July 13, 2012
NORTH JERSEY MEDIA GROUP INC., D/B/A THE RECORD, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
BOROUGH OF PARAMUS, TONI FALATO, RECORDS CUSTODIAN FOR THE BOROUGH OF PARAMUS, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2818-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 19, 2012 -
Before Judges Axelrad and Parrillo.
Plaintiff North Jersey Media Group, Inc., d/b/a The Record ("The Record"), a daily newspaper circulated throughout northern New Jersey, commenced this summary action against the Borough of Paramus and its records custodian (collectively "the Borough"), directing the Borough to release requested records pursuant to the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, and for statutory counsel fees and costs. The requested records pertained to an incident that occurred during the evening of February 6, 2011 and early morning hours of February 7, 2011, when police officer Rachel Morgan was shot in the line of duty.
Specifically, The Record requested copies of recordings of police dispatches to and from Officer Morgan and all Paramus back-up cars that arrived at the scene of the shooting ("the police dispatch audio recordings" or "the audio recordings") and copies of all videos recorded from Officer Morgan's car, police officer Ryan Hayo's car, and all other police vehicles at the scene of the shooting ("the police video recordings" or "the video recordings"). The Borough identified four bases for denial of the requests: (l) they are not government records because they are exempt criminal investigatory records, as no statute, rule or regulation mandates that the records be made, maintained or kept on file; (2) they are not government records because they are exempt victims' records; (3) they are exempt from access pursuant to Whitman Executive Order No. 69 ("EO 69"), as the release of the information would jeopardize a pending investigation and would be inimical to the public interest; and (4) they are exempt from disclosure pursuant to N.J.S.A. 47:1A-3(a), the "investigations in progress" provision, as the public entity could demonstrate both that (i) an investigation was in progress and (ii) the release would be inimical to the public interest.
Judge Peter E. Doyne signed the Order to Show Cause, set a return date, and established a briefing schedule. The Borough filed a response and, pursuant to a consent order, the Bergen County Prosecutor's Office appeared in the case as amicus curiae. On June 10, 2011 Judge Doyne heard oral argument and issued a written opinion on June 15, 2011, which granted The Record access to the audio recordings but denied it access to the police video recordings.
The decision was memorialized in an order of June 24, 20ll. Pursuant to the consent of the parties, the court entered an order on July 13, 2011, staying its order pending appeal.*fn1 The Borough filed an appeal from that portion of the order requiring disclosure of the audio recordings, and The Record then cross- appealed from that portion of the order denying access to the video recordings.
Judge Doyne found that because the audio recordings and video recordings are required by law to be maintained on file by the Borough in the course of its official business, they are "government records" subject to disclosure under OPRA. See N.J.S.A. 47:1A-1.1 (defining "government record" as being "made, maintained or kept on file in the course of" the "official business [of] any officer, commission, agency or authority of the State or of any political subdivision thereof"); Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 364 (App. Div. 2003) (holding that the audiotape of a 9ll phone call was a government record).
The court expressly found as support for this conclusion that New Jersey law, namely, the Destruction of Public Records Law ("DPRL"), N.J.S.A. 47:3-15 to -32, and the related regulations and schedules enacted by the New Jersey Division of Archives and Records Management ("DARM"),*fn2 require both audiotapes and videotapes be maintained for a minimum of thirty- one days. The court rejected the prosecutor's argument that DARM retention schedules are not statutes requiring a particular item to be "maintained or kept on file," N.J.S.A. 47:1A-1.1, because DARM is not a law-making body. Citing our decision in New Jersey Land Title Ass'n v. State Records Community, 315 N.J. Super. 17, 25-26 (App. Div. l998), where we noted the Legislature's intention to confer upon DARM and the State Records Committee "broad authority over the disposition of all 'public records,'" Judge Doyne concluded the DARM requirements carry the force of law.
