2003-102

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 3, 2005 Supplemental 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, therefore, dismisses the case on the basis of the Complainant’s voluntary withdrawal of his complaint effective March 2, 2005.

This is the final administrative determination in this matter. The Complainant sought the appeal process and voluntarily withdrew his complaint upon receipt of the Appellate Division’s decision on March 2, 2005. 

Final Decision Rendered by the
Government Records Council
On The 10^th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

Diane Schonyers
Government Records Council

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Supplemental Findings and Recommendations of the Executive Director

Relevant Records Requested:  Any and all information, statements, records, transcripts, pertaining to File CJ#95-3614-H
Request Date:  May 13, 2003
Response Date:    May 16, 2003
Custodian:   Lynn Swender
GRC Complaint Filed:  July 30, 2003

Background

February 27, 2004
The Council dismissed the complaint finding that the custodian’s certification in the Statement of Information that there is “no record information” and conclusion that file #CJ95-3614 is not accessible under the Open Public Records Act (“OPRA”).

January 18, 2004
Complainant appealed the Council’s decision to the Superior Court of New Jersey, Appellate Division.

March 2, 2005
Appellate decision reversing the Council’s February 27, 2004 decision and remanding the case to the Government Records Council consistent with the Court’s decision.  The Court found that when the Complainant filed an OPRA request for records, he waived any right he had under the expungement statute to keep information about his conviction undisclosed. 

March 2, 2005
The Complainant informed the Government Records Council (GRC) staff by e-mail that he was withdrawing his OPRA request and “[did] not waive any rights under the expungement statutes of New Jersey.”  The GRC confirmed by e-mail the complainant’s withdrawal of his complaint effective March 2, 2005.  

Analysis

The Complainant voluntarily withdrew his complaint and no further analysis is required. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that the Complainant voluntarily withdrew his complaint effective March 2, 2005.

Prepared By:

Approved By
Paul F. Dice
Executive Director
Government Records Council

March 3, 2005

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Final 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 the entirety of said Findings and Recommendations. The Council dismissed the complaint finding that the custodian’s certification in the Statement of Information that there is “no record information” and conclusion that file #CJ95-3614 is not accessible under the Open Public Records Act (“OPRA”).

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 Recommendation of Executive Director

Relevant Records Requested:  Any and all information, statements, records, transcripts, pertaining to File CJ#95-3614-H
Request Date:  May 13, 2003
Response Date:   May 16, 2003
Custodian:  Lynn Swender
GRC Complaint Filed:  July 30, 2003

Executive Director’s Recommendation

This case involves a request for records alleged to be, or to have been, contained in the Department of Law Public Safety, Division of Criminal Justice’s file #CJ 95-3614-H. The Division of Criminal Justice denied the request on the grounds that “there is no record information.”  

The requestor states his belief that the documents in the Department of Criminal Justice’s file #CJ95-3614-H may have been destroyed. On June 1, 2003, he explains that his request includes documents relating to such destruction, if it is proven that the file documentation was in fact destroyed.

The GRC’s verbal requests to the custodian or her counsel for a written explanation of the phrase “there is no record information” have not been satisfied. The GRC’s November 14, 2003 written request for certifications from the custodian to confirm, in writing, what her duties are or were in relation to the documents, action(s) taken to locate the documents and confirmation that the records also did not elicit a written response. The custodian’s response suggests that the Division does not have records responsive to the OPRA request or the record does not exist in the possession of the Division.  Alternatively, the phrase “no record” information” is a unique term used in N.J.S.A. 2C:52-15 and is the mandatory response to requests for access to records that have been expunged. Expunged records are not destroyed.  They are, however, not publicly accessible as a matter of law. 

The Acting Executive Director recommends that the Council accept the custodian’s certification in the Statement of Information that there is “no record information,” conclude that file #CJ95-3614-H is not accessible under the Open Public Records Act (“OPRA”) and dismiss the complaint.

Statement of Facts
May 13, 2003 – Open Public Records Act Request filed

The requestor made a written OPRA request to the Division of Criminal Justice for any and all information, statements, records, transcripts, pertaining to their file CJ#95-3614-H

May 16, 2003 – Custodian’s written response

The custodian denied the OPRA request stating, “there is no record information.”

