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2004-108

- Final Decision
- Reconsideration to Settle the Record
- Final Decision
- In Camera Findings and Recommendations of the Executive Director
- INTERIM ORDER
- Supplemental Findings and Recommendations of the Executive Director
- Interim Order
- Supplemental Findings and Recommendations of Executive Director
- Interim Decision on Access
- Supplemental Findings and Recommendations of Executive Director
- Interim Decision
- Findings and Recommendations of Executive Director

Final Decision

 

October 29, 2008 Government Records Council Meeting

 

Robert Gorman

    Complainant

         v.

Gloucester City Police Department

    Custodian of Record

Complaint No.2004-108

 

 

 

At the October 29, 2008 public meeting, the Government Records Council (“Council”) considered the October 22, 2008 Reconsideration 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, finds that because the Complainant in his Denial of Access Complaint did not request the MVR tape with the audio portion and any portion of the tape that includes a visual image of any private citizen redacted, the Council’s June 25, 2008 Final Decision should not be disturbed.  There is no basis for reconsideration of this matter.

 

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.  Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. 

 

Final Decision Rendered by the

Government Records Council

On The 29th Day of October, 2008

 

 

Robin Berg Tabakin, Chair
Government Records Council
I attest the foregoing is a true and accurate record of the Government Records Council.


 

David Fleisher, Secretary
Government Records Council 

 

Decision Distribution Date: October 30, 2008

 

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Reconsideration to Settle the Record

                                              STATE OF NEW JERSEY

GOVERNMENT RECORDS COUNCIL

 

Reconsideration to Settle the Record
Supplemental Findings and Recommendations of the Executive Director
October 29, 2008 Council Meeting

 

Robert Gorman[1]                                                                      GRC Complaint No. 2004-108

            Complainant

 

v.

 

Gloucester City Police Department[2]

            Custodian of Records

 

Record Relevant to Complaint:  Copy of patrol vehicle mobile video recording (“MVR”) for the vehicle assigned to Officer William Johnson on November 24, 2003.

     

GRC Complaint Filed: August 3, 2004

Custodian: M. James Maley, Jr., Esq.[3]

Request Made:  July 2, 2004[4] 

Response Made:  July 21, 2004

 

Background

 

June 25, 2008

            Final Decision of the Government Records Council.  At the June 25, 2008 public meeting, the Government Records Council (“Council”) considered the June 18, 2008 In Camera 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, found that:

 

  1. The in camera examination of the requested MVR tape reveals the MVR tape is not exempt from disclosure as advisory, consultative or deliberative material.
 
  1. Upon applying the common law balancing test established by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1 (1995) and by the GRC in Merino v. Ho-Ho-Kus, GRC Complaint No. 2003-110 (February 2004), and balancing the Complainant’s need for the police mobile video recorded tape versus the potential for harm should the tape be disclosed, it is clear the potential for harm outweighs the Complainant’s need for access.  Accordingly, the Complainant was lawfully denied access to the requested mobile video recorded tape.

 

July 2, 2008

            Final Decision sent to both parties.

 

July 8, 2008

            E-mail from the Complainant to the GRC.  The Complainant informs the GRC that he never received a copy of the Council’s Decision.  The Complainant states that he moved to a different address and provides the GRC with the new address.

 

July 8, 2008

            E-mail from the GRC to the Complainant.  The GRC informs the Complainant that a copy of the decision was mailed to him and that if he does not receive it by July 11, 2008, to contact the GRC.

 

July 14, 2008

            E-mail from the Complainant to the GRC.  The Complainant informs the GRC that he still has not received a copy of the Council’s Final Decision.

 

July 15, 2008

            E-mail from the GRC to the Complainant.  The GRC sends the Complainant duplicate copies of the Council’s decision dated June 25, 2008 and the GRC’s transmittal letter dated July 2, 2008.

 

July 16, 2008

            E-mail from the Complainant to the GRC.  The Complainant requests a reconsideration of the Council’s Final Decision pursuant to N.J.A.C. 5:105-2.10.  The Complainant states that he agrees with the Council’s decision to safeguard a citizen’s reasonable expectation of privacy; however, the Complainant states that when he made his initial OPRA request he specifically stated that he only wanted the portions of the MVR tape that were public.  The Complainant further states that he needs neither the audio portion of the tape nor any portion of the tape that includes a visual image of any private citizen. 

 

July 17, 2008

            E-mail from the GRC to the Complainant.  The GRC informs the Complainant that before his request for reconsideration can be further considered he must first fully comply with the provisions of the GRC regulation governing reconsideration.  The GRC provides the Complainant with a copy of N.J.A.C. 5:105-2.10.

 

July 18, 2008

            E-mail from the Complainant to the GRC.  The Complainant states he has complied with the regulation and asks the GRC to consider his request for reconsideration.

 

August 5, 2008

            Letter from the GRC to the Complainant.  The GRC grants Complainant’s request for reconsideration of the Council’s June 25, 2008 Final Decision.

 

August 6, 2008

            Telephone call from the Complainant to the GRC.  The Complainant informs the GRC that he never received a copy of the Council’s Final Decision and requests a copy be sent to him via e-mail.

 

August 6, 2008

            E-mail from the GRC to the Complainant.  The GRC e-mails to the Complainant duplicate copies of the Council’s decision dated June 25, 2008 and the GRC’s transmittal letter dated July 2, 2008.

 

August 6, 2008

            E-mail from the Complainant to the GRC.  The Complainant confirms receipt from the GRC of a copy of the Council’s Final Decision dated June 25, 2008 and the letter from the Executive Director granting the Complainant’s request for reconsideration of said Decision.

 

Analysis

 

            Upon reconsideration, the GRC re-examined the Complainant’s Denial of Access Complaint dated August 3, 2004.  The Records Denied List contains the following description of the record: “copy of video tape from Officer Johnson’s vehicle.”  The complaint does not aver that the Complainant requests the MVR tape with the audio portion and any portion of the tape that includes a visual image of any private citizen redacted.

 

            Because the Complainant in his Denial of Access Complaint did not request the MVR tape with the audio portion and any portion of the tape that includes a visual image of any private citizen redacted, the Council’s June 25, 2008 Final Decision should not be disturbed.  There is no basis for reconsideration of this matter.

 

Conclusions and Recommendations

 

            The Executive Director respectfully recommends the Council find that because the Complainant in his Denial of Access Complaint did not request the MVR tape with the audio portion and any portion of the tape that includes a visual image of any private citizen redacted, the Council’s June 25, 2008 Final Decision should not be disturbed.  There is no basis for reconsideration of this matter.

 

 

Prepared By:    John E. Stewart

Case Manager

 

Approved By: Catherine Starghill, Esq.

Executive Director

 

October 22, 2008

 



[1] No legal representation on record.

[2] Custodian is represented by John B. Kearney, Esq., of Kearney & Schweitzer, P.C. (Haddon Heights, NJ).

[3] Mr. Maley is the City Solicitor and was acting custodian in this complaint to avoid a potential conflict of interest because the designated custodian, Municipal Clerk Paul Kain, is the Complainant’s brother-in-law.

[4]The Complainant filed another OPRA request on July 20, 2004 which was initially made a part of this adjudication; however, on March 8, 2006 the parties stipulated that all remaining issues from that request had been resolved.

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Final Decision

FINAL DECISION

June 25, 2008 Government Records Council Meeting

Robert Gorman

    Complainant

         v.

Gloucester City (Camden)

    Custodian of Record

Complaint No. 2004-108

 

 

 

At the June 25, 2008 public meeting, the Government Records Council (“Council”) considered the June 18, 2008 In Camera 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, finds that:

 

  1. The in camera examination of the requested MVR tape reveals the MVR tape is not exempt from disclosure as advisory, consultative or deliberative material.

 

  1. Upon applying the common law balancing test established by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1 (1995) and by the GRC in Merino v. Ho-Ho-Kus, GRC Complaint No. 2003-110 (February 2004), and balancing the Complainant’s need for the police mobile video recorded tape versus the potential for harm should the tape be disclosed, it is clear the potential for harm outweighs the Complainant’s need for access.  Accordingly, the Complainant was lawfully denied access to the requested mobile video recorded tape.

 

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.  Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819. 

 

Final Decision Rendered by the

Government Records Council

On The 25th Day of June, 2008

 

 

Robin Berg Tabakin, Chairman
Government Records Council

 

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

 

David Fleisher, Secretary
Government Records Council 

 

Decision Distribution Date:  July 2, 2008

 

 

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In Camera Findings and Recommendations of the Executive Director

                                        STATE OF NEW JERSEY

GOVERNMENT RECORDS COUNCIL

 

In Camera Findings and Recommendations of the Executive Director

June 25, 2008 Council Meeting

Robert Gorman[1]                                                                      GRC Complaint No. 2004-108

            Complainant

v.

Gloucester City Police Department[2]

            Custodian of Records

Record Relevant to Complaint:  Copy of patrol vehicle video assigned to Officer William Johnson on November 24, 2003.

     

GRC Complaint Filed: August 3, 2004

Custodian: M. James Maley, Jr., Esq.[3]

Request Made:  July 2, 2004[4] 

Response Made:  July 21, 2004

Background

 

December 14, 2006

Interim Order of the Government Records Council.  At the December 14, 2006 public meeting, the Government Records Council (“Council”) considered the December 7, 2006 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council found that it only accepts the October 17, 2006 Initial Decision of the ALJ in part.  The Council accepts the ALJ’s finding that the tape is not exempt as a criminal investigatory record (as was stipulated by the parties).  The Council reserves decision on the other findings made by the ALJ until such time as the Council has had the opportunity to conduct an in camera inspection, including review of such supporting documentation as is requested by the Council for the in camera inspection, to confirm that the tape is exempt from disclosure as advisory, consultative or deliberative material.

 

December 19, 2006

            Interim Decision and in camera letter requesting records sent to both parties.

 

December 20, 2006

            Letter from the Custodian’s Counsel to the GRC.  The Custodian’s Counsel requested the GRC grant a stay of the Interim Order dated December 14, 2006 because of an impending change in the Gloucester City governing body effective January 2007.

