R.O. v. PLAINSBORO POLICE DEPARTMENT CUSTODIAN OF RECORDS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5906-07T2

R.O. (A Minor),

Plaintiff-Appellant,

v.

PLAINSBORO POLICE DEPARTMENT,

CUSTODIAN OF RECORDS,

Defendant-Respondent.

________________________________________________________________

 

Argued April 20, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex

County, Docket No. L-5901-07.

Rotimi A. Owoh argued the cause for

appellant.

Joseph C. Tauriello argued the cause

for respondent (Mason, Griffin &

Pierson, attorneys; Mr. Tauriello, of

counsel and on the brief; Victoria

D. Britton, on the brief).

PER CURIAM

Plaintiff R.O., a student who was suspended from middle school for ten days and adjudicated in the Family Part for weapons possession, made a request for investigatory records, narrative reports and complaints related to weapons possessions on school grounds under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA). Defendant Plainsboro Police Department, Custodian of Records, denied the request, and plaintiff instituted an action to secure the production of the records sought. On defendant's motion for summary judgment, the Law Division judge dismissed the complaint. Plaintiff appeals, and we affirm.

These are the relevant facts adduced from the record before the motion judge. On March 3, 2004, R.O., then thirteen years-old, was found to be in possession of a knife while attending the West Windsor-Plainsboro Community Middle School (the school). He was suspended from the school for ten days. The incident was referred to the Plainsboro Police Department (the Police) pursuant to N.J.A.C. 6A:16-6.3. Within a week, the Police filed a juvenile complaint against plaintiff alleging delinquency, which would have constituted fourth-degree possession of a weapon on school property, N.J.S.A. 2C:39-5(e)(2), if committed by an adult. Plaintiff appealed his adjudication, alleging, among other things, that the trial judge erred in denying his request for discovery in connection with a claim of discrimination and selective enforcement. In re R.O., No. A-1540-05T3 (App. Div. June 13, 2007). Specifically, plaintiff claimed that "the anti-violence policy at [plaintiff's] school had been selectively enforced against him, and requested discovery regarding the past enforcement of that policy by the school board and related prosecutions by the Middlesex County's Prosecutor's office." R.O., supra, slip op. at 4. In support of his claim, plaintiff presented evidence that a similarly-situated white student was not suspended. R.O., supra, slip op. at 5. The trial judge denied plaintiff's discovery request on the basis that "one incident of allegedly disparate treatment did not establish a colorable basis for a claim of selective enforcement." Ibid. (citing State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991)). We affirmed and concluded that plaintiff did not present "a colorable basis for a claim of selective prosecution at both the school board and county levels." R.O., supra, slip op. at 6.

From 2004 to 2006, plaintiff's father filed a series of requests under OPRA, seeking information related to the number and racial composition of juvenile arrests and charges filed by the Police. The father was advised by the Clerk that the Township did not maintain the information sought.

On September 26, 2006, the father filed a complaint against defendant, Police Departments and the Custodian of Records of Metuchen, North Brunswick, Old Bridge and South River, alleging violations under OPRA and the common law right to access public records. The lawsuits were consolidated with the first OPRA filing under [The father] v. Plainsboro Police Dept., Custodian of Records, Superior Court of New Jersey, Law Division, Docket No. L-7713-06, and the Middlesex County Prosecutor's Office (MCPO) was granted leave to intervene on behalf of all the defendants. The MCPO moved for summary judgment and to dismiss the complaint.

Judge Longhi dismissed the complaints with prejudice and granted defendants' summary judgment. He held that the alleged records sought would require defendants to collate the information, which was not required by OPRA, none of the defendants had a duty imposed by law to maintain the information sought, and the father did not have a common law right of access.

The father appealed but later withdrew the appeal, as the MCPO provided him with the information sought and set up a Task Force to investigate the issue of selective enforcement. N.J.S.A. 2C:39-5(e)(2). The Task Force concluded that there was no selective enforcement in Middlesex County. R.O., supra, slip op. at 7, n. 1.

On September 7, 2006, plaintiff filed a complaint in the Law Division against the West Windsor Plainsboro Regional School District (the District), captioned John Doe, a Minor by his Parent and Guardian, John Doe, Sr. v. West Windsor Plainsboro Regional School District, Docket No. L-5901-07, alleging violations of both State and Federal anti-discrimination laws arising out of the March 2004 incident and subsequent suspension. According to defendant, the litigation in that case is ongoing.

