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2005-146

- Final Decision
- Findings and Recommendations of the Executive Director

Final Decision

Brian X McCrone (The Trenton Times)
   Complainant
      v.
Burlington County Prosecutor's Office
   Custodian of Record

Complaint No. 2005-146

 

At its November 10, 2005 public meeting, the Government Records Council ("Council") considered the November 4, 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 Custodian has borne the burden of proving that the denial of access was authorized by law on the basis of the criminal investigatory records exemption pursuant to N.J.S.A. 47:1A-1.1 and released all other records responsive to the request. 

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 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 22, 2005

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Findings and Recommendations of the Executive Director

Brian X. McCrone                                      GRC Complaint No. 2005-146
(The Trenton Times) 
Complainant
v.
Burlington County Prosecutor's Office
Custodian of Records

Records Requested:

  1. "All police reports pertaining to the crash that led to Mr. Grieb's death and the arrest of Shane Gildersleeve."     [1]
  2. "A copy of the coroner's report, including the autopsy and toxicology tests performed on Mr. Grieb.
  3. Blood Alcohol Content (BAC) for Mr. Grieb and Mr. Gildersleeve."[2]

Request Made:  January 3, 2005 and June 20, 2005
Response Made: January 5, 2005 and June 22, 2005
Custodian:  Thaddeus E. Drummond
GRC Complaint filed: August 9, 2005

Background

January 3, 2005

The Complainant's written Open Public Records Act (OPRA) request.  The Complainant seeks all police reports pertaining to the crash causing the death of Mr. William Grieb and arrest of Mr. Shane Gildersleeve, a coroner's report including autopsy and toxicology results for Mr. Grieb, and the Blood Alcohol Content (BAC) of Mr. Grieb and Mr. Gildersleeve.  The Complainant notes that he is affiliated with The Trenton Times and that his request is not for commercial use, but for newsgathering. 

January 5, 2005

Letter from Custodian to Complainant.  The Custodian states, "the Burlington County Prosecutor's Office is not in possession of the reports requested."[3]  The Custodian advises the Complainant to contact his office on or about January 20, 2005, as the Custodian will be concluding a trial on that date and should have the Complainant's requested documents. 

June 20, 2005

Complainant's second written OPRA request.  The Complainant again seeks all police reports pertaining to the crash causing the death of Mr. William Grieb and arrest of Mr. Shane Gildersleeve, a coroner's report including autopsy and toxicology results for Mr. Grieb, and the Blood Alcohol Content of Mr. Grieb and Mr. Gildersleeve.  The Complainant also notes that he is affiliated with The Trenton Times and that his request is not for commercial use, but for newsgathering. 

June 22, 2005

Letter from Custodian to Complainant.  The Custodian states that pursuant to N.J.S.A. 47:1A-1.1, he cannot release documents pertaining to State v. Shane Gildersleeve C.A.R. Unit Case No.: 04-2570 because it is an open criminal investigation.  The Custodian states that he enclosed a copy of the requested accident report. 

August 9, 2005

Denial of Access Complaint filed with the Government Records Council (GRC) staff.  Complaint included the following attachments:

  • January 3, 2005 Complainant's written OPRA request
  • January 5, 2005 letter from Custodian to Complainant
  • June 20, 2005 Complainant's second written OPRA request
  • June 22, 2005 letter from Custodian to Complainant

The Complainant states that three (3) weeks after a fatal car crash on Route 130 in Bordentown Township, he filed an OPRA request with the Burlington County Prosecutor's Office, dated January 3, 2005.  The Complainant acknowledges receiving a letter from the Custodian dated January 5, 2005 in which the Custodian stated that the requested documents were not available and that the Complainant should contact the Custodian again on or about January 20, 2005.  The Complainant alleges contacting the Custodian by phone on January 20, 2005, and that the Custodian said the requested documents were still not available. 

On June 20, 2005 the Complainant states that he resubmitted his OPRA request to the Burlington County Prosecutor's Office.  He claims that he received a response from the Custodian dated June 22, 2005 stating that his requested documents, with the exception of the enclosed accident report, could not be released due to an ongoing criminal investigation. 

Regarding the disclosed accident report, the Complainant states that Mr. Gildersleeve's BAC was included, however Mr. Grieb's was omitted.  The Complainant alleges calling the Custodian to ask why Mr. Grieb's BAC was not included on the accident report, and claims that the Custodian told him "any additional information was considered part of the ongoing criminal investigation."[4]  The Complainant also claims that the Custodian did not give him any reason as to why Mr. Grieb's BAC was crucial to the investigation.  The Complainant alleges that his Managing Editor at the Trenton Times also contacted the Custodian via telephone, and that the Custodian maintained that the information being sought was part of an open investigation, but did not explain further. 

