NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1431-12.
Walter M. Luers argued the cause for appellant.
Moshood Muftau, Assistant County Counsel, argued the cause for respondent (Robert E. Barry, Union County Counsel, attorney; Mr. Muftau, on the brief).
Before Judges Simonelli and Accurso.
Plaintiff Tina Renna filed a complaint alleging that defendant County of Union (County) violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access by failing to disclose records pertaining to a police investigation. She appeals from the August 6, 2012 Law Division order, which dismissed the complaint with prejudice. Because we conclude that the records were not subject to disclosure pursuant to OPRA or the common law right of access, we affirm.
In January 2012, the Union County Police Department began investigating the theft of county parks maintenance equipment from a maintenance service yard. Patrick Scanlon, Jr. (Scanlon), the son of a Union County freeholder, was one of several parks maintenance employees questioned about the theft. Plaintiff submitted a request under OPRA and the common law right of access for "[c]opies of all investigations, including county police, sheriff and prosecutor, into the matter involving former County employee Patrick Scanlon, Jr." In response, the County admitted the requested documents were on file with the County Police, but denied access because they were "criminal investigatory records" exempt from disclosure. The County provided to plaintiff the information required by N.J.S.A. 47:1A-3b.
Plaintiff filed a Verified Complaint and Order to Show Cause to compel disclosure of the documents. She argued the documents were government records, as defined by N.J.S.A. 47:1A-1.1,  because the Destruction of Public Records Law [DPRL], N.J.S.A. 47:3-15 to -32, and the "Records Retention and Disposition Schedule" created by the New Jersey Division of Archives and Records Management (DARM) required the documents to be maintained for seven years from the date of the crime if no arrest was made. N.J. Div. of Archives & Records Mgmt., Records Retention and Disposition Schedule, 7 (2003), http://www.nj.gov/treasury/revenue/rms/pdf/c540000.pdf. She reasoned that N.J.S.A. 47:3-18 granted DARM the authority to "establish specific classifications and categories for various types of . . . 'public records[, ]'" N.J.S.A. 47:3-19 empowered DARM to prepare retention scheduleds for all public records that were common to all local agencies, and N.J.S.A. 47:3-17 requires DARM's approval of the destruction or disposition of any public record or document.
In opposition, the County argued the documents were criminal investigatory records exempt from disclosure pursuant to N.J.S.A. 47:1A-1.1, which defines criminal investigatory records 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." Alternatively, the County asserted the documents were exempt from disclosure pursuant to N.J.S.A. 47:1A-3a and b because the investigation was active and on-going, no arrests were made or formal charges filed against any County employee including Scanlon, and release of the information would hinder the investigation. The County subsequently filed an amended certified Vaughn index,  which listed the documents contained in the investigatory file, including investigation and operation reports of interviews of potential witnesses and Miranda forms.
In an August 6, 2012 written opinion and order, Judge Caulfield denied disclosure of the requested documents. The judge ultimately concluded the documents were exempt from disclosure pursuant to N.J.S.A. 47:1A-3a and b because they pertained to an investigation in progress, their release would be inimical to the public interest and would jeopardize the investigation, and the County's right to pursue an active investigation was superior to plaintiff's common law right of access. This appeal followed.
On appeal, plaintiff argues that the documents are not criminal investigatory records, and their release would not be inimical to the public interest. We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Assuming the requested documents are government records, as defined by N.J.S.A. 47:1A-1.1, we conclude they were exempt from disclosure pursuant to N.J.S.A. 47:1.1.3 a and b. We also conclude the ...