June 17, 2013
JOHN PAFF, Plaintiff-Appellant,
BOROUGH OF GIBBSBORO, ANNE D. LEVY in her official capacity as Gibbsboro Borough Clerk and Records Custodian, TOWNSHIP OF VOORHEES, JEANETTE SCHELBERG in her official capacity as Voorhees Township Clerk and Records Custodian, RICHARD TAYLOR and A.B.,  Defendants-Respondents, and CHERYL COHEN in her official capacity as a Camden County Assistant Prosecutor, and LAURIE CORSON in her official capacity as a Camden County Assistant Prosecutor, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4044-11.
Richard Gutman argued the cause for appellant (Richard Gutman, P.C., and Law Offices of Walter M. Luers, LLC, attorneys; Mr. Gutman and Walter M. Luers, on the briefs).
John P. Jehl argued the cause for respondents Borough of Gibbsboro and Anne D. Levy (Jehl & Fabian, attorneys; Mr. Jehl, on the brief).
Audra A. Pondish argued the cause for respondents Township of Voorhees and Jeanette Schelberg (Wade, Long, Wood & Kennedy, LLC, attorneys; Ms. Pondish, on the brief).
Daniel E. Rybeck argued the cause for respondents Richard Taylor and A.B. (Weir & Partners LLP, attorneys; Mr. Rybeck, on the brief).
Before Judges Messano, Lihotz and Ostrer.
This appeal requires us to address the interplay between the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the expungement statute, N.J.S.A. 2C:52-1 to -32. Pursuant to OPRA, plaintiff sought release of various documents that were the subject of a pending expungement petition. Record custodians in two municipalities denied the OPRA requests, albeit for reasons unrelated to the expungement request. Plaintiff filed suit. Before the Civil Part decided the OPRA complaint, the Criminal Part granted the expungement order. The Civil Part then concluded that the expungement order barred release of the requested documents.
Plaintiff argues that the custodians' denials of his document requests were wrongful when rendered, and the court should have granted him retroactive relief, notwithstanding the intervening expungement order. We disagree, and affirm the trial court's order.
In December 2009, A.B. was arrested for the alleged simple assault, N.J.S.A. 2C:12-1(a), of Richard Taylor in Gibbsboro Borough. The complaint against A.B. was dismissed the following month. Over a year later, on May 12, 2011, A.B. filed a petition in the Criminal Part to expunge all records and information pertaining to the arrest, pursuant to N.J.S.A. 2C:52-6.
After the expungement petition was pending, unheard, for over six weeks, plaintiff requested various documents pertaining to the incident. Plaintiff already possessed a copy of the complaint-summons charging A.B. with assault. The record does not reflect how plaintiff obtained the complaint. Plaintiff's focus of attention was not the arrestee, but the alleged victim. Taylor was a Voorhees Township police officer. Plaintiff believed Taylor had violated police department rules. Plaintiff alleged that although Taylor was on duty in a Voorhees patrol car, he violated departmental rules because he was not performing official business while in Gibbsboro. Plaintiff also alleged that Taylor may have violated departmental rules by permitting A.B., a civilian, to be in his patrol car. Plaintiff believed the Voorhees Police Chief ignored Taylor's alleged rule violations because of a pattern of favoritism in the department.
On June 27, 2011, plaintiff asked the Gibbsboro record custodian to provide him with copies of arrest reports related to the complaint-summons; "Daily Activity/Tally Sheets/Vehicle Logs" of the Gibbsboro officer who signed the complaint-summons; the "Event Card/Complaint Card" issued in connection with the complaint-summons; incident reports; and use of force reports. Three days later, plaintiff asked the Voorhees record custodian to provide radio transmissions Taylor made from his patrol car through Voorhees Police communications relating to the incident with A.B., and any responses; mobile data transmissions regarding the incident; and Taylor's daily activities log.
Gibbsboro produced the daily activity sheet. But, the township clerk asserted that any other disclosures were prohibited because the case involved domestic violence.
