2004-64

Final Decision

At its August 12, 2004 public meeting, the Government Records Council (Council) considered the July 30, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted by a majority to adopt the entirety of said findings and recommendations.  The Council, therefore, dismissed the case on the basis the Custodian met the burden of proving the investigation report sought in the request was a criminal investigatory record pursuant to N.J.S.A. 47:1A-1.1 and therefore exempt from disclosure under the Open Public Records Act.

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, and 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.

Final Decision Rendered by the
Government Records Council
On The 12^th Day of August, 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

Return to Top

Findings and Recommendations of the Executive Director

Relevant Records Requested: Records request for a copy of an investigation report of her minor son arrested on May 10, 2004.
Custodian: Sgt. Neil J. Ward; Peter J. Cresci (Custodian Counsel)
Request Made:  May 12, 2004
Response Made: May 12, 2004
GRC Complaint Filed: May 17, 2004

Background

Complainant’s Case Position:

The Complainant filed a Denial of Access Complaint with the Government Records Council on May 17, 2004 pursuant to N.J.S.A. 47:1A-1 et seq. alleging the Bayonne Police Department denied her request made on May 12, 2004 for a copy of her son’s investigation report by citing the criminal prosecution exemption pursuant to N.J.S.A. 47:1A-1 et seq.  The Complainant acknowledges receiving the written response denying the request on May 12, 2004.   

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserts that the documents sought were police investigation documents involving an on-going investigation and were exempt under the following:

1. The arrest for the violation under criminal status N.J.S.A. 2C:35-10A (4) 2C:36-2, 2C:35-106
2. N.J.S.A. 1A-1 et seq.  The requested report involves an ongoing criminal investigation prosecution.
3. N.J.S.A. 47:1A-3a.  As the disclosure of investigation report would be inimical to the public interest.  In support the Custodian’s Counsel cited Loigman v. Kimmelman, 102 N.J. 98, 505 A.2d 958 (1986), in which it was decided pursuant to 5 U.S.C. 552 (b)(7), amended 1974, investigatory records can be compiled for law enforcement purposes only to the extent that the production of such records would (a) interfere with enforcement proceedings; (b) deprive a person of a right to a fair trial or an impartial adjudication; (c) constitute an unwarranted invasion of personal privacy; (d) disclose the identity of a confidential source and in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation; (e) disclose investigative techniques and procedures; or (f) endanger the life or physical safety of law personnel.  Pursuant to the aforementioned, clearly the production of the City of Bayonne Police Department documentation would interfere in subsections (a), (b) and (e), as this is an ongoing criminal investigation and prosecution.
4. N.J.S.A. 47:1A-3(a).  The release of records maintained by a law enforcement agency is not required under an OPRA as they pertain to a criminal investigation or related to civil enforcement proceedings.  Also pursuant to N.J.S.A. 47:1A-3(b), the actor in the above mentioned matter is a juvenile.
5. The Custodian’s Counsel concluded that the Complainant demonstrated no compelling need sufficient to outweigh the possible harm disclosure may bring the investigation and criminal prosecution.  

Analysis

1. 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 states that the investigation report sought in the case involved an arrest for violation under the criminal statutes N.J.S.A. 2C:35-10A(4), 2C:36-2 and 2C:35-10(b).  The Custodian has met its burden of proving that the investigation report involves a criminal investigation and would be properly withheld under the provision of N.J.S.A. 47:1A-1.1.  The GRC decided in a similar case that investigation reports are exempt under criminal investigatory provision of OPRA - Janeczko v. Division of Criminal Justice and Division of State Police (2002-79 and 80).
2. See #1 above.
3. The other exemption presented by the Custodian under N.J.S.A. 47: 1A-3(a) need not be considered in this case as there is enough evidence that the record sought is a criminal investigatory record not accessible under N.J.S.A. 47:1A-1.1.  In the Trenton Times v. Department of Law and Public Safety (2003-78), the Council decided that N.J.S.A. 47:1A-3(a) is not applicable to records which qualify as criminal investigatory records. 
4. The other exemption presented by the Custodian under N.J.S.A. 47:1A-3(b) also need not be considered in this case as there is enough evidence that the record sought is a criminal invetsigatory record not accessible under N.J.S.A.47:1A-1.1. 

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

1. May 12, 2004 – Records request
2. May 12, 2004 – Response from Custodian denying request
3. May 17, 2004 – Denial of Access Complaint filed with GRC
4. May 18, 2004 – Mediation forms sent to both parties
5. May 19, 2004 – Response by Complainant to the GRC – attached to SOI     
6. May 20, 2004 – Mediation form signed by Complainant
7. May 27, 2004 – Statement of Information
8. June 3, 2004 – Statement of Information received by GRC with May 19, 2004
9. July 9, 2004 – E-mail sent to Custodian’s Counsel requesting a clarification to the Statement of Information
10. July 14, 1004 – Custodian’s Counsel Clarification of Statement of Information

Conclusions and Recommendations of Executive Director

The Executive Director respectfully recommends that the Council dismiss the case on the basis that the Custodian has met the burden of proving that the investigation report sought was a criminal investigatory record pursuant to N.J.S.A. 47:1A-1.1 and therefore exempt from disclosure under OPRA.

Prepared By:
Case Manager

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

July 30, 2004

Return to Top