AARONLYNN v. MIDDLESEX COUNTY PROSECUTOR'S OFFICE Custodian of Record

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2722-16T2

AARON LYNN,

        Complainant-Appellant,

v.

MIDDLESEX COUNTY PROSECUTOR'S
OFFICE,

     Custodian of Record-
     Respondent.
______________________________

              Submitted January 24, 2018 – Decided February 16, 2018

              Before Judges Currier and Geiger.

              On appeal from the New Jersey Government
              Records Council, Complaint No. 2015-186.

              Aaron Lynn, appellant pro se.

              Thomas F. Kelso, Middlesex County Counsel,
              attorney for respondent Middlesex County
              Prosecutor's Office (Jeanne-Marie Scollo,
              Deputy County Counsel, on the brief).

              Gurbir S. Grewal, Attorney General,            attorney
              for respondent Government Records               Council
              (Melissa H. Raksa, Assistant Attorney          General,
              of counsel; Cameryn J. Hinton, Deputy          Attorney
              General, on the statement in lieu of           brief).

PER CURIAM
     Appellant Aaron Lynn appeals from the January 31, 2017 final

decision    of    respondent    Government     Records   Council    (GRC),

determining appellant's blanket request for a class of documents

from respondent Middlesex County Prosecutor's Office's (MCPO)

homicide investigation file to be invalid under the Open Public

Records Act (OPRA), 
N.J.S.A. 47:1A-1 to -13.             The GRC further

determined the photographs requested by appellant, from MCPO's

file, are exempt from disclosure pursuant to 
N.J.S.A. 47:1A-1.1

and Executive Order No. 69 (May 15, 1997), 
29 N.J.R. 2729(a) (Jul.

7, 1997).     For the reasons that follow, we affirm.

     Lynn submitted an OPRA request to the MCPO for "a list of all

document[s]      inside   the   Prosecutor's   entire    file,   involving

Indictment [No.] 97-09-01245.       Also all photographs obtained."

     On June 4, 2015, MCPO Records Custodian, James E. O'Neill,

provided Lynn with a copy of the judgment of conviction entered

under Indictment No. 97-09-1245 but otherwise denied Lynn's OPRA

request.    In his written response, O'Neill explains

            it was determined that there were no other
            records that would be considered public
            documents under 
N.J.S.A. 47:1A-1.1, et seq.
            The documents maintained in the file include
            such items as police reports, investigatory
            records, and statements of witnesses.

                 These types of documents are considered
            criminal   investigatory  records  and   are
            protected under 
N.J.S.A. 47:1A-1.1, et seq
            . . . .

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                 It also should be noted that N.J.S.A.
            47:1A-1.1, et seq. exempts photographs from
            public release as they are not considered
            public records."

      On June 18, 2015, Lynn filed a denial of access complaint

with the GRC.     On June 30, 2015, MCPO responded to the complaint

by   submitting   its   Statement    of       Information   (SOI).     The    SOI

reiterates MCPO denied access to the records and photographs

because     
N.J.S.A.    47:1A-1.1        "exempts    release    of     criminal

investigatory records to the public[,]" and N.J.A.C. 13:49-3.1

"prohibits the public release of autopsy reports that are commonly

maintained in criminal investigations of homicides."                  MCPO also

provided a "complete inventory of documents maintained in this

file."     A copy of the SOI, including the inventory of documents,

was served on Lynn.        Lynn did not respond to the SOI or provide

further information to the GRC.

      On   January   24,   2017,   the       Executive   Director    issued   his

findings and recommendations to the GRC.             The Executive Director

recommended the GRC find that:

            1.   Because a portion of the Complainant's
            June 3, 2015 OPRA request seeking "all
            documents" pertaining to a specific indictment
            is a blanket request for a class of various
            documents rather than for specifically named
            or identifiable government records, that
            portion of the request is invalid under OPRA,
            and the Custodian had no legal duty to conduct
            research to locate potentially responsive
            records. MAG Entm't, LLC v. Div. of ABC, 375

                                         3                              A-2722-16T2
          N.J. Super. 534 (App. Div. 2005); Bent v.
          Stafford Police Dep't, 
381 N.J. Super. 30, 37
          (App. Div. 2005); NJ Builders Ass'n v. NJ
          Council on Affordable Hous., 390 N.J. Super.
          166, 180 (App. Div. 2007); Schuler v. Borough
          of Bloomsbury, GRC Complaint No. 2007-151
          (February 2009); Abdur-Raheem v. NJ Div. of
          Criminal Justice, GRC Complaint No. 2014-171
          (June 2015); Feiler-Jampel v. Somerset Cnty.
          Prosecutor's Office, GRC Complaint No. 2007-
          190 (Interim Order dated March 26, 2008).
          Based on the foregoing, the Council need not
          address whether this portion of the request
          is exempt as criminal investigatory records.

          2.   The    photographs    sought    in   the
          Complainant's OPRA request are exempt from
          disclosure pursuant to 
N.J.S.A. 47:1A-1.1,
          Executive Order [No.] 69 (Gov. Whitman 1997),
          and 
N.J.S.A. 47:1A-9(a).    See Leak v. Union
          Cnty. Prosecutor's Office, GRC Complaint No.
          2007-148 (Interim Order dated February 25,
          2009).   Accordingly, the Custodian lawfully
          denied access to the requested records.
          
N.J.S.A. 47:1A-6.

     On January 31, 2017, the GRC issued its final decision,

adopting the entirety of the Executive Director's findings and

recommendations.   This appeal followed.

     On appeal, Lynn argues the denial of his OPRA request "based

on the criminal investigatory records exemption should be reversed

where the investigations have long since been concluded and the

said records have already been released into the public sphere via

a public jury trial."   We are unpersuaded by this argument.

