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2004-65

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Roger Harvey
   Complainant
      v.
Division of State Police
   Custodian of Record

Complaint No. 2004-65

At its July 8, 2004 public meeting, the Government Records Council (Council) considered the June 21, 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, with an administrative change to the analysis. The noted change was “N.J.S.A. 47:1A-5(a)” to read “N.J.S.A. 47:1A-9(a).”  The Council, therefore, dismissed the case on the basis the requested records are criminal investigatory records and are not disclosable pursuant to the Open Public Records Act. 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 8th Day of July, 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

Roger Harvey                            GRC Complaint No. 2004-65 
Complainant
      v.
Division of State Police
Custodian of Records

Relevant Records Requested: Any and all records and documents related to the arrest of Mitchell E. Daniels, Jr.
Request Made: 4/27/2004
Response Made: 5/7/2004
Custodian:   Division of State Police – Linda Largey
GRC Complaint Filed:  May 19, 2004

Executive Director’s Recommendations
The Executive Director respectfully recommends that the Council dismiss the complaint because the records requested are criminal investigatory records and therefore are not disclosable records pursuant to the Open Public Records Act.

Background
The Complainant has filed a denial of access for the records requested. The denial was issued based upon the fact that the records were proclaimed to be criminal investigatory records as defined by the Open Public Records Act.

Complainant:
The Complainant issued documentation that since the records pertain to a case that was disposed of in 1971, they can no longer reasonably be considered to be “investigative records.”  The Complainant asserts that there has been no active investigation for more than three decades, and therefore the records should be disclosed.

Custodian’s Counsel:
In the statement of information, the Custodian’s Counsel states, “The State Police did not provide nor make available the State Police investigation report, supplementary investigation report or arrest report because these documents are criminal investigatory reports or records pursuant to N.J.S.A. 47:1A-1.1 and as such they are not government records subject to public access under to N.J.S.A. 47:1A-1.1, N.J.S.A. 47:1A-5, N.J.S.A. 47:1A-9, and Executive Order 48 (1968).”

The Custodian’s Counsel further states that, “the exemption does not permit access to criminal investigatory records after the investigation is complete (see Janezcko, GRC Complaint 2002-79 & 80).”

Analysis
Pursuant to N.J.S.A. 47:1A-1.1 criminal investigatory records are defined 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.” The statute states that documents falling within the definition of criminal invesitgatory records are exempt from disclosure.

In addition, State Police criminal investigatory records are exempt from disclosure under Executive Order 48. OPRA provides that documents may be exempted from disclosure by Executive Order 48.  N.J.S.A. 47:1A-9(a).

Specifically, Executive Order No. 48 provides in relevant part that:

No person having custody of State Police investigative files shall turn over the same to any person, which 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.

Pursuant to the above listed portions of OPRA and Executive Order No. 48, the records requested are exempt from disclosure.

In keeping with the Council’s past practice, investigatory records are not disclosable, regardless of the investigations status (active or inactive). See GRC #2002-79 Janezcko and 2002-80 Janezcko.

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

  1.       April 27, 2004 – OPRA Request
  2.       May 7, 2004 – Custodian’s denial of access
  3.       May 19, 2004 – Complainant’s Denial of Access
  4.       May 20, 2004 – Offer of mediation
  5.       June 16, 2004 – Statement of Information & legal brief

Conclusion
The Council should dismiss the case because the records requested are not public records defined pursuant to N.J.S.A. 47:1A-1.1 et seq.

Paul F. Dice
Executive Director
Government Records Council

June 21, 2004

 

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