2005-119

Revised Final Decision

Procedural History

The Government Records Council (“Council”) considered this case at the November 10, 2005 public meeting, in conjunction with all related documents submitted by the parties and the November 4, 2005 Findings and Recommendations of the Executive Director.  By a majority vote, the Council did not adopt the Executive Director’s Findings and Recommendations, but instead concluded that the requested record, “Robert Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office,” was not exempt from disclosure as a criminal investigatory record pursuant to the N.J.S.A. 47:1A-1.1 because the letter preceded the investigation and was determined not to be part of the investigation. That conclusion was based, in large part, on the Council’s interpretation of the Appellate Division's analysis in Serrano v. South Brunswick Township, 358 N.J. Super. 352 (App. Div. 2003), which required disclosure of a 911 tape.  Therefore, the Council ordered that the Custodian disclose the requested letter with necessary redactions pursuant to OPRA.  The Final Decision was sent to all parties on November 23, 2005. 

On December 7, 2005, following the Council’s decision, the Custodian’s counsel entered a Notice of Appeal to the Appellate Division of the Superior Court of New Jersey regarding the Council’s decision that the requested letter from Mr. Linton was not exempt from disclosure under OPRA and requested that the Council grant a stay of the Council’s ruling in this matter.  

At the January 27, 2006 public meeting, the Council granted the request for a stay of the Council’s ruling until the court rendered a decision on appeal. 

At the February 17, 2006 public meeting, upon legal advice and Council discussion of the matter, the Council voted unanimously to motion the Court to remand the case to the Council to conduct an in camera inspection of the requested record. 

On May 1, 2006 the Court ordered a remand of the case for the Council to conduct an in camera inspection of the requested June 27, 2003 letter from Robert Linton to the Monmouth County Prosecutor’s Office.

At the May 11, 2006 public meeting, the Council conducted the in camera inspection of the unredacted copy of “Robert Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office” in Closed Session pursuant to the Court’s order for remand.     Present during the in camera review were:

            Council Members:                     Vincent Maltese

                                                            Kathryn Forsyth

                                                            Robin Berg Tabakin

            Government Records Staff:            Catherine Starghill, Executive Director

                                                            Gloria Luzzatto, Operations Manager

                                                            Christopher Malloy, Case Manager

                                                            Debra Allen, Deputy Attorney General

After completing the in camera inspection of Robert Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office, the Council concluded by a unanimous vote that the requested record was a “criminal investigatory record” and therefore, exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1

Background

Record Relevant to the Complaint

Robert Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office

 Complainant’s Case Position

The Complainant filed a Denial of Access Complaint with the Council on June 8, 2005 pursuant to OPRA alleging that the Custodian did not disclose the requested June 27, 2003 letter from Robert Linton to the Monmouth County Prosecutor’s Office under the premise it was a criminal investigatory record and exempt from disclosure under OPRA.  The Complainant asserted that he understood that the requested letter was the impetus for an investigation and that the investigation was now closed.  He asserted further that during the investigation, some of the contents of the letter were disclosed to him.

The Complainant asserted that during the investigation, the investigator informed him that Mr. Linton’s letter contained false allegations about his children attending free daycare at the Wall United Methodist Church and that Mayor Malick’s father was on the church payroll.

            The Complainant alleged that the letter was not a criminal investigatory record pursuant to OPRA but was more akin to a criminal complaint and therefore, accessible to the public. He asserted further that since a portion of the letter’s contents had been disclosed, the document could not be viewed as confidential.

Public Agency’s Case Position

In response to the Complainant’s allegations, the Custodian asserted that the requested letter contained Mr. Linton’s opinions and facts regarding the legality of an ordinance drafted and passed by the Spring Lake Heights Council, exempting the Wall United Methodist Church, physically located in Spring Lake Heights, from paying water and sewage fees.  The Custodian alleged that there were allegations of official misconduct on the part of John Brennan and Elwood Malick in connection with the passage of the ordinance. 

            The Custodian contended that this letter, as well as the information and allegations it contained was the impetus for a criminal investigation of the Spring Lake Heights Council focusing on John Brennan and Elwood Malick. The Custodian asserted that as the letter was correspondence from Mr. Linton to Prosecutor Kaye it was not a public document such as a warrant or summons. The Custodian also asserted that had the investigation sustained the allegations, formal charges would have been signed against the targets of the investigation; however, no cause was found and the investigation was closed October 29, 2003.

