VIA EMAIL ([OPRA #3946 email]

ANONYMOUS

Re:      Request for Public Records Addressed to the Bergen County
Prosecutor’s Office dated February 4, 2019.

Dear Anonymous,

            Please be advised that this Office represents the interests of
the Bergen County Prosecutor’s Office (“BCPO”). The BCPO is in receipt of
your request for public records pursuant to the Open Public Records Act
(“OPRA”) [N.J.S.A. 47:1A-1, et. seq.] and the common law right of access,
dated February 4, 2019 and on behalf of the Custodian I am transmitting
the following response.  Specifically, you requested:

 1. All communications to and from Borough attorney Joe Rotollo regarding
possible election fraud in Rochelle Park.  Any investigations done and
all communications from anybody else involved in the allegations.

RESPONSE:        You have requested records related to someone who has

neither been arrested nor charged with committing an offense.  In essence,
this amount to inquiring whether a person who has neither been arrested
nor charged with committing an offense is, or has been, the subject of an
investigation.  The Bergen County Prosecutor’s Office will neither confirm
nor deny whether an individual who has neither been charged nor arrested
is, or has been, the subject of an investigation.  Law enforcement
agencies routinely receive allegations that are determined to be
unprovable, unfounded, or untrue.  Identifying the target of such
allegations could unfairly subject that individual to irreparable harm and
subject the office and its employees to civil liability and professional
discipline.  It is for this reason, among others, “that pursuant to
N.J.S.A. 47:1A-9(b), an exemption exists for information received or
maintained by law enforcement agencies regarding a person who has not been
arrested or charged with any offense.”  North Jersey Media Group Inc. V.
Bergen County Prosecutor’s Office, 2016 WL 4537908 (App. Div. 2016) at
page 12. 

            Additionally, “it is obvious that, in order to protect the
confidentiality of persons who have been the subject of the investigation
but not charged with any offense, the prosecutor must respond to requests
for such records uniformly.  To deny records exist in some cases and to
issue no denial in others would implicitly confirm the existence of
records in a particular cas, entirely defeating any effort to protect the
confidentiality interest at stake.”  North Jersey Media Group, supra., at
page 15.

            Other provisions of the Open Public Records Act (OPRA) itself
and other established principles in the criminal justice system also
support the need to protect the identities of uncharged individuals.  For
example, OPRA does not require a law enforcement agency to name suspects. 
When no arrest has been made, OPRA only requires a law enforcement agency
to disclose “the type of crime, time,  location and type of weapon, if
any.” N.J.S.A. 47:1A-3b.  By not including the names of suspects in the
list of items to be disclosed, the Legislature wisely chose to protect
suspects who may be exonerated without being charged from the public scorn
and stigma that can arise from being the target of criminal
investigation.  It is also for that reason, among others, that grand jury
proceedings are conducted in secret.  State v. Clement, 40 N.J. 139
(1963); In the Matter of the Essex County Grand Jury Investigation into
the Fire at Seton Hall University in South Orange, New Jersey On January
19, 2000, 368 N.J. Super. 269 (Law Div. 2003).

            For these reasons, the BCPO must deny your request and decline
to indicate whether it possesses any records that are responsive to it. 
Should litigation follow and any records exist, this office would submit
those records to a court for an in camera review and a determination of
what information and records, if any, should be disclosed.

            Additionally, if any records would exist, they would fall
under the criminal investigatory records exemption of OPRA,
N.J.S.A.47:1A-1.1 et seq.  Despite no charges being issued and yet and may
not issue does not change the status of the records, if any, being exempt
as criminal investigatory records.  Law enforcement agencies routinely
investigate matters of potential criminality in which no one is ultimately
charged with having committed a crime and/or the person charged with
committing a crime is exonerated.  That does not render the investigation
civil rather than criminal.  Lastly, it is unlikely that the Legislature
chose to protect the privacy interest if those convicted of committing
crimes by exemptinf the reports in their cases from disclosure under OPRA,
but to disregards the privacy interest of the innocent parties by
compelling disclosure of the reports in their cases.  Nothing in OPRA
suggests such an unjust result.      

