1. law, govt and politics

PASHMAN STEIN
A Professional Corporation
Court Plaza South
21 Main Street, Suite 100
Hackensack, NJ 07601
(201) 488-8200
CJ GRIFFIN (#031422009)
Attorneys for Plaintiff,
John Paff
: SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: MONMOUTH COUNTY
JOHN PAFF,
Plaintiff,
: DOCKET NO.:
v.
TOWNSHIP OF NEPTUNE and
•
RICHARD J. CUTTRELL, R.M.C., in his
capacity as Records Custodian for the Township :
of Neptune,
Civil Action
VERIFIED COMPLAINT
Defendants.
Plaintiff, John Paff, through his undersigned counsel, Pashman Stein, A Professional
Corporation, complains against the Defendants as follows:
1.
This is an action alleging violation of the New Jersey Open Public Records Act,
N.J.S.A. 47:1A-1 to -13, ("OPRA"), and the common law right of access to public records,
seeking access to a video tape made, maintained, and kept on file by Defendant Township of
Neptune.
PARTIES
2.
Plaintiff John Paff is an open government activist and Chairman of the New
Jersey Libertarian Party's Police Accountability Project, which sheds light on police misconduct.
His mailing address is P.O. Box 5424, Somerset, New Jersey, 08875.
3.
Defendant Township of Neptune ("Neptune") is a municipal entity, formed under
the laws of the State of New Jersey, with a primary place of business at 25 Neptune Blvd,
Neptune, New Jersey, 07753.
4.
Defendant Richard J. Cuttrell, R.M.C. ("Cuttrell") is the Municipal Clerk and
Records Custodian for Defendant Neptune. Cuttrell maintains an office at 25 Neptune Blvd,
Neptune, New Jersey, 07753.
VENUE
5.
Venue is properly laid in Monmouth County because Defendant Neptune is
located in Monmouth County and because the cause of action arose in Monmouth County. R.
4:3-2(a).
FACTUAL ALLEGATIONS
6.
On January 7, 2015, Plaintiff submitted a request for public records pursuant to
OPRA and the common law right of access to Defendants.
7.
Specifically, Plaintiff's request sought the police dash cam video and audio
footage of the police stop of Maurice Mitchell that occurred on October 19, 2014 and any CDR
(complaints) issued against Mitchell.
8.
On January 13, 2015, Defendants responded to Plaintiff's request and provided a
complaint issued against Mitchell for resisting arrest, in violation of N.J.S.A. 2C:29-2(A)(1) and
obstruction, in violation of N.J.S.A. 2C:29-1A. [Attached as Exhibit A is a true and accurate
copy of Defendants' January 13, 2015 OPRA response.]
9.
Defendants denied Plaintiff's request for the dash cam video and audio footage
claiming it was exempt from access pursuant to Executive Order 69. Specifically, Defendants
wrote:
2
This is not a public record under [OPRA] as per Executive Order
#69 which specifically excludes from release "fingerprint cards,
plates and photographs and similar criminal investigation records
that are required to be made, maintained or kept by any State or
local government agency." A police Dashboard Video is also
excluded from disclosure under the same Executive Order as
interpreted by the Superior Court of New Jersey, Appellate
Division in the case of North Jersey Media v. Borough of Paramus
(A-5349-10T4) decided by the court on July 13, 2013 affirming the
lower court's decision that "a video may be described as a
compilation of many photographs." Accordingly, "access to the
police video recordings may be precluded pursuant to EO No. 69
as disclosure of the information would otherwise be
inappropriate."
[Exhibit A.]
10.
To date, Defendants have not released the October 19, 2014 police dash cam
video or audio.
11.
Plaintiff seeks this police dash cam footage because it pertains to a charge of
resisting arrest, a charge that implicates First Amendment issues and a charge that those who
monitor police misconduct believe is often used to justify a use of force by police officers.
FIRST COUNT
(Violation of OPRA)
12.
Plaintiff repeats and incorporates by reference the allegations set forth in the
preceding paragraphs as though fully set forth at length herein.
13.
Pursuant to N.J.S.A. 47:1A-1, all government records must be "readily
accessible" to the citizens of this State unless specifically exempted by law.
14.
The requested record is a government record subject to OPRA because it was
"made, maintained or kept on file," or "received in the course of ... [Defendant's] official
business." N.J. S .A. 47:1A-1.1.
3
15.
The requested police dash cam audio and video footage is not subject to any
exemption under OPRA.
16.
Defendants therefore should have provided Plaintiff the dash cam audio and video
footage within.
17.
Accordingly, Defendants have violated OPRA by:
(a) Failing to grant timely access to government records by as required by
N.J.S.A. 47:1A-1.
(b) Failing to state a specific lawful basis for denying access to records, as
required by N.J.S.A. 47:1A-1.
WHEREFOR, Plaintiff demands judgment against Defendants:
(a) Declaring said actions of Defendants to be in violation of OPRA, N.J.S.A.
47:1A-1 et seq. by failing to grant timely access to the requested police dash
cam video and audio footage, as required by OPRA;
(b) Directing Defendants to release the requested police dash cam audio and
video footage to Plaintiff forthwith. Alternatively, if the Court believes that
any information is exempt from public access, Plaintiff respectfully asks the
Court to review the record in camera review and then require Defendants to
delete or excise from the records the portion(s) which are exempt from public
access and promptly permit access to the remainder of the records;
(c) Awarding counsel fees and costs pursuant to N.J.S.A. 47:1A-6; and
(d) For such other relief as the Court may deem just and equitable.
4
SECOND COUNT
(Common Law Right of Access)
18.
Plaintiff repeats and incorporates by reference the allegations set forth in the
preceding paragraphs as though fully set forth at length herein.
19.
The public's need for access to the requested record is greater than Defendant's
need for secrecy.
20.
Defendant's failure to disclose the requested government record violated
Plaintiff's common law right of access.
WHEREFORE, Plaintiff demands judgment against Defendants:
(a) Declaring said actions of Defendants to be unlawful and invalid;
(b) Directing Defendants to release the requested police dash cam video and
audio footage to Plaintiff forthwith;
(c) Awarding counsel fees and costs; and
(d) Granting such other relief as the Court may deem just and equitable.
PASHMAN STEIN
A Professional Corporation,
Attorneys for Plaintiff,
John Paff
Dated: February 19, 2015+
By:
CJ GRIFFIN, ESQ.
5
CERTIFICATION PURSUANT TO R. 4:5-1
Plaintiff, by his attorney, hereby certifies that the matter in controversy is not the subject
of any other action pending in any Court and is likewise not the subject of any pending
arbitration proceeding. Plaintiff further certifies that he has no knowledge of any contemplated
action or arbitration regarding the subject matter of this action and that Plaintiff is not aware of
any other parties who should be joined in this action.
PASHMAN STEIN
A Professional Corporation,
Attorneys for Plaintiff,
John Paff
Dated: February 19, 2015
By:
CJ GRIFFIN, ESQ.
6
VUMFICATION
John Paff, of full age, deposes and says:
1.
T at a citizen of the State of New Jersey, Plaintiff in the foregoing Verified
Complaint.
2.
I have read the Verified Complaint. The allegations of the Verified Complaint
contained in Paragraphs 3-5, and 841 are true. The said Verified Complaint is based on personal
knowledge and is made in truth and good faith and without collusion, for the causes set forth
herein. As to any facts alleged to lie upon information and belief, I believe those facts to be true,
3, All documents attached to the Verified Complaint and Brief are true copies and
have not been redacted, Changed, modified, adjusted or otherwise altered in any manner by me or
my agents unless so stated.
I certify that the foregoing statements made by me are hue. I am aware that if any of the
foregoing statements made by the ate *Wittily false, f am subject to punishment.
Dated: February 18, 201S
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CERTIFICATION OF FAX/ELECTRONIC SIGNATURE
CJ Griffin, Esq., of full age, certifies and says as follows:
1.
I am an attorney at law with the law firm of Pashman Stein, P.C. I make this
certification of the genuineness of the electronic signature of Richard Rivera.
2.
I hereby certify that Mr. Paff acknowledge to me the genuineness of his signature
on the foregoing Certification.
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
PASHMAN STEIN
A Professional Corporation,
Attorneys for Plaintiff,
John Paff
Dated: February 19, 2015
By:
CJ GRIFFIN, ESQ
8
EXHIBIT A
TOWNSHIP OF NEPTUNE
GOVERNMENT RECORDS REQUEST RESPONSE
To:
John Paff
Date of Request:
January 7, 2015
Date: January 13, 2015
hereby acknowledge that I have received the documents requested except for any
documents specifically listed below on which a determination has been made that the documents
will not be provided. if any documents have not been provided, the information of the procedures for
any appeal are printed below.
Applicant:
Date:
/
/20
The document(s) listed below and requested by you are not being provided because the
document or documents are not public records as provided by law for the following reason:
The Police Dash cam video and audio of the police stop of Maurice Mitchell on
October 19, 2014.
This is not a public record under as per Executive Order #69 which specifically
excludes from release "fingerprint cards, plates and photographs and similar criminal
investigation records that are required to be made, maintained or kept by any State or local
governmental agency". A police Dashboard Video is also excluded from disclosure under
the same Executive Order as interpreted by the Superior Court of New Jersey, Appellate
Division in the case of North Jersey Media v. Borough of Paramus (A-5349-10T4) decided by
the court on July 13, 2013 affirming the lower court's decision that "a video may be
described as a compilation of many photographs." Accordingly, "access to the police video
recordings may be precluded pursuant to EA No 69 as disclosure of the information would
be otherwise inappropriate.
You have a right to appeal the decision that the document(s) are not public records. At your
option, you may institute a proceeding to challenge this decision by filing an action in Superior Court
which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been
designed to hear such cases because of that judge's knowledge and expertise in matters relating to
access to government records or in lieu of filing an action in Superior Court, file a complaint with the
Government Records Council established pursuant to Section 8 of P.L. 2001, c.404 (C.47:1A-7)
The right to institute any proceeding under this section shall be solely that of the requestor.
Any such proceeding shall proceed in a summary or expedited manner. The public agency shall
have the burden of proving that the denial of access is authorized by law. If it is determined that
access has been improperly denied, the court or agency head shall order that access be allowed. A
requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.
Township Official:
Date: 1/13/15
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25 NEPTUNE BLVD
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certification or on oath, the complainant says that to the best of his/her knowledge, Information and belief the named
defendant on or about 10 19 2014 In trarruNE TWP
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MONMOUTH County,Na did:
By
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WITHIN THE JURISDICTION OF THIS COURT, PURPOSELY PREVENT A LAW ENFORCEMENT
OFFICER FROM EFFECTING A LAWFUL ARREST, SPECIFICALLY BY 'REFUSING TO BE HANDCUFFED
AFTER BEING TOLD HE WAS UNDER ARREST FOR OBSTRUCTION . , IN VIOLATION OF
N.J.S. 2C:29-2 (A) 1.
WITHIN THE JURISDICTION OF THIS COURT, PURPOSELY OBSTRUCT, IMPAIR, OR PERVERT
THE ADMINISTRATION OF LAW OR A GOVERNMENTAL FUNCTION BY MEANS OF PHYSICAL
INTERFERENCE OR OBSTACLE, SPECIFICALLY BY REFUSING TO COMPLY WITH PO ESPINOSA ' S
COMMANDS TO EXIT HIS VEHICLE DURING A DUI POLICE INVESTIGATION, IN VIOLATION OF
N.J.S. 2C:29-1A.
PROBABLE CAUSE: DANGER TO SELF, OTHERS AND/OR PROPERTY
in violation of:
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CERTIFICATION:
I certify that the foregoing statements made by'me are true. I am aware that if any of the foregoing statements made by me are-wilfully false,
I am subject to
punishment
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PashmanStein
February 19, 2015
VIA OVERNIGHT MAIL
Honorable Lisa P. Thornton, A.J.S.C.
New Jersey Superior Court, Monmouth County
71 Monument Park, 3rd Floor
Freehold, NJ 07728
Re: John Paff v. Township of Neptune, et al.
Our File No. 9932-001
Dear Judge Thornton:
This firm represents Plaintiff, John Paff, in the above-captioned matter. Please accept this
letter brief, in lieu of a more formal brief, in support of Plaintiff's application for an Order to
Show Cause seeking relief from Defendants' unlawful response to the Open Public Records Act
("OPRA") Requests identified in the Verified Complaint and discussed in detail below.
STATEMENT OF FACTS
On January 7, 2015, Plaintiff submitted a request for public records pursuant to OPRA
and the common law right of access to Defendants. Specifically, Plaintiffs request sought the
police dash cam video and audio footage of the police stop of Maurice Mitchell that occurred on
October 19, 2014 and any CDR (complaints) issued against Mitchell.
On January 13, 2015, Defendants responded to Plaintiffs request and provided a
complaint issued against Mitchell for resisting arrest, in violation of N.J.S.A. 2C:29-2(A)(1) and
obstruction, in violation of N.J.S.A. 2C:29-1A. [See Exhibit A to the Verified Complaint.]
Defendants, however, denied Plaintiffs request for the dash cam video and audio footage
claiming it was exempt from access pursuant to Executive Order 69. Specifically, Defendants
wrote:
Pashman Stein, PC
Court Plaza South
21 Main Street, Suite 100
Hackensack, NJ 07601
Phone: 201.488.8200
Fax: 201.488.5556
www.pashmansteln.com
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 2
PashmanStein
This is not a public record under [OPRA] as per Executive Order
#69 which specifically excludes from release "fingerprint cards,
plates and photographs and similar criminal investigation records
that are required to be made, maintained or kept by any State or
local government agency." A police Dashboard Video is also
excluded from disclosure under the same Executive Order as
interpreted by the Superior Court of New Jersey, Appellate
Division in the case of North Jersey Media v. Borough of Paramus
(A-5349-10T4) decided by the court on July 13, 2013 affirming the
lower court's decision that "a video may be described as a
compilation of many photographs." Accordingly, "access to the
police video recordings may be precluded pursuant to EO No, 69
as disclosure of the information would otherwise be
inappropriate."
[Exhibit Al
To date, Defendants have not released the October 19, 2014 police dash cam video or audio.
LEGAL ARGUMENT
I. DEFENDANTS HAVE VIOLATED OPRA BY UNLAWFULLY DENYING
ACCESS TO THE OCTOBER 19, 2014 POLICE DASH CAM VIDEO AND
AUDIO FOOTAGE
OPRA reflects New Jersey's "history of commitment to public participation in
government" and its "tradition favoring the public's right to be informed about governmental
actions." South Jersey Pub. v. N.J. Expressway, 124 N.J. 478, 486-87 (1991). The statute's
"purpose is 'to maximize public knowledge about public affairs and to minimize the evils
inherent in a secluded process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting
Lakewood Residents Ass'n. v. Twp. of Lakewood, 294 N.J. Super. 207, 225 (Law Div.
1994)). A citizen's right to access public records has been deemed "unfettered" absent a
statutory exemption. Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super.
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 3
PashmanStein
373, 382-83 (App. Div. 2003) (emphasis added). Accordingly, pursuant to OPRA,
government records shall be readily accessible for inspection, copying, or
examination by the citizens of this State, with certain exceptions, for the
protection of the public interest, and any limitations on the right of
access accorded by [OPRAI shall be construed in favor of the public's
right of access...
IN. J. S . A. 47:1A-1 (emphasis added).]
It is the public agency's burden to prove that denial of access is authorized by law. N.J.S.A.
47:1A-6. For the reasons argued below, Defendants cannot meet their burden of proof.
A. The Requested Documents are "Government Records"
Under OPRA, the first question to be addressed is whether the requested records are, in
fact, government records. OPRA broadly defines the term to include:
[A]ny paper, written or printed book, document, drawing, map, plan,
photograph, microfilm, data processed or image processed document,
information stored or maintained electronically or by soundrecording or in a similar device, or any copy thereof, that has been
made, maintained or kept on file in the course of his or its official business
by any officer, commission, agency or authority of the State or of any
political subdivision thereof, including subordinate boards thereof, or that
has been received in the course of his or its official business by any such
officer, commission, agency, or authority of the State or of any political
subdivision thereof, including subordinate boards thereof.
IN.J.S.A. 47:1A-1.1 (emphasis added).]
This general definition of "government records" applies to the records subject to Plaintiff's
OPRA requests, as police dash cam video and audio footage is "made, maintained or kept on file
in the course of [Neptune's] official business" and is "information stored or maintained
electronically or by sound recording or in a similar device." N.J.S.A. 47:1A-1.1. Thus, unless
an exemption applies, the police dash cam footage is a "government record" subject to access
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 4
PashmanStein
under OPRA.
a. Neither Executive Order 69 Nor the Paramus Case Exempts the Dash Cam
Footage
Defendants denied access to the police dash cam video and audio footage, maintaining
that it is exempt from access pursuant to Executive Order 69 (Whitman, 1997). 1 Defendants
"must produce specific reliable evidence" sufficient to prove their asserted exemption.
Courier
News v. Hunterdon Cnty. Prosecutor's Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003).
As argued herein, Defendants cannot meet this burden.
Executive Order 69 ("EO 69") exempts "fingerprint cards, plates and photographs and
similar criminal investigatory records that are required by law to be made, maintained or kept by
any State or local government agency." EO 69, §2. Not withstanding this provision, however,
EO 69 mandates that enumerated information be available within 24 hours of a request,
including:
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 the police.
[EO 69, §3(f).]
EO 69 allows denial of access to this information only if the information requested will
jeopardize the safety of any person, jeopardize any investigation in progress or would otherwise
be inappropriate to release. EO 69, §4. However, Section 4 of EO 69 also states, "[t]his section
is intended to be narrowly construed to prevent disclosure of information which would be truly
harmful to a bona fide law enforcement purpose or public safety if released." Ibid. Sections 3
1
Attached as Exhibit 1 to the Certification of CJ Griffin, Esq. ("Griffm Cert.").
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 5
PashmanStein
and 4 of EO 69 are parroted by N.J.S.A. 47:1A-3(b), which is the ongoing investigation
exemption to OPRA.
Defendants rely on an unpublished opinion, North Jersey Media Grp. Inc. v. Borough of
Paramus, No. A-5349-10T4, 2012 WL 2865787 (App. Div. July 13, 2012) ("Paramus"), in
support of its position that EO 69 exempts the dash cam footage at issue. Of course, as an
unpublished opinion, the Paramus decision is not binding upon this court and carries no
precedential weight. R 1:36-3. It can also be easily distinguished from this case.
In Paramus, reporters for The Record had requested a video tape that captured the
shooting of a police officer. Paramus, supra, 2012 WL 2865787 at *1. The lower court held that
the "video may be described as a compilation of many photographs," which would be covered by
the "similar criminal investigatory records" provision of EO 69. Paramus, supra, 2012 WL
2865787 at *3. The lower court also noted that Section 2 of EO 69 mandates release of certain
information within the records within 24 hours, but held that the circumstances present warranted
application of the narrow exception of that rule because access would be "otherwise
inappropriate" based on the officer's reasonable expectation of privacy. Specifically, the judge
concluded that it was "clear the aims of OPRA which would allow for disclosure are clearly
outweighed by [the officer's] privacy, namely being shot four times followed by her shooter's
shooting and ultimately killing himself" Id. at *3. In other words, had the video not depicted
such gruesome details that implicated the officer's significant privacy interest and thus was
"otherwise inappropriate" to release, the lower court would have found that it was accessible
pursuant to Section 3 of EO 69. Indeed, on at least one other occasion, the same judge has
granted access to dash cam video under OPRA. See North Jersey Media Group Inc. v. Twp. of
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 6
PashmanStein
Lyndhurst, Docket No. BER-L-19048-14, 2015 WL 223064 (Law Div. Jan. 12, 2015) (finding
public agencies in violation of OPRA for denying access to dash cam video and other records). 2
Those significant privacy interests are not at issue in this case. Even if this Court finds
that it is exempted by EO 69, the Paramus decision does not bar disclosure of the requested
police dash cam video and audio footage of Mr. Mitchell's arrest. EO 69 clearly mandates that
specific information be released to the public within 24 hours. The requested dash cam footage
plainly contains such information. Specifically, it depicts "information of the circumstances
immediately surrounding the arrest," especially the alleged "resistance" by the suspect. When
applying N.J.S.A. 47:1A-3(b), which parrots Sections 3 and 4 of EO 69, our courts have held that
public agencies must produce the actual records that contain such information. To the extent that
a record "contains more information than enumerated in N.J.S.A. 47:1A-3(b), then [defendants]
enjoy[] the right to redact" such records. Ganzweig v. Twp. of Lakewood, No. OCN-L-1292-14
(Law Div. Oct. 2, 2014) (slip op. at 10). 3 See also North Jersey Media Group Inc. v. Twp. of
Lyndhurst, supra ("Any record containing any information specified in N.J.S.A. 47:1A-3(b) must
be released, though other information may be redacted from the record if it fell under another
exception to OPRA.").
