NEW JERSEY FOUNDATION FOR OPEN GOVERNMENT’S STATEMENT REGARDING
NORTH JERSEY MEDIA GROUP, INC. V. TOWNSHIP OF LYNDHURST
(N.J. SUPREME COURT OPRA CASE – ACCESS TO CRIMINAL INVESTIGATORY RECORDS)
By Walter M. Luers, Esq.
Today, July 11, 2017, the New Jersey Supreme Court set forth a comprehensive framework for how law enforcement must respond to OPRA requests for records that may pertain to criminal investigations. The Court found that North Jersey Media Group was entitled to unredacted copies of Use of Force reports under OPRA; was entitled to copies of dash-cam videos of a police pursuit under the common law right of access; and was not entitled to copies of investigative reports, witness statements, and similar “detailed” records at the beginning of the investigation. The Court kept the door open for any record that pertains to an investigation to be withheld during the investigation, but the Court required more than “generic” reasons to justify withholding documents or information about an open criminal investigation. Thus, the Court reversed the worst parts of the Appellate Division’s decision, but still gives public agencies the power to withhold criminal investigatory records if they are not required by law to be created by law enforcement or the public agency can make a specific showing that disclosure would harm an ongoing investigation or be inimical to the public interest.
New Jersey Foundation for Open Government filed an amicus curiae brief (“friend of the Court” brief) in this case and participated in oral argument. The amicus brief was written by Richard Gutman, Esq., of Montclair, New Jersey, and NJFOG’s position was presented at oral argument by NJFOG Vice President Walter M. Luers, Esq. of Clinton, New Jersey.
The Court made clear that, for records to be denied access under the ongoing investigation exception or the common law, public agencies must provide specific reasons why release would be harmful to the public interest that apply to that specific case, and not generic reasons that would apply to all cases.
Use of Force Reports
The Supreme Court rejected the argument that Use of Force reports are not public records. The Court held that Attorney General guidelines that required police officers to prepare use of force reports has the “force of law” for police entities. Thus, the Court held that Use of Force reports must be disclosed because they are not “criminal investigatory records” under OPRA.
While the Court kept open the possibility that use of force reports may be withheld or redacted while an investigation is ongoing, the Court required that a specific showing be made that disclosure would be inimical under the circumstances of any particular case and that the public agency may not rely on “generic” reasons for not disclosing use of force reports while an investigation is ongoing. The Court rejected the State’s arguments that the State could redact the names of officers involved in deadly shootings without precise and specific justifications.
The Court held the dash-cam recordings, which recorded a pursuit of a suspect, fell within the “criminal investigatory records” exception because the dash-cam videos “pertained” to a criminal investigation, because they were not required by law to be made, and because they did not exist before the investigation. The Court held open the possibility that a dash-cam of a routine traffic stop would not “pertain to” a criminal investigation and the Court also declined to answer whether local police procedures that required dash-cam videos to be made constituted “law.” That question will probably be addressed by the Court in Paff v. Ocean County Prosecutor’s Office, 446 N.J. Super. 163, 183 (App. Div.), certif. granted, 228 N.J. 403 (2016).
However, the Court did acknowledge that there is a strong public interest in disclosing information about police shootings and the use of deadly force, so the Court concluded that the dash-cam videos were disclosable under the common law right of access, making this decision a significant win for North Jersey Media Group on that issue. The Court rejected the State’s “generic” concerns about officer safety, and stated that concerns specific to the case would have to be raised to justify withholding dash-cam videos under the common law.
Witness Statements and Detailed Investigative Reports
The Court held that witness statements and investigative reports that pertain to a criminal investigation, that were not created prior to the investigation, and that were not required by law to be made, maintained or kept on file, were not subject to OPRA. The Court also held that such reports may be withheld under the “investigation in progress” exception if release of the reports was inimical to the public interest for a specific reason. In addition, the Court held that disclosure of investigatory reports could harm the integrity of investigations at their beginning stages, and declined to release those under the common law either. In this regard, the Court probably set the highest barrier to gaining access to these types of records.
NJ Advance Media for NJ.com
Police videos from fatal shootings are public record, N.J. Supreme Court rules
by S.P. Sullivan
July 11, 2017