2003-78

At its February 10, 2004 public meeting, the Government Records Council ("Council") considered the February 10, 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. Therefore, the Council finds that:

I attest the foregoing is a true and accurate record of the Government Records Council.
Virginia Hook, Secretary
Government Records Council

Supplemental Findings and Recommendations of Executive Director

Relevant Records Requested: Membership Roster and Membership Applications of the Baron Athletic Association
Custodian: Dale Perry
GRC Complaint filed: June 17, 2003

The Council considered this matter at its January 8, 2004 meeting. Following same, the Council issued an Interim Decision on Access ordering the custodian to submit a certification stating why the membership roster and membership applications to the baron athletic association are not subject to N.J.S.A. 47:1A-3(b).

The Acting Executive Director finds compelling custodian’s counsels’ combined position that “…criminal investigatory records as defined in N.J.S.A. 47:1A-1.1 do not lose their protected status at any stage of a criminal investigation, whether pending, inactive or closed.[1]”

N.J.S.A. 47:1A-3(b) references certain “information” that must be provided in 24 hours. It does not retract the protection for “Criminal Investigatory Records offered under N.J.S.A. 47:1A-1.1. Here the Open Public Records Act (“OPRA”) differentiates information versus records. On its face, the requestor’s May 13, 2003 OPRA request seeks records, not information.

Accordingly, and based on N.J.S.A. 47:1A-1.1, and 3(b), the Acting Executive Director finds that:

May 13, 2003 - Records Request
May 21, 2003 - Records Denied
June 17, 2003 - Denial of Access Filed along with a Supplemental
June 23, 2003 - Mediation Forms Sent to Requestor and Custodian
August 21, 2003 - Mediation Declined by Custodian
September 23, 2003 - Submission of Statement of Information (SOI)
October 3, 2003 - Requestor's Response to SOI
October 20, 2003 - Custodian's Response to Requestor
October 28, 2003 - Requestor's Response to Custodian
October 28, 2003 - Conflict of Interest Raised by Requestor
November 20, 2003 - Denial of Requestor's Conflict of Interest Claim
January 22, 2004 - Custodian Counsel’s Response to the Government Records Council’s January 8, 2004 Interim Decision on Access

Pursuant to N.J.S.A. 47:1A-1.1, and 3(b), the documents sought are Criminal Investigatory Records, are exempt from disclosure.

[1] January 22, 2004 response from Deputy Attorneys General E. Robbie Miller and Lisa Sarnoff Gochman to the Government Records Council's January 8, 2004 Interim Decision on Access (pp.4)

Interim Decision on Access

At its January 8, 2004 public meeting, the Government Records Council ("Council") considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to order the custodian to provide a certification explaining why the Council should conclude that the membership roster and membership applications to the Barons Athletic Association, or any portion thereof, held by the Department of Law and Public Safety, Division of Criminal Justice are not subject to disclosure pursuant to N.J.S.A. 47:1A-3(b).

The custodian shall provide Acting Executive Director Paul Dice and the requestor with the above-mentioned certification no later than January 23, 2004.

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

Findings and Recommendations of Executive Director

Relevant Records Requested: Membership Roster and Membership Applications to the Baron Athletic Association
Request made: May 13, 2003
Response made: May 21, 2003
Number of Business Days for the Response: 6 business days
Custodian: Dale Perry
GRC Complaint filed: June 17, 2003

This case involves the Times of Trenton Publishing Corporation requesting the membership roster and applications of the Baron Athletic Association from the investigatory file of the New Jersey Department of Law and Public Safety, Division of Criminal Justice.

Custodian's counsel has denied access to the documents, on the grounds that they constitute “criminal investigatory records” that are expressly exempted from disclosure under N.J.S.A. 47:1A-1.1.

