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Bent v. Township of Stafford Police Dep't

October 21, 2005

MICHAEL J. BENT, COMPLAINANT-APPELLANT,
v.
TOWNSHIP OF STAFFORD POLICE DEPARTMENT, CUSTODIAN OF RECORDS, DEFENDANT-RESPONDENT.



On appeal from a Final Decision of the Government Records Council.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 3, 2005

Before Judges Cuff, Parrillo and Holston, Jr.

This is an appeal by Michael Bent from a final administrative determination of the Government Records Council (GRC) dismissing with prejudice his denial of access complaint pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We affirm.

By way of background, on March 23, 2004, Bent filed a request for public records with the Stafford Township Custodian of Records. In this request, which consisted of five subparts lettered "a" through "e", Bent sought documents comprising the "entire file" of his criminal investigation conducted jointly by the Stafford Township Police Department (STPD), the United States Attorney for New Jersey, and a special agent of the Internal Revenue Service.*fn1 Additionally, Bent requested that the custodian provide him with "the factual basis underlying documented action and advice to third parties to act against my interest [having] been credited to SPD under a Federal Grand Jury credit card investigation."

On March 30, 2004, the custodian responded by letter, specifically addressing the OPRA requests Bent listed in each of the five subparts of the March 23, 2004 request form. As to requests, "a" and "d", the custodian explained that complete copies of the two police files maintained by STPD had been provided previously to Bent, and further, that requests "b" and "c" consisted of statements, investigation theory and opinions, which are not "government records" under OPRA. As to the final request "e", the custodian advised that records of Ocean County grand jury subpoenas were sent directly to federal agents and, therefore, could not be provided.

Bent filed two supplementary requests, on March 29, 2004, and April 2, 2004. As to the former, the custodian advised that the STPD was not required under OPRA to respond because the correspondence contained a series of opinions, interpretations and statements, and not a request for government records. Likewise, the latter request also failed to request any new records and merely posed a series of questions. Therefore, the custodian considered Bent's OPRA request closed and informed Bent that the STPD would not respond to further repetitive requests for the same records.

On May 3, 2004, Bent filed a "complaint form" with the Stafford Township Mayor's Office, complaining of misconduct committed by the STPD and the custodian in the handling of his OPRA requests. Specifically, Bent claimed that the custodian had not provided the "entire SPD file" as he had requested previously. Thereafter, on June 16, 2004, Bent filed a "denial of access" complaint with the GRC repeating the allegations contained in the May 3, 2004 Stafford Township Mayor's Office complaint form, alleging that the custodian did not respond to his request and withheld records in the file without explanation. The custodian responded, in part, with a certification to the effect that copies of all Stafford Township records relating to Bent's criminal investigation have previously been provided to Bent, and that the balance of his claim was not a legitimate OPRA request for records, but rather for interpretations and opinions.

On October 14, 2004, the GRC's Executive Director recommended dismissal of Bent's complaint because the custodian properly addressed Bent's OPRA request. Specifically, the Executor Director concluded that although the May 3, 2004 correspondence may have constituted an OPRA documents request under N.J.S.A. 47:1A-1, the information sought did not fall within the statutory definition of "government record," and hence, there was no denial of access. As to Bent's argument that the custodian should have maintained specific documents on file, the Executive Director found that OPRA does not specify the types of records "required by law or regulation to be '. . . made, maintained and kept on file . . .' N.J.S.A. 47:1A-1.1."

On October 14, 2004, the GRC voted unanimously to accept the Executive Director's "Findings and Recommendations," and issued a final decision dismissing Bent's complaint. On appeal, Bent argues that the requested information constitutes non-exempt public records subject to disclosure under OPRA and required to be maintained in the township's files. We disagree.

OPRA embodies the public policy of New Jersey 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] . . . shall be construed in favor of the public's right of access . . . . [N.J.S.A. 47:1A-1.]

OPRA takes the place of the former Right to Know Law, N.J.S.A. 47:1A-2 to -4, repealed by L. 2001, c. 404, and continues "the State's longstanding public policy favoring ready access to most public records." Serrano v. S. Brunswick Tp., 358 N.J. Super. 352, 363 (App. Div. 2003). Thus, "all government records shall be subject to public access unless exempt." N.J.S.A. 47:1A-1. On this score, the custodian of the ...


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