June 1, 2003 – Requestor’s letter to Peter C. Harvey, Acting Attorney General

Requestor states that he filed an OPRA request on May 13, 2003 for records pertaining to the Division of Criminal Justice’s file #CJ95-3614-H. He also provides a brief synopsis of the details of said case. The requestor also states that if the records were destroyed, he seeks any information pertaining to the destruction, the names of the people who destroyed the documents and under what authority those people acted.

June 17, 2003 – Requestor’s letter to the GRC

Requestor seeks the GRC’s “informal” assistance in obtaining documents pertaining to the Criminal Justice Department’s file #CJ95-3614-H. He states that he requested same on May 13, 2003 and was denied access on May 16, 2003 on the basis that the Division of Criminal Justice could find “no record information.” He alleges that the documents were destroyed and states his belief that there are documents that detail the destruction. He states his belief that OPRA also covers records relating to document destruction.

July 13, 2003 – Requestor’s letter to the GRC

In response to the suggestion of a GRC Staff Associate, requestor sent a copy of his June 1, 2003 letter to Peter C. Harvey, Acting Attorney General and its attachments to the GRC in an effort to assist the GRC with its informal attempts to resolve the complaint.

July 30, 2003 – Requestor’s cover letter for his Denial of Access Complaint

August 25, 2003 – GRC follow-up with the requestor on the Agreement to Mediate

A GRC staff member advised requestor that the GRC has not received a signed Agreement to Mediate and that the matter will proceed to adjudication unless the GRC receives same in five business days.

August 25, 2003 – Requestor’s signed Agreement to Mediate

September 18, 2003 – GRC requests a Statement of Information from custodian

September 30, 2003 – Custodian’s counsel submits a Statement of Information

1. May 13, 2003 cited as request date
2. “There is no record information” cited as reason for the May 16, 2003 written denial of access to the requested documentation
3. One of the “Item 7” attachments is a letter dated May 7, 2003 to the custodian of records, Division of Criminal Justice. Citing the authority of OPRA, the requestor seeks the same information that he requested on his May 13, 2003 OPRA request. The requestor also submitted a completed Department of Law and Public Safety Request Form on May 13, 2003. The OPRA request form refers to the May 13, 2003 letter and references the request for access to file # CJ #95-3614H.

NOTE: The above item #3 contains the only references to the May 7, 2003 request.

November 14, 2003 – Letter from the GRC to custodian

The GRC requested the following from the custodian:

1. Certification that at all times relevant to complaint #2003-102 the individual was the custodian of records
2. Certification that the custodian searched for all information, statements, records, and transcripts pertaining to file CJ #95-3614-H
3. Certification that no information, statements, records, transcripts, or files exist pertaining to CJ #95-3614-H
4. Certification that the foregoing statements are true to the best of the custodian’s knowledge, information and belief, and that the custodian is aware that if found willfully false, they would be subject to punishment.

Legal Analysis
N.J.S.A. 2C:52-3 provides that any person convicted of a disorderly persons offense may, after the expiration of a period of 5 years from the date of his conviction, petition Superior Court to expunge “such conviction and all records and information pertaining thereto.” If an order of expungement of records of arrest or conviction is granted and the record custodian receives a request for information or records of the person who was arrested or convicted,

the agency shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information. [N.J.S.A. 2C:52-15]

Expungement applies to the investigatory files related to the expunged convictions. N.J.S.A. 2C:52-1 provides that “expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.

There is no ambiguity in this OPRA request; the file requestor seeks has been clearly identified by number. The custodian’s response that there is no record information indicates either that the records do not exist in the possession of the Division or that the records have been expunged. N.J.S.A. 2C:52-15 precludes the custodian from giving more information if the records have been expunged. Regardless of whether the records exist or have been expunged, the Council should accept the certification of the custodian of records that there is no record information and dismiss the Complaint.

Conclusion
The Acting Executive Director recommends that the Council accept the custodian’s  certification in the Statement of Information that there is “no record information,” conclude that file #CJ95-3614-H is not accessible under the Open Public Records Act (“OPRA”) and dismiss the complaint.

________________________

Paul F. Dice, Acting Executive Director
Government Records Council
Date:  February 23, 2004

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