The Custodian cited Council decisions in Janeczko v. New Jersey Department of Law and Public Safety, Division. Of Criminal Justice, GRC Complaint No. 2002-79 and 2002-80 (August 2003), Johnson/Press of Atlantic City v. New Jersey Division of State Police, GRC Complaint No. 2004-46 (June 2004) and other Council decisions in defense of its position holding that criminal investigatory files are exempt from OPRA disclosure regardless of the status of the criminal investigation being open or closed.

The Custodian asserted that applying the definition of a criminal investigatory record under N.J.S.A. 47:1A-1.1 as well as the analysis and conclusion of Janeczko supported the conclusion that the letter was part of a criminal investigatory file. The Custodian also asserted that the letter was not required by law to be made, maintained or kept on file, was held by a law enforcement agency and pertained to a criminal investigation. The Custodian alleged that the letter pertained to a criminal investigation and initiated the investigation. 

Analysis

The Custodian’s counsel contended that the June 27, 2003 letter from Robert Linton to the Monmouth County Prosecutor’s Office, as well as the information and allegations it contained was the impetus for a criminal investigation of the Spring Lake Heights Council focusing on John Brennan and Elwood Malick. The Custodian asserted that as the letter was correspondence from Mr. Linton to Prosecutor Kaye it was not a public document. The Custodian also asserted that had the investigation sustained the allegations, formal charges would have been signed against the targets of the investigation; however, no cause was found and the investigation was closed October 29, 2003.

The Custodian’s counsel asserted that applying the definition of a criminal investigatory record under N.J.S.A. 47:1A-1.1, as well as the analysis and conclusion of Janeczko v. Department of Law & Public Safety, Division of Criminal Justice, Superior Court of New Jersey, Docket No. A-309-03T1 (Unpublished Decision, Decided May 26, 2004), Johnson/Press of Atlantic City v. New Jersey Division of State Police, GRC Complaint No. 2004-46 (June 2004) and other Council decisions supported the conclusion that the letter was part of a criminal investigatory file.  The Custodian also asserted that the letter was not required by law to be made, maintained or kept on file that was held by a law enforcement agency and pertained to a criminal investigation.  Having reviewed the letter in camera, the Council agrees.

The Open Public Records Act (OPRA) defines a criminal investigatory record in N.J.S.A.47:1A-1.1. Specifically, OPRA states:

“Criminal investigatory record’’ means 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 letter of June 27, 2003 falls within this definition. 

Serrano, supra, on what the GRC relied to support its initial finding that the requested letter was subject to disclosure, is distinguishable.  Serrano involved an OPRA request by a newspaper reporter for a copy of a tape from the police of a 911 call relating to a murder of a father by his son.  The township denied the OPRA request on the basis that the tape was a “criminal investigatory” record under OPRA and therefore non-discloseable.  In affirming the GRC’s final decision that the requested 911 tape was discloseable, the court concluded that the tape fell within the definition of a government record because it was required by law to be made, maintained and kept on file and therefore, did not qualify as a criminal investigatory record under OPRA.  Id. at 365.  Moreover, the Serrano court noted that the 911 tape, by virtue of it being a government record, cannot retroactively become confidential and exempt from disclosure simply because it becomes evidence in a criminal investigation.  Id. at 367.  

            Here, the June 27, 2003 letter was essentially a citizen’s complaint to inform the Monmouth County Prosecutor of alleged criminal actions by members of the Spring Lake Heights Council.  As the impetus for an ensuing criminal investigation of the allegations set forth against the Spring Lake Height Council, the letter became part of a criminal investigatory file that is exempt from disclosure under OPRA.  The fact that the Monmouth County Prosecutor’s Office decided to close out the case is not dispositive on the disclosure issue because the Superior Court, Appellate Division and the GRC have held previously that criminal investigatory files are exempt from disclosure irrespective of whether the criminal matter is resolved or unresolved.  See Janeczko v. New Jersey Department of Law and Public Safety, Division of Criminal Justice, A-309-03T1 (May 26, 2004) (Unpublished), Johnson/Press of Atlantic City v. Division of State Police, GRC No. 2004-46.  Moreover, unlike the 911 tape in Serrano, supra, the letter at issue in this case was not required to be made, maintain and kept on file by the Prosecutor’s Office.  The letter is therefore exempt from disclosure as a criminal investigatory record.       