 

January 30, 2007

            Letter from the Custodian’s Counsel to the GRC.  The Custodian’s new legal counsel placed the firm’s appearance on record and forwarded item #1 of the Complainant’s July 2, 2004 request to the GRC for in camera examination pursuant to the Council’s Interim Order dated December 14, 2006.[5]  The Custodian’s Counsel further stated that he would attempt to locate other materials requested in the GRC’s in camera letter dated December 19, 2006.  These materials were requested by the GRC pursuant to the Council’s Interim Order in order to facilitate the in camera examination.

 

February 2, 2007

            Letter from the Custodian’s Counsel to the GRC with the following attachments:

 

  • Letter from the Gloucester City Police Chief (“Chief”) to the Camden County Prosecutor’s Office dated October 24, 2000 requesting permission to use funds from the special law enforcement trust account to purchase mobile video recording (“MVR”) equipment.
  • Letter from the Prosecutor’s Office to the Chief dated October 26, 2000 approving use of funds.
  • Certification of availability of funds to purchase two (2) MVR units dated October 30, 2000
  • Invoice for purchase and installation of two (2) MVR units from Mobile Vision dated November 7, 2000
  • Memo from the City Clerk to the Chief and Chief Financial Officer dated November 6, 2000 forwarding the Resolution authorizing purchase of two (2) MVR units
  • Letter from the Chief to the Chief Financial Officer dated November 7, 2000 requesting a purchase order for the MVR equipment
  • Special Order issued by the Chief to all police personnel dated January 25, 2001 establishing a procedure for use of the MVR equipment
  • Amendment to the January 25, 2001 Special Order dated January 25, 2003
  • Vendor’s sales brochure for MVR equipment.

 

The Custodian’s Counsel states that the above-listed documents are being forwarded in response to the GRC’s request.  The Custodian’s Counsel further states that he does not expect the Custodian to discover any other documents responsive to the GRC’s request.

August 6, 2007

            Telephone call from the GRC to the Complainant.  The Complainant confirms that he still wants disclosure of the record relevant to this complaint.

 

August 6, 2007

            Facsimile transmittal from the GRC to Largemoor Film Service.  The GRC requested a certification from Largemoor Film Service, Camden, New Jersey, verifying they perform VHS tape editing services for law enforcement agencies.

 

August 7, 2007

            Facsimile transmittal from Largemoor Film Service to the GRC.  Mr. Angelo Cardone forwarded a certification to the GRC wherein he certifies that he is the president of Largemoor Film Service and has been certified by the court as an expert in photography.  He further certifies he has performed photographic and video editing services for several law enforcement agencies.

 

April 4, 2008

            E-mail from the GRC to the Complainant.  The GRC requests that the Complainant respond to the following questions so that the GRC may employ the common law balancing test established by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1 (1995):

 

  1. Why do you need the requested record(s) or information?
  2. How important is the requested record(s) or information to you?
  3. Do you plan to redistribute the requested record(s) or information?
  4. Will you use the requested record(s) or information for unsolicited contact of the individuals named in the government record(s)?

April 4, 2008[6]

            E-mail from the Complainant to the GRC.  The Complainant provides the following responses to the GRC:

 

 

Need for Access Questions

Complainant’s Response

1. Why do you need the requested record(s) or information?

 

Based on the passage of time, the precedent of a decision allowing access is more important than the record itself.  The ability for residents to review similar tapes for actions that may or may not create a public safety issue is my goal at this time.

2. How important is the requested record(s) or information to you?

 

The precedent even more than the requested record is very important to me.

3. Do you plan to redistribute the requested record(s) or information?

 

I have absolutely no intention of redistributing the requested record.

4. Will you use the requested record(s) or information for unsolicited contact of the individuals named in the government record(s)?

 

I will not use [the] requested record to have any unsolicited contact with individuals named in the record.  Quite frankly, I have no need to be given any names from this record.

Analysis

 

            The record is contained on a Maxell T-120 standard VHS tape cartridge.  This tape was produced by MVR equipment mounted in a Gloucester City Police Department patrol vehicle.  The tape contains audio/video encompassing several dates; however the relevant time period for the record responsive to the Complainant’s request starts at counter number 00018 and ends at counter number 00606.  Accordingly, an in camera examination was performed on this segment of the tape.

           

Because the Council accepted the Administrative Law Judge’s finding that the tape is not exempt as a criminal investigatory record (as was stipulated by the parties), the remaining issue is whether the tape is exempt as advisory, consultative or deliberative (“ACD”) material because it is used for police officer training and evaluation.[7] 

 

OPRA excludes from the definition of a government record “inter-agency or intra-agency advisory, consultative or deliberative material.”  N.J.S.A. 47:1A-1.1.  It is evident that this phrase is intended to exclude from the definition of a government record the types of documents that are the subject of the “deliberative process privilege.” 

 

The deliberative process privilege is a doctrine that permits government agencies to withhold documents that reflect advisory opinions, recommendations and deliberations submitted as part of a process by which governmental decisions and policies are formulated. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29, 47 (1975). This long-recognized privilege is rooted in the concept that the sovereign has an interest in protecting the integrity of its deliberations. The earliest federal case adopting the privilege is Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958).  Federal district courts and circuit courts of appeal subsequently adopted the privilege and its rationale. United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.1993).

 

The deliberative process privilege was discussed at length in In Re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000). There, the court addressed the question of whether the Commissioner of Insurance, acting in the capacity of Liquidator of a regulated entity, could protect certain records from disclosure which she claimed contained opinions, recommendations or advice regarding agency policy. Id. at 81. The court adopted a qualified deliberative process privilege based upon the holding of McClain v. College Hospital, 99 N.J. 346 (1985), Liquidation of Integrity, supra, 165 N.J. at 88. In doing so, the court noted that:

 

“[a] document must meet two requirements for the deliberative process privilege to apply. First, it must have been generated before the adoption of an agency's policy or decision. In other words, it must be pre-decisional. … Second, the document must be deliberative in nature, containing opinions, recommendations, or advice about agency policies. … Purely factual material that does not reflect deliberative processes is not protected. … Once the government demonstrates that the subject materials meet those threshold requirements, the privilege comes into play. In such circumstances, the government's interest in candor is the "preponderating policy" and, prior to considering specific questions of application, the balance is said to have been struck in favor of non-disclosure.” (Citations omitted.) Id. at 84-85.

 

The court further set out procedural guidelines based upon those discussed in McClain:

 

“[t]he initial burden falls on the state agency to show that the documents it seeks to shield are pre-decisional and deliberative in nature (containing opinions, recommendations, or advice about agency policies). Once the deliberative nature of the documents is established, there is a presumption against disclosure. The burden then falls on the party seeking discovery to show that his or her compelling or substantial need for the materials overrides the government's interest in non-disclosure. Among the considerations are the importance of the evidence to the movant, its availability from other sources, and the effect of disclosure on frank and independent discussion of contemplated government policies.” In Re Liquidation of Integrity, supra, 165 N.J. at 88, citing  McClain, supra, 99 N.J. at 361-62, 492 A.2d 991.

 

            The Custodian contends MVR tapes are used for police officer training and evaluation and the Administrative Law Judge determined that using the MVR tapes for police officer training and evaluation fits within the scope of the ACD exclusion.  Although in camera examination of the requested record did not reveal any footage particularly conducive to police training and/or evaluation, if used for such purpose and a resultant policy was formulated, those portions of the record that contributed toward the policy would constitute ACD material.  There is nothing in the record, however, to indicate that the requested tape was used in such a manner as to render it, or any portion of it, ACD material.  Conversely, it appears such usage was not even contemplated when the attainment of MVR equipment was initially proposed, as evidenced in Chief Johnson’s October 24, 2000 letter to the Camden County Prosecutor’s Office wherein he requested permission to use funds from the special law enforcement trust account to purchase the MVR equipment.  The Chief stated his reasons for procuring the equipment were to enhance surveillance capabilities, provide a visual and audio recording of motor vehicle encounters, increase officer safety and provide officer accountability.  Almost any field incident in which the police are involved can conceivably be used for training purposes, and frequently after-action critiques are used for just such a purpose, but that does not necessarily render the underlying incident itself ACD material.  Further, those portions of an MVR tape determined by the Custodian to comprise ACD material could be redacted prior to disclosure.[8]

 

            Accordingly, the in camera examination of the requested MVR reveals the MVR tape is not exempt from disclosure as ACD material.

Examination of the MVR tape in camera, however, did raise other issues relevant to the obligation of the GRC under OPRA with respect to a citizen’s privacy interest.  In Merino v. Ho-Ho-Kus, GRC Complaint No. 2003-110 (February 2004), the Council addressed the citizen’s reasonable expectation of privacy pursuant to N.J.S.A. 47:1A-1 and found that the New Jersey Supreme Court, Appellate Division held that the GRC must enforce OPRA's declaration, in N.J.S.A. 47:1A-1, that "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." Serrano v. South Brunswick Twp., 358 N.J. Super. 352, 368-69 (App. Div. 2003). See also National Archives and Records Administration v. Favish, 541 U.S. 157, 124 S.Ct. 1570 (U.S. March 30, 2004) (personal privacy interests are protected under FOIA).

 

            The Complainant requests a record the disclosure of which could adversely affect the privacy interests of citizens; therefore it is necessary to employ the common law balancing test established by the New Jersey Supreme Court in Doe, 142 N.J. 1 (1995).  See also Merino v. Ho-Ho-Kus, supra. This balancing test is applicable to cases in which privacy interests are implicated and it allows the GRC to exercise its discretion in determining whether an individual’s privacy interest is outweighed by any factors militating in favor of disclosure of a government record, including the Complainant’s stated need for access to such information.  While OPRA does not require a requestor to reveal to a records custodian his or her need for access to the government records requested, legal advice received from the New Jersey Attorney General’s Office advises the GRC to make just such an inquiry to accurately perform the common law balancing test.   To determine whether the requested record should be disclosed, the GRC will balance the Complainant’s need for access and OPRA’s general policy favoring public access against the reasonable expectation of privacy of those individuals whose personal information is contained in government records.

 

The Supreme Court in Doe, supra, articulated several factors which must be considered when balancing the Complainant’s need for access against the public’s reasonable expectation of privacy.  These factors are (1) the type of record requested, (2) the information it does or might contain, (3) the potential for harm in any subsequent nonconsensual disclosure, (4) the injury from disclosure to the relationship in which the record was generated, (5) the adequacy of safeguards to prevent unauthorized disclosure, (6) the degree of need for access and whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access.