            With respect to your request for these records pursuant to the
common law right of access, you fail to state any interest that you may
have in the records sought.  If your interest is that of a taxpayer then
my client offers the following response.  Please be advised that your
request is denied pursuant to the common law right of access as well. Your
interest in these documents is no greater than the average citizen’s. 
Whether an individual who may or may not be the subject of an
investigation, for which no charges have been brought, clearly outweighs
any interest that an individual taxpayer may have in the information, if
any exists.  Moreover, the New Jersey Supreme Court has established that
the court engaging in the required balancing test considers a variety of
factors, including:

(1) the extent to which disclosure will impede agency functions by
discouraging citizens from providing information to the government; (2)
the effect disclosure may have upon persons who have given such
information, and whether they did so in reliance that their identities
would not be disclosed; (3) the extent to which agency self-evaluation,
program improvement, or other decision-making will be chilled by
disclosure; (4) the degree to which the information sought includes
factual data as opposed to evaluative reports of policymakers; (5) whether
any findings of public misconduct have been insufficiently corrected by
remedial measures instituted by the investigative agency; and (6) whether
any agency disciplinary or investigatory proceedings have arisen that may
circumscribe the individual's asserted need for the materials.

[Loigman v. Kimmelman, 102 N.J. 98, 113 (1986) (citation omitted).]

As many of the relevant factors indicate, the clear privacy right of
someone who has not been charged, as stated above, clearly outweighs a
taxpayer interest in knowing whether an investigation is or is not taking
place involving such individual.  The BCPO can neither confirm nor deny
whether an investigation is taking place and therefore the request under
the common law is likewise denied. 

If you have any questions, you may contact me at the email address or
phone number above.  Should you disagree with this decision, you have the
right to appeal. OPRA permits a person who believes he or she has been
illegally denied access to a public record to file a complaint with the
GRC, or file suit in Superior Court to challenge the decision and compel
disclosure.  For more information, you may contact GRC by phone at
1-866-850-0511, by e-mail at [1][email address], or visit the GRC web
site at [2]www.nj.gov/grc.

                                                                             
Very truly yours,

                                                                             
/s/   Craig P. Bossong

c:  Client (via email)

Craig P. Bossong, Esq.

Florio, Perrucci, Steinhardt & Cappelli LLC
218 Route 17 North – Suite 410

Rochelle Park, New Jersey 07662

(p) 201-843-5858

(d) 201-373-8933

(f) 201-843-5877

══════════════════════════════════════════════════════════════════════════

STATEMENT OF CONFIDENTIALITY: The information contained in this
transmission including any attached documentation is privileged and
confidential. It is intended only for the use of the individual or entity
named above. If the reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution or copy of
this communication is strictly prohibited. If you have received this
communication in error, please notify Florio, Perrucci, Steinhardt, &
Cappelli LLC immediately by replying to this e-mail. Please delete all
copies of this message and any attachments immediately.

IRS CIRCULAR 230 DISCLOSURE: As required by U.S. Treasury Regulations
governing tax practice, you are advised that any written tax advice
contained herein was not intended or written to be used, and cannot be
used, by any taxpayer for the purpose of avoiding tax penalties that may
be imposed under the Internal Revenue Code.

References

Visible links
1. mailto:[email address]
2. http://www.nj.gov/grc

Please see attached response.

Craig P. Bossong, Esq.

Florio, Perrucci, Steinhardt & Cappelli LLC
218 Route 17 North – Suite 410

Rochelle Park, New Jersey 07662

(p) 201-843-5858

(d) 201-373-8933

(f) 201-843-5877

══════════════════════════════════════════════════════════════════════════

STATEMENT OF CONFIDENTIALITY: The information contained in this
transmission including any attached documentation is privileged and
confidential. It is intended only for the use of the individual or entity
named above. If the reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution or copy of
this communication is strictly prohibited. If you have received this
communication in error, please notify Florio, Perrucci, Steinhardt, &
Cappelli LLC immediately by replying to this e-mail. Please delete all
copies of this message and any attachments immediately.

IRS CIRCULAR 230 DISCLOSURE: As required by U.S. Treasury Regulations
governing tax practice, you are advised that any written tax advice
contained herein was not intended or written to be used, and cannot be
used, by any taxpayer for the purpose of avoiding tax penalties that may
be imposed under the Internal Revenue Code.