NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2523-14T1
NORTH JERSEY MEDIA GROUP, INC.,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. June 11, 2015
APPELLATE DIVISION
TOWNSHIP OF LYNDHURST, HELEN
POLITO, RMC, in her capacity
as the Custodian of Records for
the Township of Lyndhurst,
BOROUGH OF NORTH ARLINGTON,
KATHLEEN MOORE, in her capacity
as the Custodian of Records for
the Borough of North Arlington,
BOROUGH OF RUTHERFORD, MARGARET M.
SCANLON, RMC, in her capacity as
the Custodian of Records for the
Borough of Rutherford, BERGEN
COUNTY POLICE DEPARTMENT, CAPTAIN
UWE MALAKAS, in his capacity as
Custodian of Records for the
Bergen County Police Department,
NEW JERSEY STATE POLICE and
SERGEANT HARRY ROCHESKEY, in his
capacity as Custodian of Records
for the New Jersey State Police,
Defendants-Appellants.
______________________________________
Argued April 21, 2015 – Decided June 11, 2015
Before Judges Messano, Ostrer and Sumners.
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Bergen County, Docket No. L-19048-14.
Jeffrey S. Jacobson, Director, Division of
Law, argued the cause for appellants New
Jersey State Police and Sergeant Harry
Rocheskey (John J. Hoffman, Acting Attorney
General, attorney; Mr. Jacobson and Raymond
R. Chance, III, Assistant Attorney General,
of counsel; Daniel M. Vannella, Deputy
Attorney General, on the briefs).
Richard J. DiLascio, attorney for appellants
Township of Lyndhurst and Helen Polito,
joins in the brief of appellants New Jersey
State Police and Sergeant Harry Rocheskey.
Rubenstein, Meyerson, Fox, Mancinelli, Conte
& Bern, P.A., attorneys for appellants
Borough of North Arlington and Kathleen
Moore, join in the brief of appellants New
Jersey State Police and Sergeant Harry
Rocheskey.
LaPorta & LaPorta, attorneys for appellants
Borough of Rutherford and Margaret M.
Scanlon, join in the brief of appellants New
Jersey State Police and Sergeant Harry
Rocheskey.
Julien X. Neals, Bergen County Counsel,
attorney for appellants Bergen County Police
Department and Captain Uwe Malakas, joins in
the brief of appellants New Jersey State
Police and Sergeant Harry Rocheskey.
Samuel J. Samaro argued the cause for
respondent North Jersey Media Group Inc.
(Pashman Stein and Jennifer A. Borg,
attorneys; Mr. Samaro and Ms. Borg, of
counsel; Mr. Samaro and CJ Griffin, on the
briefs).
American Civil Liberties Union of New
Jersey, attorneys for amicus curiae American
Civil Liberties Union of New Jersey (Edward
Barocas, Jeanne LoCicero and Iris Bromberg,
on the brief).
2 A-2523-14T1
Loccke, Correia & Bukosky, attorneys for
amicus curiae State Troopers Fraternal
Association and Bergen County Policemen's
Benevolent Association Conference (Michael
A. Bukosky, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
This appeal, by leave granted, concerns the public's right
to access records pertaining to a criminal investigation under
the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and
the common law right to inspect government records. The
Attorney General — on behalf of three municipalities, the Bergen
County Police Department, the New Jersey State Police (NJSP),
and their records custodians — appeals from the trial court's
order compelling disclosure pursuant to both OPRA and the common
law. Having reviewed the State's arguments in light of the
record and applicable principles of law, we conclude the trial
court misinterpreted OPRA's provisions governing criminal
investigatory records. The court also erred in declining to
consider the State's proposed ex parte showing of why releasing
certain requested documents would undermine its investigation
and be inimical to the public interest. As a result, we reverse
the court's order compelling release of the requested documents,
and remand for reconsideration in light of the principles we set
forth below.
3 A-2523-14T1
I.
Plaintiff North Jersey Media Group, Inc. (NJMG) is the
owner of numerous print and web-based news organizations,
including The Record, a general circulation daily newspaper, and
the South Bergenite, a weekly community newspaper. Reporters
for these two publications sought various records of local,
county, and state law enforcement agencies (LEAs) pertaining to
the fatal police shooting of a criminal suspect, Kashad Ashford.
