2004-216

Final Decision

At its June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 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 dismissed the case on the basis of the Custodian’s certification that the records responsive to the request are “criminal investigatory records” and, therefore, are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

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 9^th Day of June, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary
Government Records Council 

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Findings and Recommendations of the Executive Director

Records Requested:

1. Copy of all files, computer records (print-out) of all files maintained regarding Mr. Caggiano’s telephone calls.
2. Review all documents submitted by Mr. Caggiano (these were returned).
3. Review telephone log data with other persons on time of day and date regarding the subject.
4. Review all telephone records and other letters sent by the SPCO with other State Gov Employees in other enforcement agencies and the Borough of Stanhope.
5. Provide telephone record maintained by Detective Costello re calls with Mrs. Pawar and Mr. Fleming.
6. Review all documents of discovery or investigation undertaken by SPCO regarding adjacent property owners, Land Use Board, and materials for subject.
7. Copies of audio tapes taken by Detective Costello with Mr. Caggiano or other witnesses.

Request Made: August 6, 2003
Response Made: August 7, 2003
Custodian: David Weaver
GRC Complaint filed: December 14, 2004

Background

August 6, 2003
Written Open Public Records Act (OPRA) Request - Complainant seeks documentation regarding, “Caggiano complaint regarding Stanhope and other State Official regarding Stanhope Tax Map 10902, Lot 10 and 12, Minor Subdivision 2 Oak Dr. and 6 Oak Drive.”

August 7, 2003
Custodian sent a letter to the Complainant stating the records request was denied because the records requested are part of a criminal investigatory file. The Custodian further stated that they would return any documents that were submitted by the Complainant.

August 18, 2003
The Complainant wrote a letter to SCPO addressing why he felt that he should receive the requested documents.

December 14, 2004
The Complainant submitted the Denial of Access Complaint in which he alleges that he was told by an investigator of the State of New Jersey Department of Community Affairs that, “once a case is closed redacted files are open to the public for review or obtain a redacted copy.”

December 23, 2004
Offer of mediation sent to the Custodian and the Complainant

January 10, 2005
Custodian’s Statement of Information that stated the request was “portions of a criminal investigation file. Criminal investigations are confidential. No arrest made therefore EO69 does not apply.” The Custodian also attached subsequent correspondence between the Custodian and the Complainant.

January 14, 2005
E-mail correspondence from the Complainant to GRC staff regarding the Statement of Information.

April 25, 2005
Letter to the SCPO requesting additional information inclusive of a table in which documents specifically responsive to this request were identified, described and stated whether they were required by law to be “made maintained and kept on file”.

May 6, 2005
Certified response to the April 25, 2005 letter, that stated information contained in the file and that the requested records were criminal investigatory records.

May 12, 2005
Supplemental certification and clarification of responses provided to the April 25, 2005 letter from the GRC staff to the Custodian. This certification stated specifically each document in question, and whether it was not required by law to be made, maintained and kept on file pursuant to N.J.S.A. 47:1A-1.1.

Analysis

Whether access was unlawfully denied pursuant to OPRA?
OPRA provides that:

“all 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.

The Custodian has certified that the records request was denied because the requested records are “criminal investigatory records.”

OPRA states that:

“criminal investigatory records” are exempt from disclosure. N.J.S.A. 47:1A-1.1

OPRA defines a “criminal investigatory record” as:

“ a record which is not required by law to be made,   maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.” N.J.S.A. 47:1A-1.1

The Custodian has identified and certified that the records requested by Mr. Caggiano are criminal investigatory records as defined by OPRA, and that they are not required by law to be made, maintained or kept on file.  While the Custodian did return records submitted by Mr. Caggiano to his possession, the denial of access for other records was lawful pursuant to OPRA.

Conclusions and Recommendations
The Executive Director respectfully recommends that the Council dismiss this case on the basis that the Custodian has certified that the records responsive to the request are “criminal investigatory records” and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

Prepared By:  Kimberly Gardner, Case Manager
Approved By:
Paul F. Dice
Executive Director
Government Records Council

June 3, 2005

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