2004-113

Final Decision

At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 1, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties.  The Government Records Council Staff noted an administrative change to said findings and recommendations under “Conclusions and Recommendations of the Executive Director” that states “N.J.S.A. 27:1A-9(a)” is changed to state “N.J.S.A. 47:1A-9(a).”  The Council voted unanimously to adopt the entirety of said findings and recommendations with the administrative change.  The Council, therefore, dismissed the case on the basis of N.J.A.C. 13:29-2.2 supercedes N.J.S.A. 47:1A-1 et seq. and therefore access to the requested documents is not permitted pursuant to N.J.S.A. 47:1A-9(a).

This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 9^th 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 
Decision Distribution Date:  December 15, 2004

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Findings and Recommendations of Executive Director

Records Requested:
All complaints, reports, letters, inquiries from any person to or from ABC concerning Raritan Yacht Club, Perth Amboy, New Jersey in calendar year 2004.

Custodian: Div. Of Alcoholic Beverage Control – DAG Michele Boyer
Request Made:   July 1, 2004
Responses Made: July 7, 2004
GRC Complaint filed: August 10, 2004

Background

Complainant’s Case Position
The Complainant filed a Denial of Access Complaint with the Government Records Council on August 10, 2004 pursuant to N.J.S.A. 47:1A-1.1 et. seq. The complainant stated the following:

“I simply want to know if the ABC investigation was prompted by a letter from

a neighbor or other person, or perhaps a series of letters.  I believe that such a letter is not privileged under the law, and that ABC should disclose it.  It is not at all clear to me that “public interest” requires that copies of complaints and/or letters to ABC from third parties be withheld from me, the Yacht Club, or the public in general.

The ABC has denied our request based on “investigations in progress”.  We believe these exceptions to OPRA do not apply here because:

1. The Statute does not permit the agency to deny records that are available for inspection before the “investigation” commenced.
2. The State must show, even with respect to investigations in progress, that access to the government records would be “inimical” to the public interest.

It is difficult to imagine what public interest would not be served by release of a complaint or letter to ABC regarding a Club.  This is not a big deal.  It is simply a request for harmless information.” …

Public Agency’s Case Position
In the September 10, 2004, Statement of Information, the Custodian stated:

“The records requested for Raritan Yacht Club (Lic. #1216-31-118-001) were denied because they are investigatory files and they are privileged and confidential records pursuant to N.J.A.C. 13:2-29.2. (Please see attached certification)”

“ABC’s denial should be upheld because the requested records are exempt from public access under the Open Public Records Act,…Specifically, the requested records are exempt from public access under OPRA because, pursuant to an ABC regulation, they are confidential and not “available for inspection or photocopy.”   N.J.A.C. 13:2-29.2; N.J.S.A. 47:1A-9(a).  Additionally, the requested records are exempt from public access under OPRA because they pertain to an ongoing investigation of a public agency and their release would be inimical to the public interest.  N.J.S.A. 47:1A-3(a).

“One of the duties of the Director of ABC is to adopt “such rules and regulations as shall be necessary or desirable to carry out the provisions of” the New Jersey Alcoholic Control Act, N.J.S.A. 33:1-1 et. seq. (“the Act”). N.J.S.A. 33:1-12.38.  In line with this duty the Director adopted N.J.A.C. 13:2-29.2, which provides that all documents held by ABC which relate to alleged violations of the Act and/or investigations conducted by ABC “constitute ‘confidential records’ of …[ABC] and shall not be available for inspection or photocopy.”  The regulation contains no waiver provision.

Here, pursuant to N.J.A.C.  13:2-29.2, the custodian of ABC’s records properly denied Frizell access to the requested records because those records “are part of an [ABC] investigatory file”… “If access were allowed, the investigative methods used by ABC would be made public as would potentially detrimental information about the licensee, whether or not a charge is ultimately levied.”   

Analysis
N.J.S.A. 47:1A-9(a) states, “The provisions of this act, P.L. 2001, c.404 (C. 47:1A-5 et al) shall not abrogate any exemption of a public record of a public record or government record from public access heretofore made pursuant to P.L. 1963, c.73 (C.47:1A-1 et seq); any other statute; resolution of either or both Houses of Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of the Court; any federal law; federal regulation; or federal order.” 

The Custodian has cited N.J.A.C. 13:29.2 as the regulation under which they are denying access. After review of this code, it has been determined that it supercedes OPRA pursuant to N.J.S.A. 47:1A-9(a). The Custodian has submitted certification stating that release of any part of these records would be viewed as a violation of N.J.A.C. 13:29.2 due to the fact that information released would compromise the methodology of the investigation.

N.J.S.A. 47:1A-3(a) states that” …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…”  The Custodian has certified that, “the Director’s reasonable determination to preserve “investigative confidentiality and integrity” by making all documents relating to ABC investigations confidential and not open to public inspection, N.J.A.C. 13:2-29.2, supports the position that release of the requested records would be inimical to the public interest.”  These arguments need not be considered, because the records being sought are clearly not disclosable pursuant to N.J.A.C. 13:2-29.2.

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

1. August 10, 2004 – Denial of Access Complain
2. August 31, 2004 – Statement of Information Request
3. September 10, 2004 – Statement of Information
4. September 13, 2004 – Letter brief to GRC staff from the Custodian and counsel
5. September 16, 2004 – Complainant’s letter to GRC staff in response to the Statement of Information
6. October 20, 2004 – Letter to Custodians Counsel requesting additional certification from the Custodian
7. October 27, 2004 – Supplemental Certification from the Custodian
8. November 2, 2004 – Complainant’s letter to GRC staff in response to the supplemental certification submitted by the Custodian

Conclusions and Recommendations of the Executive Director
The Executive Director respectfully recommends that the Council dismiss the complaint on the basis that N.J.A.C. 13:29-2.2 supercedes N.J.S.A. 47:1A-1 et seq. and therefore access to the requested documents is not permitted pursuant to N.J.S.A. 27:1A-9(a).

Prepared By:
Kimberly Gardner, Case Manager

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

December 1, 2004

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