Simply put, the Paramus decision is not controlling and involved a completely different
set of facts that implicated serious privacy concerns that are not present in most cases, including
this one. Indeed, numerous courts have granted access to dash cam video or other video footage
since the Paramus decision was decided. See, e4., Paff v. Ocean County Prosecutor's Office,
Docket No. OCN-L-1645-14, 2014 WL 5139407 (Law Div. Oct. 2, 2014) (finding public agency
2
3
Attached as Exhibit 2 to the Griffin Cert.
Attached as Exhibit 3 to the Griffin Cert.
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 7
PashmanSteir.
in violation of OPRA for denying access to dash cam video footage that captured behavior of
police officer during motor vehicle stop that resulted in charges of aggravated assault and official
misconduct against that officer); 4 Ganzweig v. Twp. of Lakewood, supra (finding public agency
in violation of OPRA for denying access to dash cam video footage of traffic stop that allegedly
captured illegal search of vehicle); Mark Demitroff v. Buena Vista Two., Docket No. ATL-L5662-14, 2014 WL 6666948 (Law Div. Nov. 18, 2014) (finding public agency in violation of
OPRA for denying access to security video footage). 5 This Court too should find that
Defendants violated OPRA by denying access to the police dash cam footage.
b. The Paramus Court Erred in Holding that Video is Included in Executive
Order 69's Exemptions
Plaintiff maintains that Paramus lower court6 erred by holding that a video is exempt
under EO 69 and that this Court should rule differently. The Executive Order exempts
"fingerprint cards, plates and photographs and similar criminal investigatory records that are
required by law to be made, maintained or kept by any State or local government agency." EO
69, §2. The Paramus lower court erroneously held that a video could be described as a
compilation of photographs. It is clear, however, based on well-settled principles of statutory
interpretation that the language of E0 69 that it sought only to exempt a particular type of
photograph, not all photographs, and certainly not video.
When faced with a question of interpretation of a law, the first thing to be considered is
the plain meaning of the law. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super. 500,
Attached as Exhibit 4 to the Griffin Cert.
Attached as Exhibit 5 to the Griffin Cert.
While the Appellate Division affirmed the decision, it did so in an non-precedential unpublished case and simply
affirmed the lower court's reasoning as a whole, which denied access to the video on several grounds.
4
5
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 8
PashmanSt6ri,
507 (App. Div. 2008). Noscitur a sociis, "an ancient maxim of statutory construction[,]" stands
for the principle "that the meaning of words may be indicated and controlled by those with which
they are associated." Herzog v. Twp. of Fairfield, 349 N.J. Super. 602, 607, 794 A.2d 230, 233
(App. Div. 2002). New Jersey Courts also recognize the principle of inclusio unius, which
holds that the expression or inclusion of one thing in a statute implies the exclusion of
another. See, e.g., Ryan v. Renny, 203 N.J. 37 (2010); In re Estate of Santolino, 384 N.J.
Super. 567, 581 (Ch. Div. 2005) ("[i]f the drafter of a statute mentions one circumstance
specifically, the implication is that the other circumstances, which just as logically could have
been mentioned, were intentionally omitted."); see also "Expressio Unius Est Exclusio
Alterius," Black's Law Dictionary (9th ed. 2009). Thus, EO 69 should be construed in
accordance with the plain meaning of its language and in a manner that makes sense when read
in the context of the entire Executive Order, taking note of what the drafter has chosen to include
in an enumerated list and what the drafter has chosen to exclude from an enumerated list.
The plain language of EO 69 makes it clear that videos are not included in the
exemptions. Notably, in drafting EO 69, Governor Whitman chose not to include videos in the
list of enumerated exemptions, despite the fact that video technology was in existence and
widely used in 1997. Had Governor Whitman intended videos to be exempt, she would simply
included videos in the list of enumerated exemptions rather than using the generic term
"photograph" to include videos. Moreover, the words "or similar criminal investigatory records"
means that Governor Whitman intended all of the enumerated records to share a commonality.
The commonality between the numerated records in EO 69 is that they are all records that are
required to be made immediately after a person's arrest — fingerprints, plates, mugshots, and
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 9
PashmanS
other records relating to the "booking" process. See N.J.S.A. 53:1-13 ("The supervisor of the
state bureau of identification shall procure and file for record, fingerprints, plates, photographs,
pictures, descriptions, measurements and such other information as may be pertinent, of all
persons who have been or may hereafter be convicted of an indictable offense within the state");
N.J.S.A. 53:1-15 (requiring fingerprints and photographs to be taken immediately after arrest).
While a video that captures the booking process or is used in lieu of a mugshot might be
"similar" to the other enumerated records (fingerprint cards, plates, and photographs), video and
audio footage from a police dash cam that simply records a routine motor vehicle stop is
certainly not "similar" to these other booking-related records.
Accordingly, this Court should find that Executive Order 69 does not exempt the
requested police dash cam video and audio footage.
II. PLAINTIFF HAS A RIGHT TO THE REQUESTED RECORDS UNDER
COMMON LAW
At common law, a citizen has an enforceable right to require custodians of public records
to make records available for reasonable inspection and examination. Irval Realty v. Bd. of Pub.
Util. Comm'rs, 61 N.J. 366, 372 (1972). Even where a plaintiff is denied access under OPRA,
the documents may be available through the right to access under the common law. MAG
Entertainment LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App.
Div. 2005). The common law right to access a public record is determined by balancing the
requestor's need for the record against the government's need for secrecy. Shuttleworth v. City
of Camden, 258 N.J. Super. 573, 583 (App. Div. 1992). A requestor need not establish a personal
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 10
Pashma..,)
interest as a public interest is sufficient. Id.
Here, Mr. Paff is an open-government activist who has filed hundreds of OPRA requests
to public agencies to ensure that these agencies comply with OPRA and to shed light on the
financial activities of public agencies, as well as any potential misconduct. Mr. Paff is
particularly interested in cases involving charges of resisting arrest, as such a charge implicates
free speech issues. Additionally, those who monitor police misconduct routinely opine that
resisting arrest charges often are brought to justify use of force by police officers. See, e.g.,
NYPD's Top Cop Wants To Make It A Felony to Resist Arrest, PUBLIC RADIO EAST, available at
http://publicradioeast.org/post/nypds-top-cop-wants-make-it-felony-resist-arrest (last visited
February 17, 2015). Moreover, persons are often arrested simply for resisting arrest when there
was no basis for any other underlying criminal charge. Ibid. The public has an interest in
knowing the nature of this arrest and whether the officers rightfully charged Mr. Mitchell with
resisting arrest and obstructing a DUI investigation. Accordingly, this Court should grant access
to the police dash cam audio and video footage pursuant to the common law right of access.
CONCLUSION
For the forgoing reasons, Plaintiff respectfully asks this Court to enforce his statutory
rights under OPRA by 1) declaring that Defendants are in violation of OPRA by failing to
provide access to the requested police dash cam footage, 2) directing Defendants to release the
police dash cam footage to Plaintiff forthwith or, in the alternative, delete or excise the portion(s)
that are exempt from public access and promptly permit access to the remainder of the police
dash cam footage, 3) naming Plaintiff a prevailing party entitled to an award of legal fees and
Honorable Lisa P. Thornton, A.J.S.C.
February 19, 2015
Page 11
PashmanSrter
costs of litigation. Alternatively, Plaintiff seeks access to the requested police dash cam footage
pursuant to the common law.
Respectfully Submitted,
CJ GRIFFIN
PASHMAN STEIN
A Professional Corporation
Court Plaza South
21 Main Street, Suite 100
Hackensack, NJ 07601
(201) 488-8200
CJ GRIFFIN (#031422009)
Attorneys for Plaintiff,
John Puff
JOHN PAFF,
: SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: MONMOUTH COUNTY
Plaintiff,
: DOCKET NO.:
v.
TOWNSHIP OF NEPTUNE and
RICHARD J. CUTTRELL, R.M.C., in his
capacity as Records Custodian for the Township :
of Neptune,
Civil Action
CERTIFICATION OF
CJ GRIFFIN, ESQ.
Defendants.
I, CJ Griffin, of full age, certifies as follows:
1.
I am an attorney at law of the State of New Jersey and an associate of Pashman
Stein, P.C., counsel for Plaintiff, Richard Rivera, in the above-referenced matter. As the attorney
responsible for the handling of this matter, I am fully familiar with the facts herein.
2.
Attached hereto as Exhibit 1 is New Jersey Executive Order 69, Whitman Exec.
Order No. 69, 29 N.J. Reg. 2729 (1997).
3.
Attached hereto as Exhibit 2 is the unpublished opinion of North Jersey Media
Group Inc. v. Twp of Lyndhurst, Docket No. BER-L-19048-14, 2015 WL 223064 (Law Div.
Jan. 12, 2015).
4.
Attached hereto as Exhibit 3 is the unpublished opinion of Paff v. Ocean County
Prosecutor's Office, Docket No. OCN-L-1645-14, 2014 WL 5139407 (Law Div. Oct. 2, 2014).
5.
Attached hereto as Exhibit 4 is the unpublished opinion of Ganzweig v. Twp. of
Lakewood, Docket No. OCN-L-1292-14 (Law Div. Oct. 2, 2014).
6.
Attached hereto as Exhibit 5 is the unpublished opinion of Mark Demitroff Nt
Buena Vista Twp., Docket No. ATL-L-5662-14, 2014 WL 6666948 (Law Div. Nov. 18, 2014).
I certify that the foregoing statements made by me are true to the best of my knowledge and
belief. I am aware that if any of the foregoing statements made by me are willfully false, I am
subject to punishment.
Dated: February 19, 2015
By:
CJ GRIFFIN
2
EXHIBIT 1
2/18/2015
State of New Jersey - Executive Orders
().1 F I
I
■
S. •
ti:: TATE tn .
i.
JERNFI
Governor Chris Christie • Lt Governor Kim Guadagno
Search
N.Piciinu t So: vic4".. A to Z. i Cinpaitmentb!Ag unclips I rAab
State of New Jersey
Executive Order #69
Governor Christine Todd Whitman
Return to EO Index
WHEREAS, Chapter 73, P.L. 1963, as amended, finds and declares it to be the public policy of this State
that public records shall be readily accessible for examination by the citizens of this State for the protection
of the public interest except as otherwise provided in said law; and
WHEREAS, some limitation upon the right to examine and copy records provided by Chapter 73 is
essential and not detrimental to the public interest as recognized by existing statutory and common law; and
WHEREAS, disclosure of information must be consistent with existing statutory law regarding
confidentiality in certain areas; and
WHEREAS, said Chapter 73 provides that records which would otherwise be deemed to be public records,
subject to inspection and examination and available for copying, pursuant to the provisions of said law, may
be excluded therefrom by Executive Order of the Governor or by any regulation promulgated under the
authority of any Executive Order of the Governor; and
WHEREAS, Section 3(e) of Executive Order No. 9, issued by Governor Richard Hughes in 1963, and
reaffirmed by Executive Order No. 123, issued by Governor Thomas H. Kean in 1983, states that
fingerprint cards, plates and photographs and other similar criminal investigation records which are required
to be made, maintained or kept by any State or local governmental agency shall shall not be deemed to be
public records subject to inspection and examination and available for copying pursuant to the provisions of
Chapter 73; and
WHEREAS, the Attorney General has undertaken a complete review of this subject area, seeking input
from prosecutors, police, representatives of the news media, and victims' rights organizations, and has
recommended that certain aspects of the system be clarified;
NOW, THEREFORE, I, Christine Todd Whitman, Governor of the State of New Jersey, by virtue of the
authority vested in me by the Constitution and by the Statutes of this State, do hereby order and direct:
1. Executive Order No. 9 of Governor Richard J. Hughes and Executive Order No. 123 of
Governor Thomas H. Kean are modified as hereinafter set forth, and any regulations adopted
and promulgated under those prior Executive Orders shall be deemed null and void to the
extent such regulations are inconsistent with the provisions of this Executive Order.
2. The following records shall not be deemed to be public records subject to inspection and
examination and available for copying pursuant to the provisions of Chapter 73, P.L. 1963, as
amended: fingerprint cards, plates and photographs and similar criminal investigation records
that are required to be made, maintained or kept by any State or local governmental agency.
3. Notwithstanding the above section 2, the following information shall be available to the
http://nj.gov/infobankkircular/eow69.shtml
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2/18/2015
State of New Jersey - Executive Orders
public within 24 hours, or sooner if practicable, of a request for such information:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) information as to the identity of the investigating and arresting personnel and
agency and the length of the investigation;
(f) 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 useof weapons and ammunition by the suspect and by
the police; and
(g) information as to circumstances surrounding bail, whether it was posted and
amount thereof.
The term "request" shall mean either a written or oral request; provided, however, that all
requests are made with sufficient clarity so as to enable a reasonable person to understand the
information that is being sought. The law enforcement official responding to oral requests
should make best efforts to respond orally over the telephone; however, it shall not be
unreasonable to require the requester to appear in person to receive the information. Unless the
parties note otherwise, it shall be understood that there is no duty to release or obtain
information that is not in the possession of the law enforcement agency at the time of request.
4. Notwithstanding any other provision of this Executive Order, where it shall appear that the
information requested or to be examined will jeopardize the safety of any person or jeopardize
any investigation in progress or may be otherwise inappropriate to release, such information
may be withheld. This section is intended to be narrowly construed to prevent disclosure of
information which would be truly harmful to a bona fide law enforcement purpose or public
safety if released. It is also intended to prevent such release that would violate existing law
regarding confidentiality in areas including, but not limited to, domestic violence and juveniles.
5. Each county prosecutor shall prepare a plan outlining the procedures for providing and/or
disseminating the information required by this Executive Order and shall submit same to the
Division of Criminal Justice for its review and filing. Each prosecutor shall consult with the
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2/18/2015
State of New Jersey - Executive Orders
police departments within his or her county and to the extent possible, include within the
prosecutor's plan the local procedures for responding to informational requests. The Division of
State Police shall submit its plan to the Office of the Attorney General. Whenever any changes
are made in any such plan, said changes shall immediately be forwarded to the appropriate
county prosecutor and/or the Division of Criminal Justice or Office of the Attorney General for
review and filing. In addition, each county prosecutor's office shall designate a person(s) who
is(are) responsible for responding to requests for public information by the media on nights,
weekends and holidays. The name of the person(s) so designated shall be available at the
communication center in each county.
6. The Attorney General, as chief law enforcement officer of the State, or his designee, or
where appropriate, the county prosecutor, as chief law enforcement officer of the county, shall
promptly resolve all disputes as to whether or not the release of records would be "otherwise
inappropriate" between the custodian of any records referred to herein and any person seeking
access thereto or similar disputes. Where the Attorney General or the county prosecutor
determines that the release of records would be "otherwise inappropriate," he or she shall issue
a brief statement explaining the decision.
7. The terms of the Order shall be carried out in the spirit of Chapter 73, P.L. 1963, as
amended, and shall not relate to requests pursuant to Chapter 60, Section 4, of P.L. 1994. It
shall be carried out by keeping in mind the right of citizens to be aware of events occurring in
their community.
8. This Order shall take effect immediately.
GIVEN under my hand and seal
this 15th day of May in the the Year
of Our Lord, One Thousand Nine
Hundred and Ninety-Seven, and of
the Independence of the United States,
the Two Hundred and Twenty-First.
/s/ Christine Todd Whitman
Governor
Attest:
/s/ Michael P. Torpey
Chief Counsel to the Governor
Conti ;t Us Privacy Noii{ I Legal Statetncni
f)isclaimas I Acc,Nsihility Statement
ci)
Statewide: NJ Home I Services A to Z I Departments/Agencies FAQs
Copyright 0 State of New Jersey, 1996-2010
This site is maintained by the New Jersey Office of Information Technology
http://nj .govit nfobankki rcul ar/eow69.s htm I
3/3
EXHIBIT 2
lath Group be. v. Tp. of Lyndhurst, 20'5 WI. 223064 (201u)
2015 WL 223064 (N.J.Super.L.) (Trial Order)
Superior Court of New Jersey, Law Division.
Bergen County
NORTH JERSEY MEDIA GROUP INC., Plaintiff,
v.
TOWNSHIP OF LYNDHURST, Helen Polito, RMC, in her capacity as the Custodian of Records for the
Township of Lyndhurst, Borough of North Arlington, Kathleen Moore, in her capacity as Custodian of Records
for the Borough of North Arlington, Borough of Rutherford, Margaret M. Scanlon, RMC, in her capacity as
Custodian of Records for the Borough of Rutherford, Bergen County Police Department, Captain Uwe Malakas,
in his capacity as Custodian of Records for the Bergen County Police Department, New Jersey State Police, and
Sergeant Harry Rocheskey, in his capacity as Custodian of Records for the New Jersey State Police, Defendants.
No. BERL1904814.
January 12, 2015.
Opinion
CJ Griffen Esq., appearing on behalf of the plaintiff, North Jersey Media Group (Pashman Stein) Samuel J. Samaro, Esq., on
the brief.
Daniel M. Vannella, Esq., appearing on behalf of the defendants, New Jersey State Police and Sergeant Harry Rocheskey, in
his capacity as Custodian of Records for the New Jersey State Police (New Jersey Attorney General's Office).
Richard S. Dil.aseio, Esq., on behalf of the defendants, Township of Lyndhurst and Helen Polito, in her capacity as Custodian
of Records for the Township of Lyndhurst (Attorney at Law).
Christina D'Aloia, Esq., appearing on behalf of the defendants, the Bergen County Police Department and Captain Ewe Malakas
in his capacity as Custodian of Records for the Township of Lyndhurst (Attorney at Law).
Douglas M. Berm, Esq., on behalf of the defendants, Borough of North Arlington and Kathleen More, in her capacity as
Custodian of Records for the Borough of North Arlington (Rubenstein, Myerson, Fox, Mancinelli, Conte & Bern, P.A.),
David M. LaPorta, Esq., appearing on behalf of the defendants, Borough of Rutherford and Margaret M. Scanlon, RMC, in her
capacity as Custodian of Records for the , Borough of Rutherford (LaPorta & LaPorta, LLC).
Honorable Peter E. I)oyne, Judge.
*1 CIVIL ACTION
Argued: January 9, 2015
Decided: January 12, 2015
Introduction
North Jersey Media Group, Inc. ("NIMG" or the "plaintiff") is an established purveyor of news in Northern New Jersey and
is best known for its flagship newspaper "The Record." NJMG's reach spans much further than a single newspaper, though,
North .1':-..rsoy MiAiia Group :no. v. Tp. of Lyndhurst, 2015 V& 223064 (2015)
as it also publishes a second daily newspaper "The Herald," roughly forty (40) weekly community newspapers and operates
three (3) websites, including the much traversed www.NorthJersey.com . As news reporting on controversial stories and access
to government records seemingly go hand in hand, NJMG is no stranger to seeking relief under the Open Public Records Act
("OPRA" or the "Act") and the common law right of access to government records.
In September of this year, NJMG reporters submitted records requests to three townships, the county police and the state
police, as part of their coverage of an incident involving suspected car thieves and several townships' police pursuit thereof.
Tragically, the incident concluded with police officers shooting and killing an African American suspect. The custodians
and their respective entities declined to grant NJMG's news reporters access to any of the requested records and deferred all
requests to the New Jersey Attorney General's Office (the "Attorney General's Office"), which was equally unforthcoming. The
defendants' refusals to disclose and utter lack of cooperation was undoubtedly intensified by the recent national debate fueled
by a growing number of highly publicized incidents, including those in Ferguson and Staten Island, where police officers killed
African American men, and also the apparent assassination of two New York City police officers by an African American man.
Police interaction with the public is now under national review. OPRA's unfettered access provides an important tool in the
public's arsenal, conferring the ability to gain access to information prior to prosecutorial decisions concerning, what, if any,
actions are to follow.
While mindful of society's debate, the court is nevertheless discouraged by the Deputy Attorney General's position that this
matter should be dismissed when access has yet to be provided to requests dating back to September 2014. The issue itself may
be subject to national review, but how the judiciary maintains its integrity and independence and the respect of the people it
serves, while evaluating the competing viewpoints and the law, has yet to be determined. That being said, this court is only
concerned with the propriety of the various responses to the records requests. Any determination concerning the conduct of
the police officers' actions following the vehicle pursuit of suspected car thieves is left to the professionals at the New Jersey
State Police and Attorney General's Office, which have been statutorily designated as responsible for such decisions, at least
in the first instance.
