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2004-151

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Kenneth Serrano
   Complainant
      v.
New Brunswick Police Department
   Custodian of Record

Complaint No. 2004-151

 

At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 8, 2005 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, dismissed the case on the basis that the requested records are criminal investigatory records and exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.

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 14th Day of April, 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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Findings and Recommendations of the Executive Director

Kenneth Serrano                                              GRC Complaint No. 2004-151
Complainant
            v.
New Brunswick Police Department
Custodian of Records

Records Requested :

  1. Copies of any use of force forms filled out by Patrolmen Arthur Anderson and/or Henry Davis of the New Brunswick Police Department.

Request Made: 8/27/2004
Response Made: 9/08/2004
Custodian: Sergeant Richard P. Rowe, New Brunswick Police Department
GRC Complaint filed: 10/01/2004

Background

August 27, 2004
Complainant submitted a written Open Public Records Act (OPRA) Request seeking copies of “all Use of Force forms (involving Officers Arthur Anderson and Henry Davis) or any forms detailing any force used by these two officers separately or together whether the force pertained to an arrest or an incident not involving an arrest.” He requested a response by September 7, 2004.

September 8, 2004
Letter from the Custodian to the Complainant, “Re: Open Public Records Act Request” stating that “it has been determined that (the record requested) does not fall within the parameters of the Open Public Records Act and therefore will not be released.”

September 16, 2004
Complainant’s e-mail “Inquiry” to the Government Records Council requesting clarification of criminal investigatory records under the Open Public Records Act and its relation to use of force forms.  

September 22, 2004
E-mail from the Executive Director, “September 16, 2004 Inquiry to the Government Records Council,” to the Complainant in response to the Complainant’s September 16, 2004 e-mail.

October 1, 2004
Complainant filed a Denial of Access Complaint with the Government Records Council alleging a denial of access to government records.

October 12, 2004
Offer of Mediation sent to both parties.

December 1, 2004
Statement of Information received from the Custodian stating, “the instant complaint should be dismissed as the records sought in the OPRA request by Mr. Serrano are criminal investigatory records, and are exempt from disclosure under N.J.S.A. 47:1A-1.1.” The Use of Force reports requested are not required by law to be made, maintained and kept on file.

January 25, 2005
Letter from the Government Records Council staff sent to the records Custodian requesting a certification regarding the use of the requested documents.

January 31, 2005
Supplemental letter from the Government Records Council staff sent to the records Custodian requesting a certification clarifying the use of the requested documents.

February 10, 2005
Certification of the Custodian regarding the purpose of the requested Use of Force forms indicating that the requested records are meant to document and track incidents in which force is used. These documents include the circumstances and type of force and injury. The Custodian states that while there are documents responsive to the request “all of the requested forms were generated as a result of arrests in criminal matters.”

February 15, 2005
Letter from the Government Records Council staff sent to the records Custodian requesting a certification regarding the existence of further documents responsive to the request.

February 18, 2005
Certification of the Custodian regarding the existence of other documents that may be responsive to the request stating that “there are no other forms that detail force used by these two officers in any other situation other then[1] one in which an arrest was made.”

Analysis

Whether the requested records are criminal investigatory records?

The Open Public Records Act (OPRA) defines a criminal investigatory record in N.J.S.A.47:1A-1.1. Specifically, OPRA states:

“‘Criminal investigatory record’ means a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.”

The Assistant Prosecutor states that “the Middlesex County Prosecutors Office determined that the Use of Force forms are criminal investigatory records which are exempt from disclosure under N.J.S.A.47:1a-1.1. There is no law, regulation or statute mandating the Use of Force forms requested. They are accepted as part of the Attorney General’s Use of Force policy but are not required by law, regulation or statute; therefore those that are connected to a criminal activity are exempt from disclosure as a criminal investigatory record.” Certifications of the Custodian go on to state that the documents in question are generated only as a result of arrests in criminal matters and there are no forms or documents responsive to the request other than those in which an arrest was made. The purpose of these forms is “to provide an internal basis for the New Brunswick Police Department and the County Prosecutor to review and study the use of force, both generally and as it may relate to individual officers.”

Based on the certifications of the Custodian the records requested fall under the exemption for criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1 and are therefore not disclosable.  

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss the Complaint on the basis that the requested records are exempt from disclosure as criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1.

Prepared By:  Colleen McGann, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 8, 2005


[1] As stated by the Custodian

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