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2002-80

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision
- Findings and Recommendation of Executive Director

Final Decision

Donna Janeczko,
   Complainant
      v.
NJ Department of Law and Public Safety,
Division of Criminal Justice,
   Custodian of Record

Complaint No. 2002-79 and 2002-80

 

At its June 10, 2004 public meeting, the Government Records Council (Council) considered the June 2, 2004 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. A correction to the Findings and Recommendations was made to the Executive Director’s recommendations from “… the Council dismiss the complaint …” was changed to read “… the Council close the case …” The Council voted unanimously to adopt the entirety of said findings and recommendations with the amended change. 

The Council, therefore, closed the case on the basis that the Appellate Division of Superior Court of New Jersey affirmed the Government Records Council’s August 14, 2003 Final Decision.

Final Decision Rendered by the
Government Records Council
On The 10th Day of June, 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 

Decision Distribution Date:  June 21, 2004

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Supplemental Findings and Recommendations of the Executive Director

Donna Janeczko,
   Complainant
            v.
New Jersey Department of Law and Public Safety, Division of Criminal Justice (2002-79)
and Division of State Police (2002-80)
   Custodian of Record

GRC Complaints No. 2002-79 and 2002-80

 

Relevant Record(s) Requested: Reports of the state and local police investigation surrounding the death of Loren Janeczko
Request made: October 2 and October 11, 2002 (80 and79 repsectively)
Custodian: Division of Criminal Justice: Dale Perry,
Division of State Police: Sgt. FC Robert Wilk
Request denial: October 2 (80) and October 17 (79), 2002
GRC Complaint filed: October 29, 2002

Recommendations of the Executive Director

At its August 14, 2003 public meeting, the Government Records Council considered Complaints No. 2002-79 and -80 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodians' failure to provide access to reports of the state and local police investigation surrounding the death of requestor's son.

The Council considered the Complaints, the custodians' Statements of Information; communications on behalf of the custodians dated April 11 and 17, 2003; communications from the requestor dated April 24, 2003, July 26, 2003 and the Acting Executive Director's Findings and Recommendations dated August 8, 2003 that the Complaint be dismissed because the records sought were criminal investigatory records exempt from access under OPRA.

By affirmative vote of four Council members at its August 14, 2003 meeting, the Council voted:

  • To adopt and incorporate the Findings and Recommendations of the Acting Executive Director dated August 8, 2003;
  • To dismiss the Complaint; and,
  • To advise the requestor of her right to seek access to the records under common law in New Jersey Superior Court.

The Final Decision of the Government Records Council was issued on August 14, 2003.

The complainant appealed the Council’s decision to the Appellate Division of the Superior Court of New Jersey on September 8, 2003. On May 26, 2004 the Superior Court rendered a decision affirming that of the Government Records Council’s Final Decision. 

The Executive Director respectfully recommends that the Council dismiss the complaint on the basis that the Appellate Division of the Superior Court of New Jersey affirmed the Government Records Council’s Final Decision.

Analysis

There is no legal analysis needed in this case. 

Additional Documents Reviewed:

  • May 26, 2004 – Findings of the Appellate Division, Superior Court of New Jersey                          

Paul F. Dice
Executive Director
Government Records Council

June 2, 2004

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Final Decision

Donna Janeczko,
Complainant
v.
Division of Criminal Justice (2002-79)
and
Division of State Police (2002-80)
Department of Law and Public Safety
State of New Jersey
Custodian of Record

GRC Complaints No. 2002-79 and 80

 

Decision Issued: August 14, 2003
Decision Effective: August 22, 2003

At its August 14, 2003 public meeting, the Government Records Council considered Complaints No. 2002-79 and -80 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodians' failure to provide access to reports of the state and local police investigation surrounding the death of requestor's son.

The Council considered the Complaints, the custodians' Statements of Information; communications on behalf of the custodians dated April 11 and 17, 2003; communications from the requestor dated April 24, 2003, July 26, 2003 and the Acting Executive Director's Findings and Recommendations dated August 8, 2003 that the Complaint be dismissed because the records sought were criminal investigatory records exempt from access under OPRA.

By affirmative vote of four Council members at its August 14, 2003 meeting, the Council voted

  • To adopt and incorporate the Findings and Recommendations of the Acting Executive Director dated August 8, 2003;
  • To dismiss the Complaint; and,
  • To advise the requestor of her right to seek access to the records under common law in New Jersey Superior Court.

A copy of this Order shall be provided to the requestor, the custodians and all legal counsel of record.


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

Donna Janeczko,
Complainant
v.
Division of Criminal Justice (2002-79)
and
Division of State Police (2002-80)
Department of Law and Public Safety
State of New Jersey
Custodian of Record

GRC Complaints No. 2002-79 and 80

 


Relevant Record(s) Requested: Reports of the state and local police investigation surrounding the death of Loren Janeczko
Request made: October 2 and October 11, 2002 (80 and79 repsectively)
Custodian: Division of Criminal Justice: Dale Perry,
Division of State Police: Sgt. FC Robert Wilk
Request denial: October 2 (80) and October 17 (79), 2002
GRC Complaint filed: October 29, 2002

Executive Director's Recommendation

This complaint involves complaints to two State agencies for records of a similar nature. The requests to the Division of Criminal Justice and the Division of State Police involve copies of records related to alleged criminal actions committed by the son of the requester, who was ultimately killed by police officers.

