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

Supreme Court of New Jersey

July 11, 2017

NORTH JERSEY MEDIA GROUP, INC., Plaintiff-Appellant,
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, Defendants, and NEW JERSEY STATE POLICE and SERGEANT HARRY ROCHESKEY, in his capacity as Custodian of Records for the New Jersey State Police, Defendants-Respondents.

          Argued November 9, 2016

         On appeal from the Superior Court, Appellate Division, whose opinion is reported at 441 N.J.Super. 70 (App. Div. 2015).

          Samuel J. Samaro argued the cause for appellant (Pashman Stein, attorneys; Mr. Samaro and Jennifer A. Borg, of counsel; Mr. Samaro, CJ Griffin, and James W. Boyan III, on the briefs).

          Raymond R. Chance, III, Assistant Attorney General, argued the cause for respondents (Christopher S. Porrino, Attorney General of New Jersey, attorney; Mr. Chance and Jeffrey S. Jacobson, Assistant Attorney General, of counsel; Mr. Chance, Mr. Jacobson, and Daniel M. Vannella, Deputy Attorney General, on the briefs).

          Thomas J. Cafferty argued the cause for amici curiae The Reporters Committee for Freedom of the Press, New Jersey Press Association, Advance Publications, Inc., American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, First Look Media, Inc., Gannett Co., Inc., Investigative Reporting Workshop at American University, MPA - The Association of Magazine Media, National Association of Black Journalists, National Newspaper Association, The National Press Club, National Press Photographers Association, The New York Times Company, Online News Association, Society of Professional Journalists, and the Tully Center for Free Speech (Gibbons, attorneys; Mr. Cafferty and Nomi I. Lowy, of counsel and on the brief).

          Walter M. Luers argued the cause for amici curiae New Jersey Foundation for Open Government and Police Accountability Project of New Jersey Libertarian Party (Mr. Luers and Richard M. Gutman, attorneys; Mr. Gutman, on the brief).

          Alexander R. Shalom argued the cause for amici curiae American Civil Liberties Union of New Jersey, Association of Black Women Lawyers of New Jersey, Black Lives Matter-NJ, Garden State Bar Association, Garden State Equality, Latino Action Network, Latino Leadership Alliance, LatinoJustice - PRLDEF, and People's Organization for Progress (Edward L. Barocas, Legal Director, attorney; Mr. Barocas, Mr. Shalom, Iris Bromberg, and Jeanne M. LoCicero, on the brief).

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

          Jeffrey S. Mandel, attorney for amicus curiae Association of Criminal Defense Lawyers of New Jersey, joined in the brief of American Civil Liberties Union of New Jersey (Cutolo Mandel, attorneys).

          RABNER, C.J., writing for the Court.

         This appeal explores the scope of the Open Public Records Act (OPRA)'s exemptions for criminal investigatory records and records of investigations in progress, as well as the common law right of access.

         On September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car. The police tried to stop the suspect's car, but the driver-later identified as Kashad Ashford-eluded them and led police on a high-speed chase. At one point, Ashford tried to ram a patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass. According to the Attorney General's press release, Ashford tried to get free of the barrier by accelerating, which caused the car to "jerk[] in a rear and forward motion." An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers-as well as others-fired at Ashford, who was pronounced dead hours later.

         Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The records custodians gave varied responses. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause. At the time, NJMG owned The Record and the South Bergenite. The two-count complaint alleged violations of OPRA and the common law right of access. NJMG sought release of the requested records, or their review in camera, along with fees and costs.

         On January 12, 2015, the Honorable Peter E. Doyne, A.J.S.C, found that defendants had improperly withheld the requested records. In a detailed written opinion, he concluded that neither OPRA's criminal investigatory records exception nor its ongoing investigation exception applied. The court directed defendants to release unredacted copies of records within three days in response to NJMG's OPRA requests.

         The Appellate Division reversed the order of disclosure and remanded for reconsideration. 441 N.J.Super. 70, 118-19 (App. Div. 2015). The panel concluded that, aside from the 9-1-1 recording, motor vehicle accident reports, and portions of Computer Aided Dispatch reports and other logs that do not relate to the criminal investigations, the requested documents fell within the criminal investigatory records exception. The Appellate Division remanded to the trial court to reconsider NJMG's request under N.J.S.A. 47:1 A-3(a) and the common law.

