2002-47

Final Decision

At its August 14, 2003 public meeting, the Government Records Council considered Complaint No. 2003-47 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide access to police records, operations reports, supplemental reports arrest reports, summons and Blood Alcohol Concentration report re: arrest of a certain named individual on February 20, 2002 for driving while intoxicated (DWI), and another motor vehicle offense. The custodian alleged that the police investigation was a criminal investigatory record exempt from access under N.J.S.A. 47:1A-1.1; and that the other records were accessible but for defendant's date of birth, age, place of birth, home address, home telephone number, employer's address, work telephone number, social security number, driver's license number.

The Council considered the requestor's Complaint, the custodian's Statement of Information; communications on behalf of the custodian dated September 12, 2002 and February 10, 2003; communications from the requestor dated September 4 and 12, 2002 and February 6, 2003; requestor comment delivered at the Council's October 10, 2002 meeting; and the Acting Executive Director's Finding and Recommendation dated August 5, 2003 stating:

• That a Title 39 motor vehicle offense such as DWI was not a "crime" and that, therefore, police investigation of such offenses was accessible under OPRA and not a "criminal investigatory record" exempt from access pursuant to N.J.S.A. 47:1A-1.1;
  
• That requestor, a licensed private detective, could not access defendant's social security and driver's license number because he was not acting "on behalf of" a government agency, court or law enforcement agency pursuant to N.J.S.A. 47:1A-1.1;
  
• That there was no basis under OPRA for the custodian's redaction of defendant's address, age, work telephone number, work address, date and place of birth.

By affirmative vote of four Council members at its August 14, 2003 meeting, the Council voted to adopt and incorporate the Director's August 5, 2003 Findings and Recommendation requiring the Custodian to provide requestor access to the police investigation report(s) and all non-confidential information such as defendant's address, age, work telephone number, work address, date and place of birth. The requestor was not represented by an attorney in connection with his Complaint and no application for prevailing party counsel fees is expected.

A copy of this Order shall be provided to the requestor, the custodian, and custodian's legal counsel.

VINCENT MALTESE, Chair
Government Records Council

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

Government Records Council
Dated: August 22, 2003

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Findings and Recommendation of Executive Director

Record(s) Requested: police records, operations reports, supplemental reports arrest reports, summons and Blood Alcohol Concentration report re: arrest of Robert E. Sammon on February 20, 2002.
Request made: August 26, 2002
Custodian: A. Blackwood, Records Manager, Wall Township Police Department
Request denial: September 13, 2002, with access on certain documents
GRC Complaint filed: October 17, 2002

Executive Director's Recommendation

The Executive Director concludes that the police department records requested here, which relate solely to Title 39 Motor Vehicle violations neither punishable as crimes nor related to a pending criminal investigation, are not criminal investigatory records under OPRA. Thus, in this case, police reports related to the DUI incident at issue implicate none of the exceptions under OPRA, and therefore, subject to any appropriate OPRA based redactions such as social security number, driver's license number, etc., should be released.

The status of the requester as a licensed private detective provides, in this case, no special status that allows disclosure of information such as social security number or driver's license number normally subject to redaction under OPRA.

It is recommended that the Council order disclosure of the police investigation report subject to any appropriate OPRA based redactions. The Council should order the custodian to provide the address and age of the defendant currently redacted from the arrest report and summonses by a date certain.

The GRC has not previously addressed the issue presented in this case. The custodian had no precedent for guidance in deciding to withhold the investigation reports. The timing of the request and the effective date of EO 26 that eliminated the requirement to disclose home addresses and phone numbers, leads to a conclusion that there was no improper intention to deny access to this information. Thus, the Council is justified in concluding that the custodian has not willfully or knowingly violated OPRA; no penalty is recommended. The requester's filings do not indicate attorney representation, thus no counsel fees application is expected.

Statements of Facts

On or about August 26, 2002, the requester submitted to the Police Chief and custodian an OPRA request characterized as an "Executive Order 69 (Whitman) request" for any and all police records, operations reports, supplemental reports related to "police contact with Robert E. Sammon" and an arrest which allegedly occurred February 20, 2002. On or about September 3, 2002, the custodian replied in writing that the reports were "not available at this time."

On September 4, 2002, the requester corresponded with Police Chief Roy Hall regarding the OPRA request and further identified the records sought pertaining to Mr. Sammon as Case # 2002-0820-0131 and Police report #2002-02411. The requester argued that EO 69 gave the requester the right to access the records sought and that EO 69 created rights of access to records which were unaffected by OPRA.

As a result of that conversation, on or about September 13, 2002, the Custodian mailed the requester a copy of Arrest Report #2002-02411 and "charging documents," and motor vehicle summonses #W086191 and #W086192. The Arrest Report has redacted from it Sammon's date of birth, place of birth, home address, home telephone number, employer's address, work telephone number and social security number. Each of the motor vehicle summons have redacted from them Sammon's driver's license number, address and birth date.