Following the decision in Serrano, supra, the appellate court has held that “in order to find a basis to deny access to the tapes, the court must find both that they pertain to an investigation and that their release would be inimical to the public interest.”  Courier News v. Hunterdon County Prosecutor’s Office, A-3353-02T2 at 10 (March 12, 2003) (Unpublished) (citing Asbury Park Press v. Lakewood Twp. Police Dep’t, 354 N.J. Super. 146, 158 (Law Div. 2002)).  Release of the requested letter could result in a chilling effect on complaints of alleged criminal activity made to the Prosecutor’s Office if there are concerns that such information could be released to the public.  See Koch v. Department of Justice, 376 F. Supp. 313, 316 (D.D.C. 1974) (stating that “police agencies must depend upon reports from private citizens concerning suspected illegal activity, and the collection of such communications is an entirely legitimate law enforcement function.”).

            For all of these reasons, the requested June 27, 2003 letter to the Monmouth County Prosecutor’s Office is exempt from disclosure under the criminal investigatory exemption pursuant to N.J.S.A. 47:1A-1.1. 

Documents Reviewed

The following records were reviewed by the Council in rendering its revised final decision:

1. May 20, 2005 – Complainant’s OPRA request.
2. May 23, 2005 – Custodian’s response to OPRA request stating that the requested records are criminal investigatory records exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1.
3. June 8, 2005 – Complainant’s Denial of Access Complaint.
4. June 16, 2005 – Offer of Mediation to both parties
5. July 7, 2005 –Custodian’s Statement of Information
6. October 20, 2005 – Request for certification from Custodian to explain why the requested June 27, 2003 letter from Robert Linton to the Monmouth County Prosecutor’s Office criminal investigatory record.
7. October 25, 2006 – Custodian’s certification in response to October 20, 2005 request for explanation.
8. June 27, 2003 – Letter from Robert Linton to Prosecutor Kay, reviewed in camera, and which remains confidential. 
   

Conclusion and Order

            Based on the foregoing reasons, the requested June 27, 2003 letter from Robert Linton to the Monmouth County Prosecutor’s Office is exempt from disclosure under the “criminal investigatory record” exemption pursuant to N.J.S.A. 47:1A-1.1. 

This is a revised final administrative determination. Any appeal of the Council’s determination should be sent to the Superior Court of New Jersey, Appellate Division.

Revised Final Decision Rendered by the
Government Records Council
On The 11^th Day of May, 2006

Vincent Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Robin Berg Tabakin, Secretary
Government Records Council 

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Interim Order

Procedural History

The Government Records Council (“Council”) considered this complaint at the November 10, 2005 public meeting, in conjunction with all related documents submitted by the parties and the Findings and Recommendations of the Executive Director.  By a majority vote, the Council did not adopt the Executive Director’s Findings and Recommendations, but instead concluded that the requested letter from Mr. Linton was not exempt from disclosure as a criminal investigatory record pursuant to the Open Public Records Act (“OPRA”) because the letter preceded the investigation and was not part of the investigation. Therefore, the Council ordered that the Custodian disclose the requested letter with necessary redactions pursuant to OPRA.  The Final Decision was sent to all parties on November 23, 2005. 

On December 7, 2005, following the Council’s decision, the Custodian’s counsel entered a Notice of Appeal to the Appellate Division of the Superior Court of New Jersey regarding the Council’s decision that the requested letter from Mr. Linton was not exempt from disclosure under OPRA and requested that the Council grant a “Stay” of the Council’s ruling in this matter.  

At the January 27, 2006 public meeting, the Council granted the Custodian counsel’s request for a stay of the Council’s ruling until the Court renders an opinion. 

At the February 17, 2006 public meeting, upon legal advice and Council discussion of the matter, the Council voted unanimously to motion the Court to remand the case to the Council to conduct an in camera inspection of the requested document. 

Conclusion

Therefore, upon legal advice and Council discussion of the matter at the February 17, 2006 public meeting, the Council unanimously voted to motion the Court to remand the case to the Council to conduct an in camera inspection of the requested document.  

Interim Decision Rendered by the
Government Records Council
On The 17^th Day of February, 2006

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Robin Berg Tabakin, Secretary
Government Records Council 
Decision Distribution Date:  February 28, 2006

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Order of Stay

At the January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 2005 Supplemental Findings and Recommendations of the Executive Director Regarding Custodian counsel’s Motion for a Stay and all submissions of the parties.  The Council voted unanimously to approve the request for a stay of the Council’s November 10, 2005 Final Decision until the appeal is rendered by the Appellate Division of the Superior Court of New Jersey.  