Facts and Procedural Posture
On September 16, 2014, around 2:30 a.m., a North Arlington resident called 9-1-1 to report an attempted burglary of her car,
which was parked in her own driveway. The resident gave a description of the perpetrator and the vehicle in which he fled (the
"suspect vehicle"). In response to the 9-1-1 call, one North Arlington officer was dispatched to the resident's home to conduct a
witness interview and obtain additional evidence and information about the attempted burglary and/or theft. At the same time,
other local police officers from Lyndhurst, Rutherford, North Arlington and the Bergen County Police Department joined the
investigation. They were advised over their radios to be on alert for a vehicle matching the suspect vehicle's description.
*2 Lyndhurst police officers spotted a SUV meeting the suspect vehicle's description. To determine if the SUV was the suspect
vehicle, officers attempted to effectuate a motor vehicle stop by turning on their overhead lights. The STN did not pull over
in response to the activated lights. Instead, the SUV sped away from and eluded the officers. The subsequent car chase lasted
approximately four minutes. The chase ended after the SUV crossed into Rutherford and crashed into a guardrail on New Jersey
Route 3. In an attempt to apprehend the SUV's occupants, police officers positioned their cars around the SUV.
The exact details of what followed remains murky, but the following is gleaned from the various reports submitted. The SUV
had become stuck on a guardrail. The SUV's engine revved to a high RPM and went in reverse, in the direction of the police
officers' cars, and rammed a patrol car. Police officers fired their weapons and a number of bullets struck and killed the SUV's
driver, Kashad Ashford ("Ashford"). Ashford was pronounced dead just after 7:00 a.m, at Hackensack University Medical
Center. The SUV's passenger, Jemmaine Bynes ("Bynes"), was not shot and was apprehended.
Pursuant to Attorney General Law Enforcement Directive No. 2006-5 (the "Shooting Response Directive"), once a fatal
shooting occurs and before any further investigation proceeds, the investigation started by the local law enforcement agencies
Jera4 rvOdia Group inc. v. Tp. of Lyndhurst, 2015 WL 223064 (2015)
is transferred to a Shooting Response Team (the "Shooting Response Team") from the Attorney General's Office's Division
of Criminal Justice.
Later that day, September 16, 2014, the Attorney General's Office issued an official press release and informed the public of
many of the underlying incidents details, including, but not limited to:
[W]hat type of crime was allegedly committed; the time and location of same; the type of weapon found
in defendants' possession; the name, age, residence, criminal charge, and bail imposed for the defendant
who was arrested; which law enforcement and investigative agencies were involved; the circumstances
surrounding the arrest (including through what towns the car chase proceeded, where the chase ended, that
a fatal shooting by police resulted, and what circumstances led to the shooting): and the name, age, and
residence of the suspect who was fatally shot.
Certainly, some of this information was used by NJMG during their coverage of the incident, which included a number of
articles in The Record and online on www.NorthJersey.com later that day.
To gather additional information about the shooting, a reporter from The Record, Abott Koloff ("Koloff') and a reporter
from the South Bergenite, Megan Grant ("Grant"), filed requests for records relating to the incident with the Township of
Lyndhurst ("Lyndhurst"), the Borough of North Arlington ("North Arlington"), the Borough of Rutherford ("Rutherford"),
the Bergen County Police Department (the "BCPD") and the New Jersey State Police (the "State Police" when referenced
individually and the "entity defendants" when referenced collectively with Lyndhurst, North Arlington, Rutherford and the
BCPD). On September 16, 2014, the same day as the incident, Koloff submitted request for records to Lyndhurst, North
Arlington, Rutherford and the BCPD pursuant to OPRA and the common law right of access, seeking:
(1) Incident Reports, Operation Reports, Investigation Reports, and/or Offense Reports (including supplemental reports);
(2) Log book notations, daily activity logs, daily bulletins, daily statistical sheets, tally sheets, vehicle logs;
(3) Audio records, and if available written transcriptions of such audio recordings of all police and law enforcement dispatches
and recorded conversations;
*3 (4) Arrest reports for individual(s) in the incidents;
(5) All information required to be released by law enforcement under Section 3(b) of the New Jersey Open Public Records Act,
N.J.S.,4. 47:1 A.-3(b) where (i) an arrest has not yet been made; and (ii) where an arrest has been made;
(6) Use of force reports;
(7) Audio and Video recordings from the mobile recorders (MVRs) in the vehicles of law enforcement personnel;
(8) Motor Vehicle Accident Reports, Crash and Investigation Reports;
(9) Computer Aided Dispatch reports; [and]
(10) Mobile Data Terminal Printouts (MDTs).
Koloff submitted an additional online OPRA request to the State Police that same day, and sought access to the following records
related to the breaking into a car in North Arlington and the subsequent police chase and fatal shooting of Kashad Ashford:
(1) Use of force report;
tiordo Jcr ey Madia Group Inc. v. Tp. of Lyndhurst, 2016 WL 223064 (2015)
(2) Audio recordings of law enforcement dispatches and records of conversations including 911 calls;
(3) Audio and video recordings from mobile recorders (MVRs);
(4) Computer aided dispatch reports;
(5) Arrest reports;
(6) Motor Vehicle Accident Reports, Crash and Investigation Reports; and
(7) Incident reports, operation reports, investigation reports and offense reports (including supplemental reports).
Thereafter, Grant submitted OPRA requests to Lyndhurst and Rutherford on September 17, 2014, requesting:
(1) All police reports concerning the September 16, 2014 pursuit of suspects later identified as Kashad Ashford and Jemmaine
Bynes;
(2) All use of force reports by Lyndhurst Police Department concerning the September 16, 2014 shooting;
(3) Any additional documentation kept by the Lyndhurst Police Department concerning the September 16, 2014 pursuit of
suspects later identified as Kashad Ashford and Jemmain Bynes and shooting; (and]
(4) Any video tape (or a transcription of the video tape) obtained during the course of the investigation into the September 16,
2014 pursuit and shooting.
A. Lyndhurst's Response
On September 18, 2014, Lyndhurst's Custodian of Records, Helen Polito ("Polito") responded to Koloff and Grant,
acknowledging receipt of their records requests and informed them she had been advised by the Lyndhurst Police Chief, James
O'Connor ("Chief O'Connor"), the requested records would not be available for forty-five (45) days. In a letter dated September
18, 2014, N.TMG's in-house counsel, Robert Thompson, Esq. ("Thompson"), replied to Politio's response to Koloff and Grant.
Thompson objected to Lyndhurst's denial of the request, and provided the relevant statutes and case law that compelled
disclosure of the requested documents. In relevant part, Thompson advised Polito:
This response is contrary to OPRA's clear requirement that public records be 'readily accessible' N.../.S.A. 47:1A-1 and that a
custodian 'shall grant access to a government record or deny a requires for access ... as soon as possible, but not later than
seven business days after receiving the request.' 'AL/SA, 47:1 A-5(i). The stated 45 day period in which to provide records finds
no basis in, and is totally contrary to OPRA's requirements.
*4 OPRA also requires that the custodian state a 'specific basis' under the statue for denying access to each record, N.J.S.A.
47:1A-5(g). Here, no basis for denial has been provided at all in your September 18, 2014 letter. Moreover, the mere assertion
of a privilege without indicating the specific basis therefore is insufficient under OPRA. Burke v. Brandes, 429 NJ. Super.
169 (App. Div. 2012).
The requested records are also subject to access under OPRA. Indeed, most of the records would have been created before any
investigation into the incident could have commenced. OPRA states that even where an investigation is in progress, OPRA 'shall
not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection ...
Morgh ..1 -arscy kiz.ciia Group Inc. v. Tp. of Lyndhurst, 2615 WL 2230b4 (201 5)
before the investigation exemption does not work retroactively to render public documents confidential once an investigation
begins. Serrano v. S, Brunswick, 358 N,J". Super. 352, 367 (App. Div, 2003).
Our courts have also held that Use of Force Reports ('UFRs') are subject to public access. O'Shea v. West Mil/Ord, 410 NJ.
Super. 371, 383-82 (App. Div. 2009). There is no basis to deny access to our requests for these records.
Finally, the records requested in Items 4 and 5 (arrest reports and arrest information) are required to be released within 24 hours.
N.J.S.A. 47: I A-3(b). To suggest that these records will be provided 45 days down the road is a gross violation of OPRA.
Thompson ended his letter by stating he expected the requested documents would be provided by September 25, 2014, which
was seven business days after the requests were made.
The next day, September 18, 2014, Chief O'Connor called Thompson to discuss his letter from the previous day. Chief O'Connor
advised some of the reports had not been completed, but a copy of the audio would be provided after speaking with the
Attorney General's office. On September 19, 2014, Thompson emailed Chief O'Connor to request an update on the situation,
As Thompson had not heard back from Chief O'Connor, Thompson sent another follow up email on September 22, 2014. On
September 22, 2014, Chief O'Connor replied to Thompson and informed him he had been instructed to refer Thompson to Peter
Aseltine ("Aseltine") at the Attorney General's Office.
After learning Aseltine was on vacation, Thomson e-mailed the Director of Communications at the Attorney General's Office,
Paul Loriquet ("Loriquet"). On September 23, 2014, Loriquet advised Thompson to direct questions concerning the OPRA
requests to the Lyndhurst municipal counsel or the county counsel.
On September 23, 2014, the editor of the South Bergenite, Jamie Winters ("Winters"), emailed Polito to request Lyndhurst
transmit a formal writing explaining why it was delaying the release of the records responsive to Grant's request (by fortyfive days). In similar fashion, on September 24, 2014, Winters emailed Lyndhurst Township's attorney, Richard DiLascio,
Esq. ("DiLascio"), requesting a written explanation as to why Lyndhurst was delaying the release of the records responsive to
Grant's request by forty-five days. DiLascio responded he would look into the issue further and advised the problem was with
the Attorney General's Office, as that office subsequently changed its position and informed DiLascio that decisions relating to
the release of the requested documents were to be handled by Lyndhurst. Winters did not hear from DiLascio again.
*5 By way of nearly identical letters dated September 25, 2014, Polito explained to Koloff and Grant why the requested
records could not be released, advising:
The request has been referred to the Office of the New Jersey Attorney General for an appropriate response, as it is the
Township's understanding [that] the Attorney General's Office [sic] in possession of the information which be [sic] responsive
to your request. The Attorney General's Office has been provided with a copy of your request, and it is the Township's further
understanding that a response to your request will be issued by that office.
Notwithstanding the above, the Township cannot provide the documents you requested at this time since they pertain to an
ongoing criminal investigation, and therefore are not government records which are required to be produced, pursuant to N.J.S. 4.
47:1A-1,1.
Furthermore, in accordance with N.J.S.R. 47: 1 A-3(a), since the requested records related to an investigation in progress by the
Lyndhurst Police Department and the New Jersey State Police, an examination or copying of such records at this time could
be detrimental to the public interest, and no documents pertaining to the subject matter of the request had been open for public
inspection, examination or copying before the investigation commenced.
hloith -1ei'scy tv:edia Group Inc. v. Tp, of Lyndhurst, 20`:5 tilL 223064 (2015)
Subject to the Attorney General's response to the request as indicated above, it is the Township's understanding that the requested
records which are required to be provided will be made available as soon as possible, pursuant to N.J.S.A. 47:IA-3(b).
B. North Arlington's Response
On September 25, 2014, North Arlington's Custodian of Records, Kathleen Moore ("Moore") responded to Koloffs September
16, 2014, OPRA request and informed Koloff his request was denied. Moore advised "Whe records are part of an 'ongoing
investigation' currently in process, therefore, pursuant to N.J.S.A. 47:1A-3a, OPRA Exemption 20, your request is being denied
in its entirety. As this investigation process, the Attorney General's Office of New Jersey will determine which records are
releasable," To date, North Arlington has not released any responsive records on its own behalf.
C. Rutherford's Response
By way of letter dated September 23, 3014, Rutherford's Custodian of Records, Margaret Scanlon, RMC ("Scanlon"), informed
Grant his OPRA request was denied. Scanlon advised the responsive documents pertained to an ongoing Attorney General
investigation and directed Grant to a statement from Rutherford Police Chief John Russo ("Chief Russo"), which advised:
This Department did generate 1 CAD entry and 2 incident reports pertaining to the event in question. Those items along with
the Daily Activity Log as well as a copy of all radio and telephone transmissions will be turned over to the Attorney General's
Office. As per Lieutenant Bob McGrath of the Division of Criminal Justice all previously mentioned items directly pertain to
that Department's ongoing investigation and shall be withheld,
Lt. McGrath has asked that all further request for information pertaining to this ongoing investigation be referred to the Attorney
General's Office, Press Coordinator, Peter Aseltine,
*6 Rutherford eventually changed its position. In a letter dated December 5, 2014, Rutherford's counsel in this matter, David
LaPorta, Esq. ("LaPorta"), commendably advised that despite Rutherford initially being advised to the contrary by the New
Jersey Attorney General's Office, certain responsive records were withheld that should have been released under OPRA.
Attached to LaPorta's letter was copies of:
1. One (1) page Computer Aided Dispatch ("CAD") report (CAD#14-19344);
2, One (1) page Property Report for Case # 14-19344;
3, A CD-R marked "3 phone call recordings from the public regarding the incident"; and
4. A CD-R marked "Radio Transmissions from Rutherford PD Case #14-19344, 9-16-14.
LaPorta also provided three (3) redacted Supplemental Investigation Reports and a Vaughn Index setting forth the reason for the
redactions, which included the privacy interest exemption, criminal investigatory records exemption, and ongoing investigation
exemption.
D. The BCPD's Response
In a letter dated September 22, 2014, the BCPD's custodian of records, Captain Ewe Malakas ("Captain Malakas"), advised
Koloff his entire September 16, 2014, OPRA request was denied, as all the responsive records were exempted by the criminal
North ,,-;orsoy P4,xlia Group Inc. v, Tp. of Lyndhurst, 2015 WL 223064 (2015)
investigatory records exemption to OPRA. To date, the BCPD has not released any records responsive to NJMG's request on
its own behalf.
E. The State Police's Response
On September 25, 2014, the Custodian of Records for the State Police, Sgt. Harry Rocheskey ("Sgt. Rocheskey" when
referenced individually, and the "custodian defendants" when referenced collectively with Captain Malakas, Scanlon, Moore
and Polito) wrote to Koloff to explain the State Police were still in the process of determining if they made or maintained records
responsive to his September 16, 2014 online request. Further, Sgt. Rocheskey advised he was extending the State Police's time
to respond by ten (10) working days to October 9, 2014. The State Police did not communicate a response by October 9, 2014.
On October 23, 2014, another Records Custodian for the State Police DSFC Marco Rodriguez ("DSFC Rodriguez"), called
Koloff and indicated the State Police needed more time to respond. Following the conversation, DSFC Rodriquez sent Koloff
a confirming letter and stated:
As per our conversation, I am still trying to determine if the investigation into the death of Kashad Ashford
was conducted by the NJSP. This is important because without a case number I will be unable to locate
the video recording(s), if there are any from the NISI' vehicle(s). I appreciate your patience as I attempt
to locate these records. Because your due date expires today, I need to extend it an additional ten business
days, making your new date November 6, 2014, I will make every effort to have an answer to you prior
to the new date.
On December 22, 2014, the State Police released an audio recording of the 9-1-1 call that was made to North Arlington on
September 16, 2014 at 2:12 am, as well as redacted versions of Computer Aided Dispatch (CAD) reports that the State Police
possessed from North Arlington, the BCPD and Lyndhurst. No basis for the redactions was provided.
F, The Criminal Charges and Investigation
Criminal charges were issued against Bynes, which remain pending and the investigation is alleged to be ongoing. In addition,
the Attorney General's Office asserts there is an active criminal investigation of the initial burglary and whether any of the law
enforcement officers involved in the shooting used unlawful levels of force. In fact, the Attorney General's Office asserted the
issue of unlawful force by the officers will ultimately be presented a State Grand Jury.
G. Pleadings
*7 On November 3, 2014, NJMG had an order to show cause and a verified complaint filed against the entity defendants
and the custodian defendants (the "defendants"). NJMG sought various law enforcement records pertaining to Ashford's death.
Included in the submission was a brief in support of the order to show cause and certifications from NJMG's in-house counsel
Robert D. Thompson, Esq. ("Thompson" or "Thompson cert."), Winters ("Winters cert."), Koloff ("Koloff cert."), Meghan
Grant Knab ("Knab" or "Knab cert.") and NJMG's counsel, Samuel J. Samaro, Esq. ("Samaro"). With respect to the alleged
violations of OPRA, NJMG requests the court direct the defendants to (1) release the records to NJMG or release the records
with exempt materials redacted; (2) identify each records they withheld and as well as the "specific basis therefor"; (3) provide
the "specific basis" for any redactions made to any disclosed records; (4) in the alternative, provide the responsive government
records to the court for an in camera review; (5) attorney's fees and costs pursuant to OPRA; and (6) such other relief as the court
may deem just and equitable. With respect to the alleged violation of New Jersey common law, NJMG seeks: (1) a declaration
the defendants' actions were "unlawful" and invalid; (2) the defendants be directed to identify each record withheld and the legal
justification thereof; (3) the defendants be directed to release the requested records to plaintiff forthwith. In the alternative, for an
i4orti! Jeri;ey Media Group Inc. v. Tp. cif Lyndhurst, 2015 WL 323064 (2010)
in camera review of the any records containing information exempt from public access; (4) an order for discovery or a plenary
hearing to conduct discovery; (5) awarding fees and costs; and (6) such other relief as the court may deem just and equitable.
By way of letter dated November 17, 2014, counsel for the State Police and Sgt. Rocheskey, Deputy Attorney General Daniel
M. Vannella, Esq. ("DAG Vannella"), advised it had received consent from all parties to seek an adjournment of the December
12 return date for the order to show cause. The original deadlines set for submissions were November 24 for opposition and
November 28 for plaintiffs reply. DAG Vannella suggested the following new dates for the order to show cause:
I. Defendants' opposition to the OTSC: December 8, 2014;
2. Plaintiffs reply by December 17, 2014;
3. OTSC oral argument: Date/Time to be set by the court (the parties do not jointly propose any particular date; plaintiffs
counsel proposed January 5, 8 or 9, 2015 as working with their schedule).
The matter was adjourned until January 9, 2015, with opposition due December 8 and NJMG's reply, if any, due on December 17,
On December 4, 2014, DAG Vannella requested another two-week extension of the December 8, 2014, deadline for opposition,
though, he advised this request was being made without the consent of N.IMG. Accordingly, the return date of the order to show
cause remained the same, but oppositions were now due December 10, 2014 and NJMG's reply was due December 19, 2014.
On December 10, 2014, the Attorney General's Office filed an answer on behalf of the State Police. The State Police's submission
included a letter brief opposing the order to show cause, the certification of Deputy Attorney General Daniel M. Vannella ("DAG
Vannella"), the certification of New Jersey Division of Criminal Justice Supervisor, Lieutenant Robert McGrath ("Lieutenant
McGrath"), the certification of New Jersey Division of Criminal Justice Detective Cortney Lawrence ("Detective Lawrence"),
and the certification of DSFC Rodriguez. That same day, DAG Vannella filed a motion to seal a second certification of
Lieutenant McGrath on behalf of the State Police and Sgt. Rocheskey,
Douglas M. Bern, Esq. ("Bern"), counsel for North Arlington and Moore, filed an answer on their behalf on December 10,
2014. In a letter dated the same, counsel indicated they would reply upon any and all defenses and legal briefs filed by the
Attorney General's Office. In a similar fashion, counsel for Rutherford and Scanlon, filed an answer on December 10, 2014 and
in a separate letter, advised they would be relying upon all defenses and legal briefs filed by DAG Vannella's office, Likewise,
counsel for the BCPD and Captain Malakas, filed an answer on December 10, 2014 and in a letter dated the same, advised they
would be relying upon all briefs filed by the Attorney General's Office. On December 10, 2014, chambers received an answer
from counsel for Lyndhurst and Polito, Richard J. DiLascio, Esq. ("DiLascio"), 1 DiLascio also indicated that Lyndhurst would
rely upon the Attorney General's Office's briefs in this matter.
On December 22, 2014, NJMG had filed a reply in further support of its order to show cause. Included in the submission was
the reply certification of Samaro and a letter brief in reply to the Attorney General's Office opposition and opposing DAG
Vannella's motion to seal the second certification of Lieutenant McGrath. A copy of the reply authored by DAG Vannella on
behalf of the State Police and Sgt. Rocheskey was received on January 5, 2015. 2
*8 Oral argument was entertained on January 9, 2015. At the onset, LaPorta advised neither the Lyndhurst nor North Arlington
defendants' counsel planned on attending the oral argument, which, accordingly, proceeded without them.