The requester filed the Complaint alleging that he had been denied access to the following records:

1. All police records, operations reports, supplemental reports related to "police contact with Robert E. Sammon" and an arrest which allegedly occurred February 20, 2002;
   
2. The police incident report;
   
3. Police arrest report;
   
4. Unredacted Motor Vehicle summonses #W086191 and W086192; and
   
5. Results of Blood Alcohol Concentration test conducted on Sammon upon arrest.

In the Statement of Information the Custodian stated that access to the incident reports, supplemental reports and operations reports was denied because they were criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1 and thus an exception to disclosure under OPRA.

Analysis and Conclusion

At the heart of this matter is the use of the OPRA definition of "criminal investigatory records" which are defined 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."

To analyze the use of the exceptions it is necessary to break down the components of the definition:

"A record which is not required by law to be made, maintained or kept on file" includes commonly made police records such as incident reports, supplemental reports and operations reports. There is no requirement that these records be made or kept by a Police Department.

"that is held by a law enforcement agency" is self-evident; it includes police departments.

"which pertains to any criminal investigation" is a key requirement. A line of cases decided by the Supreme Court and Appellate Division makes plain that motor vehicle charges (Title 39, which includes the driving while intoxicated charge) generally are not crimes or "offenses" defined by the Legislature in Title 2C, nor are they disorderly persons offenses, or civil actions.

It must be noted that in the few cases where the Legislature has stated that a Title 39 violation is punishable as a crime, records related to such charge would fall within the criminal investigatory records exemption. A similar result would apply where the Title 39 charge is connected with a criminal investigation or prosecution, such as a fatal motor vehicle accident. However, neither of these situations is presented here.

"or related civil enforcement proceeding" also has relevance. While it might seem that it would apply to any civil action, the words cannot be parsed to include any and all civil proceedings. The plain language of the statute states that claims of confidentiality under this section of OPRA must pertain either to criminal proceedings or to civil enforcement proceedings related to a criminal investigation.

Based on the foregoing, it can be concluded that investigations related solely to Title 39 non-criminal violations are government records subject to disclosure under OPRA, with redactions as permitted under OPRA. The remaining issues relate to redactions of documents previously provided.

Redaction of the defendant's social security number and driver license number is authorized pursuant to N.J.S.A. 47:1A-1.1, as would be redaction of his home telephone number if unlisted. The exception to this provision is that if the request was made by "any government agency, including any court or law enforcement agency, in carrying out its functions; or any private person or entity acting on behalf thereof…"

In this case, the requester is licensed by the State pursuant to the Private Detective Act of 1939, N.J.S.A. 45:19-8 et seq. The requester appeared before the Council prior to filing the complaint, arguing that private detectives are engaged in law enforcement duties and, as such, is entitled to access to police investigatory records. Thus, the Council must determine if licensed private detectives are covered under the exception for receipt of otherwise redacted information.
The Private Detective Act makes it clear that individuals acting in a law enforcement capacity are not subject to licensure under that law. The law grants licensed private detectives the authority to conduct certain activities, which include:

"…conducting any investigation for the purpose of obtaining information with reference to crimes, the identity, habits, location or credibility of persons, location of lost or stolen property, honesty of employees or contractors, or securing evidence for any trial" [N.J.S.A. 45:19-9(a)].

However, the statute makes it clear that detective agencies do not act in the capacity of law enforcement agencies. Thus, no special authority or privilege is granted is them under OPRA.

In this case, the requester has made no representation that he is working "on behalf of" a law enforcement agency. In his public appearance before the Council on October 10, 2002, the requester noted he was working for a private employer conducting background checks. Thus, the requester has no justifiable access to social security numbers, driver's license numbers, unlisted telephone numbers, or credit card numbers pursuant to OPRA.

However, the custodian provides no justification for redacting the defendant's address and age from the documents already provided and we can find no basis under OPRA for this redaction. However, we note that the request was filed shortly after EO 26 was signed. The change in policy concerning release of address and other personal information set forth in EO 26 was likely unclear to the custodian at the time this request was being fulfilled.

Finally, the requester's allegation that this is an "EO 69 request" is misleading, there is no such thing as an "EO 69 request" for records. OPRA incorporated the text of EO 69 into N.J.S.A. 47:1A-3(b).

To summarize, it is recommended that the Council order that all requested documents related to any non-criminal arrest be provided to the requester, subject to OPRA allowed redactions. While the requester is licensed in New Jersey under the Private Detective Act of 1939, OPRA affords the requester no special access to documents or personal information considered confidential under OPRA. However, the custodian must provide any information in the arrest or summonses that is not specifically confidential under OPRA.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: August 5, 2003

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