Interim Order Rendered by the
Government Records Council
On The 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  February 6, 2006

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Supplemental Findings and Recommendations of the E

Records Requested: Investigative reports in respect to Case No. WC03-00248. (The Complainant amended the request and is now only seeking Robert Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office.)
Request Made:  May 20, 2005
Response Made:  May 23, 2003
Custodian: Patricia Quelch
GRC Complaint filed: June 8, 2005

Background

November 10, 2005

At its November 10, 2005 public meeting, the Government Records Council (“Council”) considered the November 4, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council by a majority voted not to adopt the Executive Director’s Findings and Recommendations, but instead concluded that the requested letter from Mr. Linton is disclosable with necessary redactions pursuant to the Open Public Records Act (“OPRA”) because the letter preceded the investigation and was determined not to be part of the investigation.   Therefore, the Council found that the Custodian was to disclose the requested letter with necessary redactions pursuant to the OPRA and simultaneously provide written notice to the Executive Director of compliance. 

December 7, 2005

Custodian’s amended request for a stay. The Custodian references N.J.S.A. 47:1A-7.e. and states that they are exercising their right to appeal the Government Records Council’s opinion to the Superior Court, Appellate Division.

The Custodian takes the position that the Government Records Council (GRC) erred by not following the recommendation of the Executive Director. They state that based upon the definition contained within the statute as well as the prior rulings of the GRC, the letter in question meets all of the criteria necessary to be classified as part of a criminal investigatory record. They state that because of this, they have a clear likelihood of success on the merits of the claim.

The Custodian believes that there is a danger of irreparable harm to the Monmouth County Prosecutor’s Office if a stay is not granted because once the letter and its contents have been disclosed, there would be no way to retrieve the information from the individual receiving the letter. The Custodian also states that this ruling has a potential chilling effect on other citizens of Monmouth County who believe that a crime has been committed and then communicate with the Monmouth County Prosecutor’s Office (in writing) with the understanding that the communication will not be disclosed. The Custodian goes on to allege that this ruling has statewide implications affecting law enforcement agencies and the manner in which citizen complaints are handled. The Custodian believes that because of the aforementioned reasons it is in the public’s interest for this particular issue to be addressed by the Superior Court, Appellate Division before a dangerous precedent is set. The Custodian states that other than the fact that Mr. Brennan will not receive his copy of the letter at this time, no one else is harmed by a stay.

Finally, the Custodian states that based upon the foregoing, the Monmouth County Prosecutors Office requests that the Government Records Council grant its request for a stay of the enforcement of the November 23, 2005, Final Order until the Appellate Division issues an opinion.

Analysis

The Monmouth County Prosecutors Office requests a stay of the November 10, 2005 decision of the Government Records Council, which by majority voted not to adopt the Executive Director’s Findings and Recommendations, but instead concluded that the requested letter from Mr. Linton is disclosable with necessary redactions pursuant to the Open Public Records Act (“OPRA”) because the letter preceded the investigation and was determined not to be part of the investigation. The Monmouth County Prosecutors Office claims that a stay is warranted because: 1) the Monmouth County Prosecutors Office has a clear likelihood of success on the merits of the claim; 2) the Monmouth County Prosecutors Office asserts that there is a danger of irreparable harm if a stay is not granted because once the letter and its contents have been disclosed, there is no way to retrieve the information from the individual receiving the letter; and 3) this ruling has a potential chilling effect on other citizens of Monmouth County who believe that a crime has been committed and then communicate with the Monmouth County Prosecutor’s Office (in writing) with the understanding that the communication will not be disclosed.

a. Likelihood of success on the Merits                                                

The Monmouth County Prosecutors Office based upon the definition contained within the statute as well as the prior rulings of the GRC, the letter in question meets all of the criteria necessary to be classified as part of a criminal investigatory record

b. Danger of irreparable harm

The Monmouth County Prosecutors Office claims that it will suffer if a stay is not granted because once the letter and its contents have been disclosed; there would be no way to retrieve the information from the individual receiving the letter.

c. Potential chilling effect

In its final argument for stay relief, the Monmouth County Prosecutors Office that this ruling has a potential chilling effect on other citizens of Monmouth County who believe that a crime has been committed and then communicate with the Monmouth County Prosecutor’s Office (in writing) with the understanding that the communication will not be disclosed. The Custodian goes on to allege that this ruling has statewide implications affecting law enforcement agencies and the manner in which citizen complaints are handled.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council vote to approve the Monmouth County Prosecutors Office request for a stay.