The shooting followed a high-speed chase of Ashford and his
passenger Jemmaine T. Bynes across multiple municipalities.
The records custodians of the LEAs did not respond
consistently. None provided documents before NJMG filed its
November 3, 2014, complaint. Thereafter, NJMG received 9-1-1
call recordings, various redacted police documents containing
computer aided dispatch (CAD) reports, and a uniform force
report (UFR).1 However, the defendants continue to deny access
to many other requested documents, or to even acknowledge they
exist.
1
At oral argument, the Director of the Division of Law
represented that a further search of the LEAs' files uncovered a
UFR, which the State disclosed the preceding week. The State
did so pursuant to O'Shea v. Township of West Milford, 410 N.J.
Super. 371 (App. Div. 2009). The document is not in the record
before us.
4 A-2523-14T1
The events leading to the fatal shooting are set forth in a
September 16, 2014, press release of the Attorney General's
Office (OAG); a December 9, 2014, certification of Cortney
Lawrence, the NJSP's lead detective in the Attorney General's
Shooting Response Team (SRT) investigation; and a December 10,
2014, certification of New Jersey Division of Criminal Justice
(DCJ) Lieutenant Robert McGrath, Detective Lawrence's
supervisor.2 A North Arlington resident called 9-1-1 at 2:12
a.m. on September 16 to report an attempted burglary of her
vehicle from her driveway. A North Arlington patrol vehicle was
dispatched to the scene to interview the resident. Meanwhile,
additional officers from the police departments of North
Arlington, Lyndhurst, Rutherford, and Bergen County joined the
investigation into the attempted burglary.3 Officers soon
spotted an SUV matching the information provided. Police
determined the SUV was stolen.
Police attempted to perform a motor vehicle stop, but the
driver, later identified as Ashford, refused. Instead, Ashford
led officers on a high-speed chase through several
2
Det. Lawrence's statement was based on the detective's
"review[] [of] all the evidence and investigative materials in
the related file." Lt. McGrath did not specify the basis for
his "understanding" of the events leading to the shooting.
3
Lt. McGrath stated that NJSP officers also were involved in the
investigation although he did not specify when that occurred.
5 A-2523-14T1
municipalities. At one point, Ashford attempted to ram a police
vehicle head-on. He later crashed into a guardrail on Ridge
Road at Route 3 in Lyndhurst.
The press release and the detective's certification present
different versions of what happened next. According to the
press release, more than one officer fired upon Ashford after he
spun his tires and allegedly backed his SUV at the officers,
ramming a police vehicle.4 Det. Lawrence's certification issued
nearly three months later was less definitive. The detective
stated Ashford and Bynes revved the engine "as if to force their
way out"; police had surrounded the vehicle; and 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.5
4
The press release states:
Police positioned their vehicles around the
SUV in an attempt to apprehend the vehicle's
occupants, but the driver put the car in
reverse, spinning the tires of the vehicle
until the roadway was filled with smoke.
The driver allegedly backed the SUV at the
officers, ramming a police vehicle.
Officers fired upon the driver of the SUV,
striking him.
5
Det. Lawrence certified: "Even after becoming stuck in the
wall, the suspects revved their engines at high RPM, as if to
force their way out. Police vehicles and law enforcement
(continued)
6 A-2523-14T1
Ashford was fatally shot at around 2:27 a.m., and
pronounced dead at a nearby hospital at 7:05 a.m. Officers
found a .357-caliber Magnum handgun and a facemask in the
vehicle. Bynes was arrested at the scene and charged with
weapons offenses and receiving stolen property. The SRT
immediately assumed control of the investigation. According to
released CAD reports, NJSP investigators began interviewing
officers that morning.
Following the shooting, The Record reporter Abbott Koloff
and South Bergenite reporter Meghan Grant submitted separate
requests under OPRA and the common law regarding the incident.