It is clear that the requested records are of a criminal investigatory nature which the Open Public Records Act defines 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." Such records are an exception from disclosure under OPRA. OPRA does permit the disclosure of information related to criminal investigations [N.J.S.A. 47:1A-3(b], information which was, though not requested, provided to the requestor. Further, even though some records were available to the requestor under the Federal Freedom of Information Act, such disclosure does not provide any additional rights to the requestor under OPRA.

The Executive Director recommends that the Council find that the requested records are criminal investigatory records and thus not subject to disclosure under OPRA. It is also recommended that the Council find that the request is not frivolous and that the requestor considers any rights that may exist under the State's common law as a means of obtaining the records.

Statements of Facts

This matter involves two complaints (2002-79 and 2002-80 which for adjudicatory purposes are being handled as a single case) involve copies of records of an investigation surrounding the shooting death by law enforcement officials of the requester's son a year earlier. The initial request was filed with the State's Division of State Police on October 2, 2002, whose custodian responded that same day with a denial of access. The requestor was advised by telephone and e-mail that the material sought was exempt from public access as a criminal investigatory records under N.J.S.A. 47:1A-2.2. On October 11, 2002, requestor filed a similar OPRA request with the Division of Criminal Justice. The Division custodian denied the request on October 17 by e-mail, citing the same OPRA exemption. On October 29, 2002 requester filed the OPRA complaints concerning each denial.

The parties did not invoke mediation. The Statement of Information (SOI) from the counsel addressing both complaints advised that the GRC did not have jurisdiction over the complaints because the report sought is a criminal investigatory record pursuant to N.J.S.A. 47:1A-1.1 and thus is not a government record subject to public acces. Counsel stated that "…the investigation pertains to any possible criminal conduct Mr. Janeczko may have committed prior to his death in addition to any possible criminal conduct related to his death itself" and that, accordingly, the record is not subject to public access under the OPRA." Counsel further contended that there was no factual basis for the complaints and that they were frivolous.

After responding to the Council, by letter dated April 11, 2003, the Division of Criminal Justice custodian voluntarily provided the requestor with information pursuant to N.J.S.A. 47:1A-3(b) (i.e., type of crime, time, location and type of weapon), noting that this information was not requested. This information attributes to Mr. Janeczko a series of crimes over a three hour period which allegedly began at Fort Dix on October 12, 2001 involving multiple incidents attempted murder, auto theft, kidnapping and aggravated assault involving use firearms, and ended in Mr. Janeczko's death by police weapons fire.

By letter dated April 24, 2003, the requestor denied the complaints were frivolous. Requestor notes that she has already received some of the state's records from the Department of the Army and the Federal Bureau of Investigation through a federal Freedom of Information Act request and argues she needs the records to investigate the circumstances of her son's death. Requestor notes in other correspondence that there is no reason to further deny access since the state's investigation into her son's death is complete.

Analysis and Conclusion

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). Criminal investigatory records include records involving all manner of crimes, resolved or unresolved, and include information that is part and parcel of an investigation, confirmed and unconfirmed.

In this matter, there is no question that criminal investigatory records exist, particularly related to the shooting of the suspect. However, these reports that are required to be "made, maintained or kept on file" are not mandated by law, either regulation or statute. They are required by the Attorney General as part of his responsibilities under the Law Enforcement Act which grants him authority to require law enforcement agencies to prepare reports as may be necessary Such reports do, however, "pertain to a criminal investigation" because they necessarily investigate the criminal activity that resulted in discharge of police weaponry. Thus, while there are records, they do meet the definition of a criminal investigatory record, and therefore, pursuant to N.J.S.A. 47:1A-1.1 and are not accessible under OPRA.

It is also important to note that the exemption does not permit access to investigatory records once the investigation is complete. The exemption applies to records that conform to the statutory description, without reference to the status of the investigation and the Council does not have a basis to withhold from access only currently active investigations and release those where the matter is resolved or closed.

The fact that some records held by the State agencies was provided to the requestor under the Federal Freedom of Information Act from federal agencies that were involved in the matter cannot affect the outcome of this matter. OPRA must stand on its own as a declaration of State policy. It does not provide an exception that speaks to this circumstance or provide the requestor any additional rights under OPRA. Where such overlap exists, it assists requestors; where it does not, OPRA must stand on its own.

However, OPRA does provide a form of relief of which the requestor can take advantage. When enacting OPRA, the Legislature made it clear that the "common law" principle of public access to records remains in effect. Under the common law, despite a statutory prohibition against access, a requestor can petition the courts for access to records and request that their needs for access outweighs the government interest in preventing access. While the Council is not empowered to adjudicate cases based on the common law's "balancing test," the requestor has the option of ask the courts for access.

Based on the foregoing, the Executive Director finds and recommends that while the request is not frivolous, OPRA does not allow access and that the Council should dismiss the complaints.

___________________________________
Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: August 8, 2003

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