On June 18, 2007, plaintiff's attorney submitted a request under OPRA and the common law right of access to records for the following:

Copies of "Investigative Reports" prepared by [defendant's] department relating to all incidents of weapon (knife, pallet [sic] guns, etc.) possession reported by the school district of [defendant's] department from 2000 through 2006.

. . . .

Copies of "Narrative Reports" prepared by [defendant's] department relating to all incidents of weapon possession reported by the school district to [defendant's] department from 2000 to 2006.

. . . .

Copies of "Complaints" prepared by [defendant's] department and or filed against all students reported to [defendant's] department by the school district for possession of knife and/or any other weapon on school property from 2000 to 2006.

The Clerk replied by letter dated June 26, 2007, that plaintiff's OPRA request was denied for the following reasons:

[OPRA] does not require a government agency to conduct research or to collate information in the agency's possession.

[Plaintiff's] request does not ask for specification [sic] description of the documents sought.

Investigative and narrative reports do not have to be disclosed.

As a result of the denial, plaintiff filed an action against defendant, alleging that the documents sought were "public records" and the denial violated plaintiff's right to access under OPRA and the common law. The complaint also sought: 1) a declaration that defendant's actions were "illegal and invalid;" 2) an interlocutory and permanent order that defendant furnish the information sought; and 3) damages and counsel fees and costs.

Following defendant's motion for summary judgment, the motion judge found that the information sought by plaintiff constituted "criminal investigatory records," which were exempt from production under N.J.S.A. 47:1A-1-1. He rejected plaintiff's argument that he was entitled to redacted juvenile records, because said redaction protected juvenile privacy concerns, commenting that it was a "specious argument at best." He also found that N.J.A.C. 13:94-1.5, specifically noted that juvenile records were confidential, not subject to public inspection under OPRA, and plaintiff did not fall within "any of the statutorily exempted classes of persons that may inspect or have access to third party juvenile criminal incidents, [pursuant to N.J.S.A. 2A:4A:60(1)-(12)]." Finally, he found that "the overwhelming state interest in maintaining a minor's expectation of privacy" outweighed the needs plaintiff had for discovery on his related discrimination matter.

Plaintiff argued that the information sought was a public record, since the Police and the District had entered into a "Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials" in order to comply with juvenile crime reporting requirements set forth by N.J.S.A. 18A:17-46 and N.J.A.C. 6A:16-6.3, which imposed a legal duty to keep investigative and narrative reports of incidents involving juvenile crimes in school. The judge rejected plaintiff's argument and found that while N.J.S.A. 18A:17-46 imposed a legal duty on the District to "produce criminal investigative reports regarding knowledge of juvenile delinquency incidents," there was no similar duty imposed on the Police to produce said information. Further, even if the Police had a statutory duty to keep records, the information was still exempt from public disclosure under OPRA, since it was a criminal investigatory record.

As to plaintiff's common law right to access claim, the judge found that the information sought was not a public document, since "[n]o New Jersey statute, regulation or administrative code requires [the Police] create or maintain records of weapon possession incidents reported to them by school districts, as part of their official job duties, nor are they responsible for filing such records." However, he noted that juvenile complaints fit within the definition of public documents. They are required by law to be made and filed in a public office, but the "overwhelming" policy in keeping these records confidential outweighed any interest plaintiff had in obtaining the information for purposes of maintaining his related discrimination proceeding. The judge denied plaintiff's request, and this appeal followed.

On appeal, plaintiff asserts that the judge erred by dismissing the complaint as the records are public records subject to disclosure under OPRA and the common law right to access. He further claims that the issues of privacy and confidentiality could be addressed by redaction or a protective order.

We have carefully reviewed the arguments of counsel as well as the record, and we concur in the June 27, 2008 written opinion of Judge Rodriguez. We add the following additional comments.

The policy of OPRA is that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . and any limitations on the right of access accorded [by OPRA] as amended and supplemented, shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. "OPRA's clear purpose . . . is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." Renna v. County of Union, ___ N.J. Super. ___, ___ (App. Div. 2009) (Slip Op. at 12) (quoting Educ. Law Ctr. v. N.J. Dep't of Educ., 197 N.J. 274, 284 (2009)) (internal quotations omitted). See also Burnett v. County of Bergen, ___ N.J. ___, ___ (2009) (Slip Op. at 8-9) (noting that "New Jersey's public policy favors access to sufficient information to enable the public to understand and evaluate the reasonableness of the public body's action") (internal quotations omitted); Paff v. City of East Orange, ___ N.J. Super. ___, ___ (App. Div. 2009) (Slip Op. at 4) (noting that "OPRA is predicated upon a legislative finding that 'government records shall be readily accessible for inspection, copying or examination by the citizens of this State'") (quoting N.J.S.A. 47:1A-1).

