I had recently requested records from the Warren County Prosecutor that would identify the Warren County jail officers who took county-owned generators for their personal use in the aftermath of Superstorm Sandy.  Today, I received a polite brush-off from Assistant Prosecutor Tara J. Kirkendall.  My records request and Kirkendall’s response are on-line here.

Kirkendall disclosed that her office’s Major Crimes Unit initiated an investigation into this matter on November 19, 2012 and opened up Investigation Case Number IN12-096.  Kirkendall was also good enough to identify thirteen documents within the file that she said could not be released, mainly because they are claimed to be covered by the Open Public Records Act’s (OPRA) “criminal investigatory record” exception.  She did, however, disclose two documents–an “Investigative Closeout Review” and Prosecutor Richard T. Burke’s December 21, 2012 letter informing Sheriff David Gallant that there was “insufficient evidence to continue [his] investigation at this time.”  The accused officer’s name, however, was redacted from both records. 

As to my right to documents under the common law right of access, Assistant Prosecutor Kirkendall advised me:

As you are aware, under the common law, the right to examine documents rests upon a showing of some personal or particular interest in the material sought, balanced against the public’s interest in the confidentiality of the material. You indicate that you are a “citizen keenly interested in openness and transparency in all parts of New Jersey” and you believe that the individuals involved should be “publicly identified”. As no criminal charges were filed and the matter was handled as an internal affairs/personnel matter, the public’s interest in the confidentiality of the material is not outweighed by your generalized interest in the documents under the common law.

I am considering litigating this matter.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]