The membership roster and applications, which the requestor seeks, were originally in the possession of the Baron Athletic Association, a private entity. Based upon available information, no law or regulatory provision required Baron to make, or any agency to keep on file, a membership roster or membership applications. The roster and applications were not, at their inception, government records. As a result of the investigation of the Baron Athletic Association, the membership roster and applications are now "held" in a DOCJ investigation file. These documents are records, which were “not required by law to be made, maintained or kept on file,” that are now being "held by a law enforcement agency," and that pertained to a criminal investigation. They fit squarely within the definition of "criminal investigatory record," and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends the Council find that:

May 13, 2003 – Records Request
The requestor, The Times of Trenton, filed a request to gain access to the membership roster and applications of the Baron Athletic Association.

May 21, 2003 – Records Denied
The Custodian of Records, Ms. Dale Perry, denied the complainant's request for records of membership roster and applications related to the investigation of the Baron Athletic Association under NJSA 47: 1A-1-1. Ms. Perry claimed that these documents are part of a criminal investigatory file and as such, can not be disclosed.

June 17, 2003 – Denial of Access Filed along with a Supplemental
The requestor's counsel, Mr. Don Robinson of Robinson and Livelli, identified the State v. Sivo, et al., 341 N.J. Super. 302 (Law Div. 2000) as specific case law that supports disclosing membership rosters and applications from the Baron Athletic Association. The Sivo court found that the Attorney General's Office deceived the grand jury in several ways. Principally, Mr. Robinson purports that they avoided grand juror inquiries concerning the membership of law enforcement officers in the Baron Club, and by misrepresenting the Grand Jury that, as the jurors wanted, there would be an investigation of "politically connected persons" who were members of the Baron Club.

In addition, Mr. Robinson wrote that the Attorney General’s reliance on criminal investigatory records is not applicable. According to the counsel, NJSA 47: 1A-1 limits the exception to a record that "pertains to any criminal investigation or related civil enforcement proceeding." The criminal investigation of the Baron Club ended and there exist no civil enforcement proceedings. For this reason, Mr. Robinson feels that the Baron" membership data is part of the government's records and as such, should be accessible to the public.

August 21, 2003 - Mediation Declined by Custodian
In a phone conversation with the GRC staff associate, the custodian decided to decline mediation.

September 23, 2003 - Submission of Statement of Information (SOI)
The custodian filed a SOI and explained her position for denying access. The legal argument for the custodian is the following: "The GRC should dismiss the complaint without further investigation because the Council lacks jurisdiction over the petitioner's claim to investigatory records. The complainant, on its face, seeks criminal investigatory records. Criminal investigatory records are not government records and thus are not subject to public access under NJSA 47:1A-5. In addition, the custodian cited that no distinction exists in OPRA between criminal investigatory records that are contained in a pending investigation or a closed investigation. Thus, criminal investigatory records are exempt from public disclosure regardless of whether the investigation is ongoing or closed."

October 3, 2003 - Requestor's Response to SOI
The requestor addressed in writing the position given by the custodian regarding criminal investigatory records. Mr. Robinson criticized the custodian's contention that since there once was a criminal investigation of the Baron Club, all of its records automatically became and forever remain criminal investigatory records. He utilized the Courier News v. Hunterdon County Prosecutor's Office and the Asbury Park Press v. Lakewood Township Police Department as case law to support his position. In citing the Asbury Park Press case, the requestor concluded that membership records do not fall within a common sense reading of criminal investigatory records. These records were documents that existed before there was any criminal investigation. Furthermore, even if the records were criminal investigatory at one time, the Courier News court found that it would directly contravene the strong presumption of public access set forth in OPRA if investigatory records were kept under seal after a completed investigation. Finally, he discussed section NJSA 47:1A-3(b) detailing the release of investigatory records.

October 20, 2003 - Custodian's Response to Requestor
The custodian responded to the requestor's 10/3/03 letter. In this correspondence, the custodian claimed that a private organization maintained the membership applications and rosters and that this information was obtained during the course of the criminal investigation fitting exactly within the parameters of "criminal investigatory records". Secondly, the custodian argued that the Asbury Park Press case described the release of 911 tapes - information maintained or kept on file - while the requested documents in this case are those "not required by law to be made, maintained or kept on file" but rather were obtained during the course of the criminal investigation. In addition, the custodian asserted that the documents were not part of an ongoing investigation, however, the legislature never created a separate statutory scheme for records retained in a closed investigation. Finally, the side for the custodian argued that the privacy interests of the Baron Club members and applicants in the personal information given for the sole purpose of membership in a private organization substantially outweigh the public need for disclosure.