         On remand, the Honorable Bonnie J. Mizdol, A.J.S.C, ruled that defendants were not required to release the names of the officers or disclose two remaining Use of Force Reports (UFRs), three dash-cam videos, and three police reports. The court relied heavily on the need to maintain the integrity of the ongoing investigation.

         The Court granted defendants' motion for leave to appeal, 223 N.J. 553 (2015), and relaxed the Court Rules to consider the judgment entered on remand.

         HELD: NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law. Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.

         1. Under OPRA, N.J.S.A. 47:1A-1 to -13, "government records" are subject to disclosure unless a public agency can demonstrate that an exemption applies. This appeal involves two specific exemptions. A record need only satisfy one exception to be exempt from disclosure, (pp. 10-13)

         2. To qualify for OPRA's criminal investigatory records exception-and be exempt from disclosure-a record (1) must not be "required by law to be made, " and (2) must "pertain[] to a criminal investigation." N.J.S.A. 47:1A-1.1. The Attorney General's Use of Force Policy requires that "[i]n all instances when physical, mechanical, or deadly force is used, each officer who has employed such force shall complete" a "Use of Force Report." The Court agrees that the Policy has "the force of law for police entities." O'Shea v. Township of West Milford. 410 N.J.Super. 371, 382 (App. Div. 2009). And because Use of Force Reports are "required by law to be made, " they cannot be exempt from disclosure under OPRA's criminal investigatory records exemption, (pp. 24-27)

         3. No one has pointed to an Attorney General directive relating to the use of dash-cams. NJMG points to general retention schedules to implement the Destruction of Public Records Law and contends they satisfy the "required by law" standard. If that were the case, the Right to Know Law's narrow definition of public records would have been anything but narrow. And because many records that pertain to criminal investigations must be retained, the criminal investigatory records exception would have little meaning. The Court is unable to conclude that the Legislature intended those results. To be exempt from disclosure, a record must also "pertain[] to any criminal investigation." N.J.S.A. 47:1A-1.1. Here, the actions of the police all pertained to an investigation into actual or potential violations of criminal law. The recordings also pertained to the Shooting Response Team investigation into Ashford's fatal shooting. The records fall within the criminal investigatory records exception, (pp. 27-31)

         4. N.J.S.A. 47:1A-3(b) requires the release of "information as to the identity of the investigating and arresting personnel." The certification of Paul Morris, Chief of Detectives of the Division of Criminal Justice, focuses on why defendants need not identify by name the officers who discharged their weapons. The carefully detailed reasons apply to nearly all cases in which an officer uses deadly force. Although section 3(b) does not require the State to demonstrate an actual threat against an officer, generic reasons alone cannot satisfy the statutory test. OPRA requires the State to show that disclosure of the identity of an officer "will jeopardize the safety of any person... or any investigation in progress" or "would be harmful to a bona fide law enforcement purpose or the public safety." Ibid. OPRA adds that "[w]henever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision." Ibid. Here, although defendants offered a brief explanation, their reasons did not satisfy those standards, (pp. 31-36)

         5. To avail itself of the ongoing investigation exception, a public agency must show that (1) the requested records "pertain to an investigation in progress by any public agency, " (2) disclosure will "be inimical to the public interest, " and (3) the records were not available to the public before the investigation began. N.J.S.A. 47:1A-3(a). Investigative reports prepared after a police shooting ordinarily contain factual details and narrative descriptions of the event. As a result, the danger to an ongoing investigation would typically weigh against disclosure of reports while the investigation is underway, particularly in its early stages. The release of UFRs presents far less of a risk of taint to an ongoing investigation because UFRs contain relatively limited information. Also, defendants in this case raised only general safety concerns. Under the circumstances, the UFRs should have been released without redactions, (pp. 36-44)

         6. NJMG also sought access to records in this case under the common law, which requires a greater showing than OPRA: (1) the person seeking access must establish an interest in the subject matter of the material; and (2) the citizen's right to access must be balanced against the State's interest in preventing disclosure. The Attorney General's interest in the integrity of investigations is strongest when it comes to the disclosure of investigative reports, witness statements, and other comparably detailed documents. In those areas, the State's interest outweighs NJMG's. The balance can tip in favor of disclosure, however, for materials that do not contain narrative summaries and are less revealing. Footage of an incident captured by a police dashboard camera, for example, can inform the public's strong interest in a police shooting that killed a civilian. It can do so without placing potential witnesses and informants at risk and without undermining the integrity of an investigation. Based on its in camera review of the certifications the State submitted in this case, the Court notes that the State advanced only generic safety concerns. Under the circumstances of this case, the public's substantial interest in disclosure of dash-cam recordings warranted the release of those materials under the common law right of access, (pp. 44-48)

         The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.

          JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's opinion.

          OPINION

          RABNER, CHIEF JUSTICE

         This appeal explores the scope of two exceptions in the Open Public Records Act (OPRA): exemptions for criminal investigatory records, N.J.S.A. 47:1A-1.1, and records of investigations in progress, N.J.S.A. 47:1A-3. The matter also implicates the common law right of access.

         The case arises out of a high-speed chase in which a suspect eluded the police, crashed into a guardrail, and reportedly placed officers in danger as he tried to drive away. The officers then fired at the suspect and killed him. Two reporters filed OPRA requests for the names of the officers who used deadly force. The reporters also sought access to Use of Force Reports, dash-cam videos, activity logs, various investigative reports, and related items.

         The trial court ordered the records disclosed. For the most part, the Appellate Division concluded the items were exempt from disclosure under OPRA. N. Jersey Media Grp., Inc. v. Township of Lyndhurst (NJMG), 441 N.J.Super. 70, 78-79, 105 (App. Div. 2015). We consider the two exemptions the panel analyzed and the common law right of access.

         OPRA's criminal investigatory records exception does not apply to records that are "required by law to be made, maintained or kept on file." N.J.S.A. 47:1A-1.1. As a result, the exemption does not cover Use of Force Reports, which the Attorney General requires officers to prepare after the use of deadly force.

         To analyze OPRA's exemption for records of ongoing investigations, courts must weigh various factors to decide whether disclosure will "be inimical to the public interest." N.J.S.A. 47:1A-3(a). We conclude that the danger to an ongoing investigation would typically weigh against disclosure of detailed witness statements and investigative reports while the investigation is underway, under both OPRA and the common law. Footage captured by dashboard cameras, however, presents less of a risk. Under the common law, the public's powerful interest in disclosure of that information, in the case of a police shooting, eclipses the need for confidentiality once the available, principal witnesses to the shooting have been interviewed. In an ordinary case, investigators take statements from those witnesses soon after an incident, while the events are fresh in mind.

         We therefore affirm in part and reverse in part the judgment of the Appellate Division.

         I.

         To recount the facts, we rely on press releases and certifications by the Attorney General and other law enforcement officers, as well as other materials in the record.

         Shortly after 2 a.m. on September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car in her driveway. The caller described the suspect and the car he drove away in -- a black SUV. Police dispatchers in North Arlington radioed information to officers in the area, and officers from North Arlington, Lyndhurst, Rutherford, and the Bergen County Police Department (BCPD) looked for the vehicle. At some point, New Jersey State Police troopers also got involved. An officer from Lyndhurst first spotted the SUV, which the police confirmed was stolen.

         The police tried to stop the suspect's car, but the driver -- later identified as Kashad Ashford -- eluded them and led police on a high-speed chase through several towns for about four minutes. At one point, Ashford tried to ram a Lyndhurst patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass on Route 3.

         Officers then positioned their patrol cars around the SUV and ordered Ashford to stop the car. He refused. According to the Attorney General's press release, Ashford instead tried to get free of the barrier by accelerating, which caused the car to "jerk[] in a rear and forward motion."

         An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers -- as well as others -- fired at Ashford, who was pronounced dead hours later. A passenger in the SUV, Jemmaine Bynes, was not shot. Police took him into custody and charged him with several firearms offenses and receiving stolen property.

         When law enforcement officials are involved in a fatal shooting, the Director of the Division of Criminal Justice must be notified immediately -- "before any investigation of the incident is undertaken other than to secure the scene." Attorney General, Law Enforcement Directive No. 2006-5 (Directive), at 1-2 (Dec. 13, 2006). In response, the Attorney General's Shooting Response Team (SRT) may -- and, in some cases, must -- conduct an investigation into the use of deadly force. Id. at 2.

         Here, the SRT launched an investigation, and the Attorney General issued a press release hours after the event. The release recounted many of the facts described above. Press Release, Attorney General, Attorney General's Shooting Response Team Investigates Fatal Shooting in Rutherford Involving State Police & Local Officers (Sept. 16, 2014). It did not, however, reveal the names of the officers involved or say how many fired their weapons. Ibid.