The Complainant noted a similar case, in which a man driving home from a club crashed his car killing himself and all those in the car with him.  The Complainant claims that the BAC of this man was released following an OPRA request to the Trenton Police Department and Mercer County Prosecutor's Office.  

August 16, 2005

Offer of Mediation sent to both parties.[5]

September 23, 2005

Government Records Council (GRC) staff sends request for Statement of Information to Custodian.

September 29, 2005

Custodian's Statement of Information with the following attachments:

  • Complainant's written OPRA request
  • Certification of Custodian dated September 29, 2005
  • January 5, 2005 letter to Complainant
  • June 22, 2005 letter to Complainant

The Custodian acknowledges receipt of the Complainant's January 3, 2005 OPRA request.  The Custodian states that he responded to this request on January 5, 2005 advising the Complainant that the requested documents were not in his possession and that the Complainant should contact him around January 20, 2005, as he may have the requested documents on that date. 

The Custodian also acknowledges receiving the Complainant's second written OPRA request dated June 20, 2005.  In response to this request, the Custodian certifies that he responded on June 22, 2005 releasing a copy of the requested accident report as well as advising that all other requested documents could not be released due to the open criminal investigation.  The Custodian certifies that as of September 29, 2005, the subject of the requested document is still involved in an open criminal investigation. 

The Custodian cites N.J.S.A. 47:1A-1.1 in that "criminal investigatory records are deemed confidential and are not subject to disclosure under OPRA." Further, the Custodian cites Glen Blue, for Labor Management Concepts, Inc. v. Wall Township Police Department, GRC Complaint No. 2002-47, in which the Council notes that "a Blood Alcohol Concentration Report related to a criminal investigation or prosecution in a situation such as a fatal motor vehicle accident would fall under the criminal investigatory records exemption."[6]  Additionally, the Custodian states that N.J.S.A. 47:11-1.1 prohibits the disclosure of victim's records, except to the victim him/herself, therefore the requested toxicology and BAC reports of Mr. Grieb, the deceased victim, are not disclosable to the Complainant. 

October 6, 2005

Letter from GRC staff to Custodian.  Staff requests an index of all documents requested by the Complainant on January 3, 2005 and June 20, 2005.  Staff also requests that the Custodian include a legal citation as to whether the requested documents fall under the criminal investigatory exemption pursuant to N.J.S.A. 47:1A-1.1. 

October 12, 2005

Letter of representation from Complainant's counsel to GRC staff.

October 13, 2005

Letter from Custodian to GRC staff.  The Custodian submits his response to GRC staff's October 6, 2005 letter.  The Custodian certifies that the police report requested by the Complainant was released on June 22, 2005.  Additionally, the Custodian certifies that the requested toxicology reports of Mr. Grieb are not disclosable because it falls under OPRA's criminal investigatory record exemption.  The Custodian cites GRC case 2002-47 Glenn Blue for Labor Management Concepts, Inc. v. Wall Township Police Department in that the "Council noted that a blood alcohol concentration report related to a criminal investigation in a situation such as a motor vehicle accident would fall under the criminal investigatory exemption."[7]  Further, the Custodian states that in this case, the requested document is involved in a criminal investigation of a fatal motor vehicle accident that killed Mr. Grieb, therefore the record is exempt from disclosure. 

October 25, 2005

Letter from Complainant's counsel to GRC staff.  Counsel states that he is submitting his response to the Custodian's Statement of Information.  Counsel asserts that the Complainant is seeking the Blood Alcohol Content Report (BAC Report) of William Grieb, who was allegedly killed by Shane Gildersleeve while taking a sobriety test. 

Counsel claims that the Custodian refused to release the requested BAC Report citing that it was exempt from disclosure under OPRA because it is a criminal investigatory record.   Counsel states that to support his claim, the Custodian cited GRC case 2002-47 Glen Blue, for Labor Management Concepts, Inc. v. Wall Township Police Department

Regarding the Council's decision in Glen Blue, the Complainant's counsel states that the BAC Report in question was found to be non-exempt from disclosure as a criminal investigatory record because driving while intoxicated is not a crime under NJ Legislature in Title 2C, but rather a "non-criminal motor vehicle charge under Title 39 of the N.J.S.A."[8] 

Further, counsel claims that the Custodian's argument relies on the Council's Glen Blue decision in that the Council noted that some documents involving a Title 39 motor vehicle violation may fall under OPRA's criminal investigatory exemption if the violation pertained to a fatal accident.  Counsel argues that any criminal investigatory records would pertain to Mr. Gildersleeve, not the victim, Mr. Grieb, therefore Mr. Grieb's BAC Report should be released. 