On September 16, 2014, Koloff asked Lyndhurst, North Arlington,
Rutherford, and the Bergen County Police Department to produce:
1. Incident Reports, Operation Reports,
Investigation Reports, and/or Offense
Reports (including supplemental reports);
2. Log book notations, daily activity
logs, daily bulletins, daily statistical
sheets, tally sheets, vehicle logs;
3. Audio recordings, and if available,
written transcripts of such audio recordings
of all police and law enforcement dispatches
and recorded conversations including all 911
calls;
(continued)
vehicles positioned around the suspects' vehicle. Ultimately,
driver Kashad Ashford was fatally wounded by gunshot."
7 A-2523-14T1
4. Arrest reports for individual(s) in the
incidents;
5. All information required to [be]
released by law enforcement under Section
3(b) of the New Jersey Open Public Records
Act, N.J.S.A. 47:1A-3(b) where (i) an arrest
has not yet been made; and (ii) where an
arrest has been made;
6. Use of force reports;
7. Audio and Video recordings from the
mobile recorders (MVRs) in the vehicles of
law enforcement personnel;
8. Motor Vehicle Accident Reports, Crash
and Investigation Reports;
9. Computer Aided Dispatch reports;
10. Mobile Data Terminal Printouts (MDTs).
The same day, Koloff requested the following records from the
State Police:
1. use of force report[;] 2. audio
recordings of law enforcement dispatches and
recorded conversations including 911 calls;
3. audio and video recordings from mobile
recorders (MVRs) in vehicles of law
enforcement personnel; 4. computer aided
dispatch reports[;] 5. arrest reports[;] 6.
Motor Vehicle Accident Reports, Crash and
Investigation Reports[;] 7. incident
reports, operation reports, investigation
reports and offense reports (including
supplemental reports)[.]
Grant's September 17, 2014, request asked Lyndhurst to
disclose the following documents "as they are created":
8 A-2523-14T1
-All police reports concerning the Sept. 16,
2014 pursuit of suspects later identified as
Kashad Ashford and Jemmaine Bynes.
-All use of force reports by Lyndhurst
officers concerning the Sept. 16, 2014
shooting.
-Any additional documentation kept by the
Lyndhurst Police Department concerning the
Sept. 16, 2014 pursuit of suspects later
identified as Kashad Ashford and Jemmaine
Bynes and shooting.
-Any video tape (or a transcription of the
video tape) obtained during the course of
the investigation into the Sept. 16 pursuit
and shooting.
Although the responses varied, none of the LEAs' records
custodians produced responsive documents before NJMG filed its
complaint. Lyndhurst's records custodian denied both reporters'
requests on September 25, 2014, based on the OAG's ongoing
investigation. Before doing that, the custodian had referred
the records request to OAG, which referred it back to Lyndhurst.
North Arlington's records custodian wrote to Koloff on September
25, 2014, stating that his requests were subject to an "ongoing
[OAG] investigation" and the OAG would determine what to
release. The Bergen County Police Department's records
custodian likewise denied Koloff's request based on the criminal
investigatory records exemption.
Rutherford's borough clerk also denied Grant's request in a
September 23, 2014, letter, stating it pertained to an
9 A-2523-14T1
investigation in progress, and release would jeopardize persons'
safety, the investigation, or would otherwise be inappropriate.
The clerk provided a statement from the Rutherford Police Chief,
disclosing that the department generated one CAD entry, two
incident reports, a daily activity log, and a copy of radio and
telephone transmissions, which were to be turned over to the
Attorney General's Office. The police chief stated that all
further information requests should be directed to the OAG, at
the request of Lt. McGrath, the supervisor.6
NJSP postponed its response three times, the last time
promising to respond by November 6, 2014. As late as October
23, 2014, the NJSP records custodian wrote that he was "still
trying to determine if the investigation into the death of
Kashad Ashford was conducted by the NJSP."7 The records
6
It is unclear from the record whether a similar letter was sent
to Koloff.
7
The records custodian asserted a lack of knowledge,
notwithstanding that the State Police's involvement was publicly
acknowledged in the OAG's September 16, 2014, press release.
Entitled "Attorney General's Shooting Response Team Investigates
Fatal Shooting in Rutherford Involving State Police & Local
Officers," the release stated:
Under an Attorney General Directive, the
Shooting Response Team, made up of deputy
attorneys general, detectives of the
Division of Criminal Justice, and detectives
of the State Police Major Crime Unit, are
dispatched to the scene to handle
(continued)
10 A-2523-14T1
custodian stated his search was impeded by the lack of a "case
number."