 

            The Complainant states that he is seeking disclosure of the record to establish the precedential value of a decision allowing access to MVR tapes, thereby facilitating access to such records in the future.  The Complainant contends that his goal is for residents to have the ability to review similar tapes for actions that may or may not create a public safety issue.  The Complainant denies that, if disclosed, he would redistribute the record or use it to contact anyone named within.

 

Upon balancing the Complainant’s need for the MVR tape versus the potential for harm should the record be released, it is clear the potential for harm outweighs the Complainant’s need for access.  OPRA provides that “…a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy…”  N.J.S.A. 47:1A-1.

 

The in camera examination of the MVR tape revealed an issue, unique to these tapes, that is potentially problematic.  The audio portion of the tape is often difficult to discern because of voice fluctuation, distance from the microphone, and noise created by movement, conversation, radio broadcasts, and other noise that is present in the environment.  Due to the nature of these recordings, many personal matters are apt to be discussed and/or transmitted.  It is likely information such as home addresses, criminal history, juvenile records, social security numbers, vehicle registration data, driver license numbers and similar information that would violate a citizen’s reasonable expectation of privacy could be captured on the audio.  This is information which is excluded from the definition of a government record under OPRA.  By law this information is prohibited from disclosure and must be redacted; however, it is often difficult to discern whether or not such information is being transmitted.

 

Moreover, as Chief Johnson mentioned in his October 24, 2000 letter to the Camden County Prosecutor’s Office, there are numerous reasons why a police department would want to produce a record using MVR equipment including officer accountability.  As the Chief suggested, MVR equipment can create a record that may have persuasive and/or evidentiary value in police internal investigations.  These tapes play an important part in exonerating wrongly accused police officers as well as protecting the public by facilitating police officer accountability and mitigating police misconduct.  Disclosing the MVR tape under OPRA may have a chilling effect on the future utilization of MVR equipment and/or the longevity of MVR tape storage.

 

There does not appear to be any countervailing rationale for allowing access to this MVR tape that outweighs the potential harm that could be caused by such disclosure. Although a defendant in a criminal action may have a compelling need for access to an MVR tape, there are means other than OPRA for seeking disclosure of such records if deemed to be of value in the defense of a criminal matter.        The Complainant’s rationale that access to MVR tapes would provide residents with the ability to review them for actions that may or may not create a public safety issue is not persuasive. If an individual observes a public safety concern that would have likely been captured by MVR equipment mounted in a police patrol vehicle, he/she would best serve the public interest by reporting it to the appropriate authority for investigation and letting that authority review the tape.

 

Therefore, upon applying the common law balancing test established by the New Jersey Supreme Court in Doe, supra, and by the GRC in Merino, supra, and balancing the Complainant’s need for the police mobile video recorded tape versus the potential for harm should the tape be disclosed, it is clear the potential for harm outweighs the Complainant’s need for access.  Accordingly, the Complainant was lawfully denied access to the requested mobile video recorded tape.

 

Conclusions and Recommendations

 

            The Executive Director respectfully recommends that the Council find that:

 

  1. The in camera examination of the requested MVR tape reveals the MVR tape is not exempt from disclosure as advisory, consultative or deliberative material.

 

  1. Upon applying the common law balancing test established by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1 (1995) and by the GRC in Merino v. Ho-Ho-Kus, GRC Complaint No. 2003-110 (February 2004), and balancing the Complainant’s need for the police mobile video recorded tape versus the potential for harm should the tape be disclosed, it is clear the potential for harm outweighs the Complainant’s need for access.  Accordingly, the Complainant was lawfully denied access to the requested mobile video recorded tape.

 

 

Prepared By: 

John E. Stewart

Case Manager/In Camera Attorney

 

 

 

Approved By:

Catherine Starghill

Executive Director

 

June 18, 2008



[1] No legal representation on record.

[2] Custodian is represented by John B. Kearney, Esq., of Kearney & Schweitzer, P.C. (Haddon Heights, NJ).

[3] Mr. Maley is the City Solicitor and was acting custodian in this complaint to avoid a potential conflict of interest because the designated custodian, Municipal Clerk Paul Kain, is the Complainant’s brother-in-law.

[4]The Complainant filed another OPRA request on July 20, 2004 which was initially made a part of this adjudication; however, on March 8, 2006 the parties stipulated that all remaining issues from that request had been resolved.

[5]The delivery of the requested record to the GRC after the change in administration thereby obviated the need for a stay.

[6] Additional correspondence was submitted by the parties.  However, said correspondence is not relevant to the adjudication of this complaint. 

[7] See the October 17, 2006 background entry in the December 7, 2006 Supplemental Findings and Recommendations of the Executive Director which were adopted in their entirety by the Council’s December 14, 2006 Interim Order.

[8] If such editing is beyond the capability of the government agency, the GRC has determined that there are photography laboratories experienced in performing such services for law enforcement organizations.  See the August 7, 2007 entry in the background section, supra.

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INTERIM ORDER

 

Robert Gorman

    Complainant

         v.

Gloucester City Police Department

    Custodian of Record

Complaint No. 2004-108

 

 

 

At the December 14, 2006 public meeting, the Government Records Council (“Council”) considered the December 7, 2006 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, only accepts the October 17, 2006 Initial Decision of the ALJ in part.  The Council accepts the ALJ’s finding that the tape is not exempt as a criminal investigatory record (as was stipulated by the parties).  The Council reserves decision on the other findings made by the ALJ until such time as the Council has had the opportunity to conduct an in camera inspection, including review of such supporting documentation as is requested by the Council for the in camera inspection, to confirm that the tape is exempt from disclosure as advisory, consultative or deliberative material.

 

 

Interim Order Rendered by the

Government Records Council

On The 14th Day of December, 2006

 

 

Robin Berg Tabakin, Vice Chairman & Secretary 

Government Records Council

 

 

 

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

 

 

Kathryn Forsyth
Government Records Council 

 

Decision Distribution Date:  December 19, 2006

 

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Supplemental Findings and Recommendations of the Executive Director

Robert Gorman[1]

      Complainant

 

               v.

 

Gloucester City Police Department[2]

      Custodian of Records

GRC Complaint No. 2004-108

 

 

Records Relevant to Complaint:

      (July 2, 2004 Request)

1. Patrol vehicle video assigned to Officer William Johnson

     

(July 20, 2004 Request)

  1. Police committee meeting minutes from 3/3/04 to the present
  2. Documents related to the circumvention of security procedures within the department
  3. Records in which the Chief notified members of the GCPD that the Mayor raised concerns about postings on nj.com
  4. Review all relating info to access into the nj.com site from any computer of the GCPD
  5. Documents and/or tapes relating to the nj.com internal investigation
  6. Information regarding the harassing phone call to Robert Gorman
  7. Documents relating to the harassing phone call and internal affairs investigation

8.   A copy of the CJP schedule

9.   Documents and/or tapes relating to the tag light ticket internal affairs investigation

  1. All tickets issued under Ordinance 73-15 for the past ten years
  2. “No tag light” tickets issued by the GCPD and all tickets/warnings issued on said pullovers in the past 5 years
  3. All records in which the Chief notified members of the GCPD that then Mayor Gorman raised concerns of speeding by members of the GCPD
  4. Copies of any and all policies and procedures relating to the enforcement of City Ordinance 73-15 and/or 73-16

Custodian: James Maley (City Solicitor)

Requests Made:  July 2, 2004 and July 20, 2004

Response Made:  July 21, 2004 and July 23, 2004

GRC Complaint Filed: August 3, 2004

Background

 

July 13, 2006

            Government Records Council’s (“Council”) Interim Order. At its July 13, 2006 public meeting, the Council considered the July 6, 2006 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, remands the Administrative Law Judge’s initial decision for additional fact finding, which shall include, but not be limited to, an in camera review of the MVR tape.

 

July 19, 2006

Council’s Interim Order distributed to the parties.

 

July 25, 2006

            Custodian’s Motion for Reconsideration of the Council’s Interim Order.  The Custodian Counsel requested the Council to reconsider remanding the matter back to the Administrative Law Judge (“ALJ”) for additional fact finding, which must include, but not be limited to, an in camera review of the MVR tape.  The Custodian’s Counsel asserts that the tape is exempt from disclosure as advisory, consultative or deliberative material and criminal investigative records as was determined in the ALJ’s initial decision. 

 

August 10, 2006

            Council’s Meeting Minutes.  The Executive Director presented to the Council the Motion for Reconsideration of the Council’s July 13, 2006 Interim Order in the matter of Gorman v. City of Gloucester City, GRC Complaint No. 2004-108.  That motion was duly considered, discussed and unanimously denied.

 

October 17, 2006

The Initial Decision from the ALJ at the OAL received by the GRC on October 24, 2006.  The ALJ granted a summary decision in favor of the Custodian finding that the tape is exempt from disclosure as advisory, consultative or deliberative material because it is used for police officer training and evaluation.  Additionally, the ALJ held that the parties stipulated that the tape was not exempt from disclosure as a criminal investigatory record.  Further, the ALJ determined that no additional fact finding was necessary nor did the ALJ conduct an in camera inspection of the tape to support such findings.

 

(The Complainant submitted an exception to the initial decision beyond the statutory timeframe allowed for such submissions.  It is therefore not being considered.)

 

Analysis

 

In Paff v. NJ Dept. of Labor, Board of Review, 379 N.J. Super. 346, 353 (App. Div. 2005), the court held that the GRC’s acceptance of “a custodian’s blanket and conclusionary assertion” was “inconsistent with the GRC’s responsibilities.”  Specifically, the court held that “OPRA contemplates the GRC’s meaningful review of the basis for an agency’s decision to withhold government records.  Review by the GRC is an alternative to review by the Superior Court.  See N.J.S.A. 47:1A-6.  When the GRC decides to proceed with an investigation and hearing, the custodian may present evidence and argument, but the GRC is not required to accept as adequate whatever the agency offers.  At the GRC’s request, ‘a public agency [must] produce documents and ensure the attendance of witnesses’ in connection with the investigation or hearing.  N.J.S.A. 47:1A-7c.”  Id. at 354.

