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North Jersey Media Group, Inc. v. Township of Lyndhurst

Superior Court of New Jersey, Appellate Division

June 11, 2015

NORTH JERSEY MEDIA GROUP, INC., Plaintiff-Respondent,
v.
TOWNSHIP OF LYNDHURST, HELEN POLITO, RMC, in her capacity as the Custodian of Records for the Township of Lyndhurst, BOROUGH OF NORTH ARLINGTON, KATHLEEN MOORE, in her capacity as the Custodian of Records for the Borough of North Arlington, BOROUGH OF RUTHERFORD, MARGARET M. SCANLON, RMC, in her capacity as the Custodian of Records for the Borough of Rutherford, BERGEN COUNTY POLICE DEPARTMENT, CAPTAIN UWE MALAKAS, in his capacity as Custodian of Records for the Bergen County Police Department, NEW JERSEY STATE POLICE and SERGEANT HARRY ROCHESKEY, in his capacity as Custodian of Records for the New Jersey State Police, Defendants-Appellants

Argued April 21, 2015.

Approved for Publication June 11, 2015.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-19048-14.

Jeffrey S. Jacobson, Director, Division of Law, argued the cause for appellants New Jersey State Police and Sergeant Harry Rocheskey (John J. Hoffman, Acting Attorney General, attorney; Mr. Jacobson and Raymond R. Chance, III, Assistant Attorney General, of counsel; Daniel M. Vannella, Deputy Attorney General, on the briefs).

Richard J. DiLascio, attorney for appellants Township of Lyndhurst and Helen Polito, joins in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A., attorneys for appellants Borough of North Arlington and Kathleen Moore, join in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

LaPorta & LaPorta, attorneys for appellants Borough of Rutherford and Margaret M. Scanlon, join in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

Julien X. Neals, Bergen County Counsel, attorney for appellants Bergen County Police Department and Captain Uwe Malakas, joins in the brief of appellants New Jersey State Police and Sergeant Harry Rocheskey.

Samuel J. Samaro argued the cause for respondent North Jersey Media Group Inc. (Pashman Stein and Jennifer A. Borg, attorneys; Mr. Samaro and Ms. Borg, of counsel; Mr. Samaro and CJ Griffin, on the briefs).

American Civil Liberties Union of New Jersey, attorneys for amicus curiae American Civil Liberties Union of New Jersey (Edward Barocas, Jeanne LoCicero and Iris Bromberg, on the brief).

Loccke, Correia & Bukosky, attorneys for amicus curiae State Troopers Fraternal Association and Bergen County Policemen's Benevolent Association Conference (Michael A. Bukosky, on the brief).

Before Judges MESSANO, OSTRER and SUMMERS. The opinion of the court was delivered by OSTRER, J.A.D.

OPINION

Page 575

[441 N.J.Super. 78] OSTRER, J.A.D.

This appeal, by leave granted, concerns the public's right to access records pertaining to a criminal investigation under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right to inspect government records. The Attorney General -- on behalf of three municipalities, the Bergen County Police Department, the New Jersey State Police (NJSP), and their records custodians -- appeals from the trial court's order compelling disclosure pursuant to both OPRA and the common law. Having reviewed the State's arguments in light of the record and applicable principles of law, we conclude the trial court misinterpreted OPRA's provisions governing criminal investigatory records. The court also erred in declining to consider the State's [441 N.J.Super. 79] proposed ex parte showing of why releasing certain requested documents would undermine its investigation and be inimical to the public interest. As a result, we reverse the court's order compelling release of the requested documents, and remand for reconsideration in light of the principles we set forth below.

I.

Plaintiff North Jersey Media Group, Inc. (NJMG) is the owner of numerous print and web-based news organizations, including The Record, a general circulation daily newspaper, and the South Bergenite, a weekly community newspaper. Reporters for these two publications sought various records of local, county, and state law enforcement agencies (LEAs) pertaining to the fatal police shooting of a criminal suspect, Kashad Ashford. The shooting followed a high-speed chase of Ashford and his passenger Jemmaine T. Bynes across multiple municipalities.

The records custodians of the LEAs did not respond consistently. None provided documents before NJMG filed its November 3, 2014, complaint. Thereafter, NJMG received 9-1-1 call recordings, various redacted police documents containing computer aided dispatch (CAD) reports, and a uniform force report (UFR).[1] However,

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the defendants continue to deny access to many other requested documents, or to even acknowledge they exist.

The events leading to the fatal shooting are set forth in a September 16, 2014, press release of the Attorney General's Office (OAG); a December 9, 2014, certification of Cortney Lawrence, the NJSP's lead detective in the Attorney General's Shooting Response Team (SRT) investigation; and a December 10, 2014, certification of New Jersey Division of Criminal Justice (DCJ) [441 N.J.Super. 80] Lieutenant Robert McGrath, Detective Lawrence's supervisor.[2] A North Arlington resident called 9-1-1 at 2:12 a.m. on September 16 to report an attempted burglary of her vehicle from her driveway. A North Arlington patrol vehicle was dispatched to the scene to interview the resident. Meanwhile, additional officers from the police departments of North Arlington, Lyndhurst, Rutherford, and Bergen County joined the investigation into the attempted burglary.[3] Officers soon spotted an SUV matching the information provided. Police determined the SUV was stolen.

Police attempted to perform a motor vehicle stop, but the driver, later identified as Ashford, refused. Instead, Ashford led officers on a high-speed chase through several municipalities. At one point, Ashford attempted to ram a police vehicle head-on. He later crashed into a guardrail on Ridge Road at Route 3 in Lyndhurst.

The press release and the detective's certification present different versions of what happened next. According to the press release, more than one officer fired upon Ashford after he spun his tires and allegedly backed his SUV at the officers, ramming a police vehicle.[4] Det. Lawrence's certification issued nearly three months later was less definitive. The detective stated Ashford and Bynes revved the engine " as if to force their way out" ; police had surrounded the vehicle; and ultimately, Ashford was shot and killed. The detective did not assert Ashford backed up, or [441 N.J.Super. 81] rammed a police vehicle, nor did the detective state how many officers shot at Ashford.[5]

Ashford was fatally shot at around 2:27 a.m., and pronounced dead at a nearby hospital at 7:05 a.m. Officers found a .357-caliber Magnum handgun and a facemask in the vehicle. Bynes was arrested at the scene and charged with weapons offenses and receiving stolen property. The SRT immediately assumed control of the investigation. ...


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