Law
A. OPRA
North de.',',ey cdla Group
!he.
v. "i'p. of Lyndhurst, 2015 Vi!L 223064 (2015)
a. Generally
The purpose of OPRA,
47:1A-1 to -13, is plainly set forth in the statute: "to insure that government records, unless
exempted, are readily accessible to citizens of New Jersey for the protection of the public interest." Mason v. City of Iloboke,i,
196 N.J. 51, 57 (2008) (citing N.J.S.A. 47:1A-1). The Act replaced the former Right to Know Law„k...T.S.A. 47:1 A-1 to -4
(repealed 2002), and perpetuates "the State's long-standing public policy favoring ready access to most public records." Bern
v, Twp. of Staff wd Police Depit, 381 N.J. Super, 30, 36 (App. Div. 2005) (quoting Serrano v. S. Brunswick nip., 358 NJ.
Super. 352, 363 (App. Div. 2003)). To effectuate that purpose, OPRA establishes a comprehensive framework for access to
public records. Mason, supra, 196 N.J. at 57. Specifically, the Act requires, among other things, prompt disclosure of records
and provides different procedures to challenge a custodian's decision denying access. Ibid,
Above all, OPRA mandates "all government records shall be subject to public access unless exempt." N.../3,,4. 47:1A-1.
Therefore, records must be covered by a specific exclusion to prevent disclosure. Ibid The Act defines "government record"
as follows:
[A]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed
document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof,
that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency
or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received
in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political
subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory,
consultative, or deliberative material.
47:1A-1,1,]
The OPRA framework contemplates a swift timeline for disclosure of government records. Mason, supra, 196 N.J. at 57. Unless
a shorter time period is prescribed by statute, regulation or executive order, a records custodian must grant or deny access to a
government record as soon as possible, but not later than seven business days after receiving the request." N.J.S.A. 47:1 A-5(i).
A public agency's failure to respond within seven business days "shall be deemed a denial of the request." Ibid. If the record is
in storage or archived, and a response cannot be made timely, the custodian must report that information within seven business
days and advise when the record will be made available. Mid Courts have repeatedly found providing redacted documents is
also a denial and to redact information, it must fall under an exemption to OPRA, See e.g., Newark Morning Ledger Co. v. N.J.
Spans & aposition Auth,, 423 N.J. Super. 140, 148 (App. Div. 2011) (holding the redacted portions of the records must be
disclosed as they did not meet the trade secret exemption).
*9 If access to a government record is denied by the custodian, the requestor may challenge that decision by filing an action
in Superior Court or a complaint with the Government Records Council ("GRC"). N./SA. 47:1A-6, The right to institute any
proceeding under this section, however, belongs solely to the requestor. Ibid. If the requestor elects to file an action in Superior
Court, the application must be brought within forty-five days of the denial or be dismissed with prejudice as untimely. See
Mason, supra, 196 N.J. at 70 (holding, explicitly, a 45-day statute of limitations applies to OPRA actions), The Act, however,
specifically provides "a decision of the [GRC] shall not have value as precedent for any case initiated in Superior Court,"
N.J.S.A. 47:1 A-7, though such decisions are normally considered unless "arbitrary, capricious or unreasonable, or [violative
of] legislative policies expressed or implied in the act governing the agency." Serrano, supra, 358 NJ. Super. at 362 (citing
Cainpb.11 v. Dept ,. ' of Civil Service, 39 N.J. 556, 562 (1963)).
OPRA proceedings "are to be conducted in a 'summary or expedited manner.' This means that a trial court is to proceed under
the procedures prescribed in Rule 4:67. R. 4:67-1(a). The action is commenced by an order to show cause supported by a verified
complaint." MAG Enitnit, LW v. Div. of Alcoholic Beverage Control, 375 N.J. , Super, 534, 550 (App. Div. 2005) (citations
omitted). If the court finds the application is sufficient, "[it] shall order the defendant to show cause ... [and] try the case on the
North Jersey 14.14a Group Inc. V. Tp. of Lyndhurst, 2015 WL 223064 (2015)
return date." Id, at 550-51 (citing R. 4:67-2(a); R. 4:67-5). "Unlike Rule 4:67-2(b), which allows for conversion of a plenary
action into a summary action, and, therefore, may require an elaborated record, Rule 4:67-2(a), which governs OPRA actions,
does not permit the record to be supplemented by depositions or other forms of discovery." Id. at 551-52. In short, actions
brought under R. 4:67-2(a), as are OPRA proceedings, may not be supplemented by discovery absent some legitimate need,
hi. at 552.
If a public agency denies a requestor access, ORPA places the burden on the agency to prove the denial was authorized by
law, N...T.S..4. 47:1A-6. As such, an agency "seeking to restrict the public's right of access to government records must produce
specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality," Courier News v. Hunterdon Cnty.
Prosecutor (Vice, 358 NJ. Super. 373, 382-83 (App. Div. 2003). Absent the necessary proofs, "a citizen's right of access is
unfettered." id. at 383. In assessing the sufficiency of the agency's proofs submitted in support of its claim for nondisclosure, "a
court must be guided by the overarching public policy in favor of a citizen's right of access." Ibid. If it is determined access has
been improperly denied, the access sought shall be granted, and a prevailing party shall be entitled to a reasonable attorney's
fee. N.,/.5,1. 47: A-6.
b. OPRA Exemptions
Although OPRA defines "government record" broadly, the public's right of access is not absolute. Edw. Law Ctr. v, N.J. Dep't
of Edue,, 198 N 274, 284 (2009) (citing Mason, supra, 196 N.J. at 65). The statute specifically exempts twenty-one categories
of information from disclosure. Mason, supra, 196 N.J. at 65. In addition, N.J.S.A, 47:1A-1 provides:
[A]ll government records shall be subject to public access unless exempt from such access by: [other
provisions of OPRA]; any other statute; resolution of either or both houses of the Legislature; regulation
promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the
Governor; Rules of Court; any federal law, federal regulation, or federal order.
Our Supreme Court also noted "records within the attorney-client privilege or any executive or legislative privilege, as well as
items exempted from disclosure by any statute, legislative resolution, executive order, or court rule" are excluded. O'Boyle v.
Boro.fgh Longport, 118 NJ. 168, 176 (2014); see N.J.S..A. 47:1A-9a (mandating OPRA "shall not abrogate any exemption
of a public record or government record from public access ... [by] any other statute ... [or] Executive Order of the Governor).
*10 As such, a records custodian may rightfully deny a request if the record belongs to one of enumerated categories of
exemptions, or was created by another statute or Executive Order, which "significantly reduces the universe of publiclyaccessible information. As the Legislature acknowledged in N.J.S.A. 47:1A-1 and N,J.S.A, 47:1A-8, the only countervailing
relief mechanism for those seeking access to a statutorily excluded document is the common law right of access." Bergen Cnty,
Imp. Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 516-17 (App. Div, 2004), certif. denied, 182 N.J. 143 t 2004).
i. Criminal Investigatory Records
One category of information OPRA expressly exempts from unfettered public access is "criminal investigatory records."
N.J.S.A. 47:1A-1.1. The statute defines 'criminal investigatory record' [as] a record which is not required by law to be made,
maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil
enforcement proceeding," Bergen Crtty. Imp. Auth., supra, 370 N.J. Super, at 516-17. The defendant bears the burden pursuant
to N.J.S.A. 47:1A-6 to justify denial of the plaintiffs request by "produc[ing] specific reliable evidence sufficient to meet [the]
statutorily recognized basis for confidentiality." Courier News, supra, 358 N.J. Super. at 382-83, Therefore, a"[d]efendant
must meet both prongs of the definition of 'criminal investigatory reports' for the documents to be inaccessible to [the] plaintiff
under N.J.S.A. 47:1A-1.1, that is, they must 'not be required by law to be made,' and they must 'pertain[ ] to any criminal
Oorth J ,:a.seyOa Group Inc. v. Tp. of Lyndhurst, 2015 WL 223064 (2016)
investigation or related civil enforcement proceeding." ' O'Shea v. nip, of W, Milford, 410 N.J. Super 371, 380-81 (App. Div.
2009) (quoting MJS.A. 47:1A-1.1).
it Ongoing Investigation
Another category of law enforcement records exempt from public access are records pertaining to an investigation in progress.
N.J.S.A. 47:1 A-3. "[W]here it shall appear that the record or records which are sought to be inspected, copied, or examined
shall pertain to an investigation in progress by any public agency, [the request] ... may be denied if [access] shall be inimical
to the public interest." N.J.S„4. 47:1A-3(a).
However, this exception to OPRA's mandate of unfettered access is limited. N.J.S.A. 47:1A-3(a) provides the "provision shall
not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection,
examination, or copying before the investigation commenced." Ibid. Therefore, a defendant must establish three elements to
justify a denial of access under N.J.S.A. 47:1A-3(a): (1) the record pertains to an investigation in progress by a public agency; (2)
the disclosure would be inimical to the public interest; and (3) the record was not publically accessible before the investigation
commenced. Ibid.
iii. Access to Records of Investigation in Progress
Finally, 'VISA. 47:1A-3(6) limits the government's freedom to deny access and provides that certain "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."
Ibid. (emphasis added). Two categories of information must be disclosed: (1) "information as to the identity of the investigating
and arresting personnel"; and (2) "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." Ibid. The statute includes a caveat on the release of this information, though, providing:
*II [W]here it shall appear that the information requested ... will jeopardize the safety of any person or jeopardize any
investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall
be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or
the public safety.
[M i d]
As such, certain information must be disclosed, even if an exception to OPRA applies, unless, in limited circumstances, such
disclosure would either jeopardize someone's safety, an investigation or would otherwise be inappropriate. Ibid.
c. OPRA Fees
Pursuant to W.J.S.A. 47: I A-6, "[i]f it is determined that access has been improperly denied, the court or agency head shall
order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." The
Supreme Court of New Jersey held "OPRA mandate[s], rather than permit[s], an award of fees to a prevailing party." Mason
v. City of Hoboken, supra, N.J. 51 at 75.
As the mandatory fee-shifting provision of OPRA is triggered only when a requesting party prevails, there must be a
determination what constitutes a "prevailing party." The Supreme Court in Mason held "'prevailing party' is a legal term of
art that refers to a 'party in whose favor a judgment is rendered." • (quoting Buck,hannon Bd. & Care Home v. W, Va. Dep't
of Health & Human Res., 532 U.S. 598, 603 (2001)).
North Jersey Media Group Inc. v. rp. of Lyndhurst, 2015 WL 223064 (2015)
Additionally, "a two-pronged test has been established to determine when a party seeking fee shifting has been a prevailing
party." N. Bergen Res Tramp. v. Trailer Leasing Co., 158 N.J. 561, 570 (1999); see Singer v. State, 95 N.J. 487, 494 (1984).
The first prong requires that the litigant seeking fees establish that the lawsuit was causally related to securing the relief obtained;
a fee award is justified if [the party's] efforts are a necessary and important factor in obtaining the relief,.., That prong requires
the party seeking fees to demonstrate a factual nexus between the pleading and the relief ultimately recovered...,
The second prong involves a factual and legal determination, requiring the party seeking fees to prove that "the relief granted
has some basis in law." The party seeking fees need not obtain all relief sought, but there must be a resolution of some dispute
that affected the defendant's behavior towards the prevailing plaintiff.
[Packard-Bomberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (internal citations omitted).]
B. New Jersey Common Law
In addition to OPRA, disclosure can be sought under the common law, The Act provides "[n]othing contained in [OPRA)
shall be construed as limiting the common law right of access to a government record," N.J. S..4. 47: IA-8, Thus, even if the
information requested falls within one of the exceptions to access under the statutory construct of OPRA, requestors may still
prevail by resorting to the common law right to access public records. To constitute a government record under the common
law, the item must be:
[O]ne required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve
as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to
perform that function, or a writing filed in a public office. The elements essential to constitute a public record are *** that it be
a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it.
*12 [S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 487-88 (1991) (quoting Nero v. Hyland, 76 N.J. 213, 222
( 1 978)).]
To reach this broader class of documents, requestors must satisfy a higher burden than required under OPRA: "(1) the person
seeking access must establish an interest in the subject matter of the material; and (2) the citizen's right to access must be
balanced against the State's interest in preventing disclosure." Mason, supra, 196 N.J. at 67--68 (quoting Keddie v. Rutgers, 148
N.J. 36, 50 (1997)) (internal quotations and citations omitted). The Supreme Court has articulated several factors for a court
to consider in performing its balancing:
(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.
[S. Jersey Pub., supra, 124 N.J. at 488 (quoting Loigrnan v. Kimmelman, 102 N.J. 98, 113 (1986)).
Analysis
iqnr
li:.;edia Group Inc. v. Tp. of Lyndhurst, 20ri WL 223064 (2015)
Preliminarily, the "uncoordinated" responses of the various custodians and the Attorney General's Office misdirecting NJMG's
reporters' and Thompson to the people purportedly responsible for responding to the requests, discolors the court's review. An
effort to ensure public access to sensitive issues worthy of public consideration is not to be a game of "hide the key." The
defendants' blanket assertion that no responsive records must be disclosed under OPRA and this matter should be dismissed
disregards not only published precedent and statutorily defined duties, but also the clear public policy embodied by ORPA.
The sheer number of defendants involved could have resulted in duplicative submissions and competing defenses. Yet, the
defendants' correspondence indicates they have entered into an agreement with the Attorney General's Office and will all
rely upon DAG Vannella's submissions. A consequence of relying upon the Attorney General's Office's December 10, 2014,
submissions was that all the defendants agreed to provide the responsive 9-1-1 calls and CAD reports to NJMG "forthwith." 3
While the gesture appeared to show solidarity and a willingness to cooperate with NJMG, this was merely a formal recognition
of their statutorily mandated duty that compelled disclosure roughly three months prior. On December 22, 2014, the State Police
granted NJMG access to audio of the 9-1-1 call and redacted CAD entries from North Arlington, Lyndhurst and the BCPD.
A. OPRA
1. Government Records
*13 To trigger OPRA's disclosure requirements, the records requested must be "government records." N.J.S.A. 57:1A-1,1
defines a government record as any document or recording made or received by any government entity, or any officer, authority
or political subdivision thereof, in the course of his or its official business. No party has disputed that the requested records
are government records, As such, the court finds the records requested are government records subject to OPRA, as they were
created and/or maintained by the one of the defendant entities in the course of its official business.
2. The Custodians' Responses
OPRA requires a custodian to search its files and locate records responsive to the request. New Jersey Builders Assoc. v. New
Jersey Council on Alibrdable Housing, 390 N.J. Super. 166, 177 (App. Div, 2007); MAG, supra, 375 N.J. Super. at 549; Burnell'
v. County of Gloucester, 415 N.J. &Ter. 506, 515-16 (App. Div. 2010). Where the custodian denies access to responsive
records, "the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor."
N.J.S.A. 47:1A-5(g). The custodian is obligated to explain each suppressed item in a way "that, without revealing information
itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Paff v. Mew
Jersey Dept of Labor, Bd. of Review, 379 N.J. Super. 346, 354 (App, Div. 2005) (quoting R. 4:10-2(e)).
All the custodian defendants' denied NJMG's requests, though the form, substance and propriety of the denials varied, See
N.J.S.A. 47:1A-5(g). For clarity, the response of each entity defendant, and its defendant custodian, are examined individually.
Importantly, every entity defendant had an obligation to comply with NJMG's OPRA requests. As long as the entity retained
copies of the responsive records, which no entity defendant has disputed, the fact a copy was forwarded to the Attorney General's
Office did not alter the entity defendant's OPRA duties. A different question would be posed if an entity did not retain copies
of the records and could not comply with the request(s).
Lyndhurst was unable to provide a unified and coherent response to NJMG's requests and subsequent attempts to clarify its
requests. First, Polito advised NJMG's reporters Lyndurst's records would not be available for forty-five (45) days. This is
tantamount to a denial. OPRA explicitly requires access or a denial be given "as soon as possible, but not later than seven
business days of receiving the request." N.J.S.A. 47:1A-5(i). Certainly, purporting to grant access to the responsive records
at some arbitrary date beyond the recognized seven day time period or a steadfast 45-days later is not contemplated by the
OPRA framework. Ibid.
Media Group Inc. v. Tp. of Lyndhurst, 205 WL 223064 (2015)
Thompson responded to this denial on NJMG's behalf and advised Polito of the relevant statutes and case law that mandated
disclosure of the responsive records. Instead of Polito, Chief O'Connor stepped into Lyndhurst's custodian's shoes and informed
Thompson some records had yet to be created, but audio records would be forthcoming, Shortly thereafter, and prior to any
records being transmitted to NJMG, Chief O'Connor instructed Thompson to refer further questions and issues to Aseltine at
the Attorney General's Office. Chief O'Connor, apparently acting as substitute custodian, had again denied NJMG's requests
by not producing the responsive records Lyndhurst possessed, regardless if someone other than the Lyndhurst custodian was
to "assume" its OPRA duties.
*14 The fourth Lyndhurst representative contacted by Thompson, Loriquet at the Attorney General's Office, was only involved
because the asserted contact, Aseltine, was on vacation. Loriquet advised all concerns stemming from OPRA requests pertaining
to Ashford's death be directed to Lyndhurst municipal counsel or the county counsel. This was thereafter followed by Lyndhurst's
counsel advising a clarification and a decision on access would be forthcoming from Lyndhurst. Finally, on September 25,
2014, Polito explained the request had been referred to the Attorney General's Office and notwithstanding said transfer, the
records would have been exempt as criminal investigatory records and as records relating to an ongoing investigation, but it
was "the Township's understanding that the requested records which are required to be provided will be made available as soon
as possible, pursuant to N:J.S.A. 47:1A-3b."
A requestor being referred to six different people when seeking a clarification of a township's denial of access is not the procedure
contemplated by OPRA, Similarly, unfulfilled assertions/promises of forthcoming responsive documents is not the cooperative
effort between requestors and public agencies envisioned by OPRA and recognized by the New Jersey Supreme Court. See
Mason, supra, [96 N.J. at 66 (explaining "various provisions in the statute are designed to foster cooperation among requestors
and agencies and reasonably accommodate their interests.").
Moore simply issued a blanket denial to NJMG, withholding access to all of North Arlington's records under the ongoing
investigation exemption of 47:IA-3(a). In addition, Moore informed NJMG that moving forward, the Attorney
General's Office would assume responsibility for determining which records were to be released. First, North Arlington did
not discharge its OPRA duties by referring NJMG to the Attorney General's Office, as no evidence has been presented North
Arlington did not retain copies of the records. Second, it may have been preferable to advise NJMG as to what responsive
documents existed.
The BCPD simply denied Koloffs entire request under the criminal investigatory records exemption to OPRA. Undoubtedly,
this response violated OPRA. N.J.S.A. 47:1A-3(b) provides that certain "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." This information
includes the name, address and age of any victims, the defendant's name, age, residence, occupation, the text of any charges,
the identity of the investigating and arresting personnel, and "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." N.J.S.A, 47:1 A-3(b). Any record containing any information
specified in N.J.S.A. 47:1 A-3(b) must be released, though other information may be redacted from the record if it fell under
another exception to OPRA. Absent a certification that no records responsive to Koloffs request contained N..I.S.A. 47:1A-3(b)
information from either Malakas or another BCPD representative, the BCPD failed to justify NJMG's denial of access with only
a blanket criminal investigatory record denial. Likewise, every entity defendant bears the burden of proving all their responsive,
yet withheld, records did not contain N..I.S.A. 47:1A-3(b) information or disclose those records to NIMG, who would then
become the prevailing party.
"
The State Police denied NJMG's request by repeatedly extending its own time to respond without providing a reasonable
explanation or basis for the delay, First, Sgt. Rochesky advised NJMG the State Police were still in the process of determining
if they made or maintained responsive records. Notably, Sgt. Rochesky's communication was on the seventh business day after
the records request was made and further advised the State Police extended their own deadline to respond ten (10) working
days to October 9, 2014. Yet, the State Police took until October 23, 2014 to actually "respond," which consisted of DSFC
North Jwsey Media Group Inc. v. Tp. of Lyndhurst, 2015 V& 223064 (015)
Rodriguez extending the State Police's time to respond by 10 business days once again. The State Police extended their time
to respond a fourth time, until December 18, 2014.
*15 A unilateral decision to extend an agencies own time to respond, without adequate justification, is a denial of the OPRA
request. s A failure to respond within seven business days is "a denial of the request." N.J.S.A. 47:1 A-5(i), Circumstances
can exist where an agency's noncompliance with an overly burdensome request within those seven clays is justified and the
custodian may seek cooperation from the requestor, as the Court envisioned in Mason., supra, 196 N.J. at 66. See N..J.S,A.
