2005-254

John P. Kahn

Complainant

NJ Department of Law & Public Safety,

Division of the State Police

Custodian of Record

Complaint No. 2005-254

At the October 19, 2006 public meeting, the Government Records Council (“Council”) considered the October 5, 2006 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 based on the decision in Nero v. Hyland, 76 N.J. 213, 222 (1978), Executive Order 48 (Hughes 1968) and pursuant to the definition of a government record as defined in N.J.S.A. 47:1A-1.1., which excludes advisory, consultative and deliberative materials, the Custodian has lawfully denied access to the requested documents.

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. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.

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

Findings and Recommendations

Complainant

A copy of any and all written memoranda, correspondence, or documents prepared and/or produced by the New Jersey Department of Law and Public Safety and/or the New Jersey State Police relating to the Complainant’s application for employment as an NJ State Trooper between the years of 1999-2003.

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant requests all correspondence between the State Police and the NJ Department of Law and Public Safety relating to his application for employment.

Custodian’s response to the OPRA request. The Custodian informs the Complainant, one (1) business day after the request, that the records he is seeking are personnel records exempt from access pursuant to N.J.S.A. 47:1A-10, Executive Order 9 (Hughes 1963) and Executive Order 11 (Byrne 1974).

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:

The Complainant asserts that he was unlawfully denied access to the requested documents relating to his application for employment. The Complainant states that the requested records pertain to him personally and he is obtaining these records for his own personal use. The Complainant contends that as an “individual in interest” of these records he should be provided access to the documents pursuant to N.J.S.A. 47:1A-10.

Offer of Mediation sent to both parties. Neither party agreed to mediate this complaint.

Letter from the Custodian to the GRC. The Custodian states that due to the fact that the State Police is prepared to produce documents responsive to the Complainant’s request, the Custodian is requesting additional time to complete the Statement of Information.

E-mail from the GRC to the Custodian. The GRC grants the Custodian an extension of time until January 24, 2006 to submit the Statement of Information.

Custodian’s Statement of Information (“SOI”) with the following attachments:

The Custodian states that the requested records were partially provided to the Complainant on January 24, 2006. The Custodian asserts that the records provided on that date included copies of materials provided to the State Police by the Complainant with the redaction of any annotations made by the State Police.

The Custodian also certifies that excluded from the documents released were any documents that comprise the State Police Background Investigation regarding the application. The Custodian contends that these documents are exempt from disclosure as investigatory records and provides a number of court cases in which the Supreme Court of New Jersey has recognized the public interest in the confidentiality of such records under Executive Order 48 (Hughes 1968).[2] The Custodian states that Executive Order 48, Paragraph 1 (Hughes 1968) indicates that “[n]o person having custody of State Police investigative files shall turn the same over to any other person who is not a member of a duly recognized law enforcement agency…”

The Custodian goes on to assert that the information contained in these investigatory records are exempt from access under N.J.A.C. 13:59-1.1, promulgated pursuant to N.J.S.A. 53:1-20.6, because they were obtained from the State Police Criminal History Database. The Custodian states that this regulation does not authorize dissemination of information contained in the State Police computerized criminal history record to any individual that is not expressly authorized to access it. The Custodian contends N.J.A.C. 13:59-1.1 does not permit dissemination of this information to the Complainant. Therefore, the Custodian concludes that these records are not disclosable pursuant to N.J.S.A. 47:1A-5., N.J.S.A. 47:1A-9 and Executive Order 21 (McGreevey 2002). The Custodian asserts that for the reasons set forth above, the background investigatory records held by the State Police that were obtained or made in connection with the Complainant’s application are confidential and not subject to public inspection.

Additionally, the Custodian states that these records do not fall under the definition of a government record pursuant to N.J.S.A. 47:1A-1.1 because they are advisory, consultative and deliberative materials. The Custodian states that the Superintendent of the Division of State Police determines who is recommended for the Police Academy. The Custodian states that the written memoranda and correspondence requested and contained in an applicant’s file are used by the Superintendent to evaluate candidates for employment. The Custodian asserts that the requested documents that have not been released consist of investigator’s notes regarding the background investigation and the notes and recommendations of the Executive Review Board with respect to the Complainant’s application. The Custodian contends that the documents and information withheld reflect the State Police evaluation of the requestor’s application for employment prior to a final decision being made and are not a government record pursuant to N.J.S.A. 47:1A-1.1.

Analysis

“…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.

