2005-66

At its January 27, 2006 public meeting, the Government Records Council (“Council”) considered the January 19, 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 there was no unlawful denial of access as the requested records are criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1 and are exempt from disclosure.

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 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

Findings and Recommendations of the Executive Director

Records Requested: Copies of any and all police reports, records, and/or documents of Gwendolyn Gray (aka Lucy Bullock).
Request Made: March 5, 2003, May 5, 2003, and March 5, 2005.
Response Made: March 25, 2003
Custodian: Robert O’Leary
GRC Complaint filed: March 25, 2005

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

The Complainant asserts that he requested copies of “any and all police reports, records and/or documents of Gwendolyn Gray aka Lucy Bullock.”[1] He states that the response he received from the Custodian was that the police reports and records are considered criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1 and are therefore exempt from disclosure.

Custodian’s Statement of Information. The Custodian states that he responded to the Complainant’s OPRA request on March 25, 2003, as the letter was delayed by the prison. He also states that the Complainant’s March 5, 2005 request was only received with the complaint package on April 1, 2005.

The Custodian asserts that the Complainant was found guilty of a murder committed in 1988 and sentenced to serve thirty (30) years in a state prison. He states that during the Complainant’s trial and appeal, he was provided with all police reports and statements during the discovery process. The Custodian contends that the Complainant’s request for these records falls under the criminal investigatory exemption provided under OPRA.

Additionally, the Custodian asserts that the Complainant already maintained copies of the requested records as well as a letter from the Custodian’s office dated March 2003. He states that the Complainant’s second request for the same documents was forwarded to this office on April 1, 2005. He notes that the Complainant failed to check off on the request form that he had been convicted of an indictable offence in the State of New Jersey.

The Custodian states that the Complainant again received the requested documents during his appeal and is using this records request to continue an appeal that has already been denied by the courts. He claims that the Complainant will get a day out of jail to attend hearings granted to him and such violates the intent of the statute that provides citizens the right to inspect public records. The Custodian further states that all the requested records are exempt from disclosure and that there is no factual basis for the claims of this complaint.

Letter from Complainant to GRC staff. The Complainant states that he has not yet received the documents sent by staff. He claims that for the past month he has not been receiving any mail. The Complainant requests that staff resend the information by certified mail requiring a signature from the receiver.

Letter from Complainant to GRC staff. The Complainant acknowledges receipt of staff’s May 9, 2005 letter and enclosed Statement of Information. He claims that neither he nor his trial or appellate attorneys received any of the police reports or statements of Gwendolyn Gray aka Lucy Bullock through discovery, except for one statement taken by Investigator Richard Alvarez dated January 27, 1988.

The Complainant asserts that these requested documents are not criminal investigatory records are and are not exempt from public access under OPRA and therefore should be released to him.

Letter from GRC staff to Complainant. Staff informs the Complainant that she will no longer be the Case Manager assigned to his case. She advises that if he needs further assistance regarding his case, he may contact the Assistant Executive Director.

Letter from GRC staff to Custodian. Staff requests a legal certification providing the following:

Letter from Custodian to GRC staff. The Custodian submits his response to staff’s August 15, 2005 request for information. He states that the first request was for an eight (8) page statement by Gwendolyn Gray aka Lucy Bullock given to the Elizabeth Police Department on January 27, 1988, as well as a four (4) page trial staff action report. The Custodian certifies that the Complainant’s first request for said documents was denied on March 25, 2003, and the Complainant was advised that the attorneys who represented him during his trial and appeal would be able to provide him with these documents as they were provided during the discovery process. He states that the list of eighty four (84) items released during discovery is attached to this certification.

The Custodian certifies that he did not provide the Complainant with any documents in March of 2003, and enclosed a letter indicating same. He cites N.J.S.A. 47:1A-9.a. in that OPRA “’shall not abrogate any exemption of public record…’”[3] and certifies that the former Custodian properly denied access to the requested records as they are considered criminal investigatory records and are exempt from disclosure.

Additionally, the Custodian certifies that the only documents relating to Gwendolyn Gray aka Lucy Bullock are her sworn statement to police and the trial staff action report, both of which are enclosed. The Custodian certifies that the Union County Prosecutor’s Office is not in possession of any other documents responsive to the Complainant’s request.

Letter from Custodian to GRC staff. The Custodian certifies that although the documents requested by the Complainant are considered exempt from disclosure pursuant to the criminal investigatory exemption under OPRA, the documents were provided to the Complainant through his attorney during the discovery process of his trial in February, 1988.

The Custodian certifies that the Complainant submitted the requested documents to the GRC with his complaint as he received all 84 items during his criminal murder trial as well as his civil lawsuit. He further certifies that a more in-depth look at the Complainant’s request reveals that he already had the documents requested, as he submitted them to the Council.