47:1A-5(i) (permitting a custodian seven business clays to inform a requestor the records are archived or in storage). However,
the State Police not being able to determine whether they are investigating the death of a person shot by police is certainly not
a justifiable circumstance. DSFC Rodriguez's October 23, 2014, communication extending time once again was illustrative
of the unacceptable posture, as he advised more time was needed to respond to the September 16 OPRA request because
he was "still trying to determine if the investigation into the death of Kashad Ashford was conducted by the" State Police.
Curiously, there is a conspicuous lack of certifications as to the reasons the State Police needed to extend their response time.
DSFC Rodriguez provided the only relevant certification, but narrowly certified he had informed the requestor the State Police
required more time.
As stated earlier, N.J.S.A. 47:1A-3(b) required disclosure of any documents with certain information within twenty-four (24)
hours and any other responsive records must be disclosed within seven business days. N.J.S.A. 47:1A-5(i). DAG Vannella's
indirect assertion, premised upon his position that this matter must be dismissed, is that a custodian may fulfill his OPRA duties
in this matter by remaining in regular contact with the requestor and seeking timely extensions, which is wholly unsupported
by law and is unpersuasive. At oral argument, DAG Vannella conceded a requestor does not have to accept a public agency's
decision to extend its own time to respond.
In light of the foregoing, it is clear Rutherford's response was the most commendable. Scanlon advised NJMG the responsive
records pertained to an ongoing Attorney General investigation, named the responsive records and advised all further requests
for information pertaining to this ongoing investigation be referred to the Attorney General's Office. This was followed by
Rutherford changing its initial position and releasing certain responsive records to NJMG on December 5, 2014.
To recap, the positions taken by each entity defendant and their custodian(s) with respect to their respective OPRA duties and
its mandate of unfettered access to government records, were:
(1) Lyndhurst — No records were provided, but after much back and forth, it was determined the Attorney General's Office
is handling the OPRA response, notwithstanding, the records are exempt as criminal investigatory records and were records
pertaining to an ongoing investigation;
(2) North Arlington—No records were provided as every responsive record was exempt under the ongoing criminal investigatory
exception to OPRA;
(3) The BCPD — No records were provided as every responsive record was exempt under the criminal investigatory records
exception to OPRA;
(4) The State Police — No records were provided as it took at least 45 days to determine if they were investigating the police
fatally shooting a citizen, and they asserted the unilateral right to extend OPRA's express directive of allowing a maximum of
seven days to respond to a request; and
(5) Rutherford — No records were initially provided as they pertained to an ongoing criminal investigation and deferred the
requestor to the Attorney General's Office. Following the filing of this matter and a subsequent change in its position, certain
responsive records were released to NJMG on December 5, 2014.
North Jei s+;:y Media Group Inc. v. Tp. of Lyndhurst, 2015 V.lL 223064 (2015)
*16 Only in late December 2014 did the State Police release the audio from the 9-1-1 call and redacted versions of CAD
reports that State Police possessed from North Arlington, the BCPD and Lyndhurst. 7
3. Access to Records of Investigation in Progress
Certain "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." N.J.S.A, 47:1A-3(b) (emphasis added). Specifically, this encompasses two
categories of information; (1) "information as to the identity of the investigating and arresting personnel"; and (2) "information
of the circumstances immediately surrounding the arrest." Ibid. As OPRA mandates disclosure of government records and
not information, any record containing information specified in N.J.S.A. 47:1A-3(b) must be released, though any additional
material may be redacted from the record if it fell under another exception to OPRA. The compulsory disclosure is limited where
release "will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate
to release.... This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona
fide law enforcement purpose or the public safety." Ibid.
The Attorney General's Office asserted their September 16, 2014, press release contained the information concerning the
investigation that must be available to the public. As a consequence, none of the defendants were required to grant NJMG access
to the actual records containing the information. In addition, the Attorney General's Office posited NJMG benefitted from the
press release by basing a number of articles on the information provided, and therefore, NIMG's right to access the requested
government records was, apparently, somehow diminished.
This framework is unsupported by precedent and was not the position any of the custodian defendants took when responding
to the requests. To the contrary, a custodian must turn over identifiable government records in response to an OPRA request
and compiling data to inform the requestor of information is not included within that duty. See MAG, supra, 423 N.J. Super.
at 549 (finding "agencies are required to disclose only `identifiable' governmental records not otherwise exempt. Wholesale
requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed
therein."). While NJMG may have benefitted from the Attorney General's Office's research and analysis of the information
for the press release, it did not affect the entity defendants', and their respective custodians, duty to locate and disclose the
responsive records. Certainly, NJMG and its reporters were capable of sifting their way through the responsive records to gather
information and report based on their own review.
The defendants have failed to meet their burden to justify denying NJMG access to reports containing "information as to
the identity of the investigating and arresting personnel" and "information of the circumstances immediately surrounding the
arrest." N..I.S..4. 47:1A-3( b); Id. at § 6. No certifications have been provided by the defendants evidencing responsive records
do not exist. And premised upon the record before the court, no such records may be withheld, as no evidence is presently
before the court showing the caveat is met, namely, that disclosure would harm an investigation in progress. 8 Therefore, each
entity defendant must grant NJMG access to every responsive record containing the information required to be disclosed by
N.J.S,A. 47:1A-3(b).
4. OPRA Exemptions
*17 OPRA's mandate is clear — "all government records shall be subject to public access unless exempt." N.J.S.A. 47: I A-1.
If a record is withheld, "[title public agency shall have the burden of proving that the denial of access is authorized by law."
N.15..4. 47:1 A-6. In accessing the sufficiency of the defendants' proofs, it is public policy that "any limitations on the right of
access ... shall be construed in favor of the public's right of access." N.J.S.A. 47:1 A-1; see also Courier News, supra, 358 N.J.
Super. at 382-83. Therefore, the defendants must demonstrate withholding the records in their entirety, in light of the mandatory
disclosures of N..I.S.A. 47:1A-3(b) and public policy favoring disclosure, was authorized by either the ongoing investigation
exemption or the criminal investigatory exemption. 9
1..io,th Jersey WA dia Group Inc. v. Tp. of Lyndhurst, 2015 WL 223064 (2015)
a. The Ongoing Investigation Exemption
To deny access to records under the ongoing investigation exemption, a "court must find both that they pertain to an investigation
and that their release would be inimical to the public interest." Courier News, supra, 358 N.J. Super. at 380 (quoting Asbury
Park Press v. Lalwwood 7p. Police Dept., 354 N.J. Super. 146 (Super. Ct. 2002)). Also, the record must not have been "open
for public inspection [ ] before the investigation commenced." N.J.S.A. 47:1 A-3.
Research has revealed only one published appellate decision comprehensively examining the exemption, and that court was
unpersuaded by the position that disclosure could be inimical to the public interest because it may adversely affect the
forthcoming criminal trial. 10 See Courier News, supra, 358 NJ. Super. at 381-83 (finding the possibility of tainting the jury
was unpersuasive, as courts have long recognized pretrial publicity does not prevent impaneling an impartial jury. In addition,
the defendant's "fears of potential jury confusion are purely speculative and fail to meet the statutory burden of proof' to deny
access to government records); see also Serrano v. S. Brunswick 7P., 358 NJ. Super. 352, 367 (App. Div. 2003) (determining
"[t]he considerations raised in this case, however, such as posited difficulties of impaneling a jury and a possible change of
venue, are unpersuasive. Even if they occur, they may be inconveniences to the prosecutor, but without more, that does not
make the production "inimical to the public interest[.]"). In addition, the court in Courier News declined to accept the position
an ongoing investigation continues "until the trial has been completed and all potential appeals have been exhausted. [As] [s]uch
a prospect would directly contravene the citizen's right of access to government records embodied in OPRA." Courier N: r,
supra, 358 N.J. Super. at 381. Although the issues in this matter are not the same as in Courier News, it nevertheless provides a
guide, as "[i]n cases involving strong media interest, our courts strike a delicate balance, accommodating both the defendant's
right to a fair trial and the public's right of access." . fd. ct 382.
The defendants' only evidence that disclosure of any of the responsive records would be inimical to the public interest is
presented by way of the McGrath certification, He certified disclosure is inimical to the public interest because the records
may corrupt a potential witness's recollection or cause them to alter their testimony to conform to what has been publically
released. However, just as the court in Courier News declined to find the possibility of adverse effects to a subsequent trial
sufficient to overcome the public's right of access, here, the potential for inaccurate witness testimony also fails to overcome
the right of access.
*18 Courts have long recognized the question of a witness's credibility, or reliability, is "a decision reserved exclusively for
the jury." State v. Reddish, 181 NJ. 553, 614 (2004) (quoting State v. Frisby, 174 N.J. 583, 594 (2002)). 11 To combat the
potential problem, a prosecutor may examine a witness about their prior inconsistent statement, N.J.R.E. 613(a). A court may
permit the use of "[e]xtrinsic evidence of a prior inconsistent statement made by a witness ... [if] the witness is afforded an
opportunity to explain or deny the statement and the opposing party is afforded an opportunity to interrogate on the statement,
or the interests of justice otherwise require." Id. at 613(a). Where a prosecutor is "faced with inconsistencies between a witness's
trial testimony and the witness's prior statements, if appropriate, [he] may read the relevant portions of the witness's statements
as prior inconsistent statements under N.J.R.E. 613 and 803(a)(1). State v. Burns, 192 N.J. 312, 337 (2007) (citing State v.
&Athol!, 182 NJ. 373, 379 (2005); Stole v. Brown. 138 N.J. 481, 544 (1994)). Also, an admission by a defendant may "be
admitted for the truth of the matter asserted," i.e., as substantive evidence. 12 State v. Leopardi, 305 N.J. Sun e,-. 70, 82 (App.
Div. 1997) (citations omitted), certif. denied, 153 N.J. 48 (1998).
_
Above all, given the lack of objections from the victim's family, the public has a greater interest in the release of the records than
in their suppression. In the shadow of numerous incidents and subsequent protests surrounding killings of African American
men by police officers, the public interest is in being informed of details of such an incident. 13 The defendants have only made
general assertions that releasing records four months after the incident may result in witness unreliability, which is inimical
to the public interest. If the defendants' position was accepted, OPRA's ongoing investigation exception would exempt nearly
every police record of every crime from OPRA's reach until the end of trial, or possibly even after an appeal, and after all
Jors..ty
.11a Group Inc, v. Tp, of yndhutst, 2015 AIL 223064 (2015)
47:1A-3, which only permits
witnesses have testified. 14 This position cannot be reconciled with the explicit terms of
a denial if it is inimical to the public interest. If the policy of New Jersey was to exclude all police records until all witness
have testified or some other time beyond the mandated seven days, it would be expressly in contravention of the Act. Instead,
there is only a narrow exception permitting an agency to deny a request because it is "inimical to the public interest," and the
limitation must be interpreted in favor of NJMG's right of access. N.JS.A. 47:1 A- I .
*19 More than three months have passed since the incident, the primary witnesses have presumably made statements to the
State Police and the possibility of inaccurate witness testimony at trial has failed to persuade this court to permit the ongoing
criminal investigation exemption to disrupt NJMG's right of access. See N..I.S..4. 47:1A-1 (directing "limitations on the right of
access shall be construed in favor of the public's right of access."); see also Courier New,,, supra, 358 N.J. Super. at 38283. As a consequence, none of the responsive records may continue to be withheld under the ongoing investigation exception,
leaving only the criminal investigatory records exemption to justify denying NJMG access. J5
b. The Criminal Investigatory Record Exemption
Criminal investigatory records are defined as, any "record which is not required by law to be made, maintained or kept on file
that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding."
47:1 A-1.1 The defendants must satisfy both prongs by producing specific, reliable evidence that the documents are
"not be required by law to be made," and they "pertain[ ] to any criminal investigation or related civil enforcement proceeding."
O'Shea, supra, 410 NJ. Super. at 380-81; see also Courier News, supra, 358 N.J. Super. at 382-83. If either prong is not met,
NJMG must be granted access immediately.
The defendants have failed to submit any evidence to support DAG Vannella's assertion that "[n]one of the records are required
by law to be made." OPRA clearly places burden on the public agency to prove the denial of access is authorized by law.
47:1 A-6. The appellate division has required the production of "specific reliable evidence sufficient to meet a statutorily
recognized basis for confidentiality." Courier News, supra, 358 N.J. Super. at 383. Accordingly, it is insufficient for a public
agency to simply list the purported statutory exemption in support of nondisclosure without the necessary proofs. The only
assertion proffered by the defendants relevant to this burden was that "precedent makes categorically clear that arrest reports,
incident reports, operation reports, investigation reports, an offense reports prepared and maintained by the State Police (as
well as the other Defendants in this matter) are regarded as "criminal investigatory records." The same was followed by a
string citation to non-precedential GRC decisions that found certain records from specific department(s) were covered by the
exemption. 16 See N.J,S.A. 47:1 A-7 (stating GRC decisions "shall not have value as precedent for any case initiated in Superior
Court"). As such, the defendants have failed to meet their burden of providing reliable evidence for this exemption to apply.
See Courier Ncws, supra, 358 N.J. Super. at 383.
1. Use of Force Reports
*20 Pursuant to the Attorney General's Use of Force Policy, lijn all instances when physical, mechanical or deadly force
is used, each officer who has employed such force shall complete" a UFR. 17 The appellate division has held "the Attorney
General's 'Use of Force Policy,' issued in 1985 and revised in 2000, that requires the completion of UFRs and their maintenance
in the files of police departments, has the force of law for police entities." O'Shea, supra, 410 N.J. Super. at 382. As UFRs are
required to be made by law, they are not covered by OPRA's criminal investigation exception. Id. at 384.
H. 9-1-1 Calls, Dispatch Audio and CAD Reports
Although the State Police eventually produced these records, for purposes of fees, these records are discussed in brief. It is
well-settled that 9-1-1 calls, police dispatch records and CAD entries are required by law to be made and/or maintained. See
No
Group :ric. Tp, of Lyndhurst, 2015 WL 223064 (2015)
Serrano, supra, 358 N.J. Super. at 364 (noting 9-1-1 calls are "required by law to be recorded by a government agency and that
these tapes must be retained for 'no less than 31 days.' See N.J.S.A. 52:17C-1 and N.J.A,C. 17:24-2.4"(requiring retention of
all documents or records related to 9-1-1 calls in a secured area for no less than 31 days.")). Therefore, the first prong of the
criminal investigatory exception is not met and the exemption cannot justify the defendants' denial of access.
iii. Motor Vehicle Accident Reports, and Other Police Records
First, Motor Vehicle Accident Reports are required to made by police officers and are required to be publically available. N.J.S.4
39:4-131 (maintaining the information contained [in the reports] shall not be privileged or held confidential. Every citizen of
this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall
also have the right in person to purchase copies of the reports."). Thus, the Motor Vehicle reports sought by NJMG in this
matter are required by law to be made and must be immediately released to NJMG.
Second, the defendants have not met their burden of proving that no law or policy that has the force of law exists that required
the defendants make, maintain or keep the other police records responsive to NJMG's requests. For instance, local police general
orders and polices are binding and may carry the force of law necessary to remove the records from the exemption. 18 See
O'Slwa„supva. 410 N.I. Super. a t 382-83. No evidence, by way of certification or otherwise, has been submitted showing these
policies do not exist. As such, the defendants failed their burden of providing evidence that the responsive documents meet a
recognized basis for confidentiality and they must grant NJMG access forthwith.
B. The Defendants Motion to Seal the Second Certification of McGrath
*21 It is well established "[t]he questions whether to seal or unseal documents are addressed to the trial court's discretion."
Hammock by Hammock v. Hoffinann-Laroche. 142 N.J. 356, 380 (1995) (citing Nixon v. Warner Commens, 435 U.S. 589, 599
(1978)). In New Jersey, "information in a court record may be sealed by court order only when the party seeking the order
demonstrates by a preponderance of the evidence that good cause exists to seal the court record." R. 1:38-11(a). Good cause
exists when "(1) [d]isclosure will likely cause a clearly defined and serious injury to any person or entity; and (2) [t]he person's
or entity's interest in privacy substantially outweighs the presumption that all court and administrative records are open for
public inspection pursuant to R. 1:38." R. 1:38-11(b) (emphasis added). The New Jersey Supreme Court has made it clear, there
is "a very strong presumption in favor of public access" to "the materials, briefs and documents filed with the court in support
of, or in opposition to," "pre-trial-non-discovery motions." Hammock by Hammock, supra, 142 NJ, at 381, 386.
The defendant's counsel posits public disclosure of "the second McGrath certification would most certainly cause a clearly
defined and serious injury to the individuals involved in the ongoing investigation, and the known witnesses and subjects of
said investigation if not also the prospective ones." No further information has been provided or asserted as to what the "clearly
defined and serious injury" to these persons will be. Rather, DAG Vannella's only relevant assertion is that the release may
compromise witness reliability, which may potentially damage the State Police's investigation and/or subsequent trial if charges
are brought. IC
Without articulating even one example of a serious injury to a person or entity that will likely occur if the certification is
disclosed, the defendants have failed to meet their burden to justify sealing the certification. See R. 1:38-11. The defendants'
general statement of injuries would follow the disclosure has failed to persuade the court that the release of the records after
more than three months have passed since the incident would cause a serious injury to the investigators, witness's or subjects of
the investigation. Even if the defendants had articulated a serious injury, the defendants interest in privacy does not substantially
outweigh the strong presumption that all records are open for public access. 20 See R. 1:38-11(b).
ik2ortii Jersey
Group Inc. v. Tp. of Lyndliuist, 2015 ti1L 223064 (201
C. Fees
The Supreme Court of New Jersey held "OPRA mandate[s], rather than permit[s], an award of fees to a prevailing party."
Mason , supra, N.J. 51 at 75. Premised upon the "catalyst theory," a requestor is deemed the prevailing party and is entitled to
fees "if they can show [I] that their lawsuit was causally related to securing the relief obtained and [2] that the relief granted
had some basis in law." Id. at 57•
*22 First, NJMG has shown this lawsuit caused the disclosure of the sought records. This action was based upon two September
2014 records requests and was commenced on November 3, 2014• The first responsive records were received by NJMG on
December 5, 2014 from Rutherford. On December 22, 2014, the second round of responsive records were released by the State
Police on behalf of Lyndhurst, North Arlington and the BCPD. Prior to the lawsuit, NJMG did not gain access to a single record.
As such, this court is satisfied the lawsuit is causally related to NJMG receiving those records. For the remaining responsive
records, the lawsuit has unquestionably caused the same to be disclosed.
Second, as detailed above, NJMG had a statutory right to the government records sought. 21 The defendants had no basis in
law for withholding any of the records containing information that must be made public within 24 hours of the investigation.
See
47:1A-3(b). 22 It is well established that UFRs, 9-1-1 calls, police dispatch records and CAD entries are ineligible
for the criminal investigatory exception as they are required by law to made, maintained or kept. See O'Shea, supra, 410 NJ.
Super, at 384; Serrano, supra, 358 N.J. Super. at 364. Finally, the defendants failed to present any evidence to establish the
other responsive records fell under an exemption to OPRA, as such, NJMG's right of access was unfettered. Couri:• News,
supra, 358 N.J. Super, at 383.
Counsel shall attempt to agree upon a reasonable quantum of fees. Failing to accomplish the same, counsel for plaintiff shall
submit a certification of services within seven (7) days and defendants' counsel shall have seven (7) days thereafter to respond,
D. New Jersey Common Law
NJMG also seeks relief under the common law right of public access for the records at issue. Although access has already been
granted under OPRA, for completeness of appellate review, NJMG's common law claim is detailed below. The common law
right of access depends on three requirements: "(1) the records must be common-law public documents; (2) the person seeking
access must 'establish an interest in the subject matter of the material'; and (3) the citizen's right to access 'must be balanced
against the State's interest in preventing disclosure." ' Kcddie v. Rutgers, supra, 148 N.J. at 50 (internal citations omitted). The
common law definition of "public record" is broader than the definition contained in OPRA. Mason, supra, 196 N.J. at 67.
However, requestors under the common law right of access "must make a greater showing than required under OPRA•" Ibid.
1. Common Law Public Document
When applying the common law, it must be determined if the record is a "common law public document." The common law
definition of a public document is broader than under OPRA. The Supreme Court has held Iclommon law records are any
records made by public officers in the exercise of public functions. These materials include almost every document recorded,
generated or produced by public officials whether or not required by law to be made, maintained or kept on file." Higg-A-Vella.