NJMG's two-count complaint alleged violations of OPRA and
the common law right to know. NJMG sought an order compelling
the release, or an in camera review, of documents believed to be
exempt; and fees and costs pursuant to N.J.S.A. 47:1A-6. The
court entered an Order to Show Cause (OSC) returnable December
12, 2014, which was adjourned to January 9, 2015, at the OAG's
request.
After the complaint was filed, Rutherford and the OAG
released documents. On December 5, 2014, Rutherford's counsel
wrote that he determined disclosure was appropriate under OPRA
"despite initially being advised to the contrary by the New
Jersey Attorney General's Office." The counsel provided
unredacted copies of: a CAD report, a property report, a compact
disc (CD) containing the recordings of three phone calls from
the public regarding the incident, and a CD containing "Radio
Transmissions from Rutherford PD Case # 14-19344, 9-16-14."8 The
(continued)
investigations of shootings involving state
troopers or officers employed by county
prosecutors as detectives/investigators or
members of county task forces.
8
Actual playable copies of the recordings were not included in
the record on appeal. Instead, the State simply provided
(continued)
11 A-2523-14T1
CAD report listed the names of the officers dispatched, their
car numbers, along with their response times, and the name of
the dispatcher. It included an entry that all additional
information and reports were to be generated by the OAG.
Rutherford's attorney also provided three investigation
reports, which were redacted.9 A Vaughn10 index was provided,
explaining the records were redacted for three reasons: to
protect against disclosing personal information that would
violate "reasonable privacy interests," pursuant to N.J.S.A.
47:1A-1 and Burnett v. County of Bergen, 198 N.J. 408 (2009); to
shield criminal investigatory records, pursuant to N.J.S.A.
47:1A-1.1; and to shield records related to an ongoing
investigation, the release of which would be detrimental to the
(continued)
photocopies of the CDs. Rutherford's counsel stated they were
unredacted.
9
The reports consisted of: (1) a two-page supplemental
investigation report, dated September 16, 2014, by a detective
who responded to the scene of "a police involved shooting," and
reported taking possession of the handgun found in the suspect's
vehicle; (2) a two-page supplemental investigation report, dated
September 16, 2014, by a detective-sergeant, who reported that
he responded at 3:27 a.m. to the police-involved shooting,
conferred with other officers and the police chief, and later
made a copy of phone and radio recordings, which were to be
turned over to the NJSP; and (3) a November 10, 2014,
supplemental investigation report by the detective-sergeant,
which was almost completely redacted.
10
Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).
12 A-2523-14T1
public interest, under N.J.S.A. 47:1A-3(a) and (b). Rutherford
Police Department telephone and radio recordings were placed on
a CD-R, which was turned over to the NJSP.
On December 22, 2014, the OAG released a 9-1-1 call
recording, and what its counsel described as "CAD reports" in
the possession of the DCJ. The dispatch reports were actually
contained within other documents, which were to varying degrees,
redacted without explanation. These included: a North Arlington
Police Department Investigation Report, which included mostly
unredacted incident details, and completely redacted sections
entitled "name details" and "narrative details"; a Lyndhurst
Police Department Dispatch Log, with the officer name section
redacted; a Bergen County Police Department Incident Report
Form, which included unredacted information about the incident,
but redacted the names of the officers who generated and
approved the report, and included a blacked-out half page. The
State did not provide a Vaughn index, nor did it expressly
confirm whether the remaining requested documents existed.
In its response to the OSC, the State provided
certifications from Det. Lawrence and Lt. McGrath. In addition
to setting forth details of the events leading to the shooting,
Det. Lawrence stated that the SRT assumed control of the
investigation "once the shooting took place." The SRT's
13 A-2523-14T1
investigation of the shooting, as well as its investigation into
Bynes's actions, were ongoing at the time of the certification,
on December 10, 2014. However, Bynes, who was released on bail,
was fatally shot in Newark in March 2015.11 Det. Lawrence
asserted that all documents generated after the initial 9-1-1
call were investigatory.
Lt. McGrath generally explained the Attorney General's
Directive 2006-5, which established the procedures for
investigating fatal police shootings, and the role of the SRT,
which operates independently from the ordinary chain of command.