Additionally, the Custodian certifies that the Union County Prosecutor’s Office does not possess any records responsive to the request besides the ones on the discovery list. He asserts again that these documents are exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1 and that it is evident that the Complainant already possesses copies of said documents.

Letter from Complainant to GRC staff. The Complainant states that according to staff’s August 15, 2005 letter to the Custodian, the Custodian had until August 19, 2005 to provide a legal citation for nondisclosure of documents pursuant to N.J.S.A. 47:1A-6. The Complainant claims that as per Asbury Park Press, Inc. v. Borough of Seaside Heights, 246 N.J. Super 62 (December, 1990), the Custodian’s denial of access is not authorized by law. He requests that the Council order the Custodian to grant access to the requested records.

Letter from Complainant to GRC staff. The Complainant asserts that the Custodian never released the requested statement of Lucy Bullock to the Complainant during discovery, as the Custodian claims. The Complainant claims that during discovery he was provided with Ms. Bullock’s January 27, 1988 statement; however this is not the statement that is the subject of his complaint. He asserts that Ms. Bullock spoke to police prior to giving her January 17, 1988 statement to the Union County Prosecutor’s Office. As evidence of this, the Complainant states that in the Assistant Prosecutor’s July 26, 1988 Trial Staff Action Report, she states that Ms. Bullock “told the police of her conversations with Everett McGlotten, aka Wali, who told Bullock of the plans devised by him and Akbar and Akbar’s failure to appear the evening before.”[4] The Complainant claims that this information is not detailed in Ms. Bullock’s January 17, 1988 statement.

Further, the Complainant claims that the Union County Prosecutor’s Office has deliberately withheld documents from him during his pre-trial, trial, appeals, and this complaint. He states that because the criminal investigation State v. Akbar Na’im has concluded, the records at issue are no longer exempt under OPRA. He additionally states that he is seeking all statements and materials related to Ms. Bullock prior to 12:15 p.m. on January 17, 1988.

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 defines a government record as “ … 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 …‘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. …” (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 acknowledges receipt of the Complainant’s March 1, 2003 request on March 25, 2003. The Custodian certifies that he responded to the Complainant in a letter dated March 25, 2003 and informed him that his request was denied as the records requested are criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1. The Custodian further certifies that the requested records were part of the Complainant’s 1988 murder trial and were released to his attorneys during the discovery portion of his trial and appeal. He also certifies that the only records responsive to the Complainant’s request are the statement given to police by Gwendolyn Gray aka Lucy Bullock and the trial staff action report. The Custodian further certifies that the Union County Prosecutor’s Office is not in possession of any other document responsive to the Complainant’s request.

In Janeczko v. NJ Department of Law and Public Safety, Division of Criminal Justice, GRC Case No. 2002-79 and 2002-80 (June 2004)[5], the Council found that the records being sought were considered criminal investigatory records and therefore exempt from disclosure. Specifically, the Council found that under OPRA, criminal investigatory records include records involving all manner of crimes, resolved or unresolved, and includes information that is part and parcel of an investigation, confirmed and unconfirmed. The Council stated that it is also important to note 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 current active investigations and release those where the matter is resolved or closed.

In this matter, there is no question that criminal investigatory records exist, as they pertain to the Complainant’s murder trial. The Custodian certifies that the documents are part of the Complainant’s murder trial. Additionally, the Custodian certifies that the requested records were already released to the Complainant during the discovery process of his trial and appeal. Access to such records during a litigation proceeding is governed by court rules, not OPRA. Under OPRA, the same records are not disclosable pursuant to N.J.S.A. 47:1A-1.1.

OPRA places the burden of proving that a denial of access is lawful on the public agency. In this case, the Custodian has born his burden by certifying that the requested records are criminal investigatory records exempt from disclosure as they were not required by law to be made, maintained and kept on file, and are held by the Union County Prosecutor’s Office and pertain to the Complainant’s murder trial.

Therefore, there was no unlawful denial of access as the requested records are criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1 and are exempt from disclosure.

The Executive Director respectfully recommends that the Council find that there was no unlawful denial of access as the requested records are criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1 and are exempt from disclosure.

[1] As stated on Denial of Access Complaint.
[2] Neither party agreed to mediate this case.
[3] As stated on August 17, 2005 letter.
[4] As stated in Complainant’s January 18, 2006 letter.
[5] This case was affirmed on appeal in Janeczo v. Department of Law and Public Safety, Division of Criminal Justice, Superior Court of New Jersey, Docket No. A-309-03T1 (Unpublished Decision, decided May 26, 2004).