Kolovsky, Matthews and Crahay. The opinion of the court was delivered by Matthews, J.A.D.
The question raised on this appeal is whether N.J.S.A. 2A:169-11, which provides for the expungement of a record of conviction for a disorderly persons offense, includes within its terms the expungement of the record of arrest for such an offense as well. The trial judge read the statute as not permitting expungement of arrest records. We affirm.
The statute in question reads in pertinent part as follows:
Petitioner was arrested and convicted in 1965 in the municipal court for shoplifting. She was fined $25. The record discloses that she has not been arrested or convicted for any offense since her conviction. She testified that she had experienced difficulties in obtaining employment because of her record for shoplifting. At the hearing the chief identification officer of the Newark Police Department testified that although petitioner's conviction was expunged from the record,
the record of her arrest was still kept. He also stated that the record of petitioner's arrest was not available to the general public but only to the other law enforcement agencies.
Petitioner relies on In re Fortenbach , 119 N.J. Super. 124 (Cty. Court 1972), as authority for the relief she seeks. In Fortenbach , which involved N.J.S.A. 2A:164-28, a statute similar to N.J.S.A. 2A:169-11, the only difference being that it provides for the expunging of the record of a criminal conviction, the County Court judge read the statute to include the arrest record as well. We are not, however, persuaded by his reasoning and do not follow it in construing the statute presently before us.
We are satisfied that the Legislature intended by the language it employed in the statute to limit the right of expungement to a record of conviction. The record of arrest is not mentioned and we find its inclusion as an object of expungement may not fairly be found to be implied.
Our reading of the statute is reinforced by the action of the Legislature in its current session in adopting a bill which would permit a person who has been arrested for any offense in this State to petition for the expungement of his arrest record, or of any proceedings or evidence of detention relating to that arrest, when the arrest resulted in a dismissal of the proceedings, in an acquittal, or in a discharge of the proceedings without a conviction. The bill (Assembly 227) also provided that after expungement, the arrest or any proceedings related thereto would be deemed not to have occurred and the arrested person would be entitled to answer in the negative when asked whether he had been arrested.
Assembly 227 was conditionally vetoed by Governor Cahill on March 2, 1973. In his veto message the Governor found the proposed legislation to create an immediate conflict with the need of law enforcement authorities to maintain records necessary to fulfill their functions in the prevention and detection of crime.
The issue presented here is most appropriately one properly solved by the legislative and executive arms of our government. The decision to be made involves the tools law enforcement agencies require to exercise their powers of investigation. The problem was explicitly and succinctly set out in Governor Cahill's veto message:
The primary objective of any expungement statute is to insulate the person from any disabilities or adverse effects resulting from the information sought to be expunged. The only danger in maintaining arrest records is the possible effects of dissemination of the fact of the arrest or the practical necessity that an ...