Lt. McGrath stated that consistent with the directive, the SRT
assumed control of the investigation of the shooting, and the
underlying alleged criminal actions of Ashford and Bynes. Also
consistent with the directive, Lt. McGrath expected the matter
to be presented to a State Grand Jury after the SRT completed
its investigation. DCJ maintained all evidence and
investigative materials. Lt. McGrath asserted the investigation
was ongoing.
With respect to the reporters' document requests, Lt.
McGrath conceded the reporters were entitled to the 9-1-1
11
See Dan Ivers, Newark murder victim was second suspect in
Lyndhurst fatal police shooting, NJ.com (Mar. 12, 2015, 5:29
PM), http://www.nj.com/essex/index.ssf/2015/03/newark_murder_
victim_was_second_suspect_in_lyndhur.html.
14 A-2523-14T1
recordings and related CAD reports, which the OAG released soon
thereafter with redactions in the case of the CAD reports. He
explained the initial 9-1-1 recording was not a product of the
investigation, although the call prompted it. He did not
explain the basis for releasing the CAD reports. Lt. McGrath
asserted that releasing "any of the other requested records . . .
would irrevocably compromise the ongoing investigation." He
contended that release would "corrupt the independent
recollections of witnesses," and lead witnesses to alter prior
statements, resulting in inconsistent statements that may
benefit a defendant. However, Lt. McGrath did not confirm which
of the other requested documents were actually withheld, and
which simply did not exist.
Lt. McGrath sought the opportunity to present, under seal
and ex parte, "case-specific examples of how the threats to the
integrity of the ongoing investigation and the negative impact
of same on the public interest, would be evident in release of
the records being sought for production here." He stated he
could not provide a more specific justification without
disclosing the information the OAG sought to keep confidential.
On the return date of the OSC, the trial court concluded
NJMG was entitled to all the records requested pursuant to both
OPRA and the common law, effective upon entry of the court's
15 A-2523-14T1
order. The court denied the OAG's motion to review an ex parte
certification from Lt. McGrath.
In its decision, the court reviewed the factual history of
the case, and the various governmental entities' responses to
NJMG's OPRA requests. The court held that redacting documents
was equivalent to the denial of access, citing Newark Morning
Ledger Co. v. New Jersey Sports & Exposition Authority, 423 N.J.
Super. 140, 148 (App. Div. 2011).
Addressing NJMG's access rights under OPRA, the court
concluded that neither the criminal investigatory records
exception, N.J.S.A. 47:1A-1.1, nor the ongoing investigation
exception, N.J.S.A. 47:1A-3(a), shielded the documents from
release. The former provision excludes "criminal investigatory
records" from the definition of government records subject to
disclosure under OPRA, unless the records are "required by law
to be made, maintained or kept on file." N.J.S.A. 47:1A-1.1.
The court concluded the governmental entities failed to
meet their burden to show the "required by law" exception-to-
the-exception did not apply. The court held that UFRs were
required by law to be made, pursuant to Attorney General
directives, which have the force of law, citing O'Shea, supra,
410 N.J. Super. at 382. The court held that 9-1-1 calls, police
dispatch records, and CAD entries were also "required by law"
16 A-2523-14T1
documents, citing Serrano v. South Brunswick Township, 358 N.J.
Super. 352, 364 (App. Div. 2003), N.J.S.A. 52:17C-1, and
N.J.A.C. 17:24-2.4. Motor vehicle accident reports were not
exempt from disclosure because they must be made public pursuant
to N.J.S.A. 39:4-131. As for the remaining documents, the court
held that local police general orders and policies have the
force of law necessary to remove the records from the exemption,
citing O'Shea, supra, 410 N.J. Super. at 382-83, and the State
failed to demonstrate by competent evidence that those orders or
policies did not apply.
The court also rejected the State's reliance on the
"ongoing investigation" exception, which applies only if release
of documents would be "inimical to the public interest."
N.J.S.A. 47:1-3(a). The court was unpersuaded by the State's
general argument that release of investigatory materials would
taint witnesses' independent recollections. The court declined
to consider Lt. McGrath's proposed ex parte submission. The
court held that whether to consider documents under seal was a
discretionary decision, citing Hammock ex rel. Hammock v.