 

Based on these findings of the Appellate Division of the New Jersey Superior Court, the GRC should conduct an in camera inspection of the requested MVR tape to confirm that the Custodian’s asserted reason for the denial (that the tape is exempt from disclosure as advisory, consultative or deliberative material) is lawful.  Since the ALJ did not conduct such an in camera inspection as was requested in the Council’s July 13, 2006 Interim Order, the October 17, 2006 Initial Decision of the ALJ should only be accepted in part.  The Council should accept the ALJ’s finding that the tape is not exempt as a criminal investigatory record (as was stipulated by the parties).  The Council should reserve decision on the other findings made by the ALJ’s until such time as the Council has had the opportunity to conduct an in camera inspection to confirm that the tape is exempt from disclosure as advisory, consultative or deliberative material.

 

 

Conclusions and Recommendations

 

The Executive Director respectfully recommends the Council only accept the October 17, 2006 Initial Decision of the ALJ in part.  The Council should accept the ALJ’s finding that the tape is not exempt as a criminal investigatory record (as was stipulated by the parties).  The Council should reserve decision on the other findings made by the ALJ until such time as the Council has had the opportunity to conduct an in camera inspection, including review of such supporting documentation as is requested by the Council for the in camera inspection, to confirm that the tape is exempt from disclosure as advisory, consultative or deliberative material.

 

 

 

 

Prepared and

Approved By:

Catherine Starghill, Esq.

Executive Director

 

 

December 7, 2006

                       



[1] No legal representation on records.

[2] Custodian is represented by Emily Givens, Esq. of Maley & Associates (Collingswood, NJ).

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Interim Order

Robert Gorman
    Complainant
         v.
Gloucester City
    Custodian of Record

Complaint No. 2004-108

 


At the July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 6, 2006 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, finds that upon review of the evidence in the record, the ALJ determined that the MVR tape sought by the Complainant is protected from disclosure as a “criminal investigatory record” due to the fact that there is no law that requires police departments to make MVR tapes, as well as the fact that these records may be used, in part, for criminal investigatory purposes.  Therefore, the records fall outside the definition of a government record pursuant to N.J.S.A. 47:1A-1.1.  Additionally, the ALJ found that the MVR tape was exempt from disclosure under OPRA as “advisory, consultative and deliberate” (“ACD”) material because the City utilized the tapes for inter-agency and intra-agency officer training and evaluations.

           

            However, the record, at present, is insufficient to conclusively determine if the contents of the tape, either in whole or in part, are exempt from disclosure as a “criminal investigatory record” under OPRA.  Specifically, additional findings of fact need to be made, via in camera review of the MVR tape, to determine, first, if the Complainant’s traffic stop was a Title 39 motor vehicle stop.  If it is found that the Complainant’s traffic stop was a Title 39 motor vehicle offense, then it is not subject to the exemption for criminal investigatory records.  See Blue v. Wall Township, GRC Complaint No. 2002-47 (August 2003) (holding that Title 39 vehicle offenses such as DWI are not “crimes” and therefore, the records sought from the investigation of these offenses are not “criminal investigatory records” under OPRA and must be disclosed with appropriate redactions). 

 

In the event that the entire MVR tape, or portions of it, exceed the scope of Title 39, and are, in fact, subject to the criminal investigatory exemption, additional factual findings will be needed to determine whether disclosure of the MVR tape implicates the privacy interests of persons, other than the Complainant, who may appear on the tape.  Lastly, if the court finds that parts of the MVR tape should be redacted, the court must consider whether the custodian has met his burden of proving that the Complainant’s OPRA request cannot be fulfilled because it is infeasible or impossible to redact the tape.             

 

Based upon the foregoing, the case is remanded to the ALJ for additional fact finding, which shall include, but need not be limited to, an in camera review of the MVR tape.   

 

 

Interim Order Rendered by the

Government Records Council

On The 19th Day of July, 2006

 

Robin Berg Tabakin, Vice Chairman & Secretary
Government Records Council

 

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

Kathryn Forsyth, Designee of Acting Commissioner Lucille Davy

Government Records Council 

 

Decision Distribution Date:  July 19, 2006

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Supplemental Findings and Recommendations of Executive Director

Robert Gorman
    Complainant
         v.
Gloucester City
    Custodian of Record

Complaint No. 2004-108

 


Records Relevant to Complaint:

      (July 2, 2004 request)

1. Patrol vehicle video assigned to Officer William Johnson

     

(July 20, 2004 request)

 

  1. Police committee meeting minutes from 3/3/04 to the present
  2. Documents related to the circumvention of security procedures within the department
  3. Records in which the Chief notified members of the GCPD that the Mayor raised concerns about postings on nj.com
  4. Review all relating info to access into the nj.com site from any computer of the GCPD
  5. Documents and/or tapes relating to the nj.com internal investigation
  6. Information regarding the harassing phone call to Robert Gorman
  7. Documents relating to the harassing phone call internal affairs investigation
  8. A copy of the CJP schedule
  9. Documents and/or tapes relating to the tag light ticket internal affairs investigation
  10. All tickets issued under Ordinance 73-15 for the past ten years
  11. “no tag light” tickets issued by the GCPD and all tickets/warnings issued on said pullovers in the past 5 years
  12. All records in which the Chief notified members of the GCPD that then Mayor Gorman raised concerns of speeding by members of the GCPD
  13. Copies of any and all policies and procedures relating to the enforcement of City Ordinance 73-15 and/or 73-16

Custodian: James Maley (City Solicitor)

Request Made:  7/2/04, 7/20/04

Response Made:  7/21/04, 7/23/04

GRC Complaint filed: 8/3/04

Background

 

June 9, 2005

            At its June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council referred the case to the Office of Administrative Law (OAL) for a hearing to determine:

  1. Whether the “copy of the videotape from the patrol vehicle assigned to Officer William Johnson on 1/24/03,” is disclosable in whole or in part, pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-5.g.?
  2. Whether the special service charge of $48,000.00 relating to the request for “all no tag light tickets issued by the Gloucester City Police Department for violations of Local Ordinance 73-15 and for non-operational tag lights,” is reasonable pursuant to N.J.S.A. 47:1A-5.c.? If not, what charges would be incurred in preparing them for release to the Complainant?
  3. Whether the handwritten notes redacted from the CJP schedule are disclosable pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1, and N.J.S.A. 47:1A-3?
  4. For all records responsive to the request that are to be released, what charges would be incurred, pursuant to the OPRA, in preparing them for release to the Complainant?

March 15, 2006         

The Initial Decision from the Administrative Law Judge (ALJ) at the OAL. The ALJ decided that the MVR tape sought by the Complainant is protected from disclosure as “criminal investigatory” records due to the fact that there is no law that requires police departments to make MVR tapes, as well as the fact that these records may used, in part, for criminal investigatory purposes. Therefore, the records fall outside the definition of a government record pursuant to N.J.S.A. 47:1A-1.1.  Additionally, the ALJ found that the MVR tape was exempt from disclosure under OPRA as “advisory, consultative and deliberate” (“ACD”) material because the City utilized the tapes for inter-agency and intra-agency officer training and evaluations.

 

March 27, 2006

The Complainant’s exceptions to the ALJ’s Initial Decision. The Complainant states that his request for the videotape was the only request made on July 1, 2004. Therefore, he states that his request did not include 13 other items as stated in the ALJ’s decision.

 

            The Complainant references the ALJ’s decision which includes the following: “Maley responded to this e-mail at the request of the GRC on November 22, 2004, saying the City used the complete section of the tape dealing with Gorman’s traffic stop in the prosecution of his case, but the City lacked the expertise to edit out confidential information, or to provide video without audio.” The Complainant states that the facts show that the City did edit or has edited both video and audio of said tape and did present one section, from the middle of the tape, for a Municipal Court hearing. In addition, as part of settlement negotiations, the Complainant states that the City did remove, or has removed, audio from the entire tape and presented just video to the petitioner. Thus, he alleges the City does in fact have the capability to do exactly what the City claims it cannot do.

           

            In addition, the Complainant contends that the City has, in a sense, acknowledged that portions of the MVR are subject to OPRA by their attempts to get outside agencies to edit said tape.  The Complainant goes on to state that the criminal record exclusion was not mentioned prior to the Government Records Council decision. The Complainant states that he was under the opinion that the ability/inability to edit was the basis for the GRC forwarding the case to the ALJ.  However, the Judge, in his decision, states, “…it is not clear why the matter was referred to the OAL for a hearing.” The Complainant states that in reading the Judge’s decision, “me and the Custodian apparently erred by agreeing with his Honor’s statement that there were no factual issues.” In retrospect, the Complainant alleges that it appears that the ability/inability to edit the tape is a factual issue.  The Complainant asks the GRC to clarify as to why said case was sent to the ALJ and for the GRC to re-forward the case with clarification to the ALJ for reconsideration. The Complainant states that if this issue is sent back to the ALJ, it can be discussed in more detail and proven one way or another.  The Complainant also asks that the record be re-opened on this issue.

 

            The Complainant states that in a GRC revised final decision, Martin O’Shea v.West Milford Board of Education, GRC Complaint No. 2004-93, (November 2005), GRC Procedural History states that “[n]either the statute nor the courts have defined the terms “intra-agency” or “advisory, consultative, or deliberative” in the context of the public records law.  The Council looks to an analogous concept, the deliberative process privilege, for guidance in the implementation of OPRA’s ACD exemption.  Both the ACD exemption and the deliberative process privilege enable a governmental entity to shield from disclosure material that is pre-decisional and deliberative in nature.  Deliberative material contains opinions, recommendations, or advice about agency policies.  Strictly factual segments of an otherwise deliberative document are not exempted from disclosure.  In re the Liquidation of Integrity Insurance Company, 165 N.J. 75, 88 (2000); In re Readoption With Amendments of Death Penalty Regulations, supra at 73 (App.Div.2004).” 
           