Inc. v. County of Essex, 141 N.J. 35.46 (1995) (internal quotations and citations omitted). In this case, neither party has asserted
the requested records are not common law public documents. Therefore, the court finds such records are public documents, as
they were made and/or maintained by the various entity defendants in the course of their official business.
2. Interest of the Requester
Not111 Jei. acy Media Croup Inc. v. Tp. of Lyndhurst, 2915 WL 223064 (2015)
*23 The second determination is whether the party seeking access has established an interest in the subject matter of the
requested material. The Supreme Court has held the requestors interest need not be purely personal, but rather "as one citizen
or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records
bearing upon the problem, even though his individual interest may be slight." S. Jersey Pub., supra, 124 N.J. at 487 (internal
quotations and citations omitted). In addition, courts have recognized a newspapers' interest in policing the workings of public
agencies as a sufficient interest to gain access to public records. See e.g,, Red Bank Regisk -r, Inc. v. Bd. ofEduc. of Long Branch,
206 N.J. Super. 1, 9 (App. Div. 1985).
NJMG has brought this suit on behalf of its reporters, its flagship newspaper and the South Bergenite. NJMG asserts it, as well
as the public at large, has a strong interest in knowing the circumstances surrounding the fatal shooting of a citizen by the police
after a vehicle pursuit. DAG Vannella asserted the Office of Attorney General's press release has already "satisfied the public's
interest in knowing the 'facts" ' and NJMG "has not and cannot demonstrate how providing any additional information besides
all of the details that have been provided serves any legitimate interest." However, NJMG asserts details have been withheld
that would shed light on which officers discharged their weapon, what types of weapons were used, how many bullets were
fired and whether the totality of the circumstances justified the use of deadly force.
Despite DAG Vannella's contention that a press release may satisfy a requestor's right of access under the common law, it is
irrefutable that the common law right of access is for public records and not information. 23 Even if the press release "satisfied
the public's interest in knowing the 'facts' of the public safety concerns created by the suspects' alleged criminal activities on
September 16, 2014, and the resulting pursuit of the suspects by law enforcement officers," the public continues to have an
interest in learning about the conduct of the police officers that resulted in the death of one of the suspects. Still mindful of
the current societal debate over police interactions with the public, NJMG is found to retain the requisite interest in the subject
matter of the material.
3, Balancing
The third determination, and the issue in this case, requires the court to balance the citizen's right of access against the State's
interest in nondisclosure. The Supreme Court has described this process as "concretely focused upon the relative interests of
the parties in relation to [the requested] materials." Loigman, supra, 102 N.J. at 103 (citation omitted). The Court has set forth
six factors for a court to consider in performing its balancing, though, the list is non-inclusive. See S, Jersey Pub., .s.ipra, 124
N.J. at 488. And although the parties did not explicitly address the factors in their papers, the same are nonetheless analyzed as
they are the quintessential concerns when weighing a citizen's right of access.
The first Loigman factor is the extent to which disclosure will impede agency functions by discouraging citizens from providing
information to the government. As no such claim has been made by the defendants, this factors weighs heavily in favor ofNJMG,
*24 The second factor is 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. Although a possibility exists some witnesses may have made
statements with the expectation of confidentiality, the defendants have made no such assertion. In fact, the primary source of
information in this matter are the police officers employed by the entity defendants. As the police officers were performing
their official duties at the time of the incident, and are under a duty to report at the very least the use of force and motor vehicle
accident, no reasonable officer should have believed his identity would not be disclosed. Therefore, the second factor heavily
favors NJMG.
The third and fourth factors should be considered together. The third factor is the extent to which agency self-evaluation,
program improvement or other decision making will be chilled by nondisclosure. The fourth is the degree to which the
information sought includes factual data as opposed to evaluative reports of policymakers, The way police conduct their
interactions with the public, and in this case, an individual apparently attempting to wrongfully elude the police, is being
itAth
Wiedia Group onc. v. Tp. of Lyndhurst, 5015 WL 223064 (20.5)
evaluated. The records sought contain factual information as to the circumstances of Asford's death. These two factors again
favor NJMG.
The fifth and sixth factors should also be considered together. The fifth factor is whether any findings of public misconduct
have been insufficiently corrected by remedial measures initiated by the investigative agency. The sixth is whether any agency
disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. The
fifth factor is yet to be determined, although the record does not reflect any actions taken against the police officers involved.
The sixth factor favors the defendants. An investigation by the State Police is underway and if charges are brought against the
officers responsible it may mitigate the NJMG need for the records. However, even if criminal chargers are brought, the public
still has a right to know and try to understand the circumstances surrounding a public officer's use of deadly force,
The primary interest in confidentiality asserted by the defendants is to maintain the integrity of the investigation that may
eventually lead to State Grand Jury proceedings. At oral argument, when DAG Vannella was asked if the Attorney General's
Office wished to suggest the investigation has concluded on the date of the complaint, on the date of the grand jury presentation,
on the date of the indictment, on the date the trial has included, or on the date the appeal was concluded, DAG Vannella gave the
anomalous response that he "was not in a position to give an answer at this time and can do so with a supplemental" submission,
He informed the court he was only "here on behalf of the state police in a civil matter and been advised that is something the
client can provide to the court."
When there is an "absence of clear common law direction on the subject, a court engaged in this process may look to OPRA
provisions as expressions of public policy on the question of public access to information." Bergen Cniy. Imp. Auth. v. N..fers.cy
Media Grp., lnc,, 370 N.J. Super, 504, 510 (App. Div. 2004). As such, it is clear policy in New Jersey that records containing
information as to the circumstances of the crime must be released within 24 hours of the request. N.J.S.A. 47:1A-3(b). Further,
the appellate division has already determined an investigation did not continue until the end of trial, as it would disregard "a
citizen's right of access to government records embodied in OPRA." Courier News, supra, 358 N.J. Super. at 381. Surely, with
almost four months passing since the incident, the position that the court charged with determining whether an investigation
exempts certain records from public access is not entitled to be advised of the possible end date of said investigation on the
return date of the order to show cause also contravenes the records policy this state.
*25 When balancing the above factors, and the potential for witness unreliability, NJMG's interest in disclosure surpasses the
defendants' interest in confidentiality. The defendants' theoretical detriment of possible witness unreliability if criminal chargers
are even brought is eclipsed by the importance of the public's right to be informed about the conduct of its police officers when
facing daunting challenges resulting in the death of a citizen.
In summary, the totality of the Loiginan factors and interests of the parties weighs in favor of disclosure and NJMG shall be
given access immediately.
Conclusion
None of the defendants have requested the court conduct an in camera review of the records to determine if they are rightfully
withheld or should be provided with redactions. Further, the defendants have not asserted any bases for providing the records,
but in redacted form. As such, the defendants have waived that right and must provide NJMG access to the requested records
forthwith.
Certain information pertaining to an investigation in progress is required to be publically available. N.,I.S',.4. 47:1A-3(b). To
satisfy this directive of OPRA, records containing "information as to the identity of the investigating and arresting personnel";
and/or "information of the circumstances immediately surrounding the arrest," cannot be withheld in their entirety unless their
release would jeopardize the safety of a person or investigation in progress. Ibid. It has already been established the release of
records could only harm witness reliability, not the investigation. As such, the defendants must grant NIMG access.
Korth Je ∎ey MAL.: Group Inc. v. Tp. of Lyndhurst, 2015 WL 223'064 (2015)
Statutory mandated access to necessary information cannot be precluded by an all-encompassing assertion of the need for an
investigation to proceed in darkness. Our legislature has determined transparency in governmental operation is not only a worthy
goal, but is a requirement so as to ensure an informed citizenry. It would be an abandonment of judicial responsibility to fail
to uphold this worthy goal. All requested records shall be transmitted to NJMG forthwith. NJMG's counsel shall prepare the
appropriate order in conformity with this decision and submit the same pursuant to the five-day rule. That said, the defendants'
obligation to turn over all requested documents is effective on this date.
Footnotes
2
3
4
5
6
7
8
9
10
11
13
14
1S
16
The answer was filed on December 19, 2014.
The reply does not appear to have been filed, but was considered as if it was filed.
Other than Rutherford's disclosures, on December 19, 2014, NJMG's counsel asserted no additional responsive documents had been
released and this promise remains unfulfilled.
It is clear that Lyndhurst, North Arlington, Rutherford and the BCPD were required to comply with this duty. For a more detailed
discussion of the State Police's possible exemption under Executive Order 48 (1968) see infra footnote 16.
Although DAG Vannella posits there was never any opposition to the extensions of time, the same is not controlling.
This is especially so in light of DAG Vannella's assertion that upon the shooting, the investigation was immediately turned over to the
State Police. This not only undermines DAG Vannella's position the State Police did everything they could to comply with OPRA,
but also supports the public's interest in disclosure of the events as the State Police's apparent lack of transparency further undermines
the public's confidence that the police or their representatives are completing their duties in an appropriate manner.
At oral argument, DAG Vannella conceded NJMG had a right to access these records.
While this issue was not specifically addressed by the defendants, their only relevant position is that disclosure could possibly result
in unreliable witness testimony. Surely, jeopardizing a witness's possible testimony is more akin to jeopardizing a prosecution than
it is to jeopardizing an investigation. In addition, the analysis detailing why disclosure is not inimical to the public interest supports
the determination that disclosure would not harm a bona fide law enforcement purpose. See infra pp. 32-36.
As the defendants have only proffered these two exemptions as a basis for the denials, only the two shall be considered.
Although the court is appreciative of counsel for NJMG's citations to this court's prior opinions, they are hardly precedential, R. 1:36-3.
If the defendants' are fearful of the reliability of a witness that has not yet been interviewed, it appears the passage of time since the
incident, almost four months, may be of greater concern than the possibility of a witness tailoring his/her version to the responsive
records.
If charges are brought against a police officer involved in the incident underlying the records requests, any statements that officer
made could potentially be an admission by a defendant.
Of course, nothing herein is intended as a criticism or endorsement of any alleged police conduct in this or any unrelated matter.
The record before the court does not indicate some special circumstance is present that distinguishes this matter from other criminal
investigations, nor can the court conjure any such circumstance which could exist nearly four months after a shooting incident where
all the actors involved are seemingly known. At oral argument, DAG Vannella was asked if the Attorney General's Office wished
to suggest the investigation has concluded on the date of the complaint, on the date of the grand jury presentation, on the date of
the indictment, on the date the trial has included, or on the date the appeal was concluded. DAG Vannella advised lie "was not in
a position to give an answer at this time and can do so with a supplemental" submission. However, he did concede that if witness
unreliability was accepted as being inimical to the public interest, OPRA's ongoing investigation exemption would exempt almost
all police records of crimes where eyewitness testimony was essential.
Without ruling on the same, it is unclear if any of the responsive records could have been properly withheld under the exemption
with the posited justification.
Parenthetically, the GRC decision from 2003 cited by DAG Vannella for the proposition that every single responsive record was
justifiably withheld from NJMG under the criminal investigatory records exemption, was diminished, if not eviscerated, by the
appellate division's 2009 opinion in O'Shea, supra, 410 N.J. Super. at 382. The court in O'Shea found that an Attorney General's
Policy can "carry the force of law for police entities." Ibid. In Janeczko v. N.J. Dep't of Lan , & Public Safety, Div. of Crim. Justice,
GRC Complaint Nos. 2002-79 and 2002-80 (Aug. 8, 2003), the GRC reasoned the reports at issue "that are required to be 'made,
maintained or kept on file' are not mandated by law, either regulation or statute. They are required by the Attorney General as part
of his responsibilities under the Law Enforcement Act which grants him authority to require law enforcement agencies to prepare
North ‘:74-rsey eaciia Cur,up inc. v, Tr:), of Lyncliiiirst, 201b WI- 223064 (2015)
reports as may be necessary." As the court in O'Shea found the Attorney General's requirements can carry the force of law, which
decision is binding on this court, it would be an error to follow the GRC's decision without having reviewed any evidence to support
the defendants' position. O'Shea„mpro, 410 N.J. SupLr. at 382. Also, the defendants' counsel urges the court to consider Executive
Order No. 48 (1968) (the "Executive Order"), which was included as the final citation in the string citation, as "see also" supporting
citation without an explanation. The Executive Order does not compel a court to find the State Police records are confidential, rather,
it only compels a court to make a determination independently according to OPRA and related case law. In fact, it may be a fair
reading to find this executive order does not abrogate all of OPRA. Due to the apparent scarcity of review of the topic, the court cites
the decision, Kohler v. N.J. State Police, No. A-3790-09T3, 2011 N.J. Super. Unpub. LEXIS 163 (App. Div. Jan. 25, 2011) (slip op.),
for the reader's reference on the Executive Order issue, even though the practice is disfavored. R. 1;36-3; R. 1:1 -2(a).
Office of the Att'y Gen., Attorney General Guideline: Use of Force *7 (June 2000), available at http:// www.nj.govioag/dcyagguide/
17
useofforce2001.pdf.
While the court appreciates NJMG's counsel's citations to this court's prior opinion discussing the Division of Archive and Records
18
Management ("DARM") and its interplay with OPRA, and the subsequent unpublished appellate decision affirming said opinion,
they are not precedential. R. 1:36-3. As appellate review of whether DARM carries the force of law so as to disqualify certain records
from the criminal investigatory exemption has produced disparate results, it may be worthy ofjudicial review, Compare North Jersey
Media Group, Inc. v. Borough of Paramus, 2012 N.J. Super. Unpub. LEXIS 1685, 9-10, 2012 WL 2865787 (App. Div. July 13,
2012) (affirming a trial courts determination DARM required certain police records to be made, maintained or kept, therefore, those
records could not be exempt from disclosure under the criminal investigatory exception to OPRA.) with Renna v. County of Union,
2013 N.J. Super. Unpub. LEXIS 1139, 5, 2013 WL 1953566 (App Div. May 14, 2013) (affirming a trial court's determination that
DARM did not hold the force of law to make certain police records "required to by law to be made, maintained or kept on file),
19 In addition, DAG Vannella contends since OPRA permits in camera inspection of records, so a judge may determine if they are
properly withheld, then OPRA should permit a certification to be reviewed in camera to determine if the records should be withheld.
See Gannen N.J. Partners, LP v. C'nly. of Mitkile•e.x, 379 N.J. Super. 205, 220 (App. Div, 2005) (finding "if the court had a question
whether any factual materials in the notes reflect deliberative processes, it should have conducted an appropriate in camera hearing.
See Hartz ItArintoin 'mitts., Inc. v. N.J. Sports & 1:4osition Auth.. 369 N.J. Super. 175, 183, (App. Div,), certif. denied, 182 N.J. 147
(2004).). However, no precedent has been provided to support extending ORPA's framework to include an in camera review of a
certification instead of government records under a purported exemption. It is not for this court to make new law, rather, that judicial
function is appropriate for the appellate division or Supreme Court.
For the same reasons the release of the records is not inimical to the public interest, the defendants' interest in privacy fails to
20
substantially outweigh the presumption of public access.
At
oral argument, DAG Vannella conceded NJMG had a right to the records that had been provided since the filing of this matter
21
and prior to oral argument.
Whether the State Police had a right to initially withhold their own criminal investigatory records under the Executive Order is of
22
little consequence, as this action was the catalyst of production and the purported right was not initially asserted by the State Police
or its custodians.
This is undoubtedly the reason why DAG Vannella's opposition papers failed to include a single case, statute or other source finding
23
an agency's voluntary statement containing certain information could defeat or even diminish a citizen's right to access public records.
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EXHIBIT 3
Puff v. Ocean County Prosecutor's Office, 2014 Wl.. 5139407 (2014)
2014 WL 5139407 (N.J.Super.L.) (Trial Order)
Superior Court of New Jersey, Law Division.
Ocean County
John PAFF, Plaintiff,
v.
OCEAN COUNTY PROSECUTOR'S OFFICE, Defendant.
No. OCN-L-1645-14.
October 2, 2 014.
Opinion
Richard Gutman, Esq. appearing on behalf of the plaintiff, John Paff (Richard Gutman, P.C.)
Samuel lvfarzarel la, Esq. appearing on behalf of the defendant Ocean County Prosecutor's Office (Ocean County Office of the
Prosecutor)
Vincent J. Grasso, Judge.
Summary
*1 In this action in lieu of prerogative writs, plaintiff John Paff alleges that defendant Ocean County Prosecutor's Office
(Prosecutor's Office) violated New Jersey's Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA) and the common law
right of access. Specifically, Paff challenges the Prosecutor Office's denial of access to a police dash-camera video, which
Paff believes depicts a traffic stop for a motor vehicle violation in Barnegat Township involving a Tuckerton Borough police
officer's use of a police dog during the ensuing arrest of the female driver. The incident resulted in charges of aggravated assault
and official misconduct against the police officer. At issue is whether the Prosecutor's Office properly denied Paffs request
for the dash-cam video as inaccessible under OPRA. More specifically, the court is required to address the issue of whether a
police car's dash cam video of a traffic stop is exempt under OPRA as a "criminal investigatory record" within the meaning
of N.J.S.A. 47:1A-1.1.
The Prosecutor's Office maintains that its denial is warranted for several independent reasons. First, it maintains that
N.J.S.A,47: I A-3 exempts the video from OPRA's disclosure requirement under the "ongoing investigation exception." Second,
the Prosecutors Office maintains that the Attorney General's Internal Affairs Policy and Procedures Guidelines (IAPP) exempts
the video from disclosure. Third, it argues that N.J.S.A. 47:1A-1.1 exempts the video from disclosure as a "criminal investigatory
record." Lastly, the Prosecutor's Office argues that even without any exceptions under OPRA, the driver's reasonable expectation
of privacy justifies its withhold of the video. Asbury Park Press v. Ocean County Prosecutor's Office, 374 N../. Super. 312,
331 Div. 2004).
The court issued an opinion earlier on July 31, 2014, which addressed the merits of the Prosecutor's Office's reasons for denying
Paff access to the video. As to the "ongoing investigation exception" under N.J.S.A. 47:1 A-3, the court found that the exception
does not apply because the video was made before the investigation commenced and the exception does not work retroactively
.5'uper. 352, 367
to render public documents confidential once an investigation starts. Serrano v. South Brunswick, 358
(App. Div. 2003) As to the IAPP argument, the court found that a video, although may be used as part of an internal affairs
investigation, may nevertheless be accessible under OPRA because it was created prior to any internal affairs investigation.
Additionally, the court found that the unavailability of the video through criminal discovery does not preclude access via OPRA.
.2I-;AG Entertainment, 11,,C v, Div. of Alcoholic. Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005).
i-laff v. Ocean County Prosecutor's Office, 2014 Wt. 5139407 (2014)
As to the "criminal investigatory record" exception, the court found that the Prosecutor's Office has failed to meet its burden
of showing that the video constitutes a criminal investigatory record under N.J,S.A. 47:1A-1.1. Specifically, as to the first
prong of this test, the court found that the Prosecutor's Office has not yet produced any evidence that either the Barnegat or
Tuckerton police force were not required by law to capture or maintain the dash-camera video, The court, therefore, requested
the parties to submit supplementary briefs, certification, and evidence on whether the police dash-camera video constitutes a
criminal investigatory record under N.J.S.A. 47:1A-1.1's two-pronged analysis. The court asked the parties to address the issue
of whether there are statutes or regulations that "have the force of iaw in respect to the duties of law enforcement agencies"
in their use of dash-camera videos. O'Shea v. Twp. of West MiOrd, 410 N.J. Super. 371, 384 (App. Div. 2009). Finally, as to
the driver's reasonable expectation of privacy, the court advised it would conduct an in camera review of the video in order to
determine whether its release would interfere with the driver's reasonable expectation of privacy.
*2 In summary, the issues that remain outstanding following the court's ruling are: (1) whether the video constitutes a criminal
investigatory record under N.J:S.A. 47:1A-1.1; and (2) whether the video should be withheld to protect the driver's reasonable
expectation of privacy.
Background
The court gave a detailed factual background in its July 31, 2014 opinion. Accordingly, the court does not do so at length in
this opinion. Instead, the court will recite only those facts found in the record that are germane to the remaining issues.
On May 20, 2014, Paff requested a copy of the video at issue from the Prosecutor's Office and copies of summonses issued
against the driver. The video was captured by a police dashboard camera and it depicted an incident involving a Tuckerton
Borough police officer's use of a police dog during the arrest of the female driver following a motor vehicle stop that has resulted
in charges of aggravated assault and official misconduct against the police officer, On June 2, 2014, the Prosecutor's Office
furnished Paff with the summons, but denied the video request based on N.J.S.A. 47:1 A-3 and IAPP. The summons reveal that
the driver was charged with two counts of eluding under N..I.S.A. 2C:29-2 and various Title 39 motor vehicle infractions, The
Prosecutor's Office also provided a certification by Ocean County Prosecutor's Office Detective, John Halliday, who certifies
that the police officer "was charged with aggravated assault third-degree and official misconduct second-degree," but neither
the driver, nor the officer had been indicted as of the date of the certification. The Prosecutor's Office also claim a privacy
concern with the disclosure of the video to the public which could distress the female driver involved with the matter.
