2003-05

Final Administrative Action

At its February 10, 2005 public meeting, the Government Records Council (“Council”) considered the January 31, 2005 Supplemental Findings and Recommendations of the Executive Director including the administrative change to dates appearing on pages “2” and “6” and all related documentation submitted by the parties. The date of “March 25, 2005” was changed to read “March 25, 2004.”  The Council voted unanimously to adopt the entirety of said findings and recommendations with the noted administrative changes.  The Council, therefore, dismissed the case on the basis of:

1. The previous indices submitted by the DCJ were insufficient to determine the basis for the asserted privilege exemptions.  However, the information provided in the January 18, 2005 Vaughn Index was sufficiently detailed for each of the 16 listed documents to conclude that all the documents listed are privileged and not subject to disclosure.  Therefore, the DCJ has met the burden of proving that all 16 documents were properly withheld from disclosure pursuant to OPRA. 
2. An “in camera” review would not be warranted in this matter since the Vaughn Index provides sufficient information to explain the basis for the claimed privileges of all 16 documents.  Additionally, an “in camera” review is neither warranted nor appropriate in determining the existence of a record.
3. The DCJ did not unreasonably deny access to government records and, therefore, the custodian’s actions did not rise to the level of a knowing and willful violation of the OPRA under the totality of the circumstances. 

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 10^th Day of February, 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 

Decision Distribution Date:  February 17, 2005

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Supplemental Findings and Recommendations of Executive Director

Relevant Records Requested:

1. “Inspection of complaint records filed with Division of Criminal Justice in 1999 against Burlington County Prosecutors Office and Assistant Prosecutor J. Gerrow (CJ ref C-225);
2. On-site inspection of complaint filed by Officer Richard Rufo against Lumberton Police Department at Division of Criminal Justice (CJ ref C-226)
3. Inspection of complaint records pertaining to complaint filed with Division of Criminal Justice in 1998 against Westampton Township Police Department (CJ ref C-227);
4. Inspection of complaint records pertaining to complaint filed against Westampton Township Police department in January 2001 (CJ ref C-281)”

Request Date:  July 12, 2002 for request 1, 2 and 3; July 30, 2002 for request 4
Response Date:  July 19, 2002[1]for requests 1, 2 and 3; August 8, 2002 for request 4
Custodian: Dale K. Perry, Division of Criminal Justice
GRC Complaint Filed:  January 15, 2003

Background

February 27, 2004
The Government Records Council (Council) initially considered this case at the February 27, 2004 public meeting and ordered the Custodian to provide a general nature description and a detailed explanation why each of the 84 documents responsive to the OPRA request could not be disclosed and the basis for the asserted privileges by March 5, 2004 because the initial submissions and explanations were insufficient. 

March 5, 2004
The DCJ Counsel provided a Vaughn Index to the Government Records Council.   Subsequently, the Office of the Attorney General (OAG) proposed that the DCJ and the Council agree to a revised review of the 84 documents listed on the Vaughn Index.  The DCJ submitted that all but 16 documents appearing on the Index could be released in whole or in part and, in return, asked the Council to not find a knowing a willful violation of the Open Public Records Act (OPRA).  

March 11, 2004
The Council considered the Executive Director’s findings and recommendations, however, postponed a decision on the Executive Director’s Recommendations that DCJ release the documents they determined were disclosable and have the Custodian provide a certification to explain why the Council should not consider a knowing and willful violation.  The Council concluded, instead, that the Government Records Council (GRC) staff and Counsel to the GRC review the March 5, 2004 Vaughn Index submitted by the Counsel and present its findings and recommendations at the next Council meeting on whether the selected documents are privileged and exempt from disclosure.  

March 25, 2005
In response to the March 11, 2004 Council’s Interim Decision, Custodian’s Counsel (“Counsel”) submitted a letter brief to the Government Records Council informing the Executive Director that all but sixteen (16) documents listed on the March 5, 2004 privilege index would be released to the Complainant.  The DCJ Counsel further asserted that the 16 documents not disclosed were protected under “inter-agency or intra-agency advisory, consultative or deliberative materials,” attorney work product or attorney-client privileges.  The Counsel further asked the Council to not consider the Custodian’s actions as knowing and willful because:

1. Mr. Baranoski’s request was one of the first OPRA requests handled by the DCJ after the enactment of the law.
2. The Custodian’s responses to the requests were timely.
3. What was thought a year ago to be non-disclosable documents “may clearly be subject to disclosure now” based on GRC and judicial interpretation of the OPRA.

