2004-201

Final Decision

At its October 28, 2005 public meeting, the Government Records Council (“Council”) considered the October 7, 2005 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 the Custodian did comply with the Council’s April 14, 2005 interim decision by providing a certification explaining why the records are exempt from disclosure or that no records responsive to the request exists and said certification is sufficient for OPRA’s burden of proof requirement under N.J.S.A. 47:1A-6.

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 28^th Day of October, 2005

Diane Schonyers, Vice-Chair
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 

Decision Distribution Date:  November 2, 2005

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Supplemental Findings and Recommendations of the Executive Director

Records Requested:

1. Bar incident reports for “Groove Lounge” or any other liquor licensed establishment located on the northwest corner of 61^st Street and Washington for the dates from January 1, 2004 to present.
2. Any and all public information about the arrest(s) of Beatriz Amaro or Beatrice Amaro, including name, date(s), location(s) of arrest(s) and any reports that are public relating to these arrest(s) for the year 2004 to present date.[1]
3. Any and all incident reports relating to the person(s) listed above in number 2 for the years 1998-present.

Request Made: October 28, 2004 and November 10, 2004
Response Made: November 4, 2004 and November 12, 2004
Custodian: Carmela Riccie – Town Clerk
GRC Complaint filed: November 26, 2004

Background

April 14, 2005

Interim Decision on Access. At the April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.   The Council voted unanimously to adopt said findings and recommendations with the amendment that the requested documents be released within ten (10) calendar days from receipt of the Council’s decision. The Council found that:

1. The Custodian has not proven the basis for any exemption to disclosure for the Records Requested in “1.” of the Complainant’s request. Thus, the requested documents shall be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the Custodian can explain in a certification why the release of the requested documents is inimical to the public interest.
2. The Custodian has not proven the basis for any exemption to disclosure for the Records Requested in “2.” and “3.” of the Complainant’s request. Thus, the requested documents shall be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the Custodian can explain in a certification why the release of the requested documents is inimical to the public interest. 
3. The Custodian shall release the requested documents as set forth in “2.” and “3.” directly above within ten (10) calendar days from receipt of this decision and inform Executive Director in Paul Dice when said release of documents is completed or explain in a certification why the release of the requested documents is inimical to the public interest.

April 28, 2005

Letter from the Custodian’s Counsel to DeAnna Minus-Vincent[2]. The Custodian’s Counsel, in response to the April 14, 2005 Council Interim Decision, stated that the request for bar incident reports was denied due to pending investigations. Counsel stated that there are cases involving this property pending in the Municipal Court of West New York and that once these matters have been resolved disciplinary action against the Groove Lounge will be pursued by Alcohol and Beverage Control Board. The Custodian’s Counsel further asserted that since there are “pending criminal and quasi criminal and administrative actions, it would be against public policy and interest to reveal any of the discovery, which emanates from these cases to any third party such as [the Complainant] until these matters have been adjudicated [by the public agency] and become finalized public records.”

In response to the request for arrest records, the Custodian’s Counsel stated that there are no arrest records and no other incident reports relating to Betty Amaro, Beatrice Amaro and/or Beatriz Amaro.

Additionally, the Custodian’s Counsel asks that “the Council point to some specific regulation, rule or law that it is necessary for the Town to provide a certification… If the Council can point to said regulation, rule, or law, the town would be happy to comply.”

July 20, 2005

Letter from the Council’s In-house Attorney to the Custodian’s Counsel. The Council’s In-house Attorney stated that the ordered certifications had not been received and there was no indication that the documents were released to the Complainant. She further stated that on June 22, 2005 after speaking with the Custodian’s Counsel it was her understanding that the Custodian would comply with the Council’s decision.

The Council’s In-house Attorney finally stated that “[t]his letter is now being sent to you to inform you that unless this Records Custodian fully complies with the Council’s Interim Decision dated April 14, 2005 by 4:30 p.m. on Friday, July 22, 2005 (by fax on that date with a hard copy response to follow in the mail later), this case will be added to the agenda for the Council’s August meeting for further adjudication.” 