     Our scope of review of final administrative agency actions

is limited.    In re Herrmann, 
192 N.J. 19, 27 (2007).          "An

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administrative agency's final quasi-judicial decision will be

sustained unless there is a clear showing that it is arbitrary,

capricious, or unreasonable, or that it lacks fair support in the

record."     Id. at 27-28.       "[A] presumption of reasonableness

attaches to the action of an administrative agency and the party

who challenges the validity of that action has the burden of

showing that it was arbitrary, unreasonable or capricious."          Boyle

v. Riti, 
175 N.J. Super. 158, 166 (App. Div. 1980).        Nonetheless,

we "are not bound by an agency interpretation of a strictly legal

issue, when that interpretation is inaccurate or contrary to

legislative objectives."     G.S. v. Dep't of Human Servs., 
157 N.J.
 161, 170 (1999) (citations omitted).

       The general purpose of OPRA 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."         Mason v.

City of Hoboken, 
196 N.J. 51, 64 (2008) (quoting Asbury Park Press

v. Ocean Cnty. Prosecutor's Office, 
374 N.J. Super. 312, 329 (Law

Div.   2004)).    To   achieve   this   purpose,   OPRA   provides   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."        
N.J.S.A.

47:1A-1.    This appeal involves two of those codified exceptions.



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      Although OPRA broadly defines the term "government record,"

it   expressly   provides   it   "shall   not   include    .   .   .   criminal

investigatory     records."       
N.J.S.A.      47:1A-1.1.         "'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."          Ibid.

      The police were not required by statute or regulation to make

and maintain the criminal records pertaining to the homicide

investigation in question.       See State v. Marshall, 
148 N.J. 89,

272-73 (explaining no law or regulation requires that results of

criminal investigation be made, maintained or filed); The Daily

Journal v. Police Dep't of Vineland, 
351 N.J. Super. 110, 120

(App. Div. 2002) (holding criminal investigative reports by police

are not required by law or regulation to be made, maintained, or

kept on file, for purposes of their release under predecessor to

OPRA); River Edge Sav. and Loan Ass'n v. Hyland, 
165 N.J. Super.
 540, 545 (App. Div. 1979).        Therefore, the documents sought by

Lynn fall within the exemption from OPRA's disclosure requirement

for criminal investigatory records.1


1
    Although homicide investigation records are required to be
maintained under guidelines issued by the Attorney General, see
infra, "administrative directives of the Attorney General . . .


                                     6                                  A-2722-16T2
      The photographs sought by Lynn are also exempt from disclosure

under OPRA.     Executive Order No. 69 provides "photographs and

similar criminal investigation records that are required to be

made, maintained or kept by any State or local government agency"

are   not   public   records.   Homicide   investigation     records    are

required to be retained until the expiration of the defendant's

sentence.    Administrative Directive No. 2010-1, "Attorney General

Guidelines for the Retention of Evidence" (March 9, 2010).             Lynn

is still serving his sentence.2         OPRA "shall not abrogate any

exemption of a public record or government record from public

access . . . pursuant to . . . any . . .        Executive Order of the

Governor."     
N.J.S.A.   47:1A-9(a);   see   Slaughter    v.   Government

Records Council, 
413 N.J. Super. 544, 550 (App. Div. 1998).

      Additionally, Lynn's OPRA request was invalid because it

failed to "reasonably identify" the documents sought.            See Bent

v. Stafford Police Dep't, 
381 N.J. Super. 30, 37 (App. Div. 2005).

OPRA does not "authorize a party to make a blanket request for

every document a public agency has on file."              Ibid. (citation

omitted).     "Thus, OPRA requires a party requesting access to a


are not the equivalent of either a statute or a . . . regulation."
North Jersey Media Group, Inc. v. Twp. of Lyndhurst, 
441 N.J.
Super. 70, 102 (App. Div. 2015) (citations omitted), remanded on
unrelated issue, 
223 N.J. 555 (2017).
2
    Lynn is an inmate at Northern State Prison.

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public   record   to   specifically   describe   the   document   sought."

Gannett N.J. Partners LP v. Cnty. of Middlesex, 
379 N.J. Super.
 205, 212 (App. Div. 2005) (citing MAG Entm't, LLC v. Div. of

Alcoholic Beverage Control, 
375 N.J. Super. 534, 546-49 (App. Div.

2005)); accord Spectraserv, Inc. v. Middlesex Cnty. Utilities

Auth., 
416 N.J. Super. 565, 578 (App. Div. 2010) (finding OPRA

request for "an entire project file" improper because it failed

to identify specific documents).          Accordingly, "a proper request

under OPRA must identify with reasonable clarity those documents

that are desired, and a party cannot satisfy this requirement by

simply requesting all of an agency's documents."          Bent, 
381 N.J.

Super. at 37.      Lynn's blanket request for all documents and

photographs in the Prosecutor's entire file did not meet this

requirement.

     For the first time on appeal, Lynn argues he was denied a

list of all documents in the prosecutor's file.             Lynn did not

raise this issue before the GRC.           Issues not presented to the

agency should not be considered on appellate review "unless the

questions so raised on appeal go to the jurisdiction of the [lower

tribunal] or concern matters of great public interest."             Nieder

v. Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (quoting Reynolds

Offset Co., Inc. v. Summer, 
58 N.J. Super. 542, 548 (App. Div.



                                      8                            A-2722-16T2
1959)).   Because this issue does not fall into either category,

we decline to reach it.

     Lynn's request was not a proper request for public records

under OPRA, and the documents it sought, other than the judgment

of conviction, are exempt from disclosure.   Consequently, Lynn has

not demonstrated the final agency decision rendered by the GRC was

arbitrary, capricious, or unreasonable or lacks fair support in

the record.   We find no basis to overturn its decision.

     Affirmed.




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