Voorhees refused to disclose any requested documents. The township clerk asserted that all documents, to the extent they existed, were shielded because they were the subject of an ongoing investigation, citing N.J.S.A. 47:1A-3(a) and (b), and were also inter/intra agency material under N.J.S.A. 47:1A-1.1. The police chief later asserted that Taylor's duty shift logs — which were equivalent to the daily activity logs plaintiff sought — were not subject to release because they would "divulge the amount of time an officer spends on a call, surveillance techniques, and staffing levels."
Plaintiff filed his verified complaint on or about August 10, 2011, seeking a declaration that the two municipalities violated his rights under OPRA and the common law right of access. He named the municipalities' record custodians, and two assistant prosecutors who, he alleged, advised the Gibbsboro record custodian. He also named Taylor and A.B. as defendants, to enable them to assert any privacy or other interest in the dispute. Plaintiff sought an order compelling the disclosure of the documents, as well as costs and fees. Plaintiff also filed an order to show cause, which the court signed on August 18, 2011, setting a return date of October 14, 2011.
"[I]n approximately August, " the expungement petition was heard in the Criminal Part. Reportedly, the court orally granted the petition. But, the judge did not enter the order before his transfer to another part. Instead, Judge Michele Fox entered the expungement order on September 9, 2011. The order compelled the New Jersey State Police Superintendent, the Attorney General, the Camden County Prosecutor, the Municipal Court, the Gibbsboro Police Chief, and "all other relevant parties" to "expunge, pursuant to N.J.S.A. 2C:52-5 et seq., the records of the petitioner . . . [r]elating to [A.B.'s] arrest . . . in Gibbsboro . . . which was dismissed[.]"
On October 14, 2011, Assignment Judge Francis J. Orlando, Jr. held the first of three hearings on plaintiff's OPRA complaint. Judge Orlando for the first time was presented with the expungement order by A.B.'s counsel. However, before the judge learned of the expungement order, he expressed skepticism about Voorhees's argument that the documents could be the subject of an ongoing investigation, long after the complaint's dismissal. The record reflects that Voorhees had retained outside counsel to conduct an administrative investigation into activities in its police department, including the 2009 incident involving Taylor. However, the investigation was suspended indefinitely in July 2011.
Judge Orlando also questioned defendants' assertion that the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25- 17 to -35, barred disclosure of the police department records, particularly inasmuch as no domestic violence restraining order was sought. In response to Voorhees's assertions that shift logs would compromise officers' safety, plaintiff's counsel explained his client only sought records reflecting Taylor's whereabouts related to the Gibbsboro incident, and not any other officers' activities.
The hearing concluded without decision. The court requested additional briefing on the impact of the expungement order, and it ordered the municipalities to produce the contested records to the court for its in camera review.
At the second hearing in November 2011, Judge Orlando expressed his tentative view that the expungement order precluded release of some documents to which plaintiff was otherwise entitled under OPRA. In the meantime, Voorhees re-evaluated its position, and volunteered to produce the mobile data transmissions and a redacted copy of the daily activities log plaintiff had requested. The documents pertained to Taylor's activities and whereabouts, and did not address the incident leading to A.B.'s arrest. Nonetheless, the court afforded A.B.'s attorney an opportunity to review those documents before release, and to interpose an objection if he believed they were subject to the expungement order. Apparently, no objection was made. The court again postponed its decision in order to ascertain the status of a reported motion by the county prosecutor, pending in the Criminal Part, to vacate the expungement order. It had been filed in connection with defending the claims against the assistant prosecutors, which were subsequently dismissed.
In his January 13, 2012 decision, Judge Orlando addressed the only documents still at issue — the Gibbsboro arrest records, and the Voorhees radio transmissions. The judge had reviewed the radio transmissions in camera and determined that they constituted records covered by the expungement order. Regarding the radio transmissions, plaintiff's counsel agreed, stating, "Your Honor . . . in light of the expungement order, you properly excluded the radio transmissions." No one claimed that either document could be redacted in some way to permit partial release of some information outside the expungement order's reach.
Judge Orlando decided that he was precluded from releasing the requested documents. Although plaintiff argued the record custodians violated OPRA when they withheld the documents, Judge Orlando held that the intervening expungement order governed and precluded relief. "I find that the salutary purpose[s] . . . that the legislature meant to advance by promulgating the Expungement Act override . . . the Open Public Records Act. And, therefore, any records that would be otherwise encompassed under the expungement statute cannot be released[.]"
