Civil asset forfeiture

Dear Mr. Turbay:

With reference to your OPRA Request Tracking #7059, please find attached response from the West New York Police Department, which is self-explanatory.

Please be advised that any future OPRA requests must be directed to the Custodian of Record's office and not to the independent offices and/or departments within the Town of West New York. Failure to comply may result in a delay in a timely response to your requests. Kindly submit future requests to Townclerk@westnewyorknj.org<mailto:Townclerk@westnewyorknj.org> .

This completes your request. There is no charge for same

Very truly yours,

Adelinny Plaza
Town Clerk's Office-Town of West New York
428 60th Street, Rm 2
West New York, New Jersey
Phone: (201) 295-5090
E-mail: Aplaza@westnewyorknj.org<mailto:Aplaza@westnewyorknj.org>
Website: www.Westnewyorknj.org<http://www.Westnewyorknj.org>

Mr. Turbay:

This office provided you with a response on April 6, 2017. Your request is deemed complete.

Please check to see if our e-mail was inadvertently sent to your junk box.

Very truly yours,

Adelinny Plaza
Town Clerk's Office-Town of West New York
428 60th Street, Rm 2
West New York, New Jersey
Phone: (201) 295-5090
E-mail: Aplaza@westnewyorknj.org<mailto:Aplaza@westnewyorknj.org>
Website: www.Westnewyorknj.org<http://www.Westnewyorknj.org>

Good afternoon Beryl,

Thank you for contacting the NJ Government Records Council ("GRC"). The information provided by the GRC is guidance and does not constitute legal advice or a final decision of the GRC regarding whether a particular record is exempt from disclosure or not since the provisions of the Open Public Records Act ("OPRA") are applied to the specific facts of the request and/or complaint. Specifically, the GRC adjudicates denial of access complaints filed against state and local government records custodians.

Generally, OPRA provides that "... government records shall be readily accessible for inspection, copying, or examination .... with certain exceptions ..." N.J.S.A. 47:1A-1. Additionally, OPRA defines a government record as a record "made, maintained or kept on file ... or that has been received in the course of ... official business ..." N.J.S.A. 47:1A-1.1. Also, OPRA requires a custodian to grant access, deny access, request an extension of the statutory response time, or seek clarification of the request as soon as possible but no later than seven (7) business days from receipt of the request. N.J.S.A. 47:1A-5(i). OPRA further requires that custodians prove and inform requestors of the lawful basis for any denial of government records. N.J.S.A. 47:1A-6.

Regarding your inquiry, the GRC does not have much experience with a county's Forfeiture Program Reports. Further, the GRC does not engage in crafting OPRA requests for requestors. Based on the e-mail chain you provided, it would appear that your request was denied as invalid for failing to identify a particular record. To this end, the following may provide some guidance on that issue:

The New Jersey Superior Court has held that "[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records 'readily accessible for inspection, copying, or examination.' N.J.S.A. 47:1A-1." (Emphasis added.) MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005). The Court further held that "[u]nder OPRA, agencies are required to disclose only 'identifiable' government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files." Id. at 549 (emphasis added.).

In determining that MAG's request for "all documents or records" from the Division of Alcoholic Beverage Control pertaining to selective enforcement was invalid under OPRA, the Appellate Division noted that:

Most significantly, the request failed to identify with any specificity or particularity the governmental records sought. MAG provided neither names nor any identifiers other than a broad generic description of a brand or type of case prosecuted by the agency in the past. Such an open-ended demand required the Division's records custodian to manually search through all of the agency's files, analyze, compile and collate the information contained therein, and identify for MAG the cases relative to its selective enforcement defense in the OAL litigation. Further, once the cases were identified, the records custodian would then be required to evaluate, sort out, and determine the documents to be produced and those otherwise exempted.

Id.

Further, in Bent v. Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005), the Superior Court references MAG in that the Court held that a requestor must specifically describe the document sought because OPRA operates to make identifiable government records "accessible." "As such, a proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents."

Additionally, in NJ Builder's Assoc. v. NJ Council on Affordable Hous., 390 N.J. Super. 166, 180 (App. Div. 2007) the court cited MAG by stating that "...when a request is 'complex' because it fails to specifically identify the documents sought, then that request is not 'encompassed' by OPRA..." The court also quoted N.J.S.A. 47:1A-5(g) in that "'[i]f a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.'" The court further stated that "...the Legislature would not expect or want courts to require more persuasive proof of the substantiality of a disruption to agency operations than the agency's need to...generate new records..."

Furthermore, in Schuler v. Borough of Bloomsbury, GRC Complaint No. 2007-151 (February 2009) the Council held that "[b]ecause the Complainant's OPRA requests # 2-5 are not requests for identifiable government records, the requests are invalid and the Custodian has not unlawfully denied access to the requested records pursuant to [MAG] and [Bent]."

To this end, below is a section from the GRC's Frequently Asked Questions for Custodians (No. 22 - "What is a broad and/or unclear request?" http://www.nj.gov/grc/custodians/faqs/#22):

A broad and/or unclear request fails to name specific government records, or requires the custodian to conduct research.

Example of an overly broad request: "Any and all records related to the construction of the new high school."

The term "records" does not reasonably identify a specific government record.

Example of a valid request: "Any and all e-mails between Jane Doe and John Smith regarding the construction of the new high school from January 1, 2009 to February 28, 2009."

This request identifies a specific type of record, parties to the correspondence, dates and subject matter.

Example of a request that requires research: "all meeting minutes from 2011 in which the Council discussed Jane Doe, Human Resource Manager."

This request is invalid because it requires the custodian to research/read through all the 2011 minutes to determine when the Council discussed Jane Doe, Human Resource Manager.

Example of a valid request: "all meeting minutes from 2011."

The requestor would then have to conduct his own research to determine which minutes contain the subjects in which he is interested.

A custodian may either deny an overly broad/unclear request, or seek clarification of the request. The custodian's request for clarification must be in writing, within seven (7) business days of receipt of the request. If a custodian seeks clarification of an OPRA request, the response time clock stops until the requestor provides a response to the custodian.

Ultimately, if you believe you are unlawfully denied access to government records, you may file an action in Superior Court and pay the court filing fee or file a denial of access complaint with our agency (the Government Records Council). Please note that filing in court may result in your complaint being resolved more quickly than filing with the GRC. Additionally, the court can assess your common law right of access whereas the GRC cannot. Should you choose to file a complaint in Superior Court, you must contact the Court Clerk for the county in which you plan to file. Should you choose to file a complaint with the GRC, you must download a Denial of Access Complaint form from our website (http://www.nj.gov/grc/register/), fill it out and send it to our agency.

All Denial of Access Complaints must be submitted to the following:

Government Records Council
101 South Broad Street
PO Box 819
Trenton NJ 08625-0819
or
(609) 633-6337 Fax
or
Government.Records@dca.nj.gov<mailto:Government.Records@dca.nj.gov>

Sincerely,

Frank F. Caruso
Government Records Council
Communications Specialist/Resource Manager
Tel: (609) 292-6830 | Fax: (609) 633-6337
http://www.state.nj.us/grc/
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