Hoffmann-LaRoche, Inc., 142 N.J. 356, 380 (1995). The judge
concluded Lt. McGrath had failed to provide sufficient proof of
injury if the proposed second certification were publicly
released.
17 A-2523-14T1
The court likened the State's arguments to the claim that
release of investigatory documents would taint potential jurors,
which the court stated was rejected in Courier News v. Hunterdon
County Prosecutor's Office, 358 N.J. Super. 373 (App. Div.
2003). Additionally, the court discussed the public's
substantial interest in police shootings of suspects,
particularly given recent incidents in Ferguson, Missouri, and
Staten Island, New York. The court noted that significant time
had passed since the shooting of Ashford, and witness statements
were likely already obtained.
The court also held that the OAG failed to comply with the
OPRA provision requiring release of certain information,
specified in the law, absent a showing the release would
jeopardize persons' safety, an investigation, or was otherwise
inappropriate. N.J.S.A. 47:1A-3(b). The court determined the
press release was insufficient, and release of underlying
documents was required.
The court found the responding entities failed to comply
with the timelines mandated by OPRA. Also, the court concluded
NJMG was entitled to fees under OPRA and asked the parties to
attempt to agree upon a "reasonable quantum of fees." Absent
agreement, the court set a schedule for submission of a
certification of services, as well as a response.
18 A-2523-14T1
Finally, the court addressed NJMG's rights under the common
law right of public access. Citing Keddie v. Rutgers, 148 N.J.
36 (1997), the court identified the three predicates to the
common law right of access. As stated in Keddie, the three
predicates are: "(1) the records must be common-law public
documents; (2) the person [or entity] seeking access must
establish an interest in the subject matter of the material; and
(3) the citizen's right to access must be balanced against the
State's interest in preventing disclosure." Id. at 50 (internal
quotation marks and citations omitted). The trial court noted
that no party disputed that the requested documents were common
law public records. Moreover, NJMG had standing, given its
interest in policing the workings of government. Lastly,
balancing the factors set forth in Loigman v. Kimmelman, 102
N.J. 98 (1986), the court found that the public's interest in
disclosure outweighed the responding entities' interest in
confidentiality.
By order entered January 22, 2015, the court compelled
defendants to "locate, identify and produce, without redactions,
all responsive records to [NJMG's] OPRA requests and provide
such records to [NJMG]" within three days. On January 26, 2015,
the court granted a stay until January 30, 2015, but otherwise
denied a stay pending appeal. We subsequently granted an
19 A-2523-14T1
emergent motion for leave to appeal, and stayed the court's
order.12
II.
We exercise de novo review of the trial court's decision
that OPRA requires disclosure of publicly held records. See,
e.g., K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,
349 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). "We
apply the same standard of review to the court's legal
conclusions with respect to whether access to public records is
appropriate under the common-law right of access." Drinker
Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J.
Super. 489, 497 (App. Div. 2011). We apply a different and
deferential standard of review when a court conducts an in
camera review of documents and balances competing interests in
disclosure and confidentiality in connection with a common-law-
based request to inspect public records. Shuttleworth v. City
of Camden, 258 N.J. Super. 573, 588 (App. Div.), certif. denied,
133 N.J. 429 (1992). However, "to the extent [the appellate
court] can be said to be reviewing essentially a legal
12
The motion was filed by the Attorney General on behalf of the
NJSP and its records custodian. The Bergen County Police
Department, Lyndhurst, North Arlington, and Rutherford, as well
as their records custodians, joined in the Attorney General's
request for emergent relief from the court order. They have
joined in the Attorney General's brief on appeal.
20 A-2523-14T1
determination, [it] can review the documents which the trial
judge ordered disclosed . . . ." Ibid.
In determining whether documents or information related to
a criminal investigation must be disclosed under OPRA, a court
must engage in a three-stage statutory analysis, which we
describe below. See N.J.S.A. 47:1A-1.1, -3(a), -3(b). The
governmental entity bears the burden to establish a basis for
non-disclosure. N.J.S.A. 47:1A-6. It is undisputed that but
for any exemptions, the requested records qualify as "government
record[s]" subject to access under OPRA, because they are
documents or recordings made, maintained, or kept on file by
public officials. N.J.S.A. 47:1A-1.1. The trial court's
decision raises interpretational issues as to each stage of the
statutory analysis.
