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2005-140
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its December 8, 2005 public meeting, the Government Records Council ("Council") considered the December 2, 2005 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, finds that the requested records are criminal investigatory records and exempt from disclosure pursuant to 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. Decision Distribution Date: December 14, 2005 Findings and Recommendations of the Executive DirectorJean Varga c/o Criterion Claim Services GRC Complaint No. 2005-140Complainant v. Township of Middletown Custodian of Records Records Requested: Background July 8, 2005 Written Open Public Records Act (OPRA) Request - Complainant seeks the investigation report #0505270063 that involved the theft of a water vehicle. July 15, 2005 Denial of Access Complaint filed with the Government Records Council (GRC). The Complainant stated that she was denied access to the investigation report maintained by the Township of Middletown police department. She asserts that the requested record should be disclosed because, it is the intent of OPRA to, "...enable insurance companies to obtain information necessary to fairly and properly evaluate possible or actual insurance claims stemming from incidents involving theft and that these documents should be provided to insurance company investigators without redactions." She also provided a copy of the response from the Township of Middletown to her OPRA request that stated that the requested record was not being released because it is a criminal investigatory record. The Complainant attached the following documents to the Denial of Access:
July 26, 2005 Letter from the Custodian's Counsel stating that he will be representing the Township of Middletown regarding this Denial of Access Complaint. August 1, 2005 GRC staff sent an offer of mediation to both parties. August 1, 2005 GRC staff sent a fax to the Custodian requesting a Statement of Information. August 8, 2005 Custodian submitted the Statement of Information to the Government Records Council staff - The Custodian stated that because the requested report involves the theft of a watercraft, it falls under the scope of N.J.S.A.2C:20-2 which defines what constitutes a crime. The Custodian stated that, "N.J.S.A.2C:20-2 states in pertinent part, "b. Grading of offenses. (2) Theft constitutes a crime of third degree if: (b) The property stolen is a firearm, motor vehicle, vessel, boat, horse, domestic companion animal or airplane. (emphasis added.)" The Custodian asserts that the report was not released because the requested record was a criminal investigatory report and therefore exempt from disclosure pursuant to N.J.S.A.47:1A-1.1. 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..." N.J.S.A.47:1A-1.1. The Custodian stated that the requested record as defined in N.J.S.A.2C:20-2, as well as, the exemption and definition of a criminal investigatory record in N.J.S.A.47:1A-1.1, prevents this document from lawfully being disclosed. The Custodian also cites that the GRC has analyzed and found in Janeczko v. NJ Department of Law and Public Safety, GRC Case No. 2002-79 and 2002-80 (June 10, 2004) that the exemption also applies after the investigation is closed and that the exemption applies to records that conform to the statutory definition, not the status of the record. The Custodian further states that Executive Order #9 put into effect in 1963 by Governor Hughes also states that criminal investigatory records are not deemed public records. The Custodian refutes the Complainant's claim that the record is subject to disclosure pursuant to the Automobile Insurance Cost Reduction Act (N.J.S.A. 17:33A-29). The Complainant stated that she believed, "...it is the intent of OPRA, to enable insurance companies to obtain information necessary to fairly and properly evaluate possible or actual insurance claims stemming from incidents involving theft and that these documents should be provided to insurance company investigators without redactions..." The Custodian stated that a portion of this statement is taken from a memo written by First Assistant Attorney General Peter Harvey and that it was in reference to the Automobile Insurance Cost Reduction Act (N.J.S.A.17:33A-29) that specifically addresses investigations of automobile accidents, not theft. The Custodian cited and attached a copy of the memo written by First Assistant Attorney General Harvey and addressed to all County Prosecutors dated August 9, 2002. The Custodian cited the memo as follows, "...Clearly the Act contemplates law enforcement personnel providing to insurance company investigators copies of the accident report form that is required to be made under N.J.S.A.39:4-131 following the officer's investigation of a motor vehicle accident. Moreover the Act does not require redaction of the accident report when the report is provided to insurance company investigators. On the contrary, since the intent of the Act is