April 8, 2004
The Council considered the Executive Director’s Findings and Recommendations concerning the March 25, 2004 letter brief from the DCJ Counsel and determined that all documents deemed disclosable should be released to the Complainant and those claimed to be privileged, in whole or in part, should undergo an in camera review by the Council.  However, the Council held any action on its decision. 

May 5, 2004
The DCJ Counsel submitted a May 5, 2004 letter to Executive Director Paul Dice advising that the “documents we offered to release fully and those documents we offered to release with redactions” were provided to the Complainant.  Counsel stated further that “[W]e  are not releasing approximately 25 pages of documents as we continue to maintain that they are inter-agency or intra-agency advisory, consultative, deliberative materials and/or are  confidential as attorney/client privilege or legislative privileged materials…”  

August 16, 2004
Correspondence from Complainant to the GRC Staff inquiring of the case status

August 17, 2004
In response, the GRC Staff advised the Complainant of the case status and inquired whether he had received the additional documents from the DCJ as stated in the Counsel’s May 5, 2004 correspondence to the GRC Staff.  

August 29 and October 28, 2004
E-mail responses were received by the GRC Staff from the Complainant acknowledging receipt of additional documents from the Division of Criminal Justice. However, he asserts that the additional documents released to him did not substantiate whether an investigation was undertaken in four complaints filed by him with the Division of Criminal Justice which he contends was the documentation he was seeking in his OPRA request.  He further contends that he “provided ALL the information, including personal information of the victims and the accused(s), I can’t see why anything would need to be withheld at all.”  Thus he asks that the Council conduct an in camera review of all the documents pertaining to complaints filed with the Division of Criminal Justice in the presence of the Complainant and the Custodian to “verify its [document] existence.”

November 10, 2004

In an e-mail to the Counsel, GRC Staff requests specific identification of the documents provided to the Complainant stated in their May 5, 2004 letter using the March 5, 2004 privilege index submission.  Additionally, the e-mail requested a Vaughn Index detailing any document for which access was denied or information redacted with the reasons and exemptions claimed.

November 17, 2004
In response, the Counsel submitted the same index provided in the March 5, 20042 correspondence to the GRC Staff and identified the sixteen (16) documents with asterisks for which access was denied and the reason the exemption was as indicated in May 5, 2004 submission.  No further explanation of the reason for the claimed privilege exemptions was provided.  

November 19, 2004
The Counsel clarified in the e-mail to the GRC Staff that the Complainant was provided all documents appearing on the May 5, 2004 index not deemed to be privileged that were identified with asterisks.

January 5, 2005
The Complainant e-mail inquiry to the GRC Staff on the status of his complaint

January 6, 2005
GRC Staff responded to Complainant’s e-mail on the status of his complaint.

January 18, 2005
Although not directed by the GRC Staff, the Counsel submitted a “modified Vaughn Index” to Executive Director Paul Dice listing the 16 documents not released to the Complainant with date, author and number of pages contained in each document, the asserted privilege and a description of the document and the basis for the asserted privileges.  The DCJ Counsel stated that the Complainant initially reviewed approximately 558 pages of documents pertaining to his OPRA requests and was then provided all but 16 documents listed on the March 5, 2005 Vaughn Index.

Analysis

WHETHER the Custodian met the burden of proving the sixteen (16) remaining documents responsive to the OPRA are exempt from disclosure because of privileges asserted under “inter-agency or intra-agency, advisory, consultative or deliberative material”(ACD), attorney-client privilege and/or attorney work product. 

The OPRA provides that the public agency has the burden of proving the denial of access is authorized by law.  Specifically, OPRA states:

The public agency shall have the burden of proving that the denial of access is authorized by law.  N.J.S.A. 47:1A-6

The OPRA also provides that information is exempt from disclosure when it is ACD, attorney-client privilege and/or attorney work product.  Specifically, OPRA states:

The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. N.J.S.A. 47:1A-1.1. 