July 20, 2005

Certification of the Custodian’s Counsel. The Custodian’s Counsel certified the “April 28, 2005 Letter from the Custodian’s Counsel to DeAnna Minus-Vincent.”   

September 22, 2005

Certification of the Custodian.  The Custodian certified that the position set forth in the “April 28, 2005 Letter from the Custodian’s Counsel to DeAnna Minus-Vincent”, excluding Counsel’s challenge to the Council’s order for a certification of said position, is in fact the position of the public agency. 

Analysis

Whether the Custodian complied with the Council’s April 14, 2005 Interim Decision?

After the Council provided much clarification of its interim decision to the Custodian’s Counsel, the Custodian did in fact comply with said decision. 

The Custodian’s certification of the reason for the denial of access to the bar incident reports is sufficient for OPRA’s burden of proof requirement under N.J.S.A. 47:1A-6.  Specifically, the Custodian certified that there is pending criminal court action involving the Groove Lounge regarding the subject matter of these incident reports in West New York municipal court.  The Custodian further asserts that after the court cases are concluded, the West New York Alcohol and Beverage Control Board will pursue disciplinary action against the Groove Lounge based on the subject matter of these incident reports.  Finally, the Custodian asserts that disclosure of the incident reports would impede the disciplinary action investigation to be conducted by the Alcohol and Beverage Control Board and thus would be inimical to the public interest of having business establishments selling alcohol regulated by the Alcohol and Beverage Control Board.

Additionally, the Custodian’s certification states that there are no records responsive to the Complainant’s request for arrest records for Betty Amaro, Beatrice Amaro and/or Beatriz Amaro.

Therefore, the Custodian did comply with the Council’s April 14, 2004 interim decision by providing a certification explaining why the records are exempt from disclosure or that no records responsive to the request exists and said certification is sufficient for OPRA’s burden of proof requirement under N.J.S.A. 47:1A-6. 

Conclusion and Recommendation of the Executive Director

The Executive Director respectfully recommends that the Council find that the Custodian did comply with the Council’s April 14, 2005 interim decision by providing a certification explaining why the records are exempt from disclosure or that no records responsive to the request exists and said certification is sufficient for OPRA’s burden of proof requirement under N.J.S.A. 47:1A-6.

Prepared By: Catherine Starghill, Esq.
In-House Counsel

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

October 7, 2005         

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Interim Decision on Access

At the April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt said findings and recommendations with the amendment that the requested documents are to be released within ten (10) calendar days from receipt of the Council’s decision.

Therefore, the Council finds that:

1. The Custodian has not proven the basis for any exemption to disclosure for the Records Requested in “1.” of the Complainant’s request. Thus, the requested documents shall be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the Custodian can explain in a certification why the release of the requested documents is inimical to the public interest.
2. The Custodian has not proven the basis for any exemption to disclosure for the Records Requested in “2.” and “3.” of the Complainant’s request. Thus, the requested documents shall be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the Custodian can explain in a certification why the release of the requested documents is inimical to the public interest.
3. The Custodian shall release the requested documents as set forth in “2.” and “3.” directly above within ten (10) calendar days from receipt of this decision and inform Executive Director in Paul Dice when said release of documents is completed or explain in a certification why the release of the requested documents is inimical to the public interest.

Interim Decision Rendered by the
Government Records Council
On The 14^th 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

Records Requested:

1. Bar incident reports for “Groove Lounge” or any other liquor licensed establishment located on the northwest corner of 61^st Street and Washington for the dates from January 1, 2004 to present.
2. Any and all public information about the arrest(s) of Beatriz Amaro or Beatrice Amaro, including name, date(s), location(s) of arrest(s) and any reports that are public relating to these arrest(s) for the year 2004 to present date.[1]
3. Any and all incident reports relating to the person(s) listed above in number 2 for the years 1998-present.