Additionally, counsel states that the Custodian claims the requested record is considered a "victim's record" under OPRA.  Counsel objects to this claim since OPRA's definition of victim's record pursuant to N.J.S.A. 47:1A-1.1 is "an individually identifiable file or document held by a victim's rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records."  Counsel claims that the Burlington County Prosecutor's Office does not meet OPRA's definition of a victim's rights agency, therefore the requested record is non-exempt from disclosure and should be released to the Complainant. 

Analysis

WHETHER the denial of access was lawful pursuant to N.J.S.A. 47:1A-1.1 regarding criminal investigatory records?

N.J.S.A. 47:1A-1: provides that "... government records shall be readily accessible for inspection, copying, or examination by the citizens of this State,       with certain exceptions ..."  (Emphasis added.)

N.J.S.A. 47:1A-1.1: provides that " ... 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... A government record shall not include the following information which is deemed to be confidential... criminal investigatory records; victims' records, except that a victim of a crime shall have access to the victim's own records...‘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. ‘Victim's record' means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records. ‘Victim of a crime' means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family...'Victims' rights agency' means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals..."  (Emphasis added.)

N.J.S.A. 47:1A-6: provides that "... [t]he public agency shall have the burden of proving that the denial of access is authorized by law..."

The Custodian certifies receiving the Complainant's OPRA requests for all police reports pertaining to the crash causing the death of Mr. William Grieb and arrest of Mr. Shane Gildersleeve, a coroner's report including autopsy and toxicology results for Mr. Grieb, and the Blood Alcohol Content of Mr. Grieb and Mr. Gildersleeve on January 3, 2005 and again on June 20, 2005.  He informed the Complainant on January 5, 2005 that he was not in possession of the requested documents at the time of the Complainant's January 3, 2005 request and advised that he resubmit this request on or about January 20, 2005.  The Custodian states that in response to the Complainant's January 20, 2005 request, he informed the Complainant in writing on June 22, 2005 that the requested documents, except for the accident reports which he enclosed, could not be released because they are part of an open criminal investigation (State v. Shane Gildersleeve C.A.R. Unit Case No. 04-2570.)  The Custodian certifies that as of September 29, 2005, the criminal investigation mentioned is still open.  The Custodian also states that the requested record is not disclosable under OPRA because it is a victim's record, as the victim was allegedly killed in a fatal motor vehicle accident.

The Complainant's counsel argues that the Blood Alcohol Content Report cannot be exempt from disclosure because the Burlington County Prosecutor's Office is not a "victim's rights agency" as defined under N.J.S.A. 47:1A-1.1.  Counsel also claims the Custodian's criminal investigatory defense would only apply to the person charged with the crime, not the victim, therefore the BAC Report should be disclosed. 

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 a 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 certifies that when the Complainant's June 20, 2005 request was made, the subject of this request was the part of an open criminal investigation concerning the death of the victim, William Grieb. 

Further, in the Government Records Council's Case No. 2002-47 Glen Blue for Labor Management Concepts, Inc. v. Wall Township, the Council found that records relating to a Title 39 charge (i.e. driving while intoxicated) could not be exempt from disclosure under OPRA criminal investigatory records exemption because this charge is not punishable as a crime, but rather as a non-criminal motor-vehicle charge.  However, the Council illustrated that a BAC Report pertaining to a criminal investigation regarding a fatal motor vehicle accident would fall under the criminal investaigaory record exemption.  Therefore, as the BAC Report requested pertains to the victim of a fatal motor vehicle accident, it is exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. 

The Custodian states that the requested BAC Report is also exempt from disclosure because it is a victim's record.  OPRA provides that victim's records, which are files held by a victim's rights agency pertaining directly to a victim of a crime, are not disclosable except to the victim him/herself. (N.J.S.A. 47:1A-1.1)  The Burlington County Prosecutor's Office does not meet the standard for a victim's rights agency and therefore cannot withhold disclosure of the requested record under the victim's record exemption. 

Therefore, the Custodian has born the burden of proving that the denial of access was authorized by law due to the criminal investigatory records exemption pursuant to N.J.S.A. 47:1A-1.1 and released all other records responsive to the request.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

1.  The Custodian has born the burden of proving that the denial of access was authorized by law due to the criminal investigatory records exemption pursuant to N.J.S.A. 47:1A-1.1 and released all other records responsive to the request. 

Prepared By: Dara Lownie, Case Manager

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

November 4, 2005      


[1] As stated on Denial of Access Complaint
[2] As stated on written OPRA request
[3] As stated on January 5, 2005 letter
[4] As stated on Denial of Access Complaint
[5] Neither party agreed to mediate this case.
[6] As stated on Custodian's September 29, 2005 Certification
[7] As stated on October 13, 2005 letter
[8] As stated on October 25, 2005 letter

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