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John Allen v. Mercer County Prosecutor's Office Records Custodian

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 5, 2011

JOHN ALLEN, APPELLANT,
v.
MERCER COUNTY PROSECUTOR'S OFFICE RECORDS CUSTODIAN, RESPONDENT.

On appeal from the Government Records Council, Complaint No. 2009-38.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2010 -- Decided

Before Judges Rodriguez and LeWinn.

Appellant John Allen, a defendant in a criminal matter prosecuted by the Mercer County Prosecutor's Office (Prosecutor), served an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, request on the Prosecutor on November 7, 2008.

Appellant requested the following eight items:

Any and all applications and authorizations of both oral and wire interceptions of oral conversations, submitted by either Lt. Manetto, Armstead Robinson and or Plainclothesman Maldanado all of the Trenton Police Department, between 1986 and 1992 pursuant to N.J.S.A. 2A:156A-4c.

Applications and authorizations of both oral and wire interceptions of oral conversations, submitted by Robert Tedder, of the Trenton Police Department, between 1986 and 1992 pursuant to N.J.S.A. 2A:156A-4c.

All records of interceptions authorized by the Mercer Country Prosecutor's Office pursuant to N.J.S.A. 2A:156A-4c between 1986 and 1992.

Reasonable determinations by the County Prosecutor that there was reasonable suspicion that evidence of criminal conduct would be gained from intercepting John Allen's oral and wire conversations with informant LC Peguese. N.J.S.A. 2A:156A-4c.

The copies of authorizations, reports relied upon for authorizations, and or periodical and additional reports submitted by Mercer Country Prosecutor and maintained by the NJ Attorney General on N.J.S.A. 2A:156A-4c pursuant to N.J.S.A. 2A:156A-23.

The master reel of the recorded conversation between LC Peguese and John Allen that was reviewed by the New Jersey State Police, Trenton Police Department officials and Peguese.

Mercer County Prosecutor's Office annual reports to the Governor and Legislature on the operation of section N.J.S.A. 2A:156A-4c between 1986 and 1992 pursuant to N.J.S.A. 2A:156A-23.

Mercer County Prosecutor's Office supplemental reports forwarded to the State Legislative Office between 1986 and 1992 on N.J.S.A. 2A:156A-4c, pursuant to N.J.S.A. 2A:156A-23.

The Prosecutor denied appellant's request on the bases (1) that it was overly broad; (2) required the records custodians to conduct research; (3) was an imprecise request for information; or (4) that the records were exempt under the criminal investigative records exception to OPRA. See N.J.S.A. 47:1A- 1.1.

Appellant filed a denial of access complaint with the Government Records Council (GRC). At the GRC's request, the Prosecutor submitted a Statement of Information (SOI) certifying that no records responsive to fifth, seventh and eighth requests existed.

On December 22, 2009, the GRC unanimously adopted its Director's findings and recommendations and found that: 2. Request Item Nos. 1, 2 and 3 are invalid because they are overly broad and do not identify with reasonable clarity the records sought pursuant to MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005), Bent v. Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005), and N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 180 (App. Div. 2007).

3. Request Item No. 4 is invalid because it seeks access to information and does not identify a specific government record. . . . Schuler v. Borough of Bloomsbury, GRC Complaint No. 2007-151 (February 2009).

4. Request Item No. 6 is invalid because it is overly broad and unclear and does not identify a specific government record. . . .

5. Because the Custodian has certified that no records responsive to Request Item Nos. 5, 7, and 8 exist and there is no credible evidence in the record to refute this certification, the Custodian has not unlawfully denied the Complainant access to the records requested in Request Items Nos 5, 7, and 8 pursuant to Pusterhofer v. New Jersey Department of Education, GRC Complaint No. 2005-49 (July 2005).

Appellant challenges this decision, arguing that: his "OPRA requests were very concise;" and he adequately "identified the records [he] sought." He also contends that "the New Jersey Government Records Council['s] decisions were contrary to OPRA", and that the denial of access to these records violated his due process rights and was fundamentally unfair.

In a reply brief, appellant also argues that the GRC: "ignored Administrative Procedures Act (APA)*fn1 mandates and administrative due process standards while conducting [the] hearing"; failed "to ensure fairness of [the] hearing and [an] opportunity to redress violated procedural due process of [the] Fifth and Fourth Amendments of [the] N.J. Constitution"; and that the "cases cited don't support the denials of access to Government records." We disagree and affirm substantially for the reasons the GRC expressed in its January 5, 2010 written final decision.

Our standard of review is very limited. We will not upset the ultimate determination of an agency, such as the GRC, unless the determination was arbitrary, capricious or unreasonable, or 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).

Here, after a careful review of the items comprising the record on appeal, we conclude that the determination made by the GRC is "supported by sufficient, credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). More importantly, the determination is not arbitrary, capricious or unreasonable, and is in accord with the mandates of OPRA and the APA. Affirmed.


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