Request Made: October 28, 2004 and November 10, 2004
Response Made: November 4, 2004 and November 12, 2004
Custodian: Carmela Riccie
GRC Complaint filed: November 26, 2004

Background

October 28, 2004
Complainant submitted a written Open Public Records Act (OPRA) Request seeking a copy of bar incident reports for “Groove Lounge” and public information on the arrest of Beatriz Amaro, Beatrice Amaro, or Betty Amaro and any incident reports related to the same individual.

November 4, 2004
Letter from the Custodian’s Counsel to the Complainant stating the “matter is still under investigation and all reports concerning the matter cannot be released at this time.”

November 10, 2004
Letter from Complainant to the Custodian reiterating the request as the November 4, 2004 letter was not clear on which of the Complainant’s records request was being denied.

November 12, 2004
Letter from the Custodian’s Counsel to the Complainant stating that the incident reports involving Ms. Amaro are not available “since these matters are still under investigation and have not been finally determined, ” and are not public records.

November 29, 2004
Complainant filed a Denial of Access Complaint with the Government Records Council alleging a denial of access to government records.

December 2, 2004
Offer of Mediation sent to both parties.

December 6, 2004
Custodian’s signed Agreement to Mediate.

December 7, 2004
Complainant’s e-mailed declination of Mediation.

December 8, 2004
Statement of Information submitted by Custodian’s Counsel stating the “Groove Lounge” reports requested are not available under the Open Public Records Act as there is a continuing investigation that has not been finalized by the appropriate licensing authority. “This also pertains to the request for documentation regarding Beatriz Amaro, Beatrice Amaro, Betty Amaro, who may have been involved in the aforementioned incident.” Additionally, there are no other incidents involving Beatriz Amaro, Beatrice Amaro, Betty Amaro.

January 18, 2005
Letter from the Government Records Council, requesting certification from the Custodian containing a list of all documents responsive to the OPRA requests “1” through “3” above for which they are asserting an exemption including a general nature description for each document and a detailed explanation and specific basis for the claimed exemption.

January 23, 2005
Complainant’s e-mailed response to the Statement of Information alleging the requested bar incident reports are “not classified as investigation reports, but simply reflect incidents which may have occurred in Alcohol and Beverage Commission (“ABC”) licensed establishments.” The Complainant also states that the arrest information requested is disclosable under Executive Order 123 as “‘information concerning crimes reported if an arrest has been made.’”

January 25, 2005
Letter from the Custodian’s Counsel in response to the Government Records Council stating “there are police reports concerning the incident in question, but the matter is still pending before the West New York ABC Board and as such are not discoverable until the matter has been resolved.”

January 25, 2005
Letter from the Custodian’s Counsel to the Complainant stating that it was not his understanding that the Complainant was looking for all bar incident reports from various dates and requested that the Complainant amend his request to reflect this information. Furthermore, there “is no record of any arrest of Beatrice Amaro, Beatrix[2] Amaro, and/or Betty Amaro.”

February 14, 2005
Letter from the Complainant to the Custodian’s Counsel responding to the Custodian’s letter of January 25, 2005 asking that they re-examine the original request in regard to the dates of the requested bar incident reports.

February 17, 2005
Letter from the Custodian’s Counsel to the Complainant stating that after re-examining the original request it is unclear what is meant by “bar incident” and that there is only one such incident responsive to the request “which is presently under investigation.”  The letter reaffirms that there is no arrest record for “Beatrice Amaro or Beatrix[3] Amaro, or Betty Amaro.”

February 22, 2005
Letter from the Custodian’s Counsel to the Complainant responding to the February 21, 2005 letter of the Complainant[4] reaffirming that there are no arrest records for Betty Amaro and requesting that the Complainant give a more specific time period for the incident reports relating to the “Groove Lounge.”