Any record within the attorney-client privilege…. N.J.S.A. 47:1A-1.1

In Vaughn v. Rosen, 523 F.2d 1136 “D.C. Cir. 1975” the court established procedures for “testing the classification of claims to exemptions.”    These procedures required a “Detailed Justification” to assure the exemption is justified and the “courts will simply no longer accept conclusory and generalized allegations of exemptions… but will require a relatively detailed analysis in manageable segments.”  Further, “An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document.” It also required “Specificity, Separation and Indexing” stating that “… [the] need for adequate specificity is closely related to assuring a proper justification … it is vital that the agency specify in detail which portions of the document are disclosable and which are allegedly exempt…”

Initially, the DCJ provided access to some documents in response to the OPRA request and asserted that 84 documents were exempt from disclosure on the basis of ACD, attorney-client privileges and/or attorney work product privileges.  The DCJ Counsel provided two (2) Vaughn Indices to the GRC staff to explain the asserted privileges to the 84 documents.  Both of the indices were insufficient in content to allow them to be identified as privileged communications and to warrant the documents being withheld.  However, on March 5, 2004, the same date the second Vaughn Index was submitted to the GRC staff, the DCJ Counsel, upon further review of the 84 documents, proposed to Executive Director Paul Dice that all but sixteen (16) of the documents contained on the March 5, 2004 Index could be released. Subsequently, in a May 5, 2004 letter to the GRC Staff, the DCJ advised that all but the sixteen (16) documents on the Vaughn Index were, in fact, provided to the Complainant.  The Complainant verified receipt of these documents in his August 29 and October 28, 2004 e-mails to the GRC staff.  Therefore, the only issue that remains is the 16 documents not being released by the DCJ in response to the Complainant’s OPRA requests.

On January 18, 2005 the Executive Director received a third Vaughn Index from the DCJ containing the 16 documents that still are being withheld on the basis of privilege exemptions.  As opposed to the previous indices submitted by the DCJ, a review of the information provided in the January 18, 2005 Index is sufficiently detailed for the each of the 16 documents listed to conclude that all the documents listed would be considered privileged and not subject to disclosure.  The Council should conclude that the DCJ has met the burden of proving that all 16 documents were properly withheld from disclosure pursuant to OPRA. 

WHETHER an “in camera” review of the sixteen (16) documents not released, as well as, all documents responsive to the request is warranted.

The OPRA provides that the responsibilities of the Council are to adjudicate complaints involving a denial of access.  Specifically, OPRA states:

receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian; N.J.S.A. 47:1A-7(b).

The Complainant asserts that all documents responsive to his request should be viewed “in camera” by the Council in front of both the public agency and the Complainant because the Complainant wants to verify the existence of documents and whether an investigation of four complaints occurred.  An “in camera” inspection is not warranted or appropriate under such circumstances. 

In the instant matter, the documents for which privileges are claimed concern potentially sensitive government documents and the January 18, 2005 Vaughn Index is specific with respect to the reason for the claimed privileges.  Therefore, an “in camera” review would not be warranted in this matter since the Vaughn Index provides sufficient information to explain the basis for the claimed privileges of all 16 documents. 

WHETHER the DCJ’s delay in providing documents originally asserted to be privileged constitutes a knowing and willful violation of OPRA. 

The OPRA provides that a custodian is to promptly provide access to records.  Specifically, OPRA states:

A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record.

To determine whether a delay in the production of documents requested pursuant to OPRA constitutes a willful violation of the statute requires a case-by-case analysis of the particular facts and circumstances surrounding the alleged incident.  In the instant matter, the request was voluminous and the custodian made every reasonable effort to respond within an appropriate amount of time. 

Although additional documents were produced upon the second revision of the Vaughn Index, the DCJ explained in a March 25, 2005 letter to the GRC Staff that its understanding of the law and changed in the course of this particular request, revealing that fewer documents were protected than they an originally determined.  This justification appears to be a good faith basis for the oversight.  Further evidence of the Division’s good faith in this instance is that the Division consistently complied with the findings of the Council with respect to the documents, revising the Vaughn Index in a timely manner and providing additional documents within the time proscribed by the Executive Director and the Council.  Absent any indicia of bad faith, the Council should find that the DCJ did not unreasonably deny access to government records and the custodian’s actions did not rise to the level of a knowing and willful violation of the OPRA under the totality of the circumstances. 

