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 firstname.lastname@example.org or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at email@example.com.
The New Jersey Appellate Division has recently confirmed the public’s unfettered right to access government records, regardless of whether certain information produced falls outside a specific request.
New Jersey’s Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) (“OPRA”) permits members of the public to access public records maintained by government agencies, in order to ensure not only an informed citizenry but to minimize the evils inherent in a secluded governmental process. Under OPRA, a member of the public may file a request with a public agency for a “government record”, defined as any record that has been made, received, or kept on file in the course of official business or that has been received in the course of official business. There are 24 specific categories of documents that are exempt from production, including, deliberative materials, records within the attorney-client privilege, trade secrets or proprietary commercial or financial information, and criminal investigatory records.
Although public entities are exempt from producing confidential information, the New Jersey Appellative Division has recently ruled that custodians may not redact information they deem to be irrelevant in documents produced pursuant to an OPRA request. In American Civil Liberties Union of N.J. v. N.J. Div. of Crim. Justice, the court addressed the issue of whether a government agency has the authority to redact admittedly responsive documents in order to withhold information the agency deems to be outside the scope of the OPRA request, and found that it could not. The court held that if the redactions were not made pursuant to the statutorily recognized exemptions to disclose, or on a claim of confidentiality under the common law, information could not be redacted for irrelevancy.
The court noted that by redacting information deemed irrelevant, the custodian confers upon himself quasi-judicial powers which are based only on the custodian’s own notion of relevancy. The court concluded that no legal support backs this policy. The decision, therefore, confirms that the general public has a right to access governmental records regardless of whether responsive documents to an OPRA request contain some seemingly irrelevant information. Public agencies may not choose to withhold specific information when producing documents responsive to an OPRA request, because it deems that information irrelevant. This, according to the Appellate Division, would push back on the very purpose of OPRA.
For more information on OPRA, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.