Colvell v. Hightstown Police Dep't

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MARY B. COLVELL, Appellant, v. HIGHTSTOWN POLICE DEPARTMENT (MERCER), Respondent.

No. A-0604-21

Superior Court of New Jersey, Appellate Division

December 9, 2022

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted November 15, 2022

On appeal from the Government Records Council, Complaint No. GRC 2019-134.

Before Judges Geiger and Berdote Byrne.

Mary B. Colvell, appellant pro se.

Ansell Grimm & Aaron, PC, attorneys for respondent Hightstown Police Department (Frederick C. Raffetto, of counsel; Rahool Patel, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent Government Records Council (Debra A. Allen, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Mary B. Colvell appeals a final decision of the Government Records Council (GRC), which found respondent Hightstown Police Department (HPD or Hightstown) did not commit a knowing and willful violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, by initially denying records responsive to her requests that were later disclosed and locating additional records during a supplemental records search. We affirm.

The records relate to a May 2, 2019 incident that involved Colvell's son, Kevin Colvell, who was arrested and charged with stalking and harassing M.C.^[1]Colvell submitted several OPRA requests to Hightstown.

Colvell's May 10, 2019 OPRA request sought the following records relating to the incident:

1. Kevin Colvell - 05/02/2019 - All documentation (complaint-warrant, police reports, notes, etc.); all audio/video related to incident - during arrest, transports police station.

2.Colvell family - All information in CAD system; all police records, tickets, complaints made to [HPD], etc. in past; any audio/video.

3.[M.C.] - All documentation, police records, tickets audio/video of investigation for complaint-warrant; any telephone communications, records, etc. (May 2019 and any previous/past history).

4. 05/08/2019 - Audio/video of discussion with Sgt. Benjamin Miller #1113 in lobby of [HPD].

On May 20, 2019, Nancy Alexander, Hightstown's Administrative Assistant and Records Clerk, denied Colvell's request, indicating: (1) the request was overly broad as to the documents pertaining to the Colvell family and M.C.; (2) the documents were not "public records provided by law," because they affected the "[s]afety of persons or public," and included "[v]ictim records"; and (3)the requested "[a]udio/video does not exist."

On May 22, 2019, Colvell submitted two revised OPRA requests. The first sought the following records:

1. All documentation related to this matter - etc. (complaint-warrant, police reports, identity of arresting and investigative officers, length of investigation).

2.Information of circumstances surrounding the arrest - all audio/video of officers related to prior, during, transports and police station, etc.

The second sought the following additional records:

1. Police record of [M.C.] (complaint-summons history).

2. The audio/video of investigation for complaint-warrant.

3.Any telephone communications from [M.C.] to HPD for investigation.

4.Any police reports regarding complaint-warrant.

Alexander responded on May 30, 2022. Regarding the first set of requests, Alexander stated that information pertaining to the incident and arrest could not be provided because the case was "still under investigation and being reviewed by the Mercer County Prosecutor's Office." Regarding the second set of requests, Alexander provided responsive records as to Item No. 1 relating to M.C. but stated that Item Nos. 2-4 could not be provided because the case was "still under investigation and being reviewed by the Mercer County Prosecutor's Office."

On July 9, 2019, Colvell filed a Denial of Access complaint with the GRC that claimed the Hightstown failed to properly respond to her request. On July 12, 2019, the GRC requested a Statement of Information (SOI), which provided "an opportunity [for the Custodian of records] to respond to the [c]omplaint." The GRC requested the SOI within five business days. On July 24, 2019, the GRC sent a letter stating that it was "not yet in receipt of [the] SOI." That same day, Debra L. Sopronyl, Hightstown's Custodian of records (the Custodian) filed her SOI. The Custodian argued that the denied records fell under OPRA's criminal investigatory exception. The Custodian also asserted that the denied records fell under OPRA's victim exception, and that Colvell was not the victim of the alleged crimes. The Custodian found OPRA did not mandate release of the denied records.

On February 2, 2021, the GRC requested additional information from the Custodian. In particular, the GRC requested the Custodian provide a "legal certification" in response to the following inquiries:

1. In searching for responsive records, did you locate any "telephone communications" between [M.C.] and HPD pertaining to the relevant incident?

2. In searching for responsive records, did you locate any "audio/video from officers" pertaining to the relevant incident?

3. Please describe the search undertaken to locate the above responsive records.

The GRC requested a response by February 9, 2021. On March 16, 2021, following multiple reminders and status update requests, Alexander submitted a response to the GRC. In the response, Alexander certified that she did not locate any "telephone communications" between M.C. and HPD, and that "in order to locate such records, she would have needed to review sixteen [] separate telephone lines utilized by HPD and maintained by a third-party vendor," and "that she did not review those communication lines because there was an active criminal investigation pertaining to the incident and [Colvell] was not the alleged victim."

Alexander further certified that "audio/video from officers" was located, but "the incident was still under investigation" and the audio/video "included information about the alleged victim's identity and address." Alexander concluded the record did not need to be released. Finally, in relation to the "search undertaken," Alexander certified that she had searched HPD's records management system and in-car video reporting system. She also certified that at the time of the OPRA request, HPD was not utilizing body-worn cameras.

On March 23, 2021, the GRC issued the Findings and Recommendations of the Executive Director. Regarding Colvell's initial OPRA request, the Director found that Item Nos. 2-3 "did not include a reasonable time frame," and thus required the Custodian to conduct "open-ended research." The Director therefore found those record requests were "invalid."

Regarding the request for the identity of the arresting and investigating officers and the length of the investigation, the Director disagreed with the Custodian, finding OPRA requires disclosure of such information because no exception applied.

Regarding the request for the complaint-warrant, the Director disagreed with the Custodian, finding that the criminal investigatory records exception did not apply. The Director explained that the criminal investigatory records exception applied only if a record: (1) is not required by law to be made, and (2) pertains to a criminal investigation. The Director found that complaint-warrants are required by law to be made and therefore failed the first prong of the test. The Director found the Custodian "unlawfully denied access" to the complaint-warrant and should disclose it "with redactions where applicable."

As to Colvell's request for police records and notes, the Director found the Custodian "lawfully denied access" under the criminal investigatory records exception. The Director noted that "there [was] no evidence in the record demonstrating that 'police reports' and 'notes' are required by law to be maintained," and that "it [was] not in dispute that the relevant incident generating the records pertained to a criminal investigation."

Regarding Colvell's request for audio/video, the Director agreed with the Custodian that certain kinds of audio/video, such as that captured by "body-worn cameras," did not exist. Similarly, the Director found that audio/video of Colvell's "discussion with a specific officer [in] the HPD lobby" did not exist. The Director also agreed with the Custodian that to the extent other kinds of audio/video existed, they were exempt under the criminal investigatory records exception. The Director therefore concluded that the Custodian "lawfully denied access" to the records.

Regarding Colvell's request for telephone communications between M.C. and HPD, the Director found that "911 calls [are] required by law to be made and retained" and therefore "[can]not fall under OPRA's criminal investigatory records exemption." However, the Director noted that the Custodian "did not conduct a search for responsive records" making it "unknown whether [M.C.] contacted HPD through 911 or a non-emergency line." The Director concluded the Custodian "may have unlawfully denied access" to these records, and that the Custodian should "conduct a search for responsive records and provide [them] to [Colvell] with redactions where applicable."

Finally, the Director concluded that the "ongoing investigation" exemption did not apply to any of the requested records.

On March 30, 2021, the GRC adopted the Director's findings and recommendations. Its March 31, 2021 interim order required the Custodian to supply the identified records within five business days "with appropriate redactions including a detailed...