October 28, 2003 - Requestor's Response to Custodian
The requestor stressed that the custodian attempted to narrowly focus on OPRA's definition section without considering the nature of the documents sought, or their relationship to the Department of Law and Public Safety's improper conduct. Also, he ignored the public interest as the decisive factor that outweighed the speculative belief that the Baron Club members had an expectation of privacy.

October 28, 2003 - Conflict of Interest Raised by Requestor
Mr. Robinson challenged the Attorney General's involvement in this case. He claimed that since the requested information is in the possession and custody of the Attorney General office, whose refusal to grant access to records has caused this complaint, the office has an irreconcilable conflict of interest.

November 20, 2003 - Denial of Requestor's Conflict of Interest Claim
The Senior Deputy Attorney General, Ms. Carol Johnston, denied the requestor's claim of “conflict of interest”.

December 1, 2003 - Requestor's Counsel Response to Senior Deputy Attorney General's letter

December 30, 2003 - Requestor Counsel's Response to the Acting Executive Director's PFR
The requestor's counsel requested that the GRC recommend to the Council the following Rulings regarding the "Conflict of Interest" argument:

In addition, the requestor disagreed with the finding that the records sought were not government records and called into question how these documents could be forever immunized from public access due to their status as criminal investigatory documents.

The requestor is seeking the membership roster and applications of the Baron Athletic Association ("Baron") from the investigatory file of the New Jersey Department of Law and Public Safety, Division of Criminal Justice ("DOCJ"). Custodian's counsel has denied access to the documents, on the grounds that they constitute "criminal investigatory records" that are expressly exempted from disclosure under N.J.S.A. 47:1A-1.1. The statute provides that "a government record shall not included ... criminal investigatory records...." N.J.S.A. 47:1A-1.1. A "criminal investigatory record" is 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. The statutory definition of "criminal investigatory record" does not require that the documents pertain to a pending investigation. N.J.S.A. 47:1A-1.1.

The membership roster and applications which the requestor seeks were originally in the possession of the Baron Athletic Association, a private entity. Based upon available information, no law or regulatory provision required Baron to make, or any agency to keep on file, a membership roster or membership applications. The roster and applications were not, at their inception, government records. As a result of the investigation of the Baron Athletic Association, the membership roster and applications are now "held" in a DOCJ investigation file. These documents are records which were “not required by law to be made, maintained or kept on file,” that are now being "held by a law enforcement agency,” and that pertained to a criminal investigation. They fit squarely within the definition of "criminal investigatory record," and are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

The requestor cites to N.J.S.A. 47:1A-3(a), which provides that "the right of access" granted in N.J.S.A. 47:1A-1 et seq. may be denied for records pertaining to an investigation in progress by any public agency if disclosure "shall be inimical to the public interest...." This provision is inapplicable to Baron documents, because N.J.S.A. 47:1A-1 et seq. does not provide the right of access to criminal investigatory records. Records which are open for public investigation prior to their inclusion in the criminal investigatory file would be accessible because they would not qualify as criminal investigatory records. The question of whether the criminal investigation is pending or closed is irrelevant to the application of N.J.S.A. 47:1A-1.1. When the legislature intended to limit a statutory provision to pending investigations, as in N.J.S.A. 47:1A-3(a), it said so explicitly. The absence of such language in N.J.S.A. 47:1A-1.1. regarding the exemption for criminal investigatory records shows that the legislature chose not to limit the exemption to pending investigations. Read in concert with one another, the statutory provisions support the denial of access to the Baron membership roster and applications held in the criminal investigation file by the DOCJ.

Based on the credible information received, legal issues and considerations, the Acting Executive Director respectfully recommends the Council find that:

2003-78

Final Decision

Supplemental Findings and Recommendations of Executive Director

Interim Decision on Access

Findings and Recommendations of Executive Director