First, the court must consider whether the requested
document is a "criminal investigatory record[]," which is
excluded from the definition of government record generally
subject to disclosure under OPRA. N.J.S.A. 47:1A-1.1. A
"criminal investigatory record" is defined as a document "held
by a law enforcement agency which pertains to any criminal
investigation or related civil enforcement proceeding[,]" which
is "not required by law to be made, maintained or kept on file."
Ibid. The provision thus raises two issues for analysis: what
21 A-2523-14T1
"pertains to" an investigation or enforcement proceeding; and
what satisfies the "required by law" standard.
Second, even if the document does not qualify as a
"criminal investigatory record" — for example, because it is a
"required by law" document — the court must consider whether the
document may be withheld as a document that "pertain[s] to an
investigation in progress by any public agency . . . if the
inspection, copying or examination of such record or records
shall be inimical to the public interest." N.J.S.A. 47:1A-3(a).
This exception, however, does not apply to a record that was
"open for public inspection . . . before the investigation
commenced." Ibid. We examine the trial court's rejection of
the State's claim that release of the documents was "inimical to
the public interest."
Regardless of whether a document can be withheld as a
"criminal investigatory record" under N.J.S.A. 47:1A-1.1, or as
a document pertaining to an ongoing investigation, the release
of which would be inimical to the public interest under N.J.S.A.
47:1A-3(a), a public agency must still disclose certain
"information" pertaining to a criminal investigation within
twenty-four hours of a request or as soon as practicable.
N.J.S.A. 47:1A-3(b). This information includes:
where a crime has been reported but no
arrest yet made, information as to the type
22 A-2523-14T1
of crime, time, location and type of weapon,
if any;
if an arrest has been made, information
as to the name, address and age of any
victims unless there has not been sufficient
opportunity for notification of next of kin
of any victims of injury and/or death to any
such victim or where the release of the
names of any victim would be contrary to
existing law or court rule. In deciding on
the release of information as to the
identity of a victim, the safety of the
victim and the victim's family, and the
integrity of any ongoing investigation,
shall be considered;
if an arrest has been made, information
as to the defendant's name, age, residence,
occupation, marital status and similar
background information and, the identity of
the complaining party unless the release of
such information is contrary to existing law
or court rule;
information as to the text of any
charges such as the complaint, accusation
and indictment unless sealed by the court or
unless the release of such information is
contrary to existing law or court rule;
information as to the identity of the
investigating and arresting personnel and
agency and the length of the investigation;
information of the circumstances
immediately surrounding the arrest,
including but not limited to the time and
place of the arrest, resistance, if any,
pursuit, possession and nature and use of
weapons and ammunition by the suspect and by
the police; and
information as to circumstances
surrounding bail, whether it was posted and
the amount thereof.
23 A-2523-14T1
[Ibid.]
However, the public agency may withhold such information if
release would "jeopardize the safety of any person or jeopardize
any investigation in progress or may be otherwise inappropriate
to release." Ibid. This "exception shall be narrowly construed
to prevent disclosure of information that would be harmful to a
bona fide law enforcement purpose or the public safety." Ibid.
When a public agency relies on this exception, it shall issue a
brief explanation. Ibid.13
13
Under appropriate circumstances, a court must also ascertain
whether a document pertaining to a criminal investigation is
exempt from disclosure pursuant to other "statute; resolution of
either or both houses of the Legislature; regulation promulgated
under the authority of any statute or Executive Order of the
Governor; Executive Order of the Governor; Rules of Court; any
federal law, federal regulation, or federal order." N.J.S.A.
47:1A-1. Depending on the circumstances, a request for records
relating to a criminal investigation may implicate other
exemptions. While we do not attempt here to present an
exhaustive list, we note the definition of "government record"
excludes documents in the following categories that conceivably
may be implicated in a criminal investigation: "inter-agency or
intra-agency advisory, consultative, or deliberative material";
under specified circumstances, "photographs and videotapes of
the body . . . of a deceased person" in connection with
autopsies; "security measures and surveillance techniques which,
if disclosed, would create a risk to the safety of persons,
property, electronic data or software"; and "information which
is to be kept confidential pursuant to court order." N.J.S.A.
