On appeal from Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, Docket No. L-141-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2012
Before Judges Sapp-Peterson and Haas.
Plaintiff Frank Alfano, Jr. made a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), for police reports generated in connection with an incident involving a bicyclist falling from the Margate Bridge. Defendant Margate City denied the request and plaintiff instituted an action to secure the production of the records sought. After oral argument on the return date of an order to show cause, the trial judge dismissed the complaint. We reverse and remand for further proceedings consistent with this opinion.
The relevant facts are not in dispute. On November 18, 2011, a newspaper reported that a bicyclist had "tumbled over the railing on the Margate Bridge." The bicyclist fell onto the roof of a building and was injured.
On November 21, 2011, plaintiff filed an OPRA request for all police and fire department reports generated by Margate City concerning this incident. The Margate Fire Department complied with this request and provided plaintiff with a copy of a November 18, 2011 report. The report did not identify the bicyclist, but it did indicate that the Department had responded to a report that "a male had jumped off the bridge." The report further stated that, after the "male had jumped on the roof of a building under the bridge," he was "subdued by police and handcuffed."
The Margate Police Department denied plaintiff's request for a report it had prepared concerning this incident. Upon the advice of the county prosecutor's office, it advised plaintiff that the report he sought was exempt from disclosure because it was a "criminal investigatory record" not accessible under OPRA. Plaintiff thereafter filed a complaint and order to show cause against Margate City, the Chief of Police and the City's custodian of records, alleging violations under OPRA.
After oral argument on the order to show cause, the trial judge entered an order supported by a written opinion dismissing plaintiff's complaint with prejudice. The judge reviewed the police department's report in camera. He stated that
[a] review of the records sought reveals that this investigation involves a suicide attempt. The male attempted to jump off the Margate Bridge into the water, but instead landed on the roof of a small building by a piling. The report also reveals the man's name, certain comments he made, together with names of family members, friends and witnesses.
Because the Margate Police had "concluded its investigation with no charges being filed" against any party, the judge found that the report did not constitute a criminal investigatory record that is exempt from disclosure under OPRA.
However, the judge went on to find that the report could not be disclosed because to do so would violate the reasonable expectation of privacy of the bicyclist and the individuals interviewed by the police. The judge explained that [w]hile the law has traditionally viewed suicide and attempted suicide as a crime, any enlightened person recognizes that such a traumatic event affects more people than the principal. The Court believes that when furnishing information to an investigating police officer, anyone close to the principal, and the principal as well, did so with a reasonable expectation of privacy that the information provided would be kept confidential.
In balancing plaintiff's interest in obtaining the report and the right to privacy of the affected individuals, the judge primarily focused on the potential harm from nonconsensual disclosure. This matter involves a suicide attempt; the man involved and his family and friends were interviewed for the police report shortly thereafter. The potential impact of a suicide attempt on this gentleman and his family is huge: ...