Prepared By: Chris Malloy, Case Manager

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

January 19, 2006

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Final Decision

At the November 10, 2005 public meeting, the Government Records Council (“Council”) considered the November 4, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council by a majority voted not to adopt the Executive Director’s Findings and Recommendations, but instead concluded that the requested letter from Mr. Linton is disclosable with necessary redactions pursuant to the Open Public Records Act (“OPRA”) because the letter preceded the investigation and was determined not to be part of the investigation.   Therefore, the Custodian is to disclose the requested letter with necessary redactions pursuant to the OPRA and simultaneously provide written notice to the Executive Director of compliance. 

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.

Interim Decision Rendered by the
Government Records Council
On The 10^th Day of November, 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 

Decision Distribution Date:  November 23, 2005

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Findings and Recommendations of Executive Dir

Records Requested: Investigative reports in respect to Case No. WC03-00248. (The Complainant amended the request and is now only seeking Robert Linton’s June 27, 2003 letter to the Monmouth County Prosecutor’s Office.)
Request Made:  May 20, 2005
Response Made:  May 23, 2003
Custodian: Patricia Quelch
GRC Complaint filed: June 8, 2005

Background

June 8, 2005

Complainant’s Denial of Access Complaint with the following attachment:

• Open Public Records Act (OPRA) request

The Complainant states that he spoke to the Custodian and she informed him that the records were being denied based on the criminal investigatory exemption. He states that he then asked only for correspondence sent to the Prosecutor’s Office from Robert Linton. He also states that on June 2, 2005 he again spoke with the Custodian who “confirmed the existence of Mr. Linton’s letter which apparently spawned the investigation in place of a formal complaint which is otherwise discoverable.” The Complainant states that during the investigation, the investigator disclosed to him and others some of the contents of the letter. He also alleges that the investigation is closed.

June 16, 2005

Mediation sent to both parties[1]

July 7, 2005

Custodian’s Statement of Information with the following attachments:

• Complainant’s Open Public Records Act (OPRA) request
• Custodian’s denial of access to the records request

The Custodian states that the request was received on May 23, 2005 and denied on May 25, 2005. The Custodian goes on to state that the file contains the original letter from Robert Linton to Prosecutor Kaye and the investigation that followed. She also states that various persons were interviewed, including Mr. Linton, Mr. Brennan and Mr. Malick. The Custodian claims that the file contains subpoenas, correspondence and legal memoranda. She states that the case was closed on October 29, 2003, with no action taken against the target suspects. She also states that the file and its contents, which include the initiating letter from Robert Linton, were not supplied to Mr. Brennan as the file is a confidential investigatory record and such files are excepted from disclosure under N.J.S.A. 47:1A-1.1.

The Custodian states that the letter alleged that an ordinance drafted and passed by the Spring Lake Heights Council illegally exempts the Wall United Methodist Church, located in Spring Heights, from paying water and sewer fees contrary to an opinion letter issued by Prosecutor Kaye on December 6, 2002. She also states that the letter made allegations of Official Misconduct on the part of John Brennan and Elwood Malick in connection with the passage of this ordinance. The Custodian also claims that a case was opened and an investigation proceeded into those allegations. However, she states that the case was closed on October 29, 2003 with no action taken against the individuals as well as the fact that the Monmouth County Prosecutors Office did take the position that the ordinance was illegal.

The Custodian cites Janeczko v. New Jersey Department of Law and Public Safety, Division. Of Criminal Justice, GRC Complaint No. 2002-79 and 2002-80, Johnson/Press of Atlantic City v. New Jersey Division of State Police, GRC Complaint No. 2004-46 (holding criminal investigatory files exempt from OPRA disclosure regardless of status of case, open or closed) as well as other GRC cases in defense of their position.

July 18, 2005

The Complainant’s response to the Custodian’s Statement of Information. He states that, “this so-called “investigation” targeted myself as a sitting member of the Borough of Spring Lake Heights Council and Elwood Malick, now Mayor and then Council President.”  He also states, “The precedent cited by the Prosecutor’s Office is all inapposite. Each of these cases involved “investigative records” of an investigation pursuant to a formal criminal complaint.” The Complainant alleges that the letter in this case is politically motivated, and an investigation commenced in September 2003 at the earliest.