The judge ordered Voorhees to reimburse plaintiff for part of his attorney's fees, based on his partial success in securing the release of the daily shift log and mobile-to-mobile transmissions.
This appeal followed. Plaintiff argues that he was entitled to an order under OPRA to compel Gibbsboro to release the arrest records, and Voorhees to release the radio transmissions. He also seeks enhancement of his attorney's fee award, predicated on securing broader release of documents.
We review de novo the trial court's determination regarding the applicability of OPRA. K.L. v. Evesham Twp. Bd. of Educ., 423 N.J.Super. 337, 349 (App. Div. 2011) (citation and quotation omitted), certif. denied, 210 N.J. 108 (2012); see also Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J.Super. 140, 159 (App. Div. 2011). We apply the same standard of review to the court's interpretation of the expungement statute. See In re Kollman, 210 N.J. 557, 577-78 (2012); In re Expungement of the Criminal Records of R.Z., 429 N.J.Super. 295, 300 (App. Div. 2013).
We consider first the issue whether an expungement order precludes the release of documents that were subject to inspection under OPRA, but withheld, before the expungement order was entered. We also consider plaintiff's argument that even if the expungement statute applies, release is authorized by N.J.S.A. 2C:52-19 because the documents pertain to his pending OPRA litigation. Finally, we comment briefly on the municipalities' assertion that the custodians properly withheld the contested documents on alternative grounds.
We begin with a review of the two statutes. Both plaintiff's right to inspect, and A.B.'s right to prevent disclosure, are creatures of statute. As OPRA provides a general right to which an expungement order is an exception, we begin with OPRA.
OPRA provides a broad right of access to government records. The statute "shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. "OPRA's clear purpose . . . 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.'" Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 284 (2009) (quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)). The statute generally provides that all government records shall be subject to public access unless exempt. N.J.S.A. 47:1A-1.
However, the definition of "government record" excludes numerous forms of information. N.J.S.A. 47:1A-1.1. "OPRA excludes twenty-one categories of information, making the public right of access not absolute." Educ. Law Ctr., supra, 198 N.J. at 284 (citation omitted). Twenty categories of information excluded from the definition of "government record" were added, by amendment, during legislative consideration. See Assembly No. 1309 (4th reprint) (May 3, 2001) (adding thirteen exclusions); Assembly No. 1309 (5th reprint) (Jan. 3, 2002) (adding seven more exclusions). Among the exclusions added by amendment was "information which is to be kept confidential pursuant to court order[.]"
In addition to statutory exclusions, a record may be exempt pursuant to other provisions of OPRA itself, or "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[.]" N.J.S.A. 47:1A-1. OPRA expressly provides that it does not override any existing barriers to access.
(a) The provisions of this act, [N.J.S.A. 47:1A-1 to -13], shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to [N.J.S.A. 47:1A-1 to -13]; any other statute . . . .
(b) The provisions of this act, [N.J.S.A. 47:1A-1 to -13], shall not abrogate or erode any executive or legislative privilege or any grant of confidentiality heretofore established or recognized by the Constitution of this State, [or] statute . . . which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.
The "anti-abrogation" provision was also added by amendment. Assembly No. 1309 (3rd reprint) (June 26, 2000).
The statute also preserves a citizen's right to privacy of personal information. "[A] public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy[.]" N.J.S.A. 47:1A-1. When an OPRA provision mandating disclosure conflicts with OPRA's privacy provision, a court must engage in a balancing of the interests. Burnett v. Cnty. of Bergen, 198 N.J. 408, 425-26 (2009). The court must apply a seven-part test:
(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.
[Id. at 427 (quoting Doe v. Poritz, 142 N.J. 1, 88 (1995)).]
The statute generally requires a custodian of records to respond to a request within seven business days after receiving the request, provided the record is available and not in storage or archived. N.J.S.A. 47:1A-5(i). A person who is denied access to a government record may seek administrative relief from the Government Records Council, or file an action in Superior Court. N.J.S.A. 47:1A-6. The public agency bears the burden to prove denial of access was authorized by law. Ibid.
The statute expressly provides that the remedy for a violation is compelled access and attorney's fees. "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 proceedings shall be entitled to a reasonable attorney's fee." Ibid.
