On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1089-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Harris.
This is an appeal by defendant Borough of Garwood (Borough) from the
Law Division's July 13, 2010 order granting plaintiff John Paff access
to a DVD pursuant to his common law right of access to public records.
The Borough also appeals from a subsequent order entered on November
10, 2010, awarding attorney's fees and costs to plaintiff.*fn1
For the reasons that follow, we affirm the order granting
plaintiff access to the requested DVD and reverse the second order
requiring the Borough to pay plaintiff's legal fees and costs.
On September 3, 2009, a former member of the Garwood Police Department was charged in separate complaints with committing two disorderly persons offenses. One complaint charged the officer with criminal mischief, N.J.S.A. 2C:17-3(a)(2), for tampering with a currency-to-coin changer at a laundromat on August 18, 2009. The second complaint charged the officer with unlicensed entry of structures, N.J.S.A. 2C:18-3(a), for entering the locked office of the Borough Clerk on August 19, 2009. Both complaints stated the incidents were recorded by video surveillance cameras.
The Borough entered into a settlement agreement and release with the officer on September 23, 2009. The parties agreed the officer would resign "in good standing" from the police department and the pending charges would be dismissed. The officer submitted a letter of resignation on September 25, 2009, and the court granted the Borough's application to dismiss the disorderly persons complaints on October 14, 2009.
On February 5, 2010, plaintiff submitted a request to the Borough for information under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and his common law right of access to public records. In response, the Custodian of Records provided him with copies of the municipal court complaints, the settlement agreement and release, the letter of resignation, and various other documents.
In a subsequent request, plaintiff asked for copies of the "video surveillance" that recorded the activities in the laundromat and the municipal clerk's office. The Custodian advised plaintiff that the request for the DVD of the clerk's office was denied because the recording was a "criminal investigatory record as provided in N.J.S.A. 47:1A-1.1."
On March 5, 2010, a Superior Court judge granted a petition to expunge the records relating to the charges against the officer pursuant to our expungement statute, N.J.S.A. 2C:52-l to -32. The order directed that all records, "including but not limited to photographs, fingerprints, rap sheets, index or docket entries, reports (including lab reports) and statements," were to be placed "in the control of a person designated to retain control over the expunged records." The order further stated that the expunged records "shall not be released for any reason except as authorized by law," and "in response to requests for information or records, the court office or the law enforcement agency shall reply with respect to the arrest which is the subject of this order, that there is no record."
Thereafter, on March 16, 2010, plaintiff commenced this action with a verified complaint and order to show cause (OTSC) seeking to compel the release of the clerk's office surveillance DVD under OPRA and his common law right of access to public records. Plaintiff also sought an award of attorney's fees and costs.
In a certification in opposition to the OTSC, the Borough Police Chief, William Legg, confirmed that the DVD plaintiff requested was "a record of and evidence of [an] investigation of possible criminal activity." In addition, Legg stated: "On or about March 15, 2010, I was served with the attached Order for Expungement dated March 5, 2010. As I understand the expungement law, I am not permitted to release any records pertaining to this case unless an order is issued under N.J.S.A. 2C:52-9."
Following oral argument on April 30, 2010 and June 11, 2010, and the trial court's in camera review of the DVD, the court rendered a written decision on July 13, 2010. The court ruled that the DVD was exempt from access under OPRA because it was a "criminal investigatory record."*fn2 However, after evaluating the factors set forth in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), the court determined "the public's interest in disclosure outweighs the Borough's interest in confidentiality." Consequently, the court ruled that the DVD was subject to disclosure pursuant to plaintiff's common law right of access.
Following the entry of the July 13, 2010 order that memorialized the judge's decision, plaintiff submitted a motion for attorney's fees and costs. In a written decision on November 10, 2010, the trial court determined that plaintiff was entitled to "an attorney's fee of $54,389.48, consisting of a lodestar of $40,288.50 and a 35% enhancement of ...