On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1843-08.
The opinion of the court was delivered by: Kestin, J.A.D. (retired and assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Lyons and Kestin.
A Law Division order, entered on August 8, 2008, declared that defendant, the Township of West Milford, had violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, by refusing to provide plaintiff, Martin O'Shea, with "a copy of the requested Use of Force Reports [from its police department,] specifically those involving an arrest or where charges were brought[.]" The trial court ordered defendant to grant plaintiff "access to the requested Use of Force Reports in unredacted form, except for the names of subjects not arrested; on those cases where there was an arrest made or where charges were made." In a subsequent order, entered on October 22, 2008, the trial court denied defendant's motion for reconsideration as having no adequate basis. Pending appeal, the trial court stayed the prior order and deferred a ruling on plaintiff's application for an award of costs and attorney's fees. Defendant appeals from both orders "except for portions regarding the award of attorney's fees."
Plaintiff is a former resident of the Township. On March 20, 2008, invoking OPRA and the common law, he asked the Township for access to "[a]ll Use of Force reports on file with the Township and/or its police department pertaining to use of force incidents occurring in 2006, 2007 and 2008." On March 31, 2008, the Township Clerk denied plaintiff's request in a letter, stating:
The records you requested, use of force reports, are considered criminal investigatory records and as such are exempt from disclosure under OPRA. In GRC [Government Records Council] complaint #2004-151, Kenneth Serrano v. New Brunswick Police Department, [GRC Complaint No. 2004-151 (Apr. 14, 2005)] the GRC ruled that use of force forms are "exempt from disclosure as criminal investigatory records pursuant to N.J.S.A. 47:1A-1.1."
The Township nevertheless gave plaintiff "a summary report... that the police department provides to a county prosecutor in accordance with the Use of Force guideline."*fn1 The summary was "not specific" and did not include either the names of the officers or the subjects of the use of force.
The matter came before the trial court on plaintiff's verified complaint and order to show cause. After hearing the arguments of the parties, Judge Brogan decided the matter in favor of plaintiff. He recited his reasons in oral opinions disposing of the initial motion and the motion to reconsider. On the issues before us in this appeal, we affirm primarily for the well-considered reasons stated by Judge Brogan; and we remand for further proceedings.
In the face of the statutory requirements that "government records shall be readily accessible[,]" N.J.S.A. 47:1A-1, and that "any limitations on the right of access... shall be construed in favor of the public's right of access[,]" ibid., Judge Brogan held that Use of Force Reports (UFRs) are not exempt from the general disclosure requirements of OPRA as criminal investigatory records under N.J.S.A. 47:1A-1.1. Judge Brogan found that the Township had failed to prove that any of the requested documents pertained to criminal investigations. He opined that that it was not within OPRA's design to render documents inaccessible as criminal investigatory records merely because they might "result in either an internal affairs investigation and/or criminal record -- criminal charges against the police officer.... I don't believe that was the intent of OPRA[.]"
Judge Brogan also held that access to UFRs is not limited under the exceptions to the general disclosure principle of the statute that are contained in N.J.S.A. 47:1A-3. One such exception applies to government records that "pertain to an investigation in progress by any public agency." N.J.S.A. 47:1A-3(a). Access to records involved in on-going investigations is not automatic, and "may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest." Ibid. (emphasis added). On the other hand, access cannot be prohibited "to a record of that agency that was open for public inspection, examination or copying before the investigation commenced." Ibid.
Furthermore, under the statute, "information concerning a criminal investigation," such as "information of the circumstances immediately surrounding [an] arrest," is available to the public for immediate access, "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. 47:1A-3(b). Such records must be released unless the information "will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release[.]" Ibid.
In his oral opinion disposing of the motion for reconsideration, Judge Brogan amplified his reasons for granting plaintiff's request for access. He said that the UFRs at issue did not qualify as criminal investigatory records both because they were not created as part of an investigation and because defendant had merely speculated that the documents sought would ever be used in an investigation.
The judge drew an "analog[y]" between a UFR and an accident report that a police officer fills out. While [the document] may ultimately at some point become part of a criminal investigation and even a civil lawsuit, it ...