2003-125

Final Administrative Action

At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 10, 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 and amend same to incorporate the Division of Law’s supplemental advisory opinion and summary memo.  The Council, therefore, dismissed the case on the basis of:

1. The Custodian certified that the Disorderly Persons Complaint and the Arrest Report were released to the Complainant pursuant to N.J.S.A. 47:1A-1 et seq.
2. The remaining requested records in which access was denied are criminal investigatory records as defined by N.J.S.A. 47:1-1.1 and are, therefore, exempt from disclosure.
3. Although the Complainant is correct that the applicable criminal statute, N.J.S.A. 2C:2-4(b), labels disorderly persons offenses as "petty offenses and not crimes," a more thorough reading of the statute shows that this statutory designation is limited for the purposes of ensuring a speedy disposition of the charges without indictment or trial by jury.  Therefore, the distinction set forth under N.J.S.A. 2C:2-4(b) does not mean that disorderly persons offenses cannot be treated as crimes.  Furthermore, the Code of Criminal Justice defines the term "crime" broadly, to mean "a crime, a disorderly persons offense or a petty disorderly persons offense unless a particular section in this code is intended to apply to less than all three." N.J.S.A. 2C:1-14 (General Definitions).  Thus, records pertaining to disorderly persons offenses, including petty offenses, which are not required by law to be made, maintained or kept on file that is held by a law enforcement agency involving a criminal investigation are deemed to be "criminal investigatory records," and are not disclosable, pursuant to OPRA.
4. Finally, the Government Records Council has, in a different context, recognized the confidential nature of records related to disorderly persons offenses.  In Blue v. Wall Township Police Department, Government Records Council Complaint No. 2002-47, the Council determined that Title 39 motor vehicle offenses, which cannot be treated as crimes, is distinguishable from disorderly persons offenses, which remain in Title 2C of the State’s general criminal laws.

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 13^th Day of January, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Any and all incident reports, continuation reports, arrest reports, warrants or summons complaints, and property and evidence reports relating to the arrests of Alfred Hawkins from 1998-1999. 
Custodian: Township of Scotch Plains Police Department (Lt. Brian T. Mahoney)
Request Made:    6/10/03
Response Made: 6/11/03
GRC Complaint Filed: 10/7/03

Background

Complainant’s Case Position

The Complainant filed this October 7, 2004 complaint stating that he had been wrongfully denied access to the requested records. He stated that he had been advised that these records are “criminal investigatory” and therefore are not disclosable under the Open Public Records Act.

Public Agency’s Case Position

The Township of Scotch Plains has advised the Complainant that most of the records sought in his request are “criminal investigatory” and are not disclosable under the Open Public Records Act. 

They specifically stated that, “The Township would have no objection to the turnover by the Court of various summonses and complaints which are public records.  The balance of property evidence reports, incident reports and arrest reports fall under the O.P.R.A. exceptions as police records.  The Township is willing to release the original arrest report which is normally prepared in the ordinary course of business, but the confidential internal police reports are not eligible for release at this point… The court records, of course, as well as, the face of the arrest report are available.”

Analysis

The Open Public Records Act states that, “criminal investigatory records” are exempt from disclosure. (N.J.S.A. 47:1A-1.1) However, it was important to determine if these records are considered “government records” as defined by N.J.S.A. 47:1A-1.1.  A government record is defined 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 its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, …” (N.J.S.A. 47:1a-1.1).

Based upon the certification of the Custodian and his counsel, the GRC staff found it necessary to request an identification of the record, general nature description, and a response regarding whether the record of request is required to be made, maintained and kept on file. The following is the certification of the township clerk and counsel:

The Open Public Records Act allows citizens to obtain information regarding public records. In this case a number of the requested items are considered “criminal investigatory”, however it is essential that we recognize what is and what is not considered a “government record”. Therefore, any document that is not, “made, maintained or kept on file…” is not considered a government record and does not fall under a citizen’s right to gain public access as outlined by the Open Public Records Act (N.J.S.A. 47:1A-1.1). The township has possession of the records listed in this case.  However, some of the requested records are exempt from disclosure due to the fact that they are deemed “criminal investigatory records” as defined by N.J.S.A. 47:1-1.1.

