey or file a complaint with
the GRC by completing the Denial of Access Complaint Form. You may
contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O.
Box 819, Trenton, NJ, 08625, by e-mail at [email address], or on
its website at www.state.nj.us/grc. The GRC can also answer other
questions about the law. All questions regarding complaints filed in
Superior Court should be directed to the Court Clerk in your County.
Clerk / Municipal Housing Liaison
Municipal Clerk’s Office
Township of Nutley, NJ
(973) 284-4951 x2233 Office
(973) 284-5668 Fax
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