Similarly, the court found the requested records were not exempt as criminal investigatory records. N.J.S.A. 47:1A-1.1 (excluding from disclosure a "criminal investigatory record," 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"). Nor were the records inaccessible "victims' records" because although Officer Morgan was likely the victim of a crime, neither the Borough nor the police department could be considered a victims' rights agency pursuant to the plain language of OPRA. See N.J.S.A. 47:1A-1.1 (defining a "victim's record" as a "file or document held by a victims' rights agency," i.e., having as its primary responsibility the provision of food, shelter, or clothing, medical, psychiatric, psychological or legal services, counseling, or financial services to victims of crimes).
Judge Doyne was also convinced the "investigations in progress" exception, N.J.S.A. 47:1A-3(a), was inapplicable because the requested audio and video recordings were both created at the time of Officer Morgan's shooting, prior to the commencement of any investigation. Based on its ruling, the court determined it was unnecessary to address the second factor of whether release of the requested records would "be inimical to the public interest." Ibid.
The court found the audio recordings were not exempt from the OPRA request but the videotapes were exempt. In EO 69 the Executive Branch sought to clarify the types of criminal investigation records accessible to the public. Paragraphs three and four of EO 69 are codified in OPRA, N.J.S.A. 47:1A-3(b). As Judge Doyne explained, EO No. 69 provides [that] while criminal investigation records are exempt from access, the public entity is to provide the public with certain information regarding a crime . . . including the type of crime, location, weapon, if an arrest has been made, identifying information regarding the defendant and any victims, as well as any other information. [See N.J.S.A. 47:1A-3(b).]
The judge further noted the order allows denial of such access if "the information requested will jeopardize the safety of any person, jeopardize any investigation in progress or would otherwise be inappropriate to release." See ibid. Judge Doyne also noted the restricting language of the order, i.e., that "[t]his 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. Considering the principles of statutory construction and the legislative intent of OPRA of ensuring prompt access to public records, the judge concluded that the Legislature could not have intended for the Executive Order to override N.J.S.A. 47:1A-3(a) regarding general "categorical and encompassing assertions of safety concerns or jeopardy to existing investigations, without support."
Judge Doyne treated the videotape differently, focusing on paragraph two of EO 69 that provides as follows:
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 [N.J.S.A. 47:1A-l to -13], 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 government agency. [Exec. Order No. 69 (July 7, 1997), Laws of New Jersey 1997, at 2320.]
The judge reasoned 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 be 'otherwise inappropriate'" based on Officer Morgan's reasonable expectation of privacy.
Judge Doyne explained that he rejected as "unnecessary" The Record's request for an "in-camera review to determine whether the balancing of interests [was] implicated and access favored, in light of counsel's response to the court's inquiry concerning the purposes served by disclosure of the police video recordings." He noted that during argument counsel "responded she could not conjure a scenario wherein release of the videos would or could contribute to the purposes of OPRA." In balancing the interests of privacy versus disclosure, the judge concluded it was "clear the aims of OPRA which would allow for disclosure are clearly outweighed by [Officer] Morgan's privacy, namely being shot four times followed by her shooter's shooting and ultimately killing himself." There was nothing in the papers or raised at oral argument, however, that indicated the officer had an expectation of privacy in the police dispatch audio recordings and thus the judge concluded the interest in public access outweighed the officer's interest in privacy. The judge declined to address The Record's common law request for relief, finding it to be duplicative.
On appeal, the Borough challenges the court's ruling regarding disclosure of the audio recordings, generally arguing they are not akin to 9ll tapes and Serrano, supra, 358 N.J. Super. at 352, is not persuasive authority for the conclusion that they are government records. On cross-appeal, The Record contends the court erred in failing to conduct an in camera review of the requested records. It further contends that EO 69 is inapplicable and the "reasonable expectation of privacy" is inapplicable to the videotapes. The Record additionally argues it has a right under common law to access the video recordings.
Based on our review of the record and applicable law, we are not persuaded by the arguments of either party. We affirm substantially for the reasons articulated by Judge Doyne in his comprehensive, fifty-two page written opinion. We are satisfied he more than amply addressed each of the issues raised by the parties.