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council should dismiss the case on the basis that:

1. As opposed to the previous indices submitted by the DCJ, a review of the information provided in the January 18, 2005 Vaughn Index is sufficiently detailed for the each of the 16 documents listed to conclude that all the documents listed would be considered privileged and not subject to disclosure.  The Council should conclude that the DCJ has met the burden of proving that all 16 documents were properly withheld from disclosure pursuant to OPRA. 
2. An “in camera” review would not be warranted in this matter since the Vaughn Index provides sufficient information to explain the basis for the claimed privileges of all 16 documents.  An “in camera” review is neither warranted or appropriate in determining the existence of a record. 
3. The DCJ did not unreasonably deny access to government records and, therefore, the custodian’s actions did not rise to the level of a knowing and willful violation of the OPRA under the totality of the circumstances. 

Prepared By:

Approved By:
Paul F. Dice
Executive Director
Government Records Council

January 31, 2005

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Interim Order on Access

At its March 11, 2004 public meeting, the Government Records Council ("Council") considered the March 11, 2004 Findings and Recommendations of Executive Director set forth below and all related documentation submitted by the parties.

1. Order the custodian to release the documents it believes are fully disclosable, arguably the 28 records referenced in the OAG proposal, pursuant to N.J.S.A. 47:1A-1 et seq. to the Complainant within five business days of the custodian's receipt of the Council's order.
   
2. Order the custodian to release the documents it believes are partially disclosable, arguably the 40 records referenced in the OAG proposal, pursuant to N.J.S.A. 47:1A-1 et seq. to the Complainant within five business days of the custodian's receipt of the Council's order.
   
3. Order the custodian to provide Executive Director Paul Dice written confirmation of compliance with "1" and "2" immediately above within five business days of the custodian's receipt of the Council's order.
   
4. Order the custodian to provide Executive Director Paul Dice with a detailed certification of why the Council should not consider the custodian to have knowing and willfully violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances surrounding the complainant's July 12, 2002 and July 30, 2002 Open Public Records Act requests within five business days of the custodian’s receipt of the Council's order.
   
5. Forego any determination of the acceptability of the custodian's March 5, 2004 explanations of why the Council should accept the arguments that selected documents are privileged and, therefore, nondisclosable until the custodian has complied with "1-4" immediately above.

The Council unanimously voted to postpone a decision on the Executive Director's Recommendations until the GRC counsel reviews the custodian counsel's March 5, 2004 explanations of why selected documents are privileged and exempt from disclosure.  The Executive Director will report the results of the review to the Council at the March 30, 2004 Meeting. 

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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Interim Findings and Recommendations of the Executive Director

Division of Criminal Justice
Custodian of Record

Executive Director’s Recommendation

The Government Records Council ("Council") considered this case at its February 27, 2004 meeting. At its February 27, 2004 public meeting, the Council considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations and added the following:

1. The Council instructs the custodian to provide a more detailed explanation on each document that it claims is privileged, as the explanations provided in the custodian's January 14, 2004 index are insufficient.
   
2. If the custodian fails to provide the information in #1 above to Acting Executive Director Paul Dice of the Government Records Council by March 5, 2004, the Council will order the documents claimed to be privileged, criminal investigatory documents notwithstanding, to be disclosed subject to the necessary redaction(s) pursuant to N.J.S.A. 47:1A-1 et. seq.

In keeping with the Council's order, counsel for the custodian's counsel submitted additional information regarding the reasons why the custodian believes that selected documentation is privileged to Executive Director Dice on March 5, 2004 at 1623 hours. An analysis of same is ongoing at the time of this writing.