            The Complainant states, however, that the ALJ states that using the tapes for officer training and evaluation fits within the scope of the inter-agency or intra-agency advisory, consultative, or deliberative exclusion. The Complainant goes on to state that various past GRC decisions clearly state that factual documents do not fall under this exclusion. It is the Complainant’s opinion that the MVR is a factual snapshot of what happened during the various traffic stops and therefore releasable under OPRA. The Complainant claims that the MVR is not advisory, consultative nor deliberative.  Also, as an analogy, the Complainant states that the number of traffic tickets issued by a police officer is often used by supervisors in his/her evaluation.  He states “[t]hat by itself does not make the tickets exempt from OPRA nor does the possibility that supervisors may review a MVR make the MVR exempt from OPRA. The tickets like the MVR are factual documents.” The Complainant states that it is his opinion that past GRC decisions and the statute itself should be applied and not the ALJ’s initial decision.

 

            Again, the Complainant references the ALJ’s decision which states that “MVR tapes are not required to be made, maintained or kept on file and since they are used, in part, for criminal investigatory purposes then they fall outside the definition of a government record.”  The Complainant claims that this statement raises numerous issues.  One being that the burden of proof is on the City and that not once in any correspondence, written or oral, did the City list what crime if any was on this specific tape.  The City is now claiming the tape is a criminal investigatory record; however, the City clearly has not met the burden of proof. 

           

            The Complainant requests that the GRC and/or the ALJ perform an in camera review of the tape and provide a list, if any, of specific crimes on said tape that the criminal investigatory record exemption applies. The Complainant states that if any specific crime is actually on this tape, he asks that N.J.S.A.  47:1A-3.b. be applied.  He states that the Custodian has not claimed the release would “jeopardize” an investigation in progress, and thus, he should be provided any information from said tape that would be public subject to such statute.

           

            The Complainant also raises N.J.S.A. 47:1A-3.a. as an issue. OPRA states that records sought that are pertaining to an investigation in progress may be denied if they are inimical to public interest.

 

Specifically, OPRA states:

 

            “…[n]otwithstanding the provisions of [OPRA] as amended and supplemented, where it shall appear that the record or records which are sought to be …copied….may be denied if the …copying…of such record or records shall be inimical to the public interest…” N.J.S.A. 47:1A-3.a.

           

            The Complainant states that the Custodian has not claimed the release would be inimical to the public interest.  In addition, the Complainant states that there is no mention of the words “in part” relative to the criminal investigatory inclusion. The Complainant states, to the contrary, that N.J.S.A.47:1A-5.g. states “[i]f the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to [OPRA], the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.”  Thus, the Complainant alleges that even if there are parts of the tape that contain criminal investigatory information, the rest of the tape would still be subject to OPRA.

 

April 7, 2006

            Custodian counsel’s response to the Complainant’s exceptions to the ALJ’s Initial Decision, with attachments:

 

  • September 2, 2005 – Letter from James Maley, Jr. to the Complainant
  • September 19, 2005 - Letter from James Maley, Jr. to the Complainant
  • March 10, 2006 – Letter from Custodian’s counsel to Judge Hurd

 

           

            Custodian’s counsel agrees with the Complainant’s clarification that his request for the videotape was the only item requested on July 1, 2004. In reference to the Complainant’s second exception wherein he states, “the City has, in a sense, acknowledged that portions of the MVR are subject to OPRA by their attempts to get outside agencies to edit such tape,” Custodian’s counsel states that the City has made no such acknowledgement. Custodian’s counsel states that the City attempted to negotiate a settlement of issues with the Complainant and as part of such negotiations attempted to work with other law enforcement agencies to accommodate both the Complainant’s interests and those of the City and the private citizens whose information appears or can be heard on the tape. Custodian’s counsel states that at no point has the City stated that the MVR tapes are subject to OPRA.

           

            Custodian’s counsel cites N.J.S.A. 47:1A-5.g. which permits a records custodian to deny a request that would substantially disrupt agency operations after attempting to reach a reasonable solution that accommodates the interests of the requestor and the agency. Counsel goes on to state that the Complainant’s initial requests for records were onerous and therefore the parties did in fact engage in settlement negotiations. Moreover, Custodian’s counsel states that they had agreed in principle to a settlement as evidenced by the attached letters from Mr. James Maley, Esq. to Mr. Robert Gorman dated September 2, 2005 and September 19, 2005. Custodian’s counsel states that the Complainant refused to execute a settlement agreement even after the City, pursuant to what the City understood to be an agreement to settle, allowed him to view portions of the MVR tape.

           

            Custodian’s counsel references the ALJ’s decision which states that the definition of a government record explicitly exempts inter-agency or intra-agency advisory, consultative, or deliberative material and that the purposes for which the Gloucester City Police Department (GCPD) utilizes the MVR system, namely officer training and evaluation, qualify for that exemption. Counsel goes on to state that at no point does the ALJ rely on the ability or inability to edit the tape as a basis to deny access.

           

            Custodian’s counsel states that the GCPD has adopted the use of MVR equipment in order to accomplish two objectives: (1) to assist in the criminal investigatory process and subsequent prosecution of crimes and (2) for inter-agency and intra-agency officer training and evaluation. She states that each of these two categories of information are affirmatively excluded from the definition of a government record under OPRA.

 

            Custodian’s counsel states that the GCPD MVR tapes, once generated, are filed with the Chief of Police, or his designee, for storage and/or reuse. She states that if they deem a portion of the tape necessary for discovery in criminal or civil proceedings or if a particular incident presents an opportunity for training, those portions are maintained. All other tapes are released and reused on a thirty day rotating basis. Custodian’s counsel states that the Complainant’s understanding that the videotapes, once made, are required to be kept is incorrect. She states that there is no requirement legally or procedurally, that these tapes, once made, be maintained. Additionally, she states that not all of an officer’s activity is recorded, nor is it required to be.

           

            Custodian’s counsel again references the ALJ’s decision and states that it further relies on the fact that there is no law that requires police departments to make, maintain or keep on file MVR tapes. Counsel cites Serrano v. South Brunswick Tp., 358 N.J. Super. 352 (App. Div 2003), which deals with the objections of a prosecutor to release of a 911 tape. The Serrano case states that “911 calls are required by law to be recorded by a government agency and that these tapes must be retained for ‘no less than 31 days.’ See, N.J.S.A. 52:17C-1 and N.J.A.C. 17:24-2.4. From this, we conclude the subject of 911 tapes comes within the definition of a government record for the purposes of N.J.S.A. 47:1A-1.” Serrano at 364.Custodian’s counsel states that there is no such requirement for use of MVR systems. She goes on to state that these videos are not required to be created and when created are done so for internal purposes. She also states that they are not required to be retained and/or maintained and can be erased by the appropriate authority at any point after they are made. Custodian’s counsel claims that these tapes do not meet the criteria for a “government record” subject to OPRA and are therefore not required to be produced.

 

            Custodian’s counsel once again references the ALJ’s decision which concludes that since the MVR tapes are not required to be made, maintained or kept on file they fall outside the definition of a government record. Secondarily, she states, he (the Judge) notes that they are used, in part, for criminal investigatory purposes and therefore they fall outside the definition of a government record. Custodian’s counsel claims that the City has met its burden of proof in showing that the MVR tapes fit within two clearly set forth exemptions to the definition of a government record and are therefore not subject to OPRA.

           

            Custodian’s counsel claims that there is no need to re-open the record as requested by the Complainant. She states that the parties participated in a conference call with the ALJ on March 8, 2006, as reflected in confirming correspondence dated March 10, 2006, attached hereto, wherein the Complainant agreed that he understood the issue before the OAL to be:

 

            [w]hether the “copy of the videotape from the patrol vehicle assigned to Officer William Johnson on 1/24/03,” is disclosable in whole or in part, pursuant to N.J.S.A. 47:1A-1 and to N.J.S.A. 47:1A-5.g.?

 

            Custodian’s counsel states that, as agreed by the parties, this is the limited issue the ALJ considered and decided. She states that the Complainant is asking the GRC to re-open the record solely because the Judge, in his Statement of the Case and Procedural History, mentions the ability/inability to edit the tape. She states that the ALJ does not in any way base his analysis or his decision on the City’s ability/inability to edit the tape.

 

            Custodian’s counsel references the fact that the Complainant looks to the GRC’s revised final decision in O’Shea for support of his position. The Complainant relies on the following statement, “strictly factual segments of an otherwise deliberative document are not exempted from disclosure.” Custodian’s counsel states that the GRC found that the statutory exemption for advisory, consultative or deliberative material applied to the handwritten notes of the Board Secretary. Custodian’s counsel goes on to state that the focus in the O’Shea decision is the deliberative nature of the handwritten notes that the Complainant sought. She states that the MVR tapes present a different type of record. She states that while they could be construed as “factual segments of an otherwise deliberative document,” they are not agency recitation of facts required to be made or maintained. She states that the MVR tapes are created by some Police Departments to assist with criminal investigations and officer training, and they fall within two specific exemptions of OPRA.

 

            Custodian’s counsel states that the City is not claiming that this MVR tape is a criminal investigatory record. However, she states, a portion of it was previously used in the Complainant’s municipal court matter. Custodian’s counsel states that the City does contend that one of the purposes for which the Police Department utilizes the MVR tapes is for potential criminal investigation. In addition, she states, confidential information is audible on the tape and that confidential information is protected information, and is not disclosable under the OPRA. Custodian’s counsel states that as part of a settlement reached in this case, the Complainant was permitted to view the video portions of the MVR tape and has seen what happened during the various traffic stops that appear on the MVR tape he requested. She states that the Complainant, as part of a settlement, viewed this tape prior to the December 20, 2005 pre-hearing conference before the Judge. The Complainant now seeks a finding that MVR tapes are public records subject to full disclosure under the OPRA. Finally, Custodian’s counsel claims that the ALJ’s Initial Decision is firmly grounded in the law and should be upheld by the GRC.

 

Analysis

 

OPRA provides that:

 

 “… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) N.J.S.A. 47:1A-1

 

            OPRA defines a government record as follows:

 

 “ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …”  (Emphasis added.) N.J.S.A. 47:1A-1.1.

            OPRA also states that:

“...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy thereof …” (Emphasis added.)  N.J.S.A. 47:1A-5.g.

 

            Additionally, OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:

 

“…[t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.