February 25, 2005
Letter from the Complainant to the Custodian’s Counsel stating that “‘Groove Lounge’ has not been a licensed establishment for a very long period of time, whatever tavern reports you may find should suffice.”

Analysis

Whether the requested records are part of an investigation in progress?

The Open Public Records Act (OPRA) allows for denial of access to records pertaining to an investigation in progress under certain circumstances as set forth in N.J.S.A. 47:1A-3. Specifically, OPRA states:

…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.

In the Statement of Information submitted by Custodian’s Counsel, the agency alleges that the requested information is pertaining to a continuing investigation that has not been finalized. In later correspondence from same, it is stated that the bar incident reports requested are related to a “matter (that) is still pending before the West New York ABC Board and as such are not discoverable until the matter has been resolved.” On January 18, 2005 Government Records Council staff requested a certification containing a list of all documents responsive to the OPRA request for which they are asserting an exemption including a general nature description for each document and a detailed explanation and specific basis for the claimed exemption. The Custodian’s counsel responded in a letter stating “there are police reports concerning the incident in question, but the matter is still pending before the West New York ABC Board and as such are not discoverable until the matter has been resolved.”

N.J.S.A. 47:1A-3 indicates that access to records of an investigation in progress may be denied when the release of such information is adverse to the public interest. However, neither the Custodian nor the Custodian’s Counsel indicate how the release of this information would be inimical to the public interest or cite any specific basis in the law for the denial of access.

The Custodian has not shown how the release of the requested information would be inimical to the public interest pursuant to N.J.S.A. 47:1A-3. Therefore, the requested records should be released unless the Custodian can demonstrate how the release of the records would be inimical to the public interest.

Whether the Complainant was lawfully denied access to a Government Record?

The Open Public Records Act (OPRA) stipulates in N.J.S.A. 47:1A-6 that the agency bears the burden of proving that the denial of access is lawful. OPRA states:

The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed.

The Custodian’s Counsel alleges that the records requested are part of an investigation in progress. In the Statement of Information, the agency asserts that there is a continuing investigation involving the “Groove Lounge” and that B. Amaro “may have been involved in the aforementioned incident.” However, Custodian’s Counsel does not cite the specific basis for the exemption under OPRA or any other law. Additionally, there is nothing evident in correspondence from the Custodian or their legal representation to indicate that the release of such documents is inimical to the public interest. The Custodian’s Counsel has subsequently stated that there are no arrest records for Beatrice Amaro or Beatrix[5] Amaro, or Betty Amaro, but the Custodian has not provided a legal certification relative to the existence of such records.

The Custodian has not justified the lawful denial of access to the bar incident reports requested as is their responsibility pursuant to N.J.S.A. 47:1A-6. Therefore, the records requested should be disclosed to the Complainant.

While the Custodian’s Counsel has stated that there are no arrest records responsive to the request, the Custodian has not provided a legal certification stating this as fact. Therefore, any records responsive to this portion of the request should be disclosed or a certification must be submitted addressing the existence of documents relating to incidents and/or arrests involving Beatriz Amaro, Beatrice Amaro or Betty Amaro.     

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

1. That the Custodian has not proven any exemption to disclosure for Records Requested in “1” of the Complainant’s request. Thus, documents responsive to said request should be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the Custodian can explain in a certification why the release of the documents requested is inimical to the public interest.
2. That the Custodian has not proven any exemption to disclosure for documents responsive to Records Requested “2” and “3” and has not certified as to the existence of the requested documents. Therefore, the documents responsive to said request should be released in accordance with N.J.S.A. 47:1A-1 et. seq. unless the Custodian submits a legal certification relative to the existence of said documents or can explain how their release is inimical to the public interest. 
3. The Custodian should provide a response to the Executive Director in “1” and “2” above within ten (10) business days from receipt of the Council’s decision.

Prepared By: Colleen McGann. Case Manager

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

April 7, 2005

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