Turning to expungement, contrary to the general right to inspect government records, an order of expungement requires the removal and segregation of covered records, and bars their release except as provided:
If an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioner's motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information.
"Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, 'rap sheets, ' and judicial docket records." N.J.S.A. 2C:52-1. The statute also provides that, "[u]nless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred[.]" N.J.S.A. 2C:52-27.
The statute provides relief to persons convicted of crimes, N.J.S.A. 2C:52-2, disorderly persons, petty disorderly persons offenses, N.J.S.A. 2C:52-3, and ordinance violations, N.J.S.A. 2C:52-4, and persons who were arrested but not convicted. N.J.S.A. 2C:52-6. The court must hold a hearing on an expungement petition within thirty-five to sixty days after filing. N.J.S.A. 2C:52-9. A person who satisfies the statutory prerequisites for expungement of an arrest is presumptively entitled to an order of expungement. Cf. In re Kollman, supra, 210 N.J. at 570 (referring to presumptive entitlement to expungement of conviction records after ten years). The State or other objector bears the burden to establish grounds for denying the petition, including that "[t]he need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided[.]" N.J.S.A. 2C:52-14(b); see also State v. XYZ Corp., 119 N.J. 416, 423 (1990) (stating that State must prove need under N.J.S.A. 2C:52-14(b) by preponderance of the evidence).
The statute is not designed to provide relief to repetitive offenders. N.J.S.A. 2C:52-32. It assists convicted persons in their efforts at rehabilitation and reentry. In re Kollman, supra, 210 N.J. at 580. As for persons not convicted, it shields them from stigma and potential discrimination. Cf. Ulinsky v. Avignone, 148 N.J.Super. 250, 254-55 (App. Div. 1977) (construing purpose of predecessor provision on expungement of arrest records to "provide the means of insulating one acquitted of a charge of criminal conduct from the disabilities or adverse effects which could be foreseen as resulting from dissemination of the fact of his mere involvement with law enforcement"). However, by assuring that expunged records are segregated but not destroyed, the statute is designed not to impede law enforcement. See XYZ Corp., supra, 119 N.J. at 423 (observing that current statute replaced a law "that did not adequately protect law-enforcement agencies' interests in maintaining reliable information concerning criminal activity").
Although the expungement statute outlines exceptions for the use of documents notwithstanding an expungement order, no provision is made for releasing documents sought pursuant to OPRA. Specific exceptions permit use of documents in connection with applications for diversionary treatment, bail, parole, incarceration, subsequent expungement efforts, and employment with the judiciary and law enforcement. N.J.S.A. 2C:52-17, -20 to -23, -27(c); see G.D. v. Kenny, 205 N.J. 275, 296 (2011) (discussing exceptions).
Applying the two statutes, we conclude that the expungement order's prohibition of disclosure under N.J.S.A. 2C:52-15 overrides the power of the court to order the remedy of access under N.J.S.A. 47:1A-6. We recognize that when plaintiff requested the arrest record and radio transmissions from Gibbsboro and Voorhees, the expungement order was not in place, although A.B.'s petition had been pending for six weeks. Thus, neither the expungement statute, nor an exemption under OPRA, excused the custodians' failure to disclose.
However, by the time plaintiff filed his complaint, the Criminal Part had entered the expungement order. OPRA expressly excludes from the definition of government records "information which is to be kept confidential pursuant to court order." N.J.S.A. 47:1A-1.1. OPRA does not preclude such an order from becoming effective immediately. OPRA also provides that it shall not "abrogate" any exemption from disclosure made pursuant to any statute, and shall not "abrogate or erode" any "grant of confidentiality heretofore established by . . . statute[.]" N.J.S.A. 47:1A-9. By its plain language, that exception encompasses the non-disclosure of arrest records pursuant to the expungement statute.
Also, the expungement statute does not authorize disclosure except by specific exemption. There is no provision for release based on a request for documents that preceded entry of the order. The expungement statute accommodates the general interest in access upon a showing that the "need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided[.]" N.J.S.A. 2C:52-14(b). However, once a court enters an expungement order, absent such a showing, there is no exception based on a general public interest in the expunged records.