           

            Upon review of the evidence in the record, the ALJ determined that the MVR tape sought by the Complainant is protected from disclosure as a “criminal investigatory record” due to the fact that there is no law that requires police departments to make MVR tapes, as well as the fact that these records may be used, in part, for criminal investigatory purposes.  Therefore, the records fall outside the definition of a government record pursuant to N.J.S.A. 47:1A-1.1.  Additionally, the ALJ found that the MVR tape was exempt from disclosure under OPRA as “advisory, consultative and deliberate” (“ACD”) material because the City utilized the tapes for inter-agency and intra-agency officer training and evaluations.

           

            However, the record, at present, is insufficient to conclusively determine if the contents of the tape, either in whole or in part, are exempt from disclosure as a “criminal investigatory record” under OPRA.  Specifically, additional findings of fact need to be made, via in camera review of the MVR tape, to determine, first, if the Complainant’s traffic stop was a Title 39 motor vehicle stop.  If it is found that the Complainant’s traffic stop was a Title 39 motor vehicle offense, then it is not subject to the exemption for criminal investigatory records.  See Blue v. Wall Township, GRC Complaint No. 2002-47 (August 2003) (holding that Title 39 vehicle offenses such as DWI are not “crimes” and therefore, the records sought from the investigation of these offenses are not “criminal investigatory records” under OPRA and must be disclosed with appropriate redactions). 

 

In the event that the entire MVR tape, or portions of it, exceed the scope of Title 39, and are, in fact, subject to the criminal investigatory exemption, additional factual findings will be needed to determine whether disclosure of the MVR tape implicates the privacy interests of persons, other than the Complainant, who may appear on the tape.  Lastly, if the court finds that parts of the MVR tape should be redacted, the court must consider whether the custodian has met his burden of proving that the Complainant’s OPRA request cannot be fulfilled because it is infeasible or impossible to redact the tape.             

 

Based upon the foregoing, the case should be remanded to the ALJ for additional fact finding, which shall include, but need not be limited to, an in camera review of the MVR tape.      

               

Conclusions and Recommendations

 

            The Executive Director respectfully recommends that the Council remand the ALJ’s initial decision for additional fact finding, which shall include, but need not be limited to, an in camera review of the MVR tape.      

 

 

 

 

 

 

Prepared By:

                       

 

Approved By:

Catherine Starghill

Executive Director

 

July 6, 2006

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Interim Decision on Access

Robert Gorman
    Complainant
         v.
Gloucester City
    Custodian of Record

Complaint No. 2004-108

 

At the June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council referred the case to the Office of Administrative Law for a hearing to determine:

  1. Whether the “copy of the videotape from the patrol vehicle assigned to Officer William Johnson on 1/24/03,” is disclosable in whole or in part, pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-5(g)?
  2. Whether the special service charge of $48,000.00 relating to the request for “all no tag light tickets issued by the Gloucester City Police Department for violations of Local Ordinance 73-15 and for non-operational tag lights,” is reasonable pursuant to N.J.S.A. 47:1A-5(c)? If not, what charges would be incurred in preparing them for release to the Complainant?
  3. Whether the handwritten notes redacted from the CJP schedule are disclosable pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1, and N.J.S.A. 47:1A-3?
  4. For all records responsive to the request that are to be released, what charges would be incurred, pursuant to the OPRA, in preparing them for release to the Complainant?

Interim Decision Rendered by the
Government Records Council
On The 9th Day of June, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council 

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Supplemental Findings and Recommendations of Executive Director

Robert Gorman                                                GRC Complaint No. 2004-108
Complainant
v.
Gloucester City
Custodian of Records

Records Requested:

(July 2, 2004 request)
1. Patrol vehicle video assigned to Officer William Johnson

(July 20, 2004 request)

  1. Police committee meeting minutes from 3/3/04 to the present
  2. Documents related to the circumvention of security procedures within the department
  3. Records in which the Chief notified members of the GCPD that the Mayor raised concerns about postings on nj.com
  4. Review all relating info to access into the nj.com site from any computer of the GCPD
  5. Documents and/or tapes relating to the nj.com internal investigation
  6. Information regarding the harassing phone call to Robert Gorman
  7. Documents relating to the harassing phone call internal affairs investigation
  8. A copy of the CJP schedule
  9.   Documents and/or tapes relating to the tag light ticket internal affairs investigation
  10. All tickets issued under Ordinance 73-15 for the past ten years
  11. “no tag light” tickets issued by the GCPD and all tickets/warnings issued on said pullovers in the past 5 years
  12. All records in which the Chief notified members of the GCPD that then Mayor Gorman raised concerns of speeding by members of the GCPD
  13. Copies of any and all policies and procedures relating to the enforcement of City Ordinance 73-15 and/or 73-16

Custodian: James Maley (City Solicitor)
Request Made: 7/2/04, 7/20/04
Response Made:  7/21/04, 7/23/04
GRC Complaint filed: 8/3/04

Background

December 9, 2004
At its December 9, 2004 public meeting, the Government Records Council (GRC) (“Council”) considered the December 2, 2004 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 with amendments to #1 that “the Custodian shall comply with this determination within thirty (30) calendar days after receipt of Final Decision” and #’s 3,  4 and 5 that “the Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.”  The Council, therefore, found that:

  1. Pursuant to N.J.S.A. 47:1A-5(d), the City shall disclose the requested videotape, assessing a special service if necessary. If the City is still unable to release the videotape after attempting to outsource the cost, they should certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.  The Custodian shall comply with this determination within thirty (30) calendar days after receipt of Final Decision
  2. Based on the Custodian certification in the Statement of Information that there were no documents responsive to requests 3, 4, 6 and 12, this part of the complaint was dismissed.
  3. Based on the statement that, “this information is certainly not required to be “made, maintained or kept on file” and therefore, does not meet the definition of a public record under the act,” and the statement, “[a]s well as the definition of a government record under OPRA that states, “Any paper, …document, …information stored or maintained electronically or by sound recording…or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business,” Custodian’s counsel should clarify whether in fact the information requested in number 2 is in part or in whole made, maintained or kept on file.  The Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.
  4. Pursuant to N.J.S.A. 47:1A-3(a), the Custodian shall disclose any records regarding requests 5, 7, 8, and 9, with proper redactions pursuant to N.J.S.A. 47:1A-1 et seq., that were disclosable prior to the investigation, and prior to them being filed as personnel records. If the records regarding these requests would still be deemed non-disclosable pursuant to OPRA, Custodian’s counsel shall certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.  The Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.
  5. Pursuant to N.J.S.A. 47:1A-1.1 as well as N.J.S.A. 47:1A-5(d), both cited above, the City shall disclose any of the documents on file regarding requests numbered 10 and 11, other than those kept on file in the Municipal Court (which would seemingly include as stated, the Delaware River Port Authority Police’s actions on the Walt Whitman Bridge as well as all State Police actions on Route 42 and other State Highways throughout the City.) that are made, maintained, or kept on file, including special service charges, should they apply. If Custodian’s counsel deems these documents to be non-disclosable they shall certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.  The Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.

The Custodian shall provide Executive Director Paul Dice with written confirmation of compliance with #’s 1, 3, 4 and 5 directly above at the same time the response is provided to the Complainant. 

December 27, 2004
The Custodian’s response to the GRC’s December 9th, 2004 decision. In response to the request for the videotape, the Custodian states that because of the confidential information on the videotape, the tape can only be outsourced to another law enforcement agency, and therefore the City will update the GRC on the status within the next two weeks. The Custodian also states:

February 22, 2005
The Custodian sent a letter to the Complainant stating that the Gloucester City Police Department does not have the capability to edit the tape to remove the confidential information it contains. The Custodian also states that their office has discussed this matter with the Camden County Prosecutor’s Office, the New Jersey Attorney General’s Office and the local office of the FBI and all three have refused their request to edit the tape because they will only do that for law enforcement purposes, and they do not consider this request to be a law enforcement purpose.

March 8, 2005
The Complainant sent an e-mail to the GRC staff in response to the Custodian’s February 22, 2005 letter. The Complainant states that the Gloucester City Police Department is capable of editing the tape themselves because of the fact that they have already edited the exact tape for a trial relating to a Failure to have a Tag Light that he received.

March 24, 2005
The GRC staff sent a letter to the Custodian asking for the following:

  • The places Gloucester City attempted to have the videotape copied, and the reason that it was unsuccessful.
  • Why the City has not proceeded with a third party with a confidentiality agreement to have the videotape copied with redactions, and if not, the lawful basis pursuant to N.J.S.A. 47:1A-6.
  • Further clarification in regards to the issue of the tickets issued under Ordinance 73-15 and N.J.S.A. 39:4-67 for no tag lights.
  • Based on the definition of a government record under the OPRA, are the handwritten notes that were made prior to the investigation disclosable pursuant to N.J.S.A. 47:1A-1 et seq.

April 4, 2005
The Custodian’s response to the GRC staff’s March 24, 2005 letter. In response to the videotape question, the Custodian reiterates the fact that due to the confidential nature of the information, the tape can only be sent to a law enforcement agency and it would be “ inappropriate to outsource it to a third party.” It is also stated that the procedure of taking the tape to a third party and having a “Confidentiality Agreement” signed is not authorized under the statute or the regulations and, in our opinion, would subject the City to liability to those persons whose information we make public. Once again, the Custodian states that the City estimates there are 40,000 tickets on file with the Police Department, (in response to the request for tickets issued under Ordinance 73-15 and N.J.S.A. 39:4-67 for no tag lights.) and the estimated fee will be $48,000.00. Finally, in response to the question regarding the handwritten notes that were redacted from the schedule that was disclosed, it is stated that the Custodian does not believe the notes are disclosable because the hand written notes are not required to be made, maintained or kept on file. The Custodian states that the only reason the notes were on file is because the Complainant requested an internal investigation when he was Mayor of the City.  Therefore, at that point, the notes became part of the internal investigation file.

Analysis

Whether the Complainant has been unlawfully denied access to Government Records?

The Open Public Records Act (OPRA) provides that “ …government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions…” N.J.S.A. 47:1A-1. OPRA defines a “government record” in N.J.S.A. 47:1A-1.1 as:

“…any paper, written or printed book, document, drawing map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar devise, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.”

