Dear Franklin Township,
Under section 3(b) of the Open Public Records Act (NJSA 47:1A-3(b)), please provide all required information about the arrest(s) of Matthew D. Ellery in the month of April 2019.
Under OPRA and the common law right of access, please also provide copies of all criminal complaints, summonses, warrants, CAD reports, incident reports, arrest reports, crash reports, other reports, 911 recordings, radio transmissions, MVR recordings, and other video/audio recordings related to the case. I am a journalist working on an article about the case for New Brunswick Today.
I have received the responsive record, a single redacted summons. I must take issue with the redaction to the address. Why has a portion of the address on the summons been omitted from your response?
Further, I would ask you to re-examine section 3(b) of the OPRA statute and your response to my request. Requests made under this section of OPRA are NOT requests for records, they are actually lawful requests for "information." However, you stated in your denial that FTPD is "is in possession of no records responsive to this request." I will kindly ask you to reconsider this denial and provide the information requested.
See the statue below.
Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:
where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;
if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or Court Rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered;
if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or Court Rule;
information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;
information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;
information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and
information as to circumstances surrounding bail, whether it was posted and the amount thereof.
Thank you kindly.
My office is in receipt of your follow-up E-mail regarding the Township's response to your request under the Open Public Records Act and Common law. Please accept this E-mail as our official response:
Regarding your issue with the redacted address: After discussing this issue with the Official Custodian of Records, Ann Marie McCarthy, it was determined to provide you with a copy of the summons with only the NJ Driver’s License redacted. This record is provided herein.
Regarding your request for re-examination of section 3(b) of the OPRA Statue:
NJSA 47:1A-3(b) states, “Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:
where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;”
On 4/15/2019 a summons was issued to Matthew Ellery alleging a violation of NJSA 39:4-50 (DWI) on 4/7/19. The summons provided outlines the date, time and location of the offense. As stated in the Township’s initial response, the Somerset County Prosecutor’s Office has an ongoing and active investigation into this matter to determine if a crime has occurred. To date no criminal charges have been filed and there has yet to be a determination if a crime has occurred. For this reason, this provision of the statute does not apply. As such, information beyond that which is contained within the summons is not appropriate to release at this time.
Further inquiries into this matter should be directed to the Somerset County Prosecutor’s Office as they are the lead investigators to this incident.
Lieutenant Philip J. Rizzo
Professional Services Division
495 Demott Lane
Somerset, NJ 08873