Thus, notwithstanding the express command in N.J.S.A. 47:1A-6 that the court order access in the event of improper denial, we conclude that the expungement order bars that relief. The expungement order removes the record from OPRA's ambit, thereby avoiding conflict with a statutory right to confidentiality.
We recognize that the purpose of the two statutes are in conflict. OPRA furthers the goal of open records. The expungement statute protects the privacy interests of individual arrestees and convicted persons. However, we find some support for our conclusion in OPRA's recognition of a general privacy right, which must be balanced against the right of access. Here, we are presented with more than a general right to privacy in personal information. A.B. enforced an express statutory right to non-disclosure based on an expungement order.
Our conclusion is also supported by OPRA's legislative history. During consideration of the legislation, the Legislature amended the proposed law to assure that the expanded right of access did not "abrogate or erode" existing laws that made records confidential. The Legislature included among its numerous exclusions an express provision covering information rendered confidential by court order. These amendments reflect an intent to subordinate OPRA to pre-existing statutory regimes, pursuant to which documents are shielded from public inspection.
We also find support in a general principle of statutory construction. "It is a well established precept of statutory construction that when two statutes conflict, the more specific controls over the more general." N.J. Transit Corp. v. Borough of Somerville, 139 N.J. 582, 591 (1995) (citations omitted); Green v. Auerbach Chevrolet Corp., 248 N.J.Super. 128, 133 (App. Div. 1991), aff'd, 127 N.J. 591 (1992). In this case, the expungement statute is more specific than OPRA. OPRA governs access to a broad universe of government records. The expungement statute addresses the narrow subset of documents pertaining to a person's arrest or conviction. Therefore, nondisclosure under the expungement statute should prevail.
Having concluded that the expungement statute overrides the right to access under OPRA, we consider plaintiff's argument that he was entitled to access pursuant to the expungement statute. The expungement statute "permits the inspection of expunged records if the Superior Court finds 'good cause shown and compelling need based on specific facts, ' and 'only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings.'" G.D., supra, 205 N.J. at 296 (quoting N.J.S.A. 2C:52-19). We are unpersuaded.
We need not reach the issue whether plaintiff has established "good cause" and "compelling need, " although we question whether his general invocation of OPRA's goal of open government is sufficient, particularly in view of the other disclosures already made. Plaintiff misconstrues N.J.S.A. 2C:52-19. The section allows disclosure only if "the subject matter of the records" is the object of the litigation. In plaintiff's OPRA litigation, the records themselves are the object of the litigation.
The apparent purpose of the provision is to allow the disclosure of expunged records, for good cause and compelling need, where the documents are evidential of facts or issues in dispute in litigation. See, e.g., G.D., supra, 205 N.J. at 296 (applying the exception to a defamation defendant's ability to establish the truthfulness of statements about a former offender's criminal record). The section conceivably may permit disclosure in a civil action against an arrestee or convicted person for damages arising out of the incident addressed in the expunged records. However, we do not perceive the provision to permit disclosure when the subject matter of the litigation is disclosure itself.
Given our disposition of plaintiff's argument, we need only briefly address defendants' argument that alternative grounds supported the non-disclosure of the records. We agree with Judge Orlando that the ongoing investigation exception in OPRA, N.J.S.A. 47:1A-3(a), did not shield the Voorhees documents, as the only alleged investigation — into certain practices in the township's police department — was suspended indefinitely before plaintiff filed his complaint.
The municipalities' reliance on the PDVA was also misplaced. N.J.S.A. 2C:25-33 states "[t]he Administrative Office of the Courts shall . . . maintain a uniform record of all applications for relief pursuant to [N.J.S.A. 2C:25-25 to -29]", and "[a]ll records maintained pursuant to this act shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law." The PDVA does not mandate the maintenance of arrest records or radio transmissions by police departments. Therefore, N.J.S.A. 2C:25-33 is inapplicable. Pepe v. Pepe, 258 N.J.Super. 157 (Ch. Div. 1992), upon which defendant's rely, is not to the contrary. That decision applied N.J.S.A. 2C:25-33 to the Superior Court Clerk's Office, another arm of the judiciary.
In sum we conclude that the expungement order in this case overrides the plaintiff's right to access under OPRA Affirmed