In my experience, it is very difficult to get public records from police departments because they do not know the law, and the law in this area is constantly changing and developing.
(For information on what types of records to request from police departments, see my prior post on the issue: https://njfog.org/how-do-i-get-police-records/)
This is not an indictment of the police. I think the problem is that police departments are complicated, quasi-military organizations that do not receive the proper training in OPRA. Also, while OPRA places the responsibility for responding to OPRA requests squarely on municipal clerks who almost always receive OPRA training in the form of seminars, it is often the case that the responsibility for responding to OPRA requests for police records is handled by a civilian employed within the police department or a police officer who do not receive similar training.
Most requests for police records usually implicate either the “ongoing investigation” exception or “criminal investigatory records” exception. Since the “ongoing investigation” exception was discussed thoroughly in my How Do I Get Police Records post, I am going to focus on the “criminal investigatory records” exception.
I frequently encounter denials of access from police records custodians that cite the “criminal investigatory records” exception. This exception is frequently misunderstood, because it is actually quite narrow. The criminal investigatory records exception does not make all criminal investigatory records exempt from OPRA. Rather, this exception only covers criminal investigatory records that the police are not required by law to make, maintain or keep on file. In other words, if you’ve asked for a record that the police have discretion regarding whether or not they must keep it on file, that is not a public record. If the police must keep the document on file, then it is a public record.
How do we know whether the police must make, maintain or keep a record on file? While that’s currently being decided on a case-by-case basis, I can say for sure that Courts have accepted that the retention schedules of the New Jersey Division of Archives and Records Management are laws that require police to keep records on file. So are the New Jersey Attorney General Guidelines. So, if you’re being denied access to police records on the basis of the “criminal investigatory records” exception, look up the New Jersey Division of Archives and Records Management retention schedule for municipal police departments, which is here: http://www.nj.gov/treasury/revenue/rms/pdf/m900000.pdf
If the type of record you’re looking for is listed on that schedule, it is not a “criminal investigatory record.”
Note! The Courts and the Government Records Council have not decided this issue consistently. If you must challenge a denial of records, you should probably do so in Superior Court, not the GRC. Remember, such a lawsuit must be brought within 45 days after the denial.