The Office of the Attorney General ("OAG") proposes that the Division of Criminal Justice ("DCJ") and the Council agree to a revised review of the 84 documents that the custodian believes to be privileged in one manner or another. The proposal includes:

1. Release of 28 records without redactions
   
2. Release of 40 records with redactions - details of the redactions to be included
   
3. No disclosure of the 16 remaining documents - details of the reasons for non-disclosure to be included
   
4. An agreement that the Council would not find the custodian to have knowingly and willfully violated the Open Public Records Act and that the matter be dismissed upon the DCJ's turning over the "56" documents.

NOTE: It is unclear how the OAG arrived at the count of 56. The above proposal indicates a release of 68 documents.

The Executive Director recommends that the Council:

1. Order the custodian to release the documents it believes are fully disclosable, arguably the 28 records referenced in the OAG proposal, pursuant to N.J.S.A. 47:1A-1 et seq. to the Complainant within five business days of the custodian's receipt of the Council's order.
   
2. Order the custodian to release the documents it believes are partially disclosable, arguably the 40 records referenced in the OAG proposal, pursuant to N.J.S.A. 47:1A-1 et seq. to the Complainant within five business days of the custodian's receipt of the Council's order.
   
3. Order the custodian to provide Executive Director Paul Dice written confirmation of compliance with "1" and "2" immediately above within five business days of the custodian's receipt of the Council's order.
   
4. Order the custodian to provide Executive Director Paul Dice with a detailed certification of why the Council should not consider the custodian to have knowing and willfully violated N.J.S.A. 47:1A-1 et seq. in the totality of the circumstances surrounding the complainant's July 12, 2002 and July 30, 2002 Open Public Records Act requests within five business days of the custodian’s receipt of the Council’s order.
   
5. Forego any determination of the acceptability of the custodian's March 5, 2004 explanations of why the Council should accept the arguments that selected are privileged and, therefore, nondisclosable until the custodian has complied with "1-4" immediately above.

Legal Issues

A legal analysis is not required at this time.

Additional Documentation Submitted to the Council For Review

• March 5, 2004 explanations of why the custodian believes selected documents are priviged.
• March 3, 2004 e-mail from the OAG

      _______________________________

Paul F. Dice, Acting Executive Director
Government Records Council

March 7, 2004

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Interim Decision

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations and added the following:

1. The Council instructs the custodian to provide a more detailed explanation on each document that it claims is privileged, as the explanations provided in the custodian’s January 14, 2004 index are insufficient.
   
2. If the custodian fails to provide the information in #1 above to Acting Executive Director Paul Dice of the Government Records Council by March 5, 2004, the Council will order the documents claimed to be privileged, criminal investigatory documents notwithstanding, to be disclosed subject to the necessary redaction(s) pursuant to N.J.S.A. 47:1A-1 et. seq.

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

Division of Criminal Justice
Custodian of Record

Relevant Records Requested:

1. “Inspection of complaint records filed with Division of Criminal Justice in 1999 against Burlington County Prosecutors Office and Assistant Prosecutor J. Gerrow (CJ ref C-225);
   
2. On-site inspection of complaint filed by Officer Richard Rufo against Lumberton Police Department at Division of Criminal Justice (CJ ref C-226)
   
3. Inspection of complaint records pertaining to complaint filed with Division of Criminal Justice in 1998 against Westampton Township Police Department (CJ ref C-227);
   
4. Inspection of complaint records pertaining to complaint filed against Westampton Township Police department in January 2001 (CJ ref C-281)”

Request Date:  July 12, 2002 for request 1, 2 and 3; July 30, 2002 for request 4
Response Date:  July 26, 2002 for request 1, 2 and 3; August 8, 2002 for request 4
Custodian: Dale K. Perry, Division of Criminal
GRC Complaint Filed:  January 15, 2003

Executive Director’s Recommendation

This complaint involves four requests for on-site inspection, review and copies as determined by the requestor of documents and information concerning allegations of misconduct and/or complaints filed by the requestor against the police agencies in Burlington County and forwarded to the Division of Criminal Justice (CDJ) through the Burlington County Prosecutor.  The custodian’s counsel indicates that documents sought in request C-225 and C-227 are the same documents sought in requests C-226 and C-281; namely:

1. Criminal investigatory records
2. Administrative files
3. Transcript

The custodian responded to the request as follows:

1. Request C225: Access was denied as it was considered criminal investigatory records
   
2. Request C227: 
   
   1. The requestor reviewed 297 pages of the administrative file and a 261 page transcript of the proceeding before the Edgewater Park Municipal Court and 44 pages of the transcript were copied per the requestor;
   2. Access denied to other portions of the administrative file as it was considered inter-agency or intra-agency advisory, consultative or deliberative material (ACD) and/or attorney-client privilege (ACP).  A privilege index was provided to the GRC on January 14, 2004.
      
