2003-63

Final Decision

At its March 11, 2004 public meeting, the Government Records Council ("Council") considered the March 11, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations and to dismiss the complaint on the basis of:

1. The custodian has met its burden of showing that the requested records and documents are exempt from disclosure under N.J.S.A. 47:1A-9 as they are considered exempt from disclosure under N.J.A.C. 11:16-6.12 and N.J.S.A. 17:33A-11
2. The requested records are also exempt from disclosure under N.J.S.A. 47:1A-1.1 as "criminal investigatory records."

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

Relevant Records Requested: A copy of the Office of Insurance Fraud Prosecutor case #01-012166-24 and all other related documents under the name of Leonard Probe. 
Request Made: 4/9/03
Response Made: 4/17/03
Custodian: Division of Criminal Justice, Records Custodian (Dale Perry)
GRC Complaint Filed:  5/20/03

Executive Director's Recommendations

This Open Public Records Act ("OPRA") Complaint filed December 3, 2003 alleges denial of an OPRA request to the Department of Law & Public Safety - Division of Criminal Justice seeking a copy of the Office of Insurance Fraud Prosecutor case #01-012166-24 and all other related documents under the name of Leonard Probe. 

The Requester alleges that he was improperly denied access to these records.  The Custodian asserts in the Statement of Information that the requested records are "criminal investigatory records" and are, therefore, exempt from disclosure under OPRA.  The Custodian further asserts that the records are not subject to public access under OPRA because they are exempt as confidential under the New Jersey Insurance Fraud Protection Act and regulations promulgated by the Department of Banking and Insurance.        

The Executive Director respectfully recommends that the Council dismiss the complaint because:

1. The custodian has met its burden of showing that the requested records and documents are exempt from disclosure under N.J.S.A. 47:1A-9 as they are considered exempt from disclosure under N.J.A.C. 11:16-6.12 and N.J.S.A. 17:33A-11
   
2. The requested records are also exempt from disclosure under N.J.S.A. 47:1A-1.1 as “criminal investigatory records.”

Legal Analysis

The Custodian has invoked several exemptions under OPRA.  First, the Custodian asserts that the records sought are exempt as "criminal investigatory records."  Specifically, OPRA provides that "[a] government record shall not include the following information which is deemed to be confidential for the purposes of [OPRA]: … criminal investigatory records."  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.  Id. 

In this case, the records sought appear to be those of the nature that fit squarely within the “criminal investigatory records' exemption.  The case file requested, including all other related documents, pertain to the investigation of the alleged insurance fraud of an individual that is not required by law to be made, maintained or kept on file by the Office of Insurance Fraud Prosecutor.  Thus, the records are “criminal investigatory” in nature and exempt from disclosure under OPRA. 

Second, the Custodian asserts that the records are exempt under OPRA because they are exempt from access by both the New Jersey Insurance Fraud Protection Act and regulations promulgated by the Department of Banking and Insurance.  OPRA provides that "all government records shall be subject to public access unless exempt from such access by … any other statute, … [and] regulation promulgated under the authority of any statute …" N.J.S.A. 47:1A-1. 

The New Jersey Insurance Fraud Protection Act provides that "[p]apers, documents, reports, or evidence relative to the subject of an investigation under this act shall not be subject to public inspection except as specifically provided in this act." N.J.S.A. 17:33A-11.  This statute further provides that the commissioner may, in his discretion, make these records available to the Attorney General, an appropriate licensing authority, law enforcement agencies, an insurance company or insurance claimant injured by a violation of the act.  Id.  The request in this case does not appear to be consistent with the exceptions from nondisclosure found in the statute.  Therefore, the records are exempt under OPRA since they are exempt from public inspection under the New Jersey Insurance Fraud Protection Act.

Additionally, regulations promulgated by the Department of Banking and Insurance provide that "[a]ll information and materials in the possession of the Office of Insurance Fraud Prosecutor concerning the possibility of the existence or occurrence of insurance fraud or related criminal activities are confidential and privileged against disclosure, and shall not be deemed public records …"  N.J.A.C. 11:16-6.12.  Again, the records sought in this case fit squarely within the meaning of these regulations because they concern the investigation of an alleged insurance fraud and they are in the possession of the Office of Insurance Fraud Prosecutor.  Therefore, the records are confidential and privileged against disclosure under these regulations and thus exempt under OPRA.   

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

• 4/9/03 - Requester's OPRA request
• 4/17/03 - Custodian's response to OPRA request
• 5/20/03 - Denial of Access Complaint filed
• 5/21/04 - Offer of Mediation sent by the GRC to the Requester and Custodian
• 5/21/03 - Requester's Agreement to Mediate
• 11/14/03 - Custodian's Refusal to Mediate
• 11/14/03 - GRC Request for Statement of Information
• 12/3/03 - Custodian's Statement of Information with Supplemental Information

Conclusion

The Executive Director respectfully recommends that the Council dismiss the complaint because:

1. The custodian has met its burden of showing that the requested records and documents are exempt from disclosure under the provisions of OPRA, N.J.S.A. 47:1A-9 as they are considered confidential privileged from disclosure under N.J.A.C. 11:16-6.12 and N.J.S.A. 17:33A-11
   
2. The requested records are also exempt from disclosure under N.J.S.A. 47:1A-1.1 as "criminal investigatory records."

________________________

Paul F. Dice
Executive Director
Government Records Council

March 7, 2004

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