         Each officer who uses deadly force must complete a "Use of Force Report" (UFR) along with "[a]ny reports made necessary by the nature of the underlying incident." Attorney General, Use of Force Policy, at 7 (Apr. 1985, revised June 2000) . The UFR calls for information about the officer, the type of force used, and the subject and his or her conduct.

         Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The Record reporter asked Lyndhurst, North Arlington, Rutherford, and the BCPD for incident or investigation reports; log book notations and activity logs; audio recordings and written transcripts, including all 9-1-1 calls; arrest reports; UFRs; dash-cam videos from Mobile Video Recorders (MVRs) in police vehicles; motor vehicle accident reports; Computer Aided Dispatch reports (CADs); Mobile Data Terminal Printouts; and all information required to be released under N.J.S.A. 47:1A-3(b). The reporter filed a similar request with the State Police later the same day.

         The South Bergenite reporter asked Lyndhurst to disclose the following documents "as they [were] created": police reports about the pursuit; UFRs; "[a]ny additional documentation" about the incident; and "[a]ny video tape" or transcript "obtained during the course of the investigation."

         The records custodians gave varied responses, which are described in the Appellate Division's decision. NJMG, supra, 441 N.J. Super, at 82-83. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause on November 3, 2014. At the time, NJMG owned The Record and the South Bergenite, among other news organizations.

         The two-count complaint named Lyndhurst, North Arlington, Rutherford, the BCPD, the State Police, and their records custodians as defendants. The complaint alleged violations of OPRA and the common law right of access. NJMG sought release of the requested records, or their review in camera, along with fees and costs pursuant to N.J.S.A. 47:1A-6.

         After NJMG filed its complaint, Rutherford and the State Police released a limited number of records. Rutherford's counsel candidly acknowledged that certain items should have been disclosed earlier. Id. at 83. Rutherford provided copies of a CAD report, property report, recordings of three phone calls from the public, recordings of radio transmissions, and three redacted investigation reports. A Vaughn index set forth reasons for the redactions. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert, denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

         On December 22, 2014, the Attorney General, acting on behalf of defendants, released a recording of the original 9-1-1 call as well as redacted dispatch reports. NJMG, supra, 441 N.J. Super, at 84-85. The reports were contained within three other records from North Arlington, Lyndhurst, and the BCPD; all had been redacted and did not have the names of the officers involved. Id. at 85.

         In response to the order to show cause, the Attorney General provided certifications in December 2014 from Detective Cortney Lawrence, the lead detective in the SRT investigation, and Lieutenant Robert McGrath, a supervisor in the Division of Criminal Justice.

         Detective Lawrence represented that the SRT assumed control once the shooting took place, and that the investigations into both the shooting and Bynes's conduct were ongoing. Detective Lawrence claimed that all records after the initial 9-1-1 call were the "products" of an open criminal investigation.

         Lieutenant McGrath explained the Attorney General's Directive and use of force policy. He certified that when the SRT completed its ongoing investigation, the matter would likely be presented to a state grand jury. Aside from the 9-1-1 recording and CAD reports relating to it, Lieutenant McGrath asserted that the release of "any of the other requested records . . . would irrevocably compromise the ongoing investigation" and "corrupt the independent recollections of witnesses." He also offered to disclose "case-specific examples" -- under seal and ex parte -- of how "the integrity of the ongoing investigation" would be threatened by additional disclosures.

         II.

         As background for the sections that follow, we discuss the State's Open Public Records Act, N.J.S.A. 47:1A-1 to -13, at this point.

         OPRA succinctly sets forth the State's policy in favor of broad access to public records: (1) "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, " N.J.S.A. 47:1A-1; (2) "any limitations on the right of access . . . shall be construed in favor of the public's right of access, " ibid.; and (3) public agencies "shall have the burden of proving that the denial of access is authorized by law, " N.J.S.A. 47:1A-6.

         Under that framework, "government records" -- which are defined broadly in N.J.S.A. 47:1A-1.1 -- are subject to disclosure unless a public agency can demonstrate that an exemption applies. To justify non-disclosure, the agency must make a "clear showing" that one of the law's listed exemptions is applicable. Asbury Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J.Super. 312, 329 (Law Div. 2004) . That approach serves the statute's aim "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent ...


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