3. Request C226 and C281 were denied, as the requested information was duplicative of the information sought in requests C225 and C227. 

A privilege index was provided to the GRC on January 14, 2004 concerning the records to which access was denied.  However, the index did not provide sufficient facts for the Executive Director to reach a conclusion whether the records being withheld from the requestor were ACD or ACP as claimed.

The Acting Executive Director respectfully recommends the Council find that:

1. The requestor was provided access to a portion of the administrative file and the complete transcript pertaining to the request and received copies of documents requested. 
   
2. The custodian properly denied access to the requested criminal investigatory record pursuant to N.J.S.A. 47:1A-1.1
   
3. The privilege index provided by the custodian’s council does not adequately document why the records withheld from the requestor were privileged and its connection to the claimed privilege. 
   
4. The custodian should be given an opportunity to submit to the Acting Executive Director, by a date certain, further documentation in support of the claim of privilege for each of the documents identified in the custodian counsel’s privileged index. 

Statement of Facts

July 12, 2002 – Written requests for information received by custodian

The requestor submitted the following three requests to the custodian for the Division of Criminal Justice:

1. “Request for any and all documents such as but not limited to Inspection Reports, supplemental reports, documents submitted by complainant/victim (Dale M. Baranoski) concerning investigation into misconduct by Westampton Township Police Department.” Complaint to Investigator Wrightson and White through Debra Stone, January 1998. (CJ ref. C227)
   
2. “Request for on-site inspection of any and all documents such as but not limited to Investigation Reports, supplemental reports, documents submitted by complainant/victim concerning Investigation into misconduct by Westampton Township Police Department and the Burlington County Prosecutor’s Office. Re:  CJ no. 00-10058-SS, Complaint No. S2000-1270-0324”; State v. James Gerrow.  (CJ Ref C225)
   
3. “Request for on-site inspection of any and all documents such as but not limited to investigation reports, supplemental reports, documents submitted by complainant/victim (Office Richard Rufo concerning investigation into misconduct against Lumberton Police Department and the Burlington County Prosecutor’s Office.”  (CJ Ref. C226)

July 26, 2002 – Custodian’s response to requests C225, 226, 227 above

1. The custodian denied access to inspect documents and reports pertaining to the C225 as the requested information was criminal investigatory records (a total of 591 pages);
   
2. In request C227 the requestor reviewed 297 pages of the administrative file and a 261 page transcript of the proceeding before the Edgewater park municipal court and 44 pages of the transcript were copied per the requestor; 96 pages of the administrative file were denied access as inter-agency or intra-agency advisory, consultative or deliberative material and 13 pages were exempt as attorney-client privilege. 
   
3. Request C226 was denied, as the requested information was duplicative of the information contained in requests C225 and C227. 

July 30, 2002 – Additional request for information submitted to Division of Criminal Justice custodian by requestor

The requestor submitted a fourth documents request to “review any and all records and work related product relating to a complain/investigation regarding a complaint that was filed against the Westampton Police Department and which was forwarded to the Division of Criminal Justice through Burlington County Prosecutor Bernardi approximately January 2001.” (CJ Ref. C281)

July 31, 2002 – Letter from requestor to Division of Criminal Justice (CJ) Custodian

In a letter to the custodian, the requestor indicated he inspected two of the four requested files.  He requestor contended that the two files reviewed were absent any investigative reports which he believed should be disclosed as the “investigations” sought in his request were closed. He disagreed with the reason for denial in C226 as “not applicable.”

August 8, 2002 – Custodian’s response to request

The custodian denied the request on the basis it was as duplicative information sought in requests C225 and C227.