Via the certification of the Custodian, the Investigation Report, Vehicle/Property Description Report (short form), Court Complaint, Fingerprint Card and “Mug” Shot are not required by law to be made, maintained or kept on file. Pursuant to the definition of “criminal investigatory records” in the Open Public Records Act, these records are not disclosable.

There are two remaining records in this case that are possessed by the township, the Disorderly Persons Complaint and the Arrest Report. The Custodian has certified that both have been given to the Complainant, therefore these documents are not at issue.

Documents Reviewed

The following documents were reviewed in the preparing the Findings and Recommendations for this case:

• June 10, 2003  – Requester’s OPRA request
• June 11, 2003 – Custodian’s response to OPRA request dated 6/10/03
• October 7, 2003 – Denial of Access Complaint filed
• January 12, 2004 – Offer of Mediation sent by the GRC to the Requester and Custodian
• January 13, 2004 – Complainant’s signed mediation agreement
• February 2, 2004 – GRC Request for Statement of Information
• March 18, 2004 – Letter to Custodian requesting more information
• March 19, 2004 – Letter from Custodian in response to 3/18 letter
• April 29, 2004 – Letter from Custodian’s counsel
• May 3, 2004 – Custodian’s Counsel signed mediation agreement
• September 20, 2004 – Statement of Information
• September 24, 2004 – E-mail correspondence from Custodian’s counsel to Gloria Luzzatto
• December 14, 2004 – Letter to Custodian’s Counsel from GRC staff
• December 21, 2004 – Response to December 14, 2004 letter
• December 22, 2004 – Revised letter from Custodian’s Counsel

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council dismiss the complaint on the following basis:

1. The Custodian has certified that the Disorderly Persons Complaint and the Arrest Report have been released to the Complainant pursuant to N.J.S.A. 47:1A-1 et seq.
2. The remainder of requested records are criminal investigatory records as defined by N.J.S.A. 47:1-1.1 and therefore are not disclosable.

Prepared by:
Approved By:

January 10, 2005

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Interim Decision on Access

At the May 13, 2004 public meeting, the Government Records Council (“Council”) considered the May 6, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations.  Therefore, the Council hereby finds that the Council and GRC staff will forego adjudicatory action in the case pending the outcome of mediation. 

Interim Decision Rendered by the
Government Records Council
On The 13th Day of May, 2004

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council 

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Findings and Recommendations of the Executive Director

Relevant Records Requested:

Any and all incident reports, continuation reports, arrest reports, warrants or summons complaints, and property and evidence reports relating to the arrests of Alfred Hawkins from 1998-1999. 
Request Made:    6/10/03
Response Made: 6/11/03
Custodian: Township of Scotch Plains Police Department (Lt. Brian T. Mahoney)
GRC Complaint Filed:  10/7/03

Executive Director’s Recommendations

The requestor and the custodian voluntarily signed Agreements to Mediate on January 13 & May 3, 2004. Based on same, the Executive Director respectfully recommends that the Council and GRC staff forego adjudicatory action pending the outcome of mediation.

Legal Analysis

Pursuant to N.J.S.A. 47:1A-7 (d), no legal analysis is needed at this time.

Documents Reviewed

The following documents were reviewed in the preparing the Findings and Recommendations for this case:

• 6/10/03 – Requester’s OPRA request
• 6/11/03 – Custodian’s response to OPRA request dated 6/10/03
• 10/7/03 – Denial of Access Complaint filed
• 1/12/04 – Offer of Mediation sent by the GRC to the Requester and Custodian
• 2/2/04 – GRC Request for Statement of Information
• 3/18/04 – Letter to custodian requesting more information

________________________

Paul F. Dice
Executive Director
Government Records Council

May 6, 2004

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