2004-40

Final Decision

1. Although the Complainant submitted an undated request, the request constitutes a valid OPRA request pursuant to N.J.S.A. 47:1A-5(g).
2. The Custodian violated N.J.S.A.47:1A-5(g) and 5(h) by not providing the requestor with an explanation of why it was unable to comply with the request and by not directing the requestor to the appropriate records custodian.
3. The Custodian’s Counsel has explained that no disclosable records exist, other than those given to the Complainant.
4. The Custodian’s violation in “2” does not constitute a knowing and willful violation under the totality of the circumstances because Central Records believed this was a request for a police report rather than an OPRA request.

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 26th Day of April, 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:   April 30, 2004

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Findings and Recommendations of the Executive Director

Relevant Records Requested: Any Investigation Work (minus the police report) about an accident on 3/31/03 involving a car accident between the Complainant and another driver in the Coastline parking lot.
Custodian: Nancy Saffos; Lisa Kmiec (Esquire)
Request Made: March 4, 2004
Response Made: on/about March 9, 2004
GRC Complaint filed: March 31, 2004

Executive Director’s Findings and Recommendation

The complaint alleges a denial of access to any investigation work (minus the police report) about an accident on 3/31/03 between the Complainant and another driver from the Cherry Hill Police Department.  Although not requested, the Police Department responded by providing the Complainant a copy of the police accident report.

On or about March 9, 2004, the Police Department in Central Records processed the request and mailed the Complainant the police report.  No other response was provided to the Complainant regarding his request.  In the Statement of Information, the Custodian’s Counsel argued that the Complainant sent an undated request to Central Records rather than to the Municipal Clerk who is the Township’s Records Custodian.  The Custodian’s Counsel contends that the Township processes hundreds of requests for police reports in any given month. Such requests are not treated as formal OPRA requests because they are either verbal requests or informal requests as Mr. Seabrook’s request.  Therefore, the Custodian’s Counsel maintains that the matter is not an OPRA request and, as such, the Government Records Council lacks jurisdiction under OPRA.  In addition, the Custodian’s Counsel argued that assuming the Complainant sought Internal Affairs investigatory records, such records would not be properly disclosed to Mr. Seabrook or any other member of public.  The department would consider these records as personnel records and expressly excepted from disclosure pursuant to the Governors Executive Order No. 11 and N.J.S.A. 47:1A-10.  Finally, the Custodian’s Counsel added that for reasons of confidentiality and investigative integrity, Internal Affairs reports are not kept in Central Records.

The Executive Director respectfully recommends that the Council find the following:

1. Although the Complainant submitted an undated request, the request constitutes a valid OPRA request pursuant to N.J.S.A. 47:1A-5(g).
2. The Custodian violated N.J.S.A.47:1A-5(g) and 5(h) by not providing the requestor with an explanation of why it was unable to comply with the request and by not directing the requestor to the appropriate records custodian.
3. The Custodian’s Counsel has explained that no disclosable records exist, other than those given to the Complainant.
4. The Custodian’s violation in “2” does not constitute a knowing and willful violation under the totality of the circumstances because Central Records believed this was a request for a police report rather than an OPRA request.
5. This complaint should be dismissed.   

Legal Analysis

The Custodian’s Counsel argued that the Complainant never submitted an OPRA request to the Cherry Hill Police Department but rather submitted an informal request.  Pursuant to N.J.S.A. 47:1A-5g,

A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.

Therefore, the request by the Complainant was a valid OPRA request as it was in writing and mailed to the Cherry Hill Police Department.  In addition, the Custodian failed to inform the Complainant of the reason for denying the request.  Instead, the Custodian submitted to the Complainant the police accident report.  Pursuant to N.J.S.A. 47:1A-5(g),

If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis thereof on the request form and promptly return it to the requestor.

If this request lacked specificity or clarity, the Police Department should have sent a written response to the Complainant addressing this concern.  Additionally, if the request was directed to the incorrect department, in this case Central Records, the Police Department should have directed the request to the appropriate Records Custodian.

The Custodian failed to provide the specific basis for denying the Complainant’s request.  However, the Custodian’s actions should not be viewed as a knowing and willful violation of the “Act” to unreasonably deny access to the requested information under the totality of the circumstances pursuant to N.J.S.A. 47:1A-5 (i) because Central Records believed this was a request for a police report rather than an OPRA request.  

Documents Reviewed

September 22, 2003 – Complaint sent by Complainant to Police Department’s Internal Affairs Unit
October 19, 2003 – Response to 9/22/03 Letter
March 4, 2004 – Records Request
March 21, 2004 – Denial of Access Complaint Filed along with attachments
March 29, 2004 – Mediation Offered
March 30, 2004 – Correspondence from Lt. Melson of the Cherry Hill Police to GRC
April 1, 2004 – Statement of Information form submitted to Custodian
April 7, 2004 – Statement of Information

_________________________

Paul F. Dice
Executive Director
Government Records Council
April 19, 2004

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