January 15, 2003 – Denial of Access Complaint filed with cover letter from requestor

In the requestor’s cover letter to the complaint, he asserted that the documents that he was denied access to review were “official reports” which would be made and maintained and would not be exempt under N.J.S.A. 47:1A-1 “Criminal Investigatory Records.”

January 18, 2003 – Offer of Mediation to the parties and acceptance by requestor

March 5, 2003 – Email advising requestor mediation declined by custodian

Email from Office of Dispute Settlement (ODS) to requestor advising mediation declined by custodian and the case referred back to GRC

March 27, 2003 – GRC’s request for SOI from custodian and Supplemental from requestor

April 16, 2003 – Supplemental from requestor

The requestor indicated that he was the “victim/complainant” pertaining to the files sought in his request.  He argued that the official documents sought in his request would not be exempt from disclosure under OPRA.

May 9, 2003 – Statement of Information from Custodian’s Counsel

The custodian’s counsel addressed their response to the specific requests as follows:

1. C-225 sought access to documents concerning misconduct by the Westampton Police Department and Division of Criminal Justice file CJ00-100058-SS.  Access to file CJ00-100058-SS was denied on the basis it was a criminal investigatory record and exempt from disclosure under N.J.S.A. 47:1A-1. 
   
2. The requested documents in C-227, C-226, and C-281 overlapped and concerned allegations of misconduct and/or complaints filed by the requestor against the police agencies in Burlington County and forwarded to the Division of Criminal Justice (CDJ) through the Burlington County Prosecutor.  The administrative review conducted by DCJ and became the administrative file that consisted of 297 pages provided to the requestor for review.  Of the 297 pages reviewed, and a 261-page transcript of a proceeding before Edgewater Park Municipal Court of which copies were requested and made of 44 pages.  103 pages of the administrative file were considered exempt from disclosure as “inter-agency or intra agency advisory, consultative or deliberative material,” or attorney-client privilege material. 

January 9, 2004 – Letter from GRC to custodian’s counsel requesting an index

The GRC requested an index of the 103 pages of documents to which access was denied.

January 14, 2004 – Response from custodian’s counsel

The custodian’s counsel submitted a privilege index of documents providing the date of the document, number of pages, author, exempt privilege, and description of the document.  The custodian’s counsel indicated that 3 sets were duplicate documents and 6 documents were not in existence when the request was made. 

January 23, 2004 – Custodian’s certification concerning timeliness response to requestor

The custodian contends that it gave a verbal response to the requestor on July 19, 2002 and that the requestor confirmed in a return call to arrange a review of the requested records on January 26, 2004.

Legal Considerations and Issues

The index does not provide sufficient detail for the Council to reach a conclusion whether the records are, in fact, privileged as claimed. For example, there is no explanation why “referral” or “assignment” memos constitute privileged advice, opinion or deliberation, nor is there even a general description offered of the alleged advisory or opinion content of any of the ACD documents. Furthermore, there is no indication that the custodian has reviewed ACD records for non-privileged factual content and provided requestor access to this portion of the records. Even records claimed to be A/C privileged lack basic descriptions of content sufficient to allow them to be identified as confidential communication. In a few cases, records claimed to be A/C privileged appear, instead, to be attorney work-product.

The custodian did not meet its burden of proof that the records it withheld were actually privileged. The Executive Director should notify the custodian of the deficiency of the index and provide the custodian an opportunity to submit, by a date certain, further documentation in support of the claim of privilege for each of the documents identified in the custodian counsel’s privileged index. 

Conclusion

The Acting Executive Director respectfully recommends the Council find that:

1. The requestor was provided access to a portion of the administrative file and the complete transcript pertaining to the request and received copies of documents requested. 
2. The custodian properly denied access to the requested criminal investigatory record pursuant to N.J.S.A. 47:1A-1.1
3. The privilege index provided by the custodian’s council did not adequately explain the documents document why the records withheld from the requestor were privileged and its connection to the claimed privileged. 
4. The custodian should be given an opportunity to submit to the Acting Executive Director, by a date certain, further documentation in support of the claim of privilege for each of the documents identified in the custodian counsel’s privileged index. 

      _______________________________

Paul F. Dice, Acting Executive Director
Government Records Council

Dated:  February 23, 2004

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