2004-46

Final Decision

At its June 10, 2004 public meeting, the Government Records Council (Council) considered the May 31, 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.  The Council, therefore, dismissed the case on the basis of:

1. The Custodian’s explanation of the investigation reports sought in the request fall under the definition of a criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1.
2. Pursuant to N.J.S.A. 47:1A-5 (g), the Custodian responded properly with its reason for the denial of access.
3. Executive Order 48 is relevant in the instant case pursuant to N.J.S.A. 47: 1A-9.
4. N.J.S.A. 2C:12-1 establishes that the record sought is an investigatory report. 
5. The exemption under criminal investigatory records applies to the statutory description and not to the status of the investigation.  Therefore, the requested information remains exempt from disclosure after the investigation was completed.  

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 10th Day of June, 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 the Executive Director

Relevant Records Requested: Records request for investigatory reports #A10020030094, State Police Norris Barracks, 11/4/03
Custodian: Linda Largey; Kenneth Goodman (Custodian Counsel)
Request Made:  March 18, 2004
Response Made: March 23, 2004
GRC Complaint Filed: March 31, 2004

Recommendations of Executive Director

The Complainant submitted a Denial of Access Complaint to the Government Records Council on March 31, 2004 contending that his request for investigatory reports #A10020030094, State Police Barracks, 11/4/03 was improperly denied.  In his supplemental statement, the Complainant stated that this was not an open investigation and should not be exempt from the public or press access.

The Custodian Counsel’s Statement of Information indicated that the investigative report’s serial number was incorrect but through conversations with the Complainant, the Custodian’s Counsel was able to determine the actual serial number of the file sought.  Access was denied pursuant to N.J.S.A. 47:1A – 1.1.  The Custodian referenced GRC case - Serrano v. South Brunswick Township Final Decision, Findings and Recommendations and Supplemental Findings and Recommendations (2002-33), Executive Order 48, N.J.S.A. 47:1A-5 and N.J.S.A. 47:1A-9 as the basis for denying access.

In addition, the Custodian’s Counsel claimed that the exemption was not contingent on the status of the investigation.  Supporting this argument, the Custodian referenced GRC cases - Janeczko v. Division of Criminal Justice Final Decision and Findings and Recommendations (2002-79 and 80).

In a May 19, 2004 letter to the GRC, the Custodian’s Counsel contends that the requested report involves a State Police investigation into a complaint of an alleged assault in violation of N.J.S.A. 2C:12-1.  The Custodian’s Counsel asserted that the report was an investigation into alleged criminal activity and therefore falls within the definition of a “criminal investigatory record” under N.J.S.A. 47:1A-1.1.

The Executive Director respectfully recommends that the Council find that:

1. Based on the Custodian’s explanation of the documents requested, the investigation reports sought fall under the definition of a criminal investigatory record pursuant to N.J.S.A. 47:1A-1.1.
2. Pursuant to N.J.S.A. 47:1A-5 (g), the Custodian responded properly with its reason for the denial of access.
3. Executive Order 48 is relevant in the instant case pursuant to N.J.S.A. 47: 1A-9.
4. N.J.S.A. 2C:12-1 establishes that the record sought is an investigatory report. 
5. The exemption under criminal investigatory records applies to the statutory description and not to the status of the investigation.  Therefore, the requested information remains exempt from disclosure after the investigation was completed.  
6. The case should be dismissed. 

Analysis

OPRA defines a "criminal investigatory record" as 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 (N.J.S.A. 47:1A-1.1). Criminal investigatory records include records involving all manner of crimes, resolved or unresolved, and include information that is part and parcel of an investigation, confirmed and unconfirmed.  The Custodian’s Counsel explained that the requested investigatory reports involve a State Police investigation into a complaint of alleged assault.  There is no information indicating the records in question are required by law to be made, maintained or kept on file as pursuant to the definition of “Criminal investigatory record” under N.J.S.A. 47:1A-1.1.  

In the supplemental statement, the Custodian’s Counsel explained the reason for considering this requested information as criminal investigatory records stating “the requested report involves a State Police investigation into a complaint of an alleged assault,” citing N.J.S.A. 2C:12-1.

The Custodian’s Counsel further cites Executive Order 48 that states the following: 

“No person having custody of State Police investigative files shall turn over the same to any other person who is not a member of a duly recognized law enforcement agency unless ordered to do so by a court of competent jurisdiction or by the Governor of the State of New Jersey.”

Additionally, the Custodian’s Counsel cites in part N.J.S.A. 47:1A-5(g).  The Custodian’s response to the request complied with this provision under OPRA.  

Also cited is N.J.S.A. 47: 1A-9 that addresses the issue of other laws and privileges unaffected regarding this request.  It states the following:

“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 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 the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.

The provisions of this act, P.L.2001, c.404 (C.47:1A-5 et al.), shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.”

The Complainant argues that the criminal investigation had been completed before the request for these records and as such, the exemption under OPRA no longer applies.  In the Custodian Counsel’s response, the Counsel correctly refers to GRC cases - Janeczko v. Division of Criminal Justice (2002-79) and Janeczko v. Department of Law and Public Safety (2002-80). 

“It is also important to note that the exemption does not permit access to investigatory records once the investigation is complete. The exemption applies to records that conform to the statutory description, without reference to the status of the investigation and the Council does not have a basis to withhold from access only currently active investigations and release those where the matter is resolved or closed.”

Therefore, pursuant to the provisions under N.J.S.A. 47: 1A-1.1, 5, 9 and Executive Order 48, the Custodian met the burden of explaining that the requested investigatory reports were criminal investigatory records and that access was properly withheld.  No further action is needed and the complaint should be dismissed. 

Documents Reviewed

• March 31, 2004 – Denial of Access Complaint with Supplemental, Records Request and Denial Response
• April 7, 2004 – Mediation Forms submitted to both parties
• April 22, 2004 – Statement of Information form sent to Custodian
• May 12, 2004 – Request for Statement of Information to Custodian
• May 14, 2004 – Statement of Information
• May 19, 2004 – Supplement to Statement of Information regarding the reason for considering the documents as criminal investigatory records
• May 27, 2004 – Letter from Custodian’s Counsel with attached copy of Appellate Division decision on Janeczko v. Division of Criminal Justice, et al.

_________________________

Paul F. Dice
Executive Director
Government Records Council
May 31, 2004

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