to enable insurance companies to obtain the information necessary to fairly and promptly evaluate possible or actual insurance claims stemming from the accident, accident reports provided to insurance company investigators should be provided without redaction..." Specifically, the Automobile Insurance Cost Reduction Act of 1998 provides that: "Every state and local law enforcement agency, including the New Jersey State Police, shall make available to investigators employed by insurers, upon presentation of appropriate identification, information from any accident report...no later than 24 hours following the time of occurrence. The information may include, but need not be limited to, the names and addresses of the owners of the vehicles, insurance information recorded on the accident report, and the names and addresses of passengers in the vehicles at the time of the occurrence and, if applicable, the name of any pedestrian injured in an accident. Every accident report form shall contain the names and addresses of any person occupying a vehicle involved in an accident, and any pedestrian injured in an accident." In delineation of what was stated in the memo by First Assistant Attorney General Harvey with regard to the record requested, the Custodian asserts, "Attorney General Harvey's reference is clearly aimed at the NJTR-1 motor vehicle accident report forms which are filed by the police to report motor vehicle accidents and are required by law to be made, maintained or kept on file. This would have no bearing on the present instance of criminal investigatory records which are wholly separate and not required by law to be made, maintained or kept on file." The Custodian concluded that the requested record is statutorily defined as a criminal investigatory record and therefore exempt from disclosure based upon N.J.S.A.47:1A-1.1. The Custodian supplied supporting documentation that included:
Analysis WHETHER the Custodian unlawfully denied access to the Investigation Report that he determined was exempt from disclosure pursuant to N.J.S.A.47:1A-1.1 as a "criminal investigatory record"? OPRA provides that: "...government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions..." N.J.S.A.47:1A-1. "...any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file... or that has been received in the course of his or its official business..." N.J.S.A.47:1A-1.1. "...a government record shall not include the following information which is deemed to be confidential...criminal investigatory records..." N.J.S.A.47:1A-1.1 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 OPRA further provides that: "...The public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A.47:1A-6. The Complainant stated that she was denied access to the requested record. She further stated that she believed that it was the intent of OPRA to enable insurance investigators to receive reports in conjunction with her job. The Custodian refuted this claim by providing specific statutes that uphold his reason for not disclosing the record. The Custodian specifically stated that N.J.S.A.2C:20-2 defines what is considered to be a criminal act. The requested record in this case is, for the report of a theft of a watercraft. Therefore, the requested record is a criminal investigatory report as defined in N.J.S.A.47:1A-1.1. Furthermore, N.J.S.A.47:1A-1.1 states that criminal investigatory records are exempt from disclosure. The Complainant also states the memo penned by First Assistant Attorney General Harvey states that it is the intent of OPRA to enable insurance investigators to obtain reports that they need to conduct their work. While the Complainant did not acknowledge where the verbiage contained in her Denial of Access Complaint came from, the Custodian identified and attached a copy of the memo written by First Assistant Attorney General Harvey that was referenced in the Complaint. The GRC staff reviewed the memo and the statute (Automobile Insurance Reduction Act of 1998, N.J.S.A.17:33A-2) cited in the complaint and Statement of Information. Both the memo and the statute referred to accident reports and not theft reports. The Custodian has certified that the requested record in this case is a criminal investigatory report which is not required to be made, maintained or kept on file. He further certified that an accident report is required to be made, maintained and kept on file. Since a criminal investigatory report is not required to be made, maintained or kept on file, it does not fall under the definition of a government record. Furthermore, the OPRA states that a criminal investigatory record is exempt from disclosure. (N.J.S.A.47:1A-1.1) Conclusions and Recommendations The Executive Director respectfully recommends that the Council find the requested records are criminal investigatory and not disclosable pursuant to N.J.S.A.47:1A-1.1 Prepared By: Kimberly Gardner, Case Manager Approved By: December 2, 2005 [1] Report involved theft of a watercraft vehicle. |
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