2005-33

Final Decision

At the September 8, 2005 public meeting, the Government Records Council (“Council”) considered the September 2, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:

1. The Council lacks jurisdiction to make a determination in this Complaint pursuant to N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7(g).

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 8^th Day of September, 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:  September 19, 2005

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Findings and Recommendations of the Executive Director

Records Requested:

1. “June 12, 2004 Request for Police Reports prior incidents (DV) 6/3 weapon related incident reported,
2. June 24, 2004 Request for police reports for trial purposes of Officers Palamaro, Casallo, Sgt. Applegate, 6/14/04 incident
3. July 2, 2004 Repeated request for above incident reports (after trial dismissal needed as evidence),
4. July 29, 2004 Request to have Chief Snellbaker reply (written to Atlantic City Mayor,
5. December 22, 2004 Request (of Chief Snellbaker) for Police Reports from Officers Stites and Wagner incident December 16, 2004,
6. February 2, 2005 Request for 911 Tapes (from June 2004).”[1]   

Request Made:  “numerous (June 13, June 24, July 2, July 29, 2004)”[2]
Response Made:  None[3]
Custodian: Sgt. Kirk Sutton 
GRC Complaint filed: February 9, 2005

Background

February 9, 2005
Complainant’s Denial of Access Complaint. The Complainant stated that her requests for numerous police reports were never answered. She asserted that she submitted letters to the Chief of Police, Arthur Snellbaker but received no response to her letters. The Complainant asserted that the requested police reports were needed as evidence in trials occurring in June and July 2004. Additionally, the Complainant alleged that she sent a letter to the Chief of Police on February 2, 2005 requesting copies of 911 Tapes and Police Reports from and incident that occurred on December 16, 2004. The Complainant asserted that she has a Superior Court case pending “concerning this record request or any document sought in it”[4]

Analysis

WHETHER the Council has jurisdiction over a case when the Complainant has asserted affirmatively on the Denial of Access Complaint that there is a Superior Court case pending which also addresses the subject matter of the denial of access complaint?                                   

OPRA provides that:

“A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

• institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
• in lieu of filing an action in Superior Court, file a complaint with the Government Records Council…” (emphasis added) N.J.S.A. 47:1A-6.

Additionally, OPRA states:

“The council shall not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches.” (emphasis added) N.J.S.A. 47:1A-7(g).

When asked on the Denial of Access Complaint form, “Have you filed any action with the N.J. Superior Court concerning this record or any document sought in it,” the Complainant asserted affirmatively that there is an action currently in Superior Court and indicated docket number DV-01-001933-04A.

Pursuant to N.J.S.A. 47:1A-6, a requestor who is denied access may, at their option, institute an action in the Superior Court of New Jersey OR file with the Government Records Council.  The language of the statute is clear that the requestor may choose one OR the other. According to the Complainant’s Denial of Access Complaint, this case is currently pending in a court of competent jurisdiction in the State of New Jersey.  As such, the Government Records Council (GRC) lacks jurisdiction pursuant to N.J.S.A. 47:1A-7(g) to adjudicate this case.  The Complainant provided subsequent submissions to the GRC, however, they need not be considered because this matter is outside of the jurisdiction of the GRC.

Based on the fact that the Complainant asserted affirmatively on her denial of access complaint that she has a Superior Court case pending which also addresses the subject matter of this denial of access complaint the Council lacks jurisdiction to decide this matter pursuant to N.J.S.A. 47:1A-7(g).

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find:

1. The Council lacks jurisdiction to make a determination in this Complaint pursuant to N.J.S.A. 47:1A-6 and N.J.S.A. 47:1A-7(g).

Prepared By: Colleen McGann, Case Manager

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

September 2, 2005

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