Findings
Burden of Proof
Plaintiff asserts that defendant's conclusory assertion of the requested video as a criminal investigatory record fails to satisfy
the burden of proof under OPRA and its case law. Plaintiff argues that defendant must provide sufficient evidence to satisfy
his statutory burden of proving that the video is a criminal investigatory record. At the second hearing, defendant advanced
the legal argument that OPRA sets up a dichotomy between "government record" and "criminal investigatory record," and,
therefore, a "government record" and a "criminal investigatory record" are mutually exclusive. As such, defendant maintains
that plaintiffs request of the video, at the outset, is a request for a criminal investigatory record. According to defendant, plaintiff
cannot request the video under OPRA, but under the common law, which places the burden of proof on plaintiff. Therefore,
defendant concludes that plaintiff has no right to initiate this court proceeding under OPRA. Nevertheless, at the oral argument,
defendant's counsel acknowledged that defendant does have the burden to satisfy the two-pronged test to demonstrate that the
video is a criminal investigatory record. The court notes that defendant's "dichotomy" argument at the second hearing fails to
reconcile with the argument in its original brief on the return date, in which defendant claimed that "the video is exempt as a
criminal investigatory record."
Paff Mean County Prosecutor's Office, 2014 WL 5139407 (2014)
The court finds defendant's argument without merit in its assertion that the request at its outset is a request for criminal
investigatory record and not properly under OPRA. Defendant's conclusory assertion of the record as a criminal investigatory
record fails to properly consider the statutory purpose of OPRA as well as its well-established case law that gives guidance on
whether a record is accessible by the public.
*3 The analysis begins with the recognition that OPRA manifests this State's public policy of government transparency.
The purpose of OPRA 'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and
to minimize the evils inherent in a secluded process," ' Times of Trearon Puhrg Corp. v. Laloyi2tte Yard Cmty. D 2V. Corp.,
183 NJ. 519, 535 (2005) (quoting Asbury Park Preys, ,supra, 374 .11f:j Super. at 329); O'Shc a. supra, 410 N.J. Super. at 379.
Thus, OPRA directs that
government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain
exceptions, for the protection of the public interest, and any limitations on the right of access .. • shall be construed in favor
of the public's right of access[.]
[N.J.S.A. 47:1A-1 .]
To serve this policy and purpose, OPRA provides that "[t]he public agency shall have the burden of proving that the denial of
access is authorized by law." N.J.S.A. 47:1A-6. As such, the agency "must produce specific reliable evidence sufficient to meet
a statutorily recognized basis for confidentiality. Absent such a showing, a citizen's right of access is unfettered," Courier News
v. Hunterdon County Prosecutor's Officc, 358 N.J. Super, 373, 383 (App. Div. 2003).
To approach an OPRA request, "[t]he first inquiry is whether the requested documents meet the statutory definition of
government record, and, if so, whether any exemption established in or recognized by any other law bars disclosure of the
requested documents." Wilson v. Brown, 404 NJ. Super. 557, 571 (App. Div. 2009), certif. denied, 198 N.J. 473 (2009)
(emphasis added); O'Shea, supra, 410 N.J. Super. at 380.
OPRA defines "government record" or "record" broadly under N.J.S,A. 47:1A- I :
[A]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed
document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof,
that has been made, maintained or kept on file in the course of his or its official business ... or that has been received in the
course of his or its official business.
[N.J.S.A. 47:1A-1.1.]
IV,..a.?1, 47:1A-1. I , however, also declares that la] government record shall not include" various categories of "information
which [are] deemed to be confidential," including "criminal investigatory records," defined as "a record which is not required by
law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation
or related civil enforcement proceeding." MjS,A, 47:1A-1.1; ()Shea, supra. 410 NJ. Super. at 380, The broad definition
and the exclusion are in part materia and must be read together. Accordingly, the court finds that the Legislature did not set
up a dichotomy between "criminal investigatory record" and "government record." Instead, "criminal investigatory record"
constitutes an exception to the general definition of "government record." See North Jersey Media Group, Inc. v. City of
Garfield, 2012 N.J. Super. Unpub. LEXIS 578 (Law Div. Mar. 16, 2012).
As OPRA places the burden of proof on the government agency seeking to deny access, the court finds that defendant's mere
assertion of criminal investigatory record does not satisfy its obligation under OPRA nor serves its purpose. "[T]he court must
always maintain a sharp focus on the purpose of OPRA and resist attempts to limit its scope, absent a clear showing that one
of its exemptions or exceptions incorporated in the statute by reference is applicable to the requested disclosure.".4sbury Park
Puff v. Ocean County Prosecutor's Office, 2014 WL 5139407 (2014)
Press, supra, 374 N.J. Super. at 329; North Jersey Media Group, supra, 2012 N.J. Super, Unpub, LEXIS 578. When a public
agency denies an OPRA based on the "criminal investigatory record" exception, the public agency "must meet both prongs
of the definition of 'criminal investigatory reports' for the documents to be inaccessible to plaintiff under N../.S.A. 47:1 A-1 .1,
that is, they must 'not be required by law to be made,' and they must 'pertain[ ] to any criminal investigation or related civil
enforcement proceeding." ' O'Shea, supra, 410 N.J. Super. at 380-81.
*4 Here, the court finds that the video in the instant case falls within the broad definition of "government record" or "record"
under NJS,A. 47:1A-1.1, because the video constitutes "information stored or maintained electronically" that has been made,
maintained, and kept on file in the course of an officer's official business. In order to prove that the video falls within the
"criminal investigatory record" exception, defendant is mandated under OPRA to satisfy the two-pronged test of "criminal
investigatory record."
Criminal Investigatory Record
Plaintiff claims that the requested video was required by law to be made, maintained, or kept on file. Plaintiff argues that
the Barnegat Township Police General Order 08-02 (the Order) carries the force of law for Barnegat police officers because
the Order was promulgated pursuant to N.J.S.A, 40A:14-118 and the Order employs the mandatory language "shall record."
Defendant, on the other hand, cites the O'Shea case to support his argument that the Order does not have the force of law to
require the video to be made, because the Order is not uniformly applicable throughout the State. Defendant points out that not
all the police departments in the State require police dash-camera video recording. 1 Defendant, therefore, concludes that if the
court finds that the Order carries the force of law and, hence, allows the video to be disclosed, it will create chaos. Moreover,
defendant cites Jones v. Paulsboro Police Dep't., 2012 NJ, Super. Unpub. LEXIS 234 (Law Div. Jan. 12, 2012) to support the
argument that no law mandates the making of the video.
The court disagrees and finds defendant's interpretation of O'Shea unpersuasive and defendant's assertion of chaos speculative,
at best. At issue here is whether local regulation without uniform application throughout the State has the force of law under
the context of "criminal investigatory record" as is the case before this court.
In the O'Shea case, the Appellate Division held that the New Jersey Attorney General's "Use of Force Policy" that requires
the completion of the Use of Force Reports (UFRs) and their maintenance had the force of law for police entities, rendering
such documents accessible under OPRA. O'Shea, supra, 410 N.J. Super. at 382. Although the AG's "Use of Force Policy" is
not a statute nor an administrative rule, the court held that it has the force of law, because the Attorney General, as the chief
law enforcement officer of the State of New Jersey, Ar.I.S.A. 52:17B-98, is charged with adopting guidelines, directives, and
policies that bind local police departments in the day-to-day administration of the law enforcement process. Ibid. The AG's
guidelines are binding and enforceable on local law enforcement agencies; and, at a minimum, they are statements concerning
the internal management or discipline of an agency. O'Shea, supra, 410 N.J. Super. at 383. The quality, character, and underlying
policies of those guidelines lead the court to conclude that those guidelines have the force of law in respect to the duties of
law enforcement agencies to conform to the requirements regarding the use of force and accountability for it, even though
they are not administrative rules and, thus, do not require formal promulgation. O'Shea, supra, 410 N.J. Super. at 384. The
court concluded that the Attorney General's requirements regarding UFRs sufficiently bind local police departments to satisfy
OPRA's "required by law" standard. O'Shea, supra, 410 N.J, Super. at 385. In summary, while cognizing that the Attorney
General's guidelines promote uniform enforcement throughout the State, the court in the O'Shea case focused the "force of law"
analysis on the guidelines' mandatory and enforceable character and nature on local law enforcement agencies.
*5 Likewise, in view of the binding and enforceable nature of the Barnegat Township Police General Order 08-02 (the Order),
the court finds that the Order carries the force of law for the Barnegat police department in creating and maintaining the dashcamera videos. The Legislature has delegated rulemaking to the municipalities, who may "subdelegate to the Chief of Police the
power to promulgate orders to the police force." N.J.S.11. 40A:14-118; Rusignuolo v. Orechio, 70 N.J. 330, 336 (1976). N.J.S.A.
40A :14•118 provides that a municipality, "by ordinance, may create and establish ... a police force" and such ordinance "shall
Pail v. Ocean County ProLecutor's Office, 2014 WL 5139407 (2014)
provide ... for the adoption and promulgation by the appropriate authority of rules and regulations for the government of the
force and for the discipline of its members." It continues that the chief of police shall be the head of the police force and that
he shall "[a]dminister and enforce rules and regulations and special emergency directives for the disposition and discipline of
the force and its officers and personnel" and "prescribe the duties and assignments of all subordinates and other personnel,"
Here, the Barnegat Township Police General Order 08-02 "Mobile Video Recording Equipment" was issued by the police chief
of the Barnegat Township. The police chief is charged with disciplining the force and its officers and personnel and prescribing
the duties and assignments of all subordinates and other personnel. N.J.S.A. 40A:14-118. The orders from the police chief,
therefore, bind the Barnegat police department in the day-to-day administration of the law enforcement process. The Order
at issue deals with the internal management of the police department in using mobile video recording (MVR) and is binding
and enforceable on Barnegat police officers regarding the procedures for using MVR. Specifically, Section II.C., states that
"[o]fficers using MVR equipped vehicles shall record the following situations: [al traffic stops, criminal enforcement stops
[p]olice pursuits ..,." The word "shall" connotes mandatoriness. Additionally, the Order provides a retention schedule. For
example, dash-camera videos which are related to a non-indictable or traffic offense will be retained for 60 days, videos related
to an indictable crime will be retained for 5 years after the case is closed, videos that are flagged for DWI cases will be retained
for 10 years.
Therefore, following the O'Shea court's rationale, the court finds that the Order has the force of law with respect to the mandate
that Barnegat police officers conform to the requirements regarding the use and retention of police dash-camera videos which
satisfies OPRA's "required by law" standard. The Paulsboro case is distinguishable from the instant case because the Paulsboro
case involved a surveillance video outside the police department and there was no law or regulation that mandated the making
of exterior surveillance videos of police departments.
Moreover, a careful reading of O'Shea reveals that what the Appellate Division meant is that the UFR at issue in that case may
or may not pertain to an investigation and "the question is one of fact for the fact-finder in OPRA matters." O'Shea. supra.
410 N.J. Super, at 385. The court concurs with Judge Doyne's analysis in North Jersey Media Group, supra, 2012 N.J. Super.
Unpub. LEXIS 578 which held that in the evaluation of accessibility, if the record, in this case the video, is required to be made,
it cannot qualify as a criminal investigatory record even if it pertains to a criminal investigation. The court can safely conclude
that the use of police dash-camera serves public interest. As importantly, it protects police officers, as the Order states that "tilt
is the policy of this agency to use mobile video recorders in order to protect the members of this agency," The court's analysis
and disposition apply to the video requested in this instance is based on its particular circumstances. The court understands
that a record may vary in type from municipality to municipality. A police dash-camera may not be required currently in every
department. If video recordings are not available, then there is simply no record for OPRA request.
*6 In summary, the Order carries the force of law to require that Barnegat police officers create a police dash-camera video
recording under specified circumstances. The traffic stop in this case fell under one of the specified circumstances covered
under the Order. The court finds that the requested video fails the first prong of the "criminal investigatory record" exception
and is not exempted from disclosure under OPRA because it is required to be made. Because the video fails the first prong of
the "criminal investigatory record" exception, the court does not need to address the second prong. As the disclosure is allowed
under OPRA, the court needs not to reach the issue regarding the common law right. O'Shea, supra. 410 N.J. Super. at 387.
Privacy Concern
After its in camera review, the court finds that the female driver does not have reasonable expectation of privacy to support the
withholding of the video and the facts of the present case are distinct from Asbury Park Preys v. Ocean County Prosecutor's
. Super. 312 (Law Div. 2004). In Asbury, the plaintiff requested a 911 call made by one of the victims of a double
Office, 374 N.J.
homicide. According to the court in the Asbury case, the dying words of the victim did not contribute to the purpose of OPRA
—an informed citizenry or elimination of the evil of secrecy, nor provided insight into the functioning of government, Asbury
Park Press, supra, 374 N.J. Super. at 330. The court added that its in camera review of the tape was a "chilling, wrenching,
Paff v. OcIzal County Prosecutor's Mice, 2014 WL 5139407 (2014)
and lingering experience even for one not related to the victim." Ibid. The court stated that "the content of the tape would ,..
offend and disturb any person of normal sensibilities." Ibid. The court then concluded that "it is beyond doubt that the victims'
survivors would reasonably expect that they would never have to share their loved ones' words with an inquisitive media or
curious public." Ibid.
Here, the video depicted an incident involving an arrest following a traffic stop. The content of the video would contribute to
the public purpose of OPRA and provide insight into a police officer's conduct during an arrest. The court's in camera review
of the recording does not find it to be so horrific or chilling as to warrant its nondisclosure, In the court's opinion, the driver
does not have a reasonable expectation of privacy in withholding the video, because her face is not even shown in the video.
Moreover, it depicts a motor vehicle traffic stop in a public area which militates against any expectation of privacy.
Based on the foregoing, judgment is entered in favor of plaintiff, John Paff, on count one. The court orders the Prosecutor's
Office to grant John Paff access to the police dash-camera video requested. Counsel need to confer and advise the court on the
issue of counsel fees and costs. The court dismisses count two which seeks the common law right of access to the requested
records given the relief granted to plaintiff under count one. Mr. Gutman is to prepare the order.
Footnotes
On September 10, 2014, New Jersey Governor Chris Christie signed into law a bill that "requires certain new or used municipal police
1
vehicles that are purchased, leased, or otherwise acquired on or after the bill's effective date to be equipped with cameras, Specifically,
municipal police vehicles that are primarily used for traffic stops are required to be equipped with a mobile video recording system."
P.L. 2014, c, 54, Assemb, 2280.
41.
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EXHIBIT 4
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September 27, 2013
Walter M. Luers, LLC.
23 West Main Street-Suite C-203
Clinton, New Jersey 08809
Michael M. DiCicco, Esq.
Bathgate, Wegener & Wolf, P. C.
One Airport Road
P. 0. Box 2043
Lakewood, New Jersey 08701
Re: Ganzweig v. Township of Lakewood, et al
Docket No. L-2392-13
Dear Counsel:
This case comes before the court by way of a verified complaint and order
to show cause filed September 10, 2013. Plaintiff Shabsi Ganzweig seeks to
compel defendants Township of Lakewood (Township) and its Township
Clerk, Mary Ann Del Mastro in her capacity as the Township's custodian of
records under the Open Public Records Act, N.J.S.A. § 47:1A-1-13 (OPRA), as
well as the common law, to produce:
(1) [A]ll telephone calls to & from Lakewood Police department dispatch &
watch command" and "[a]ll radio, audio, video and records including
log of incident" relating to a "parking and traffic situation in the area
on [5th Street and 6th Street] between Madison Ave & Forest Ave" on
July 2, 2013 between -3 p.m. and 4:30 p.m.; and
(2) [a]ll police transmissions, videos and phone recordings made in
connection with a pedestrian who was struck by a car on June 19, 2013
on Hope Chapel and South Lake in Lakewood.
1
This is a summary proceeding brought pursuant to Rule 4:67 and there
are no material facts in dispute.
Factual Background
Plaintiff Shabsi Ganzweig filed an OPRA request by e-mail dated June
19, 2013 with the Township Clerk. The e-mail read: "Can you please provide
me with all transmissions and videos (including Phone recording) of
pedestrian struck on Hope Chapel and South Lake on June 19 2013 @ appx
836 AM."
The Township Clerk, Ms. Del Mastro, responded by letter to this
request. The letter explains that, "[t]he information requested is denied, as it
is part of an Internal Affairs Investigation." The letter recites that
Because complaints against police officers can be the basis for
discipline and other personnel decisions, the complaints are
considered confidential personnel information and exempt from
disclosure because they contain information generated by or on
behalf of public employers or public employees in connection
with any grievance filed by or against an individual pursuant to
N.J.S.A. 47:1A-1.1.
The letter further recites that:
The requested record contains information regarding complaints
filed against police officers and/or reprimands of officers, which
is not subject to public access because it constitutes a personnel
or pension record containing information related to any
grievance filed by or against an individual and is exempt from
disclosure pursuant to Merino v. Borough of Ho-Ho-Kus, GRC
Complaint No. 2003-110 (July 2004) and N.J.S.A. 47:1A-10,
Later, plaintiff sent a separate OPRA request on July 3rd by e-mail.
The July 3rd e-mail read simply:
2
On July 2 2013 from appx 3pm till appx 430pra regarding a
parking and traffic situation in the area on 5th st&6th st between
Madison Ave & Forest Ave.
1) all calls regarding this incident.
2)All radio, audio, video and records including log of incident.
3)cell phones of the officers involved (#277, #272)
Ms. Del Mastro again responded by letter to plaintiffs July 3rd
OPRA request. This letter also explains that the request was denied
because "it is an Internal Affairs Investigation." This letter also
recited the same legal reasons as the earlier letter.
Findings
New Jersey's Open Public Records Act (OPRA) manifests the State's
public policy of transparency in government. See N.J.S.A. § 47:1A-1
("[Glovernment records shall be readily accessible for inspection, copying, or
examination by the citizens of this State, with certain exceptions, for the
protection of the public interest, and any limitations on the right of access ..
shall be construed in favor of the public's right of access . . ."). Generally,
OPRA requires a public body to disclose any "government record." N.J.S.A.
§ 47:1A-1. OPRA defines "government record" broadly to mean:
[Ajny paper, written or printed book, document, drawing, map,
plan, photograph, microfilm, data processed or image processed
document, information stored or maintained electronically or by
sound-recording or in a similar device, or any copy thereof, that
has been made, maintained or kept on file in the course of his or
its official business ... or that has been received in the course of
his or its official business
3
N.J.S.A. § 47:1A-1.1.
However, a public body need not disclose a "government record" if that
record falls into one of OPRA's twenty-one categories of documents that fall
outside the statute's reach. N.J.S.A. § 47:1A-1.1. OPRA places the burden of
proving such an exception on the public body who wishes to withhold a
government record. N.J.S.A. § 47:1A-6. In doing so, the public body's
custodian of record must state the "specific basis" for withholding a
government record. Gannett N.J. Partners v. Middlesex, 379 N.J. Super. 205,
215 (App. Div. 2005). Moreover, they "must produce specific reliable evidence
sufficient" to prove their asserted "statutorily recognized" exception. Courier
News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 382-83
(App. Div. 2003). Absent such a showing, a citizen's right of access is
unfettered. Ibid.
In evaluating a public body's decision to withhold information, a court
must determine: (1) if the information constitutes a government record; and
(2) if the record evidence produced by the public body establishes an
exception that shields the government record from disclosure.
In the case at bar, neither party disputes that the information
requested constitutes a government record. Instead, the Township asserts
that its custodian properly denied Ganzweig's request for information under
OPRA. Initially, in denying plaintiffs OPRA request, the Township's
custodian of records used general language that alludes to "complaints
4
against police officers" and "confidential personnel information." The general
language references N.J.S.A. § 47:1A-1.1 and N.J.S.A. § 47:1A-10, but did not
specify how plaintiffs OPRA request implicates.these sections. At oral
argument, Township counsel conceded that these cited sections do not apply.
Therefore, the court does not entertain either statutory basis for denying
plaintiffs OPRA requests.
However, in its brief opposing plaintiffs order to show cause and at
oral argument, Township counsel advances a different reason why plaintiffs
requests should be denied. Specifically, the Township asserts that: (1) after
receiving some unspecified complaints from Township residents, the
Township has commenced internal affairs investigations for both incidents as
required by law; and (2) the records concern the same subject matter as these
investigations.