There are a number of issues in this case that are unclear and in dispute and require more in depth proceedings before a determination can be rendered in this case.  Therefore, it is recommended that the Council refer the case to the Office of Administrative Law for a hearing to determine:           

  1. Whether the “copy of the videotape from the patrol vehicle assigned to Officer William Johnson on 1/24/03,” is disclosable in whole or in part, pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-5(g)?
  2. Whether the special service charge of $48,000.00 relating to the request for “all no tag light tickets issued by the Gloucester City Police Department for violations of Local Ordinance 73-15 and for non-operational tag lights,” is reasonable pursuant to N.J.S.A. 47:1A-5(c)? If not, what charges would be incurred in preparing them for release to the Complainant?
  3. Whether the handwritten notes redacted from the CJP schedule are disclosable pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1, and N.J.S.A. 47:1A-3?
  4. For all records responsive to the request that are to be released, what charges would be incurred, pursuant to the OPRA, in preparing them for release to the Complainant?

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council refer the case to the Office of Administrative Law for a hearing to determine:

  1. Whether the “copy of the videotape from the patrol vehicle assigned to Officer William Johnson on 1/24/03,” is disclosable in whole or in part, pursuant to N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-5(g)?
  2. Whether the special service charge of $48,000.00 relating to the request for “all no tag light tickets issued by the Gloucester City Police Department for violations of Local Ordinance 73-15 and for non-operational tag lights,” is reasonable pursuant to N.J.S.A. 47:1A-5(c)? If not, what charges would be incurred in preparing them for release to the Complainant?
  3. Whether the handwritten notes redacted from the CJP schedule are disclosable pursuant to N.J.S.A. 47:1A-1, N.J.S.A. 47:1A-1.1, and N.J.S.A. 47:1A-3?
  4. For all records responsive to the request that are to be released, what charges would be incurred, pursuant to the OPRA, in preparing them for release to the Complainant?

Prepared By: Chris Malloy, Case Manager

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

June 3, 2005

 

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Interim Decision

  Robert Gorman,
   Complainant
      v.
   Gloucester City,
   Custodian of Record

Complaint No. 2004-108

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 2, 2004 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 with amendments to #1 that “the Custodian shall comply with this determination within thirty (30) calendar days after receipt of Final Decision” and #’s 3,  4 and 5 that “the Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.”  The Council, therefore, found that:

  1. Pursuant to N.J.S.A. 47:1A-5(d), the City shall disclose the requested videotape, assessing a special service if necessary. If the City is still unable to release the videotape after attempting to outsource the cost, they should certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.  The Custodian shall comply with this determination within thirty (30) calendar days after receipt of Final Decision
  2. Based on the Custodian certification in the Statement of Information that there were no documents responsive to requests 3, 4, 6 and 12, this part of the complaint was dismissed.
  3. Based on the statement that, “this information is certainly not required to be “made, maintained or kept on file” and therefore, does not meet the definition of a public record under the act,” and the statement, “[a]s well as the definition of a government record under OPRA that states, “Any paper, …document, …information stored or maintained electronically or by sound recording…or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business,” Custodian’s counsel should clarify whether in fact the information requested in number 2 is in part or in whole made, maintained or kept on file.  The Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.
  4. Pursuant to N.J.S.A. 47:1A-3(a), the Custodian shall disclose any records regarding requests 5, 7, 8, and 9, with proper redactions pursuant to N.J.S.A. 47:1A-1 et seq., that were disclosable prior to the investigation, and prior to them being filed as personnel records. If the records regarding these requests would still be deemed non-disclosable pursuant to OPRA, Custodian’s counsel shall certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.  The Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.
  5. Pursuant to N.J.S.A. 47:1A-1.1 as well as N.J.S.A. 47:1A-5(d), both cited above, the City shall disclose any of the documents on file regarding requests numbered 10 and 11, other than those kept on file in the Municipal Court (which would seemingly include as stated, the Delaware River Port Authority Police’s actions on the Walt Whitman Bridge as well as all State Police actions on Route 42 and other State Highways throughout the City.) that are made, maintained, or kept on file, including special service charges, should they apply. If Custodian’s counsel deems these documents to be non-disclosable they shall certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.  The Custodian shall comply with this determination within ten (10) business days of the receipt of the Final Decision.

The Custodian shall provide Executive Director Paul Dice with written confirmation of compliance with #’s 1, 3, 4 and 5 directly above at the same time the response is provided to the Complainant. 

Interim Decision Rendered by the
Government Records Council
On The 9th Day of December, 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

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Findings and Recommendations of Executive Director

Robert Gorman,                                               GRC Complaint No. 2004-108
    Complainant
           v.
Gloucester City,
    Custodian of Records

Records Requested: 
(July 2, 2004 request)

  1. Patrol vehicle video assigned to Officer William Johnson

(July 20, 2004 request)

  1. Police committee meeting minutes from 3/3/04 to the present
  2. Documents related to the circumvention of security procedures within the department
  3. Records in which the Chief notified members of the GCPD that the Mayor raised concerns about postings on nj.com
  4. Review all relating info to access into the nj.com site from any computer of the GCPD
  5. Documents and/or tapes relating to the nj.com internal investigation
  6. Information regarding the harassing phone call to Robert Gorman
  7. Documents relating to the harassing phone call internal affairs investigation
  8. A copy of the CJP schedule
  9. Documents and/or tapes relating to the tag light ticket internal affairs investigation
  10. All tickets issued under Ordinance 73-15 for the past ten years
  11. “no tag light” tickets issued by the GCPD and all tickets/warnings issued on said pullovers in the past 5 years
  12. All records in which the Chief notified members of the GCPD that then Mayor Gorman raised concerns of speeding by members of the GCPD
  13. Copies of any and all policies and procedures relating to the enforcement of City Ordinance 73-15 and/or 73-16

Custodian: James Maley (City Solicitor)
Request Made:   7/2/04, 7/20/04
Response Made:  7/21/04, 7/23/04
GRC Complaint filed: 8/3/04

Background
Complainant’s Case Position
The Complainant filed a Denial of Access Complaint with the Government Records Council on August 3, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging denial of access to his July 2 request, as well as denial of access to records numbered 2 through 12 in his July 23 request. As of the Complaint date of August 3, 2004, the Complainant states that he still has not heard any information regarding his July 2 request.

On November 8, 2004 the Complainant submitted an e-mail to the Government Records Council making the following statements:

  1. The city was able to redact the videotape for my court hearing so I do not understand why they would not be able to redact the tape for this request.
  2. The tickets in the court office are not filed by violation type. Thus, the City says they cannot comply with my request. Using this logic if City Ordinances are filed by ordinance number, I would not be able to get a copy of City Ordinances under OPRA if I simply requested say the annual salary ordinance.
  3. The document that was tampered with as well as computer “cookies” were in the city’s possession prior to the internal investigation and thus should be available under OPRA.

Public Agency Position
In response to the Complainant’s allegations, the Custodian asserts the following:

In the September 1, 2004 Statement of Information (SOI) from the City Clerk certifies to the following information:

  1. He is the City Clerk for the City of Gloucester City
  2. Mr. Robert Gorman is the former Mayor of Gloucester City and is also his brother-in-law
  3. On July 2, 2004 and Open Public Records Act request was received by the staff
  4. On July 7, 2004 a memo was sent to the Chief of Police requesting a response
  5. Also, on July 7, 2004, the Chief of Police sent a memo advising that the request was forwarded to the Camden County Prosecutor’s Office
  6. A copy of the memo from the Chief of Police was mailed to Mr. Gorman on July 12, 2004

Also, included in the SOI is a brief of from James Maley, Esq. of Parker, McCay & Criscuolo, P.A. (The firm represents the City of Gloucester City)

Custodian’s Counsel states that the City of Gloucester City has timely and appropriately responded to the multiple Open Public Records Act requests submitted by Robert Gorman. Additionally it is stated that Paul Kain the City Clerk is Mr. Gorman’s brother-in-law. Due to this relationship and potential conflict of interest, the City Solicitor’s Office assumed responsibility for responding to the requests.

During the time of the second OPRA request on July 20, e-mails began to be exchanged with the first one from the Complainant to the City Clerk (his brother-in-law) “objecting to the Chief of Police requesting that the Prosecutor’s office evaluate his OPRA request and demanding to know whether the City Solicitor’s office was contacted for an opinion.” On July 21, 2004 the City Solicitor’s Office responded by regular mail and e-mail advising that the requests were under review and requested that all further correspondence including OPRA requests be submitted by regular mail or hand-delivery. (The e-mail is included with the SOI, and the reason given for the regular mail or hand delivery request is so the correspondences don’t get lost)

On July 23, 2004 the City Solicitor’s Office formally responded to the Complainant’s July 20 request. They state that they have made available documents responsive to requests numbered 1 and 13, which were the Police Committee minutes and copies of Police Rules and Regulations. They also state that there were no documents responsive to requests 3, 4, 6 and 12.

The City states that they denied requests 5,7,8, and 9, “because they all sought documents involving various internal affairs investigations which are precluded from disclosure because they are considered confidential personnel records by Executive Order Number 11.”

Custodian’s counsel gives a brief history behind the requests. They state that while Mr. Gorman was still the Mayor of Gloucester City there was uncomplimentary material posted on NJ.com. It is stated that Mr. Gorman believed that some of these postings were made by Gloucester City Police Officers, and he also believes they could have made these posts while on duty at police headquarters. Apparently, while he was Mayor, Mr. Gorman requested that the Police Department investigate these allegations.

It is also stated that, “Mr. Gorman believed that the Gloucester City Police Department was attempting to harm and/or harass him and now wants to review the results and status of the various internal investigations he requested while he was still mayor of Goucester City.”  Custodian’s counsel states that Executive Order Number 11 specifically precludes the disclosure of personnel records; therefore the Complaint should be dismissed because he is seeking records excluded from OPRA.

In regards to request number 2, seeking all “documents relating to alleged activities of circumvention, included but not limited to the IP address of the sender along with date and time, subnet mask, along with date and time, and any data relating to postings captured through cookies, previous pages sender came from, and names of persons (fictitious or not) registering for said postings.” Counsel states, “quite simply, this request was properly denied because it does not seek a public record. Specifically, OPRA only applies to “Any paper,…document,…information stored or maintained electronically or by sound recording…or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business.” They also state that Mr. Gorman is “seeking information concerning alleged internet access by the police department. This information is certainly not required to be “made, maintained or kept on file” and therefore, does not meet the definition of a public record under the act. The City’s response was correct and Mr. Gorman’s Complaint should be dismissed.”

