EUGENE SEABROOKS v. COUNTY OF ESSEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EUGENE SEABROOKS,

Appellant,

v.

COUNTY OF ESSEX,

Respondent.

__________________________________________________________

November 20, 2014

Submitted October 7, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Government Records Council, Docket No. 2012-230.

Eugene Seabrooks, appellant pro se.

James R. Paganelli, Essex County Counsel, attorney for respondent County of Essex (Thomas M. Bachman, Assistant Essex County Counsel, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Government Records Council (Debra A. Allen, Deputy Attorney General, on the brief).

PER CURIAM

Eugene Seabrooks appeals from the final agency decision of the Government Records Council (GRC) denying his complaint against Essex County for violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for failure to provide certain documents. For the reasons that follow, we affirm.

Seabrooks, an inmate in New Jersey State Prison, submitted an OPRA request on May 2, 2012, seeking copies of the arrest warrants for Seabrooks and Alkabir Sorey, "issued on August 22, 1994." He also requested "copies of all supporting affidavits and court dates" for Indictment No. 95-1-6. The County, as custodian of these records, responded by letter on May 7, 2012, denying Seabrooks's entire request as exempt or otherwise not accessible under OPRA.

Seabrooks filed a denial of access complaint with the GRC. In its interim decision and order on June 26, 2013, the GRC first determined that Seabrooks's request for the arrest warrants was appropriate as arrest warrants were not records of a criminal investigation but "charging documents" required by Rule 3:2-1 to be made on a specific government form and to contain "a written statement of the essential facts constituting the offense charges . . . ." R. 3:2-3(a); R. 3:2-1(a). The GRC also determined there was no reasonable expectation of privacy in arrest warrants since under N.J.S.A. 47:1A-3(b), records of arrests and underlying charges are subject to disclosure. Consequently, the GRC ordered the County to provide copies of the warrants.

Next, the GRC found that the County did not unreasonably deny access to the supporting affidavits and court dates concerning Indictment No. 95-1-6 as they were exempt from disclosure as part of the prosecutor's criminal investigatory records of an investigation dating back to the mid-1990s. Noting that the exemption survived completion and closure of a criminal investigation, the GRC concluded that the documents were clearly criminal investigatory records because they were connected to the formal written accusation of a crime and were not required by law to be made, maintained, or kept on file.

The GRC gave the custodian five business days to provide the arrest warrants. After a record search, the custodian certified to the GRC that it could not find the specified arrest warrants. Based upon this certification, the GRC found that the custodian had complied with its interim order. This appeal followed.

Before us, Seabrooks's sole contention is that the GRC erred in finding that the supporting affidavits he requested were "criminal investigatory records." Specifically, he contends that because Rule 3:2-3 and Rule 3:3-1 provide that arrest warrants may be issued if probable cause is shown by testimony, deposition, or affidavits, it must be inferred that these Rules require supporting affidavits to be made, maintained, or kept on file. Additionally, he urges, for the first time on appeal, that he is entitled to obtain the requested affidavits under the common law right of access. The County contends that while the Rules specify that arrest warrants themselves must be made on a specific form, Rule 3:2-3 and Rule 3:3-1(a) allow, but do not require, affidavits to support arrest warrants or complaints. Rather, the County argues, any affidavits obtained would be part of the investigation of an underlying crime.1

We begin with our standard of review. An agency's determination as to the applicability of OPRA is a legal conclusion subject to de novo review. See O'Shea v. Twp. Of W. Milford, 410 N.J. Super. 371, 379 (App. Div. 2009); MAG Entm't, LLC v. Div. Of Alc. Bev. Cont., 375 N.J. Super. 534, 543 (App. Div. 2005). Additionally, the agency's legal conclusion that a privilege exempts the requested record from disclosure is subject to plenary review. Paff v. Div. Of Law, 412 N.J. Super. 140, 149 (App. Div.), certif. denied, 202 N.J. 45 (2010).

OPRA expresses this State's public policy favoring transparency in government and disclosure of government documents. See N.J.S.A. 47:1A-1. OPRA endeavors "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." Times of Trenton Publ'g Corp. v. Lafayette Yard Comm. Dev. Corp., 183 N.J. 519, 535 (2005) (internal quotations omitted). The statute expressly requires

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 . . . shall be construed in favor of the public's right of access;

all government records shall be subject to public access unless exempt from such access by: [OPRA]; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order . . . .

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

Government record is defined broadly as

any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, . . . or any copy thereof, that has been made, maintained or kept on file in the course of . . . its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof . . . .

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

In addition, OPRA places the burden on the public agency to prove that the requestor is not entitled to the substance of the request. N.J.S.A. 47:1A-6.

Although the statute broadly defines "government records," it specifies twenty-one categories of information that are exempt from disclosure. N.J.S.A. 47:1A-1.1. Any document which falls into one of these categories is not a government record under OPRA and is not subject to disclosure. Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 161 (App. Div. 2011). Relevant to the current appeal, OPRA exempts from disclosure "criminal investigatory records," which include "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." N.J.S.A. 47:1A-1.1. Thus, in order to deny access based upon this exemption the record custodian must prove (1) that the requested documents are not required by law to be made, and (2) that they relate to a criminal investigation or civil enforcement proceeding. O'Shea, supra, 410 N.J. Super. 380-81.

We are in accord with the GRC's determination here. The County certified that there was no law requiring supporting affidavits to be made, maintained, or kept on file. Neither Rule 3:2-3 nor Rule 3:3-1 contains any language which supports the proposition Seabrooks urges that there is a regulatory requirement to make, maintain or keep supporting affidavits. Rather, the Rules simply provide the procedure for obtaining an arrest warrant, which includes the possibility, but not the obligation, of supplying supporting affidavits, which do not become part of the arrest warrant form. More to the point, N.J.S.A. 47:1A-3(b), which the GRC relied on in determining that arrest warrants were not exempt, allows public access to significant amounts of information concerning arrests, but does not include information concerning any supporting affidavits or other details of the criminal investigation. Consequently, we are satisfied that the County established the first part of the "criminal investigatory records" exemption test as there is no law requiring that supporting affidavits be made, maintained, or kept on file.

As to the requirement that the records relate to a criminal investigation, the record shows that this condition was met. Seabrooks's request specified that the affidavits pertained to a particular indictment. The County certified that if the affidavits existed they would be part of the prosecutor's criminal investigation record. Both arrests and indictments are generally related to the investigation of a crime and there is no dispute that such an investigation occurred here. Thus, we are convinced that the requested affidavits also met the second part of the "criminal investigatory records" exemption test.

In sum, as the records sought are not required to be made, maintained, or kept by law and they relate to a criminal investigation, the GRC did not err in concluding that they were exempt from disclosure under the criminal investigatory records exemption of OPRA.

For the first time on appeal, Seabrooks raises a claim to obtain the documents under the common law right of access. Issues not raised below will ordinarily not be considered on appeal. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1972). Moreover, Seabrooks appeals the decision of the GRC, whose function is to mediate, investigate, and adjudicate complaints filed by persons who were denied access to government records under OPRA. N.J.S.A. 47:1A-7. It is well settled that the GRC's jurisdiction does not include hearing common law right of access claims. See Ciesla v. N.J. Dep't of Health & Sr. Services, 429 N.J. Super. 127, 147-48 (App. Div. 2012) (noting that the GRC's jurisdiction is confined to OPRA issues).

1 We note that the record indicates there were no arrest warrants found, and it is not clear from the record that there would be supporting affidavits for the non-existent warrants.