Appellate decision drastically limits public access to law enforcement records

In a decision binding on every public agency in the State, a State appeals court has severely limited access to police records. NJFOG will work with other interested parties to limit or reverse this decision. The decision is available HERE. – NJFOG  

UPDATE (12/15/2015):  The NJ Supreme Court has agreed to hear North Jersey Media Group’s appeal of the Appellate Court’s Lyndhurst decision. 

From the NJ Judiciary’s website:

A-35-15  North Jersey Media Group, Inc. v. Township of Lyndhurst (076184)
Case summary:  Are these law enforcement agencies required to release their records relating to this high-speed police chase and shooting under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13,  or the common law?
Leave to appeal granted:  12/15/15

Appeals court blocks release of documents in fatal police shooting near the Rutherford-Lyndhurst border
June 11, 2015
By Peter J. Sampson
(full article here and posted below)

In a decision that drastically limits public access to a broad range of law-enforcement records, an appeals court Thursday reversed a lower court ruling compelling the release of documents relating to a high-speed chase in which police shot and killed a young black man suspected of stealing an SUV.

The three-judge panel said that Superior Court Assignment Judge Peter E. Doyne had interpreted the law “too broadly” when he ordered several police agencies to release documents relating to the death of Kashad Ashford, who was fatally wounded last September near the Lyndhurst-Rutherford border.

In January, Doyne, who has since retired from the bench, directed the state police, the Bergen County Police Department and police departments in Lyndhurst, North Arlington and Rutherford to turn over documents requested by The Record under New Jersey’s Open Public Records Act as well as common law access to public records.

But the Appellate Division judges said that Doyne “misinterpreted OPRA’s provisions governing criminal investigatory records.” The judge also erred in declining to accept the state’s offer to explain, in private, “why releasing certain requested documents would undermine its investigation and be inimical to the public interest,” the panel said.

The ruling was welcomed by the state Attorney General’s Office.

“This decision reaffirms the longstanding principle in New Jersey that criminal cases should be tried in court,” the office said in a statement. “The court’s ruling today preserves and protects the integrity of judicial proceedings, including the rights afforded to criminal defendants, and recognizes that law enforcement agencies must be able to conduct a thorough and effective investigation unhindered by the premature public release of investigative materials.”

Samuel Samaro, an attorney representing North Jersey Media Group Inc., which publishes The Record, said the panel “held that nearly every piece of paper and video generated by law enforcement related to a police officer’s use of deadly force may be withheld from the public.”

And Robert D. Thompson, senior counsel for North Jersey Media Group, said the paper will appeal to the state Supreme Court.

“The court’s decision inflicts a devastating loss of transparency on the public’s ability to obtain any information regarding police use of deadly force,” Thompson said. “The decision eliminates access to records that were routinely made available by the police, and is particularly troublesome given the national spotlight on the use of deadly force by police,” he said.

In its 66-page opinion, the panel said that most of the records sought by the reporters fell “within the criminal investigatory records exemption, because they are ‘not required by law to be made, maintained or kept on file’ and they ‘pertain to [a] criminal investigation.’ ”

Records such as computer-assisted dispatcher’s reports related to an investigation, daily activity logs, audio and video recordings of the pursuit and shooting, incident reports, investigation reports and use-of-force reports are all exempt, the opinion said.

Records that can be made available to the public include 9-1-1 calls, motor vehicle accident reports and those portions of reports and logs of police activity that do not discuss or relate to criminal investigations, the court said.

Samaro said the ruling breaks with previous court decisions on similar issues.

“The opinion not only contradicts the reasoned decisions of prior courts, including other panels of the Appellate Division, it effectively ensures that there will be very limited public scrutiny of police shootings, at a time when that scrutiny has been the difference between peaceful and incendiary outcomes. Recent history has taught us that the more the public knows about a police shooting in its immediate aftermath, the better the result. Sadly, the court ignored that history and prior case law.”

The case stems from requests by reporters for The Record and the weekly South Bergenite for documents relating to shooting of Ashford, 23, of Newark on Sept. 16, following a high-speed chase through several Bergen County municipalities that was triggered by a report of an attempted car burglary in North Arlington.

At one point, Ashford attempted to ram a police vehicle head on, the opinion said. He later crashed into a guard rail on Ridge Road in Lyndhurst, it said.

What followed next, however, is less clear. A press release, issued by the Attorney General’s Office, said more than one officer fired at Ashford after he spun his tires and allegedly backed his SUV at the officers, ramming a police vehicle.

The detective leading the state police’s Shooting Response Team investigation said in court papers that Ashford and a passenger revved the engine “as if to force their way out,” that police had surrounded the vehicle, and that, ultimately, Ashford was shot and killed. “The detective did not assert Ashford backed up, or rammed a police vehicle, nor did the detective state how many officers shot at Ashford,” the opinion said.

The state had argued that the documents fall under an exception to the Open Public Records law and their release to the news media could compromise the investigation and undermine witness testimony. The names of the police officers involved also have not been released.

The appeals court sent the case back to Bergen County to consider whether the release of any records that are not subject to an exemption under its ruling would be harmful to the public interest and whether the records should be disclosed under the common law. In doing so, a judge must review in chambers the sworn statement prepared by a law enforcement officer overseeing the investigation.