OPRA defines a "government record" in pertinent part 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 in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

[N.J.S.A. 47:1A-1.1.]

Although OPRA "defines 'government record' broadly [, it] also excludes twenty-one categories of information from the definition." Mason v. City of Hoboken, 196 N.J. 51, 65 (2008). These categories are considered "confidential" and are exempt from the definition of "government record." N.J.S.A. 47:1A-1.1. One of the protected categories is criminal investigatory records. Ibid. 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." Ibid.

Plaintiff argues that the information sought is not a criminal investigatory record. First, plaintiff claims that the documents requested "are normally created by police officers in the exercise of their public functions as law enforcement officers." Plaintiff's argument is without merit. All records created by the police pertaining to a criminal investigation or related civil enforcement proceeding, including those exempt by OPRA, are created "in the exercise" of the police's function as law enforcement. The fact that all records are prepared in order to aid the police in furthering its law enforcement function does not convert them into ones required to be made, maintained or filed by law. Following plaintiff's reasoning, there would not be any criminal investigatory records that are exempt from production under OPRA, which would render that portion of the statute moot. This is an untenable result.

Plaintiff's second argument rests on similarly flawed reasoning. Plaintiff premises his argument on the requirement that 1) all school districts file annual reports of all juvenile delinquent incidents that occurred within the district, and 2) the Commissioner of Education file with the Senate and General Assembly an Annual Report on Violence, Vandalism and Substance Abuse in New Jersey Public Schools based on the district reports. These reports include the number of incidents in which complaints were or were not filed. Plaintiff argues that in order to "accurately" comply with the report, "the school district must find out from local police the specific incidents in which complaints were and were not filed against student offenders." This is incorrect. The school district needs only statistical information, i.e., the number of complaints filed versus the number of incidents reported by the school districts. Furthermore, these reporting requirements have no bearing on "investigative" and "narrative" reports plaintiff sought in its OPRA request.

Third, plaintiff argues that since the police and the District entered into an agreement "for the primary purpose of implementing the requirements of N.J.A.C. 6A:16-6.3," which requires school officials to report any incidents of violence, weapons or drugs possession to the prosecutor or designated law enforcement officers, they created a legal duty for the police to maintain the records sought. As the judge correctly noted, this legal duty is imposed on the District to report incidents not for the police to create or maintain investigative or narrative reports.

Finally, similar to his first argument, plaintiff argues that in order for the police to "accurately comply" with N.J.S.A. 52:17B-5-5, which requires the police to file an Annual Crime Report, including statistical data involving the race and number of juveniles charged with weapons possessions, the police are legally required to maintain records relating to juvenile weapons possessions on school grounds. Again, the fact that the police create and maintain certain records that aid the police in its legally mandated duties do not convert such records into ones available to the public. The only duty imposed on the Police by N.J.S.A. 52:17B-5-5 is to report statistics. If, therefore, plaintiff, by way of example, sought the number and racial composition of juveniles charged with weapons within the District, defendant would be required to produce that information under OPRA. By contrast, what plaintiff instead seeks here is properly classified as a "criminal investigatory record," which is exempt from production under OPRA.

Further, even if the documents sought were not classified as "criminal investigatory records," it is clear that the records sought by plaintiff predominately contain juvenile records, since plaintiff requested incidents of possession of weapons that occurred on school grounds. Under N.J.A.C. 13:94-1.5(3), "[l]aw enforcement records pertaining to juveniles charged as a delinquent or found to be part of a juvenile-family crisis are confidential [and] . . . [s]hall not be subject to public inspection or copying pursuant to [OPRA]."

We have carefully reviewed plaintiff's additional arguments, including his common law claim of access, and we conclude that they are without merit. R. 2:11-3(e)(1)(E).

Affirmed.

 

Although plaintiff filed the underlying action against the Plainsboro Police Department, the Custodian of Records under OPRA was the Township Clerk. The improper party does not alter the result in this case.

See footnote 1, supra, at p. 2.

To preserve R.O.'s anonymity, we do not identify his parent by name.

Defendant raised the issue of standing, asserting that counsel made the OPRA request rather than R.O. We reject that claim, as the request clearly stated that it was made in the capacity as an attorney for R.O.

(continued)

(continued)

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A-5906-07T2

June 17, 2009