New Jersey Open Public Records Act Does Not Require Disclosure of Police Video, Supreme Court Holds

A divided New Jersey Supreme Court ruled today in Paff v. Ocean County Prosecutor’s Office that the “criminal investigatory records” exemption to public disclosure under New Jersey’s Open Public Records Act, permits the Ocean County Prosecutor’s Office (OCPO) to withhold disclosure of a police mobile video recording (MVR) of a traffic stop.  The case related to a police chase ending in Barnegat Township in which a police officer was investigated and ultimately charged with causing a police dog to injure the driver.  Paff, an activist for government transparency – see the Press of Atlantic City’s profile of him here – requested the MVR from the OCPO, which conducted the internal investigation.

The criminal investigatory records exemption allows public records to be withheld if they are “not required by law to be made” and if it pertains to a criminal investigation.  Reversing the Appellate Division (see our discussion on August 10, 2017, Litigation Law Blog New Jersey Courts Hands Victories to Open Government Records Advocates), the Supreme Court found that MVR was not “require by law” because the Barnegat Township Police Department’s directive did not have the force of law.    Relying on the Court’s recent decision in North Jersey Media Group v. Lyndhurst, also discussed in our August 10, 2017 Post, the Court compared the local directive to the Attorney General’s Use of Force Policy, which required creation of Use of Force Reports statewide and has the force of law on all police departments.  Since the MVR related to the investigation of the driver for evading arrest, the Supreme Court held it could be withheld under that exemption.

The Court, however, noted that the MVR would not be exempt under the “investigation in progress” exemption or due to the driver’s asserted privacy interest because of the strong public interest in police transparency.  The decision sends the case back to the trial court to determine whether the record should be released under the “common-law right of access” a broader doctrine that requires the court to balance competing interest to determine public access to records.

For more information on this decision or public records access, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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New Jersey Appellate Division Clarifies Rights to Disclosure of School Records Under Public Records Law

In a lengthy, published opinion, the New Jersey Appellate Division recently ruled on four appeals from different trial courts (that had reached conflicting results) about the ability of a nonprofit advocacy organization for disabled students and one of the parent’s efforts to obtain copies of settlement agreements from public school districts relating to the provision of special services to other qualified students.

The issue was how to strike a balance between privacy rights in educational records reflected in the New Jersey Pupil Records Act, and the Federal Family Educational Rights and Privacy Act of 1974, on the one hand, and the broad right to obtain public records under New Jersey’s Open Public Records Act or OPRA, on the other hand.  (See Litigation Law Blog’s Post on a Series of Recent OPRA Decisions by the New Jersey courts.)

The Appellate Division Panel held that the non-profit entity plaintiffs in three of the cases were entitled to copies of the requested records with personal identifying information redacted, if they establish that they are “bona fide researchers” under the New Jersey Public Records Act or if they obtain in advance an order from the trial court granting them access. The school districts were directed to not turn over the redacted records until first providing reasonable advance notice to the parents or guardians of the affected students.

The Court distinguished one of the cases on appeal in which the requestor sought a report that exclusively mentioned her own child, affirming parents’ right to obtain unredacted records relating to their children.

For more information on OPRA, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at at jborek@genovaburns.com.

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New Jersey Courts Hands Victories to Open Government Records Advocates

Over the past month, the New Jersey courts have handed down several rulings clarifying the scope of New Jersey’s Open Public Records Act, or OPRA.   The rulings have resulted in several significant victories for advocates of more access to public records.

In Paff v. Galloway Township, the New Jersey Supreme Court addressed the scope of a municipality’s obligation to disclose electronically stored information.  The plaintiff had requested specific information fields from emails sent between the Township Clerk and Chief of Police, including “sender,” “recipient,” “date” and “subject” over a two-week period.    The Supreme Court found that this information about the emails—in legal parlance, “metadata”— is a government record under OPRA and must be produced.  Although this may impose some burden on a municipality, the Court point to the ability under OPRA to charge a service fee where the records requested require “a substantial amount of manipulation or programming of information technology.”

In North Jersey Media Group, Inc. v. Township of Lyndhurst, the New Jersey Supreme Court addressed the issue of public access to criminal investigatory records associated with the shooting of an individual by police following a high-speed chase.  The Court ultimately ruled that the plaintiff was entitled to disclosure of unredacted Use of Force Reports under OPRA and dash-cam recordings of the incident under the common law, but not to investigative reports, witness statements, and similarly detailed records while the investigation remained ongoing.

The next case, in re New Jersey Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, involved the polar opposite of the typical OPRA case.  In that case, the question was whether, after a public entity denies a citizen’s record request, the public entity may institute a court action to obtain a judgment from the court declaring the record to not be subject to disclosure.  The Court ultimately ruled that this procedure may be proper in some instances, but under the facts of the case, since the public entity had already denied the OPRA request, only the requestor may file an action to compel the disclosure.

In North Jersey Media Group v. State of New Jersey Office of Governor, a case stemming out of the “Bridgegate” scandal, New Jersey’s Appellate Division held that the court has the authority under OPRA to impose civil penalties for knowing and willful violations of OPRA, and remanded the case for a ruling on whether certain individuals in the Governor’s office intentionally violated OPRA.

In Verry v. Franklin Fire District No. 1, the Appellate Division held that a local a fire department should be considered an “instrumentality” of the larger fire district, and is therefore a public agency required to comply with OPRA.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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Public’s Interest in Records of Police Shooting Trumps OPRA’s Ongoing Investigation Exception

The public’s right to access government documents garnered additional support in New Jersey last week when a state trial court ruled that law enforcement records related to the police shooting of a black man who allegedly rammed officers with his vehicle must be immediately released in unredacted form to the public.

The Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), generally allows members of the public to inspect government records upon request. However, there are many specific categories of documents to which the government does not have to grant public access. These categories fall outside of OPRA’s definition of the term “government records,” and include records pertaining to an ongoing investigation by a public agency if disclosure of the records is “detrimental to the public interest.”

The records at issue here concern the fatal shooting of a black, 23-year-old Newark resident, who was shot by police when he allegedly struck a police car with his SUV after police had surrounded his vehicle to conclude a four-minute police pursuit. The Attorney General’s Office initiated an investigation into the shooting that day, and issued a press release. Within days of the shooting, North Jersey Media Group (“NJMG”) filed OPRA requests with the New Jersey State Police, the Bergen County Police, and the local police departments of Lyndhurst, North Arlington, and Rutherford, seeking records such as use-of-force reports, arrest reports, and various audio and video recordings. The police departments, citing the Attorney General’s investigation among other reasons, either refused to produce the records or produced redacted records after a delay.

Ruling on a complaint filed by NJMG seeking release of the records under OPRA and the common law, the court held, among other things, that the police departments’ refusal to produce the records at issue disregarded the statutorily-defined duties and public policy of OPRA.

Notably, the court made clear that the ongoing-investigation exemption under OPRA, which requires that disclosure be detrimental to the public interest, did not apply in light of the heightened need for public access to information related to police interaction with the public after highly publicized incidents in Ferguson (MO), Staten Island, and Brooklyn. Additionally the court ruled that the police departments had a common law obligation to disclose the records, and that the departments had waived the right to produce redacted records by failing to seek judicial review to determine whether they could withhold or redact the records in the first instance.

For more information on OPRA, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.

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