February 14, 2008
DARIN HICKSON, COMPLAINANT-APPELLANT,
NEW JERSEY DEPARTMENT OF LAW & PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE CUSTODIAN OF RECORD AND GOVERNMENT RECORDS COUNCIL, STATE OF NEW JERSEY, CUSTODIAN OF RECORDS-RESPONDENTS.
On appeal from an Agency Decision by the Government Records Council.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges R. B. Coleman and Lyons.
Darin Hickson (Hickson) appeals from a final decision of the New Jersey Government Records Council (Council) dated February 28, 2007, denying him access to certain requested records. We affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On August 10, 2006, the Division of Criminal Justice (Division) received a written request from Hickson pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking access to documents that may have been submitted to the Division regarding immunity for two State witnesses in the case of State v. Hickson, Indictment No. S-1863-92-01.
The custodian of OPRA records for the Division certified that there are five documents that are potentially responsive to Hickson's request, including Internal Division of Criminal Justice memoranda, correspondence between a county prosecutor and the Division, and petitions to compel testimony (commonly referred to as immunity petitions). The custodian certified that all of the documents are part of the criminal investigation file pertaining to the prosecution of Hickson, and that the documents contain attorney work-product and are protected pursuant to Rule 3:13-3.
On August 31, 2007, the Division, therefore, denied Hickson's OPRA request on the grounds that the documents sought were "criminal investigatory records" pursuant to N.J.S.A. 47:1A-1.1, and not subject to production. On or about September 13, 2006, Hickson filed a complaint with the Council. On or about March 8, 2007, all parties were notified that the Council had issued its final decision at its February 28, 2007, meeting. The final decision adopted the executive director's findings and recommendations in this matter and upheld the Division's denial of access based on its findings that the records are "criminal investigatory records" and, therefore, exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1. This appeal ensued.
On appeal, Hickson argues that denying his request for disclosure of the documents concerning immunity for two of the State's witnesses against him is erroneous. He argues that the documents are not exempt from disclosure, and that failing to provide such material violates his Sixth and Fourteenth Amendment rights under the Constitution of the United States.
The narrow issue which is before us is whether the final decision of the Council was correct. We will not upset the ultimate determination of an agency unless it is shown that it was arbitrary, capricious, or unreasonable, or that it violated legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). However, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
N.J.S.A. 47:1A-5 permits a "government record" to be accessed by the public. However, "inter-agency or intra-agency advisory, consultative, or deliberative material" and "criminal investigatory records" are excluded from the definition of "government record." N.J.S.A. 47:1A-1.1. OPRA further defines a "criminal investigatory record" as 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.
It is clear from the record presented that the documents sought are held by a law enforcement agency, the Division of Criminal Justice. It is also clear that they pertain to a criminal investigation. Lastly, there is nothing presented in the record indicating that these documents were required by law to be made, maintained, or kept on file. Hence, we agree with the Council's determination that the records are not a "government record" subject to access under OPRA. We further agree that some of the records might be deemed "inter-agency or intra-agency advisory, consultative, or deliberative material." However, we do not need to reach that issue.
Hickson apparently argues that one of the witnesses who testified against him in his criminal trial received or was offered immunity or some other concession from the State, and that defendant was unaware of such an offer or accommodation. On that basis, Hickson argues that his right to confrontation was compromised.
That issue is not appropriately before us in this appeal. As stated at the outset, the only legal issue before us is the final decision of the Council. We have not addressed whether Hickson has a viable post-conviction relief (PCR) claim with respect to such an issue, given the paucity of the record before us and the procedural posture of the matter.
We note, though, that the State has conceded that while Hickson is not entitled to the requested records under OPRA, he may not be precluded from seeking access to these records through some form of PCR. See State v. Carter, 69 N.J. 420, 434 (1976); State v. Jones, 239 N.J. Super. 460, 468 (App. Div. 1990), certif. denied, 126 N.J. 388 (1991); State v. Satkin, 127 N.J. Super. 306, 311 (App. Div. 1974), certif. denied, 70 N.J. 147 (1976).
Nonetheless, the final decision of the Council is affirmed.
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