As a threshold issue, the Township's response to plaintiffs OPRA
request fails to provide sufficient and specific grounds for its denial of
plaintiffs requests. As explained above, OPRA requires a public body to
furnish the court with sufficient specific evidence to support its denial of a
plaintiffs information request. Courier News, supra, 368 N.J. Super, at 382—
83. Consequently, the Township fails to prove that it properly denied
plaintiffs document requests under any exception recognized by OPRA.
Nevertheless, the Township's argument fails even if the court were to
accept the Township's assertions as true. Specifically, the Township argues
5
that "police internal affairs records are confidential and not accessible" as a
matter of law.
At oral argument, counsel elaborated on its argument. The Township
argued that once an Internal Affairs Investigation has commenced, the
Attorney General's Internal Affairs Policy & Procedures (IAPP) authorizes a
police department to subsume all evidence into the investigation, putting
that evidence outside OPRA's reach. The Township cites chiefly to two
passages of the IAPP to support this argument. The first passage, located on
page 28 of the IAPP, reads:
The investigator should also examine and retrieve all
electronic, computer, digital and phone records. These include
may [sic] analog and digital records created by radio and
telephone recorders, computer aided dispatch systems, mobile
data terminals, in-car video systems, video surveillance systems
and other forms of audio and video recording. In these cases,
the relevant data should be copied to an appropriate medium as
soon as possible and retained by internal affairs.
The Township points to a second passage, located on page 47 of the IAPP,
that reads: "The nature and source of internal allegations, the progress of
internal affairs investigations, and the resulting materials are confidential
information."
Next, the Township further argues that because the IAPP carries the
force of law, these two passages together create an exception to OPRA's
disclosure requirement akin to a statutory exception. It draws on a
Government Records Council (GRC) decision, Blaustein v. Lakewood Police
Department, GRC Complaint No. 2011-102 (June 26, 2012). The Blaustein
6
decision dealt with a request to produce police mobile video recordings and
radio transmissions for two police complaints. The decision cites O'Shea v.
West Milford, 410 N.J. Super. 371, 38i (App. Div. 2009) for the proposition
that the IAPP carries the force of law. Blaustein, supra, at 6. Moreover, the
LAPP classifies the "nature and source of internal allegations, the progress of
internal affairs investigations, and the resulting materials" as confidential,
that the video recordings are also confidential. Id. at 7. By syllogism,
therefore, OPRA requires the nature and source of internal affairs
investigations to remain confidential. Ibid.
The Township's reasoning in the case at bar mirrors that of the GRC in
Blaustein, The Township's argument can be summarized as follows: if digital
or other recordings come into existence, but an internal affairs
investigation—unlike a civil or criminal investigation—subsequently
commences based on the recorded events, these recordings and transmissions
of the event itself move outside OPRA's reach per the IAPP guidelines.
Therefore, the Township reasons that, under the circumstances at hand, the
Internal Affairs Investigation that has been commenced removes the
transmissions and recordings sought by plaintiff from OPRA's reach.
At the outset, the Township reliance on a GRC decision is misplaced.
OPRA provides that a decision by the GRC has no precedential value.
N.J.S.A. § 47:1A-7(e); see O'Shea v. West Milford, 410 N.J. Super, 371, 381
(App. Div. 2009) (noting that a Superior Court is not bound by the GRC's
interpretation of OPRA) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.
85, 93 (1973)). Therefore, the court cannot necessarily rely on Blaustein for
the broad proposition that "police internal affairs records are confidential and
not accessible" as a matter of law as the Township urges. Instead, the court
must evaluate the Township's argument in light of OPRA's provisions and
binding precedent.
The court disagrees with the Township's argument. The plain
language of the statute makes clear that information that later forms the
basis of an investigation does not become retroactively exempt from OPRA's
disclosure requirement. N.J.S.A. § 47:1A-3 (". . this provision shall not be
construed to allow any public agency to prohibit access to a record of that
agency that was open for public inspection, examination, or copying before
the investigation commenced."); Serrano v. South Brunswick, 358 N.J. Super.
352, 367 (App. Div. 2003) (holding that 911 tape did. not become retroactively
exempt from OPRA's disclosure requirement under N.J.S.A. § 47:1A-3
because prosecutor obtained it). Moreover, Appellate Division has made clear
that courts should. distinguish between those (accessible) documents that
prompt the investigation and the (potentially confidentied) work-product of
the investigation itself. See O'Shea, supra, 410 N.J. Super. at 378-86
(distinguishing "Use of Force" reports from allegations of excessive force and
work product of resulting internal affairs investigation).
Likewise, the police transmissions and recordings sought by plaintiff in
this case do not automatically fall outside OPRA's reach because they contain
the "nature and source of internal allegations." , These radio or video
.
transmissions are independent and are to be distinguished from those
Internal Affairs records that are created once the investigation has
commenced. Here, plaintiffs seek neither the nature, the source, nor the
substance of any internal affairs investigation. Plaintiff seeks only the
information that was recorded at the time of two separate incidents, but prior
to any internal affairs investigation. The fact that an internal affairs
investigation may use or mandate the acquisition of the requested records
does not change their status as an accessible government record which the
court finds is the case at hand. The recordings sought by plaintiff are a
record of the events. They are not the internal affairs investigation.
Judgment is entered in favor of plaintiff ordering:
I. Defendants to provide copies to plaintiff of all telephone calls to and
from Lakewood Police Department dispatch and watch command
and all radio, audio, video, and records including log of incident
relating to a parking and traffic situation in the area on 5th Street
and 6th Street between Madison Avenue and Forest Avenue on
July 2, 2013 between 3 p.m. and 4:30 p.m.
2. Defendants to provide copies to plaintiff of all police transmissions,
videos, and phone recordings made in connection with a pedestrian
9
who was struck by a car on June 19, 2013 on Hope Chapel and
South Lake in Lakewood.
Any award of costs and attorney's fees will abide further application to
the court. Mr. Luers is to prepare the order that comports with the court's
ruling. The Township shall comply with plaintiffs request within seven days
of its receipt of the signed order.
Resp dully submitted,
CENT J.
VJG:dfm
Encs. (1)
10
A SSO, A,J.S.C.
EXHIBIT 5
CILSVP
-
NOV 18 2014
esag C. Joi-iNisokli. ,,s
SUPERIOR COURT OF NEW JERSEY
1201 Bacharach Boulevard
Atlantic City, NJ 08401-4527
(609) 594-3384
NELSON C. JOHNSON, J.S.C.
MEMORANDUM OF DECISION
TO: Donald M. Doherty, Esquire
125 North Route 73
West Berlin, New Jersey 08091
Attorney for Plaintiff
Dominic P. DiYanni, Esquire
Eric M. Bernstein & Associates
34 Mountain Boulevard, Bldg. A
P.O. Box 4922
Warren, New Jersey 07059
Attorney for Defendant
RE: Demitroff vs. Buena Vista Township
DOCKET NO.
ATL-L-5662-14
This matter come before the Court on Plaintiffs petition seeking access to a video
recording (audio non-existent) of the Municipal Defendant's public meeting room. The
Defendant has denied Plaintiff's request. The Plaintiff, Mark Demitroff ("Demitroff") is a
self-professed "open government activist." The Defendant, Buena Vista Township
("Township") is a body politic, organized and existing under the laws of New Jersey and is
obligated to comply with the requirements of the Open Public Records Act, viz., N.J.S.A.
47:1A-1 et seq. ("OPRA").
This Court entered an Order to Show Cause on September 18, 2014. As a consequence of
counsels' and the Court's schedule, this matter was not heard on until October 29, 2014. Prior to
the hearing, the Court had the benefit of an in camera review of the video in question, together
with the oral argument of counsel. Based upon the Court's review of counsels' pleadings, their
oral arguments at the Order to Show Cause hearing, and the Court's review of the video in
question, the Court makes the following Findings of Fact:
FINDINGS OF FACT
1. On July 29, 2014, Demitroff requested a tape of the multipurpose public space, two wit,
the municipal court room and meeting room of the Township Committee, and various
Township agencies.
2. Plaintiff's request was in writing and was submitted by email. As noted by the contents of
said email, Plaintiff's request was made under the OPRA.
3. The video tape requested by Demitroff is limited to a discrete period of time, namely,
10:30 to 11:30 PM, immediately following a Township Committee meeting on July 28,
2014.
4. The date and time in question for the video tape requested apparently coincides with the
end of a Township Committee meeting, spanning the final portion of the meeting, and
then recording the images of people both seated and moving about the room, until it was
vacated and the room went dark.
5. By everyone's admission, the camera in operation on the date and time requested is a
single camera in the meeting room and is mounted on the upper portion of a wall several
feet from the meeting room dais, which also serves as the Bench for the Municipal Court.
The camera is in plain view of anyone in the meeting room.
6. By means of an email from Township Clerk, Lisa Tilton, dated August 7, 2014 the
Township denied Demitroff's request. In her email, Ms. Tilton advised that "The data
you requested is exempt pursuant to N.J.S.A. 47:1A-1.1(9) ... and N.J.S.A.
47:1A-1.1(10)." Both of these provisions of the OPRA deal with security matters and
concerns for safety of person and property.
7. In her Certification to the Court, Ms. Tilton advised that Buena Vista Township
Municipal Court, Frank Raso, shared her concerns. Prior to ruling on the submissions
made by legal counsel, the Court inquired whether or not Judge Raso would be permitted
to provide a Certification detailing his purported safety concerns. The undersigned was
advised by the Hon. Julio Mendez, A.J.S.C., Vicinage One, that Judge Raso would not be
submitting a Certification.
8. Prior to the Order to Show Cause hearing on October 29, 2014, the Court reviewed the
entirety of the requested video tape, making an effort to appreciate the Township's safety
concerns and the stated security exemption.
ANALYSIS OF LAW AND RULING
The Court is satisfied that the requested video tape is a "government record" as
contemplated by the OPRA. The definition used by the Legislature is sufficiently broad to
2
(S) "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer"
6
encompass a video of a public meeting and the recorded events in a public space subsequent to a
public meeting. Whether the video or the CD is termed a type of "photograph," "image
processed document," "information stored or maintained electronically," or "by sound-recording
or in a similar device," the CD examined by the Court is a "government record."
N.J.S.A. 47:1-1.1, which defines the term "government record," likewise recites various
exemptions to that term includes the following language:
• emergency or security information or procedures for any buildings or facility which, if
disclosed, would jeopardize security of the building or facility or persons therein;
•
security measures and surveillance techniques which, if disclosed, would create a risk to
the safety of persons, property, electronic data or software;
It is apparent from a review of the aforesaid language that the first exemption is intended to
address security of public buildings and facilities. The second exemption is intended to address
security measures and techniques utilized by public officials. The Court knows of no case law
interpreting the aforesaid statutory language nor applying these provisions to any dispute
involving a request for government records which might involve security issues. Neither counsel
has cited case law interpreting either exemption.
The Township's Brief expresses confidence that a review of the video footage will "make it
apparent" why the video should not be released to Mr. Demitroff. The Township's Brief reads at
p. 4-5, in pertinent part:
When the Judge views the footage in camera the security measures and/or
security information disclosed will make it apparent why the concerns were raised
by the Township's Records Custodian and her reason for denying access to the
videotape. The footage will disclose potential for a member of the public
•
to gain
access to the municipal courtroom and/or council meeting chambers without
being seen on the camera, These "blind spots" and other issues are quite
problematic and cause concern for the safety of individuals who are in the room,
including the Municipal Court Judge whose view cannot be seen from the camera.
(See Certification of Lisa Tilton, Records Custodian.)
The Township has very sincere and cause for concern if this footage were to be
made available to the public.
3
•
"The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer"
6
what Plaintiff has failed to disclose to the Court is the possibility that this one
(1) hour of time which happened to be the time right after the conclusion of the
Township Council meeting could disclose security measures such as lock down
procedures for the Municipal Courtroom and Township Council Meeting Room.
This Court's review doesn't arouse the concerns expressed by the Township. Ignoring the
fact that several weeks earlier the Township released a similar such videotape to the Plaintiff, the
Court is satisfied that there are no images contained in the video which would "jeopardize
security of the [Township] building" nor does it disclose any security techniques which have the
potential to "create a risk to the safety of persons, property" which the Township has a
responsibility to protect.
It is not disputed that the existence of the camera and its location are in plain view for all
to see. Anyone who is reasonably observant or circumspect when entering the Township's
meeting room will notice that there is a camera mounted on the wall. They will also notice that it
is the only camera in the room. While any interested person may not know the scope of the
camera and the breadth of the images recorded, they will know that while the camera is capable
of recording images in a large portion of the room, that there are admittedly "blind spots." These
"blind spots" appear to be a concern for the Township, or as stated by the Township in its Brief
are "quite problematic."
No doubt that the'ToWnship may be disappointed by this ruling, but the Court doesn't see
it the same way. There is nothing in any of these images, nor can anything "problematic" be
gleaned from what is not shown. From the Court' S perspective, there is nothing of any particular
value to someone seeking to do harm to persons or the property of the Township.
In the event the Township requests a stay of the release of the CD to Mr. Demitroff
pending an Appeal to the New Jersey Appellate Division, of the requested video, the same will be
granted. Possibly the undersigned is missing something which the Township believes should be
"apparent" and the Appellate Division will notice the Township's concerns.
4
(t) "The Judiciary of New Jersey is an equal Opportunity/Affwmative Action Employer"
6
Taking into consideration the frequency with which the Township Committee meets, any
such request for a stay must be made to the Court within thirty-Eve (35) days hereof. No action
will be taken on the Plaintiffs request for counsel fees during the interim. An appropriate Order
has been entered. Conformed copies accompany this Memorandum of Decision.
/4%, C
%hi"—
NEL ON C. JOHNSON, J.S.C.
•
Date of Decision: 11/18/14
5
S "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer"
6
NOY 18 SA
Is/soy c. .00iiNSON
Donald M. Doherty, Jr., Esq. - Id. # 051981994
The Law Office of Donald M. Doherty, Jr.
125 North Route 73
West Berlin, NJ 08091
(609) 336-1297
Attorney for the Plaintiff
: NEW JERSEY SUPERIOR COURT
: Atlantic County- LAW DIV.
DOCKET NO. ATL-L- 566,2_14
Mark Demitroff,
Plaintiff;
VS,
Buena Vista Township & Lisa Tilton, Township Clerk,
ORDER
Defendants.
This matter having been open to the court by Donald M Doherty, Jr., Esq., attorney for the
This matter having been open to the court by Donald M Doherty, Jr.,
Plaintiff Mark Demitroff,
Esq., attorney for the Plaintiff and the Court having reviewed the moving papers, opposition and reply
and having heard oral argument;
201 ORDERED:
IT IS ON THIS /ilk DAY OF .011t
The Defendants shall provide Plaintiff access to the videotape records sought within 1 business
1.
day.
c:(
Plaintiff is awarded counsel fees of S
enhancement of
, with a contingent fee
%, for a total counsel fee sum due of $
andcostfuihemno$
cit
THE HONORABLE NELSON JOHNSON, JSC
.cCe-
,o/z_
/KT
CAcrICS /Vern of'an 4/4-1
Aeff.
GO Y.4 _
PASHMAN STEIN
A Professional Corporation
Court Plaza South
21 Main Street, Suite 100
Hackensack, NJ 07601
(201) 488-8200
CJ GRIFFIN (#031422009)
Attorneys for Plaintiff,
John Paff
JOHN PAFF,
SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: MONMOUTH COUNTY
Plaintiff,
: DOCKET NO.:
v.
TOWNSHIP OF NEPTUNE and
RICHARD J. CUTTRELL, R.M.C., in his
•
capacity as Records Custodian for the Township :
of Neptune,
Civil Action
ORDER TO SHOW CAUSE
Defendants.
THIS MATTER being brought before the court by Pashman Stein, a Professional
Corporation, attorneys for Plaintiff John Paff, CJ Griffin, Esq. appearing, seeking relief by way
of summary action pursuant to R. 4:67-1(a), based upon the facts set forth in the Verified
Complaint filed herewith; and the court having determined that this matter may be commenced
by Order to Show Cause as a summary proceeding pursuant to the Open Public Records Act,
N.J.S,A. 47:1A-6, and for good cause shown:
IT IS on this
day of
, 2015, ORDERED that Defendants
Township of Neptune and Richard J. Cuttrell, R.M.C., in his capacity as Records Custodian for
the Township of Neptune, shall appear and show cause on the
day of
, 2015 before the Superior Court at the Monmouth County Courthouse in
Freehold, New Jersey at
a.m./p.m., or as soon thereafter as counsel can be heard, why
judgment should not be entered:
1.
Declaring said actions of Defendants to be in violation of OPRA, N.J.S.A. 47:1A-
1 et seq. by failing to maintain an OPRA request form; failing to designate an OPRA custodian;
and failing to grant access to the requested government records within seven business days;
2.
Ordering Defendants to release the requested records pursuant to OPRA.
3.
Ordering Defendants to comply with OPRA requests in the future by adopting an
OPRA Request form, identifying a records custodian, and granting access to records within
seven business days.
4.
Alternatively, declaring Defendants have violated Plaintiff's rights under the
common law right of access in their handing of Plaintiff's requests for public records;
5.
Ordering Defendants to provide the requested records under the common law;
6.
Ordering Defendants to preserve the requested record pending resolution of these
proceedings or as otherwise required by law;
7.
Awarding counsel fees and costs pursuant to N.J.S.A. 47:1A-6; and
8.
For such other relief as the Court may deem just and equitable.
AND IT IS FURTHER ORDERED that:
1.
A copy of this Order to Show Cause, Verified Complaint and all supporting
affidavits or certifications submitted in support of this application be served upon Defendants
personally or by Certified Mail, Return Receipt Requested, within
days of the date hereof,
in accordance with R. 4:4-3 and R. 4:4-4, this being original process.
2.
The Plaintiff must file with the court its proof of service of the pleadings on the
Defendants no later than three (3) days before the return date.
2
3.
Defendants shall file and serve a written Answer and opposition papers to this
Order to Show Cause and the relief requested in the Verified Complaint and proof of service of
the same by
, 2015. The opposition papers must be filed with the Clerk of the
Superior Court in the county listed above and a copy of the papers must be sent directly to the
chambers of Judge
4.
. A copy must be sent to Plaintiff this same date.
The Plaintiff must file and serve any written reply to the Defendants' opposition
to the Order to Show Cause by , 2015. The reply papers must be filed with
the Clerk of the Superior Court in the county listed above and a copy of the reply papers must be
sent directly to the chambers of Judge . A copy must be sent to Defendant
this same date.
5.
If the Defendants do not file and serve opposition to this Order to Show Cause,
the application will be decided on the papers on the return date and relief may be granted by
default, provided that the Plaintiff files a proof of service and a proposed form of order at least
three days prior to the return date.
6.
If Plaintiff has not already done so, a proposed form of order addressing the relief
sought on the return date (along with a self-addressed return envelope with return address and
postage) must be submitted to the Court no later than three (3) days before the return date.
7.
Defendants take notice that the Plaintiff has filed a lawsuit against you in the
Superior Court of New Jersey. The Verified Complaint attached to this Order to Show Cause
states the basis of the lawsuit. If you dispute this complaint, you, or your attorney, must file a
written answer and opposition papers and proof of service before the return date of the order to
show cause.
3
These documents must be filed with the Clerk of the Superior Court in the county listed above.
A directory of these offices is available in the Civil Division Management Office in the county listed
above and online at http://www.judiciary.state.nj.us/prose/10153 deptyclerklawretpdf. Include a $175 filing
fee payable to the "Treasurer State of New Jersey." You must also send a copy of your Answer and
opposition papers to the plaintiffs attorney whose name and address appear above, or to the Plaintiff,
if no attorney is named above. A telephone call will not protect your rights; you must file and serve
your answer and opposition papers (with the fee) or judgment may be entered against you by default.
8.
If you cannot afford an attorney, you may call the Legal Services office in the county in
which you live or the Legal Services of New Jersey Statewide Hotline at 1-888-LSNJ-LAW (1-888576-5529). If you do not have an attorney and are not eligible for free legal assistance you may obtain
a referral to an attorney by calling one of the Lawyer Referral Services. A directory with contact
information for local Legal Services Offices and Lawyer Referral Services is available in the Civil
Division Management Office in the county listed above
and
online
http://www.j udiciary.state.nj . us/prose/10153 deptyclerklawretpdf.
9.
The Court will entertain argument, but not testimony, on the return date of the
Order to Show Cause, unless the Court and parties are advised to the contrary no later than
days before the return date.
HON.
4
at