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December 9, 2014


Submitted September 30, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from the Government Records Council, Docket No. 2011-23.

Alan Rogers, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent Essex County Prosecutor's Office (Debra G. Simms, Executive Assistant Prosecutor, on the brief).

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


Alan Rogers appeals from the final agency decision of the Government Records Council (GRC) denying his complaint against the Essex County Prosecutor's Office (ECPO) under 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.

Rogers, an inmate in New Jersey State Prison, filed a Government Records Request with the Essex County Criminal Division Manager on November 16, 2010, requesting all reports made by ten different police officers with respect to Indictment No. 305-9-86. The ECPO custodian of records responded by denying Rogers's request for four reasons: first, a records check of the appropriate database revealed no Indictment No. 305-9-86; second, the requested documents were exempt from disclosure under OPRA as criminal investigatory files; third, the request was for general data, information, or statistics rather than records, which are not subject to OPRA; and fourth, the material was exempt from OPRA as confidential information.

Rogers then filed a denial of access complaint with the GRC. The parties subsequently agreed to engage in voluntary mediation. While the complaint was pending, Rogers identified two other indictment numbers that might be the correct indictment number. The custodian located records under Indictment No. 3075-9-86 and provided three redacted arrest reports, but stated that the agency was not obligated to provide anything else for the three other reasons initially given in the agency's denial.

Subsequently, Rogers filed an amended complaint on October 12, 2011, requesting the same documents. The ECPO custodian certified to the GRC that the records responsive to Roger's request were part of a criminal investigation. She further certified that there existed no legal requirement that the responsive records be made, maintained, or kept on file, except for the information found in arrest reports.

On February 26, 2013, the GRC issued its final decision denying Rogers's complaint. The GRC found that the denial of the information was not unlawful because Rogers made his request with the incorrect indictment number, which provided insufficient information for the custodian to respond to the request. This appeal followed.

On appeal, Rogers argues that the ECPO's denial of the requested information was unlawful, arbitrary, and capricious. In particular, he contends that since he provided the correct indictment number during the pendency of the GRC complaint, he should have received the requested reports about the investigation leading to his indictment.

We begin with our standard of review. Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We will intervene "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." In re Musick, 143 N.J. 206, 216 (1996). However, 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 Alcoholic Beverage Control, 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 Cmty. 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. See 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. 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. at 380-81.

The record reveals that prior to filing his denial of access complaint, Rogers provided the custodian an inaccurate indictment number for which no records existed. To obtain documents under OPRA, one must identify specific records kept by an agency. See Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005). Thus, we are in accord with GRC that Rogers was not denied access to records available under OPRA as he did not provide sufficient information to identify records in the agency's possession.

However, the record does not reveal the reason why, when Rogers amended his original complaint after the correct indictment number had been identified and the custodian had located files pertaining to it, the agency did not deem that amended complaint to include the now correctly-identified indictment. Nevertheless, we are satisfied that the record shows that the requested reports related to a criminal investigation. Rogers specifically requested reports made by various police officers about the investigation involving a criminal indictment, thus showing that he is seeking part of a criminal investigatory record. Additionally, the ECPO custodian certified that the records were part of the prosecutor's criminal investigation and, except for the arrest reports, were not required by law to be made, maintained, or kept on file. Rogers does not point to any law requiring otherwise.

Consequently, as the reports sought by Rogers under the belatedly-identified indictment number related to a criminal investigation and were not required to be made, maintained, or kept by law, they were exempt from disclosure under the criminal investigatory records exemption of OPRA.