In regards to the Complainant’s requests for all tickets issued under Ordinance 73-15 for the past ten years and, “no tag light” tickets issued by the GCPD and all tickets/warnings issued on said pullovers in the past 5 years, it is stated that he was advised that the City’s Municipal Court attempted to but could not conduct a search for the documents based on the fact that the Municipal Court can only search by defendant’s last name or ticket/summons number. Counsel also states, “Mr. Gorman was advised of this and did not respond or object.”

On August 2, 2004 the City responded to the videotape request of July 2, 2004. Custodian’s counsel states, “the videotape contains personal information including audio and visual references to social security numbers, driver license numbers, criminal records and other confidential information. Because the references were both audible and visual, the City was unable to redact the confidential information.”

Counsel responded to the Complainant’s November 8 e-mail on November 22. With regard to the Complainant’s request for the videotape the City reiterates their position set forth in its prior submission. Counsel states, “The City does have limited editing ability to provide segments of both the video and audio tape, but does not have the ability to provide the videotape while excluding the audio portions of the tape. In addition, the videotape from other vehicle stops continues to allow the visual observation of personal information on computer screens as well as the audio transmissions of confidential information. The City lacks the capability to provide the expertise editing that allows for the complete incision of all confidential materials in a manner which protects the unrelated individuals’ privacy.”

In respect to the second statement in the November 8th e-mail counsel states, “The City of Gloucester issues approximately 700 tickets per month. In addition to these tickets, tickets are issued and records maintained by the Municipal Court on the Delaware River Port Authority Police’s actions on the Walt Whitman Bridge as well as all State Police actions on Route 42 and other State Highways throughout the City. These tickets are all maintained by ticket number. Mr. Gorman’s request would require the City to review each and every ticket issued, locate those violations of N.J.S.A. 39:4-67 and then make a further determination as to each of these statutory violations as to which involves a tag light violation. The statute under which Mr. Gorman was charged is broader than the specific violation noted against him. The records are not maintained in a manner in which Mr. Gorman seeks them to be retrieved.”

Finally, in response to statement number 3 counsel states, “We are unable to identify what “document” is referred to as being tampered with. In the request for Mr. Gorman (sic), his request dated July 22, 2004, number 2 contains a reference to cookies. The City reiterates its position that the request does not seek public records.”

Analysis
N.J.S.A. 47:1A-5(d) states: A custodian shall permit access to a Government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record:

  1. in a medium not routinely used by the agency;
  2. not routinely developed or maintained by an agency; or
  3. requiring a substantial amount of manipulation or programming of information technology

the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

In regards to the July 2 request for the patrol vehicle video assigned to Officer William Johnson, Custodian’s counsel states, “ The City does have limited editing ability to provide segments of both the video and audio tape, but does not have the ability to provide the videotape while excluding the audio portions of the tape. In addition, the videotape from other vehicle stops continues to allow the visual observation of personal information on computer screens as well as the audio transmissions of confidential information. The City lacks the capability to provide the expertise editing that allows for the complete incision of all confidential materials in a manner which protects the unrelated individuals’ privacy.”

In accordance with the above referenced section of the Act, the City has the right to assess “a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.”

Pursuant to N.J.S.A. 47:1A-5(d), the City should disclose the videotape, assessing a special service if necessary. If the City is still unable to release the videotape after attempting to outsource the cost, they should certify as to why.

N.J.S.A. 47:1A-1.1, defines a government record as, “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document…. that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.”

Based on the fact that the Custodian states that there were no documents responsive to requests 3, 4, 6 and 12, this part of the complaint should be dismissed.

In regards to request number 2 above, Counsel states that this request was denied because it does not seek a public record. Counsel states, “quite simply, this request was properly denied because it does not seek a public record. Specifically, OPRA only applies to “Any paper,…document,…information stored or maintained electronically or by sound recording…or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business.” They also state that Mr. Gorman is seeking information concerning alleged internet access by the police department. Finally, it is stated that, “this information is certainly not required to be “made, maintained or kept on file” and therefore, does not meet the definition of a public record under the Act.”

The statement by the Custodian’s counsel that, “this information is certainly not required to be “made, maintained or kept on file” and therefore, does not meet the definition of a public record under the act,” as well as, the reference to the definition of a government record under OPRA that states, “Any paper,…document,…information stored or maintained electronically or by sound recording…or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business,” are unclear and Custodian’s counsel should clarify whether in fact the information requested in number 2 of the OPRA request is in part or in whole made, maintained or kept on file.

N.J.S.A. 47:1A-3(a) states: “Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.).”

The City states that they denied requests 5,7,8, and 9, “because they all sought documents involving various internal affairs investigations which are precluded from disclosure because they are considered confidential personnel records by Executive Order Number 11.”

Pursuant to N.J.S.A. 47:1A-3(a), the Custodian should disclose any records regarding requests 5, 7, 8, and 9, with proper redactions pursuant to N.J.S.A. 47:1A-1 et. seq., that were disclosable prior to the investigation, and prior to them being filed as personnel records. If the records regarding these requests would still be deemed non-disclosable pursuant to OPRA, Custodian’s counsel should document as to why.

In regards to the Complainant’s requests for all tickets issued under Ordinance 73-15 for the past ten years and, “no tag light” tickets issued by the GCPD and all tickets/warnings issued on said pullovers in the past 5 years, it is stated that he was advised that the City’s Municipal Court attempted to but could not conduct a search for the documents based on the fact that the Municipal Court can only search by defendant’s last name or ticket/summons number. Counsel also states, “Mr. Gorman was advised of this and did not respond or object.”

As stated above, the Complainant then sent a November 8, 2004 e-mail to the Government Records Council stating: “the tickets in the court office are not filed by violation type. Thus, the City says they cannot comply with my request. Using this logic if City Ordinances are filed by ordinance number, I would not be able to get a copy of City Ordinances under OPRA if I simply requested say the annual salary ordinance.”

Also, as stated above, Custodian’s counsel responded as follows: In respect to the second statement in the November 8th e-mail counsel states, “The City of Gloucester issues approximately 700 tickets per month. In addition to these tickets, tickets are issued and records maintained by the Municipal Court on the Delaware River Port Authority Police’s actions on the Walt Whitman Bridge as well as all State Police actions on Route 42 and other State Highways throughout the City. These tickets are all maintained by ticket number. Mr. Gorman’s request would require the City to review each and every ticket issued, locate those violations of N.J.S.A. 39:4-67 and then make a further determination as to each of these statutory violations as to which involves a tag light violation. The statute under which Mr. Gorman was charged is broader than the specific violation noted against him. The records are not maintained in a manner in which Mr. Gorman seeks them to be retrieved.”

N.J.S.A. 47:1A-5(d) states: A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record:

  1. in a medium not routinely used by the agency;
  2. not routinely developed or maintained by an agency; or
  3. requiring a substantial amount of manipulation or programming of information technology

The agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.”

Pursuant to N.J.S.A. 47:1A-1.1 as well as N.J.S.A. 47:1A-5(d), both cited above, the City should disclose any of the documents on file, other than in the Municipal Court (which would seemingly include as stated, the Delaware River Port Authority Police’s actions on the Walt Whitman Bridge as well as all State Police actions on Route 42 and other State Highways throughout the City.) that are made, maintained, or kept on file, including special service charges, should they apply. If Custodian’s counsel still deems these documents to be non-disclosable they should certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.

The Complainant states that as of the Complaint date of August 3, 2004, he has still not heard any information regarding his July 2 request. Based on the Affidavit by the City Clerk, as well as the correspondence between City counsel and the Complainant, there does not seen to be an issue of response time in this case. 

Documents Reviewed
The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:

  1. August 3, 2004 – Denial of Access Complaint (w/attachments)
    1. Complainant’s request
    2. Gloucester City Police Department Office Memo
    3. Thirteen part request
    4. July 21, 2004 e-mail from Custodian’s counsel to the Complainant
    5. Custodian’s counsel response to the thirteen part request
  2. August 9, 2004 – Offer of Mediation to Complainant and Custodian
  3. September 1, 2004 – Affidavit by The City Clerk
  4. September 1, 2004 – Statement of Information (w/exhibits)

Conclusions and Recommendations of the Executive Director
The Executive Director respectfully recommends that the Council find that:

  1. Pursuant to N.J.S.A. 47:1A-5(d), the City should disclose the requested videotape, assessing a special service if necessary. If the City is still unable to release the videotape after attempting to outsource the cost, they should certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.
  2. Based on the fact that the Custodian certifies in the Statement of Information that there were no documents responsive to requests 3, 4, 6 and 12, this part of the complaint should be dismissed.
  3. Based on the statement that, “this information is certainly not required to be “made, maintained or kept on file” and therefore, does not meet the definition of a public record under the act,” and the statement, “[a]s well as the definition of a government record under OPRA that states, “Any paper, …document, …information stored or maintained electronically or by sound recording…or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business,” Custodian’s counsel should clarify whether in fact the information requested in number 2 is in part or in whole made, maintained or kept on file.
  4. Pursuant to N.J.S.A. 47:1A-3(a), the Custodian should disclose any records regarding requests 5, 7, 8, and 9, with proper redactions pursuant to N.J.S.A. 47:1A-1 et seq., that were disclosable prior to the investigation, and prior to them being filed as personnel records. If the records regarding these requests would still be deemed non-disclosable pursuant to OPRA, Custodian’s counsel should certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.
  5. Pursuant to N.J.S.A. 47:1A-1.1 as well as N.J.S.A. 47:1A-5(d), both cited above, the City should disclose any of the documents on file regarding requests numbered 10 and 11, other than those kept on file in the Municipal Court (which would seemingly include as stated, the Delaware River Port Authority Police’s actions on the Walt Whitman Bridge as well as all State Police actions on Route 42 and other State Highways throughout the City.) that are made, maintained, or kept on file, including special service charges, should they apply. If Custodian’s counsel deems these documents to be non-disclosable they should certify as to why pursuant to N.J.S.A. 47:1A-1 et seq.

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

December 2, 2004

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