The Complainant states that “during the “investigation” I was told by the investigator that Mr. Linton’s letter contained false allegations that my children were attending free daycare at the Wall United Methodist Church and that Mayor Malick’s father was on the church payroll.”

The Complainant states that the letter should not be viewed as criminal investigatory pursuant to the OPRA. He believes that it should be viewed at best as akin to a criminal complaint which is open to public disclosure. He also states that as its contents have already been disclosed, it cannot be viewed as confidential.

October 20, 2005

Letter from the Government Records Council staff to the Custodian asking for a certification as to why the June 27, 2003 letter should be deemed criminal investigatory.

October 25, 2005

The Custodian’s certification in response to the staff’s October 20, 2005 letter. The Custodian states that the letter sets forth Mr. Linton’s opinions and the facts upon which they are based as to the legality of an ordinance drafted and passed by the Spring Lake Heights Council, exempting the Wall United Methodist Church, physically located in Spring Lake Heights, from paying water and sewage fees. She also states that there are allegations of Official Misconduct on the part of John Brennan and Elwood Malick in connection with the passage of this ordinance.

The Custodian claims that this letter as well as the information and allegations it contained was the impetus into a criminal investigation of the Spring Lake Heights Council focusing on John Brennan and Elwood Malick. She states that as the letter is correspondence from Mr. Linton to Prosecutor Kaye it is not a public document such as a warrant or summons. She also states that as there were no formal charges signed, and the case was treated as a confidential file within the office, with limited access.  She goes on to state that had the investigation sustained the allegations, formal charges would have been signed against the targets of the investigation. However, she states that in this particular case, no cause was found, and the investigation was closed.

The Custodian states that applying the definition of a criminal investigatory record under N.J.S.A. 47:1A-1.1 as well as the analysis and conclusion of Janeczko v. New Jersey Department of Law and Public Safety, Division. Of Criminal Justice, GRC Complaint No. 2002-79 and 2002-80 support the conclusion that the letter is part of a criminal investigatory file. She also states that the letter is not required to be made, maintained or kept on file, and it is held by a law enforcement agency. The Custodian alleges that not only does the letter pertain to a criminal investigation, that in fact, the letter initiated the investigation.  

Analysis

WHETHER the Custodian unlawfully denied access to the June 27, 2003 letter from Robert Linton to Prosecutor Kaye?

The Open Public Records Act (OPRA) defines a criminal investigatory record in N.J.S.A.47:1A-1.1. Specifically, OPRA states:

“Criminal investigatory record’’ means 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 OPRA defines a criminal investigatory record as one that 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 Custodian certifies that the lettersets forth Mr. Linton’s opinions and the facts upon which they are based as to the legality of an ordinance drafted and passed by the Spring Lake Heights Council, exempting the Wall United Methodist Church, physically located in Spring Lake Heights, from paying water and sewage fees. She also states that there are allegations of Official Misconduct on the part of John Brennan and Elwood Malick in connection with the passage of this ordinance. The Custodian certifies that the record is held by a law enforcement agency, initiated an investigation, and therefore is not required to be made, maintained or kept on file.

The Complainant alleges that the letter in this case is politically motivated, and an investigation commenced in September 2003 at the earliest. GRC Cases 2002-79 and 2002-80 Janeczko v. New Jersey Department of Law and Public Safety, Division. of Criminal Justice state 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. Based on the certification that the record is held by a law enforcement agency, initiated an investigation, is not required to be made, maintained or kept on file, as well as Janeczko, the Custodian has met their burden of proving that the letter is a criminal investigatory record, (which is not required by law to be made, maintained or kept on file) and therefore there was no unlawful denial of access.

Based on the Custodian’s certification, as well as Janeczko there was no unlawful denial of access to the June 27, 2003 letter from Robert Linton to Prosecutor Kaye as the Custodian has met their burden of proving that the letter is a “criminal investigatory record” and therefore not required to be made, maintained or kept on file pursuant to the OPRA.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that:

Based on the Custodian’s certification, as well as Janeczko there was no unlawful denial of access to the June 27, 2003 letter from Robert Linton to Prosecutor Kaye as the Custodian has met their burden of proving that the letter is a “criminal investigatory record” and therefore not required to be made, maintained or kept on file pursuant to the OPRA.

Prepared By: Chris Malloy, Case Manager
Approved By:
Paul F. Dice
Executive Director
Government Records Council

November 4, 2005

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