“… 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 … The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” (Emphasis added.) N.J.S.A. 47:1A-1.1.

OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:

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

“[a]dopt rules and regulations authorizing the dissemination, by the State Bureau of Identification, of criminal history background information requested by State, County of Local government agencies, including the Division of State Police, in noncriminal matters, or requested by individuals, nongovernmental entities or other governmental entities whose access to such criminal history background is not prohibited by law.”

“[n]o person having custody of State Police investigative files shall turn over the same to any other person who 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.” Executive Order 48, Paragraph 1 (Hughes 1968).

The Custodian contends that these documents, which are comprised of the State Police Background Investigation regarding the application, are exempt from disclosure as investigatory records and provides a number of court cases in which the Supreme Court of New Jersey has recognized the public interest in the confidentiality of such records under Executive Order 48 (Hughes 1968).[3]

The Custodian asserts that the information contained in these records are also investigatory records and are exempt from access under N.J.A.C. 13:59-1.1, promulgated pursuant to N.J.S.A. 53:1-20.6, because they were obtained from the State Police Criminal History Database. Therefore, the Custodian concludes that these records are not disclosable pursuant to N.J.S.A. 47:1A-5., N.J.S.A. 47:1A-9.a. and Executive Order 21 (McGreevey 2002). Finally, the Custodian contends that the documents and information withheld reflect the State Police evaluation of the requestor’s application for employment prior to a final decision being made and are not a government record because they are exempt as advisory, consultative and deliberative material pursuant to N.J.S.A. 47:1A-1.1.

The Custodian cites N.J.A.C. 13:59-1.1, promulgated pursuant to N.J.S.A. 53:1-20.6 as a lawful basis for withholding the records. While N.J.S.A. 53:1-20.6 does instructs the Superintendent to promulgate rules regarding access, N.J.A.C. 13:59-1.1, which the Custodian asserts contain those rules, appears to be definitions and does not provide any lawful basis for denying access.

In Nero v. Hyland, 76 N.J. 213, 222 (1978), the court referred to Executive Order 48 finding that “the public interest is best served when background checks of potential public employees obtain as much information as possible and this statutory goal would be undermined if the sources of such information could not be guaranteed anonymity.” In that case, it was also found that “when a report of a character investigation is made it is not a public record.”

Additionally, OPRA states that the definition of a government record does not include “inter-agency or intra-agency advisory, consultative, or deliberative material.” N.J.S.A. 47:1A-1.1. It is evident that this phrase is intended to exclude, from the definition of a government record, the types of documents that are the subject of the “deliberative process privilege.” That privilege has long been recognized by federal courts. See Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958); NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 150 (1975). The privilege has also been codified in the federal Freedom of Information Act (“FOIA”). 5 U.S.C. §552(b)(5). Most recently, the New Jersey Supreme Court adopted the privilege. In re Liquidation of Integrity Insurance Co., 165 N.J. 75 (2000). The judiciary has stated that the legal standard for applying the deliberative process privilege places the initial burden on the government agency to establish that matters are both pre-decisional and deliberative. The Custodian’s assertion that the information withheld reflects the State Police evaluation of the requestor’s application for employment prior to a final decision being made does qualify that information as both pre-decisional and deliberative in nature, thereby placing this information outside of the definition of a government record.

Therefore, based on the decision in Nero, Executive Order 48 and pursuant to the definition of a government record as defined in N.J.S.A. 47:1A-1.1., which excludes advisory consultative and deliberative materials, the Custodian has lawfully denied access to the requested documents.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that based on the decision in Nero v. Hyland, 76 N.J. 213, 222 (1978), Executive Order 48 (Hughes 1968) and pursuant to the definition of a government record as defined in N.J.S.A. 47:1A-1.1., which excludes advisory, consultative and deliberative materials, the Custodian has lawfully denied access to the requested documents.

October 5, 2006

[1] The Complainant is an attorney with Archer & Greiner, P.C. located in Haddonfield, NJ.

[2] In re Toth, 175 N.J. Super. 254, 257 (App. Div. 1980); State v. Marshall, 148 N.J. 89, 94; Nero v. Hyland, 76 N.J. 213, 222 (1978)

[3] In re Toth, 175 N.J. Super. 254, 257 (App. Div. 1980); State v. Marshall, 148 N.J. 89, 94; Nero v. Hyland, 76 N.J. 213, 222 (1978)

2005-254

FINAL DECISION

Findings and Recommendations

Complainant

Analysis

Conclusions and Recommendations