47:1A-1.1. Also, OPRA does not override any grant of
confidentiality or privilege previously established or
recognized by the Constitution, statute, court rule, or judicial
case law, N.J.S.A. 47:1A-9(b), which would include, among
others, documents covered by the informer's privilege, N.J.R.E.
516, and attorney-client privilege, N.J.R.E. 504. As defendants
(continued)
24 A-2523-14T1
III.
We turn first to the court's determination that the State
failed to meet its burden to show that the requested documents
were criminal investigatory records, that is, records
"pertain[ing] to any criminal investigation or related civil
enforcement proceeding[,]" and "not required by law to be made,
maintained or kept on file." See N.J.S.A. 47:1A-1.1. As
explained above, "required by law" documents constitute an
exception-to-the-exception of documents pertaining to a criminal
investigation or related civil enforcement proceeding. Based on
the legislative history, and prior case law, we are persuaded
that the court interpreted the "required by law" exception-to-
the-exception too broadly. On the other hand, the court's
findings with respect to release of 9-1-1 recordings and part of
the CAD reports are consistent with principles we shall set
forth below regarding what constitutes documents that do or do
not "pertain[] to any criminal investigation." See ibid.
A.
We address the "required by law" issue first. We begin by
reviewing legislative history, which justifies applying pre-OPRA
case law in interpreting this exception-to-the-exception. We
(continued)
do not invoke these exclusions, we do not address their
applicability to the case before us.
25 A-2523-14T1
then review that case law, and apply it to the requests in this
case.
OPRA was adopted in 2002 as an amendment to the Right to
Know Law (RTKL), which had remained largely intact since its
enactment in 1963. L. 1963, c. 73.14 The RTKL generally created
a statutory right of access to government documents "required by
law to be made, maintained or kept on file." L. 1963, c. 73, §
1, repealed by L. 2001, c. 404, § 17. The "required by law"
precondition was narrowly construed. See, e.g., Keddie, supra,
148 N.J. at 46 ("[T]his Court has consistently held that the
Right-to-Know Law's definition of a public record is narrow and
is to be strictly construed."). The RTKL also excluded from
release documents pertaining to investigations in progress, if
release would be inimical to the public interest. L. 1963, c.
73, § 3 (permitting the denial of access to records that
"pertain to an investigation in progress . . . [and] inspection,
copying or publication of such record or records shall be
inimical to the public interest").
The "required by law" standard was recognized as a
significant impediment to public access under the law. As noted
14
Amendments were adopted in 1995 to address issues involving
biotechnology trade secrets, see L. 1995, c. 23, and in 1998 to
address convicts' access to certain information. L. 1998, c.
17, § 1.
26 A-2523-14T1
by Senator Robert J. Martin, the principal co-author of the
Senate version of the legislation that ultimately was enacted as
OPRA:
We have a Right to Know Act, which dates
back to 1963. The problem with that law is
that it only requires . . . [access to]
documents that are required by law to be
made . . . maintained, or kept on file. The
statute, in other words, is very narrow in
its form. And what has happened is that
many records, which the public, I think,
would expect to be available to them, are
not required by law to be made — to be
maintained.
[Public Hearing before Senate Judiciary
Comm., Senate Bill Nos. 161, 351, 573, and
866, 209th Legislature (March 9, 2000)
(Statement of Sen. Martin) at 1-2.]15
The legislative response in OPRA required access to
"government records" subject to enumerated exceptions, and
defined "government records," as those in their various forms,
"that ha[ve] been made, maintained or kept on file" without
regard to whether the law required them to be made, maintained,
or kept on file. This change was embodied in the legislation as
introduced, and as finally enacted. Compare Assembly Bill No.
15
Senator Martin and Senator Byron M. Baer were the original
sponsors of Senate Bill No. 2003, which was introduced in
December 2000. That bill was similar — although not identical —
to Assembly Bill No. 1309, originally introduced by Assemblymen
George F. Geist and Jack Collins, which as amended was enacted
as OPRA. The public hearing pertained to prior versions of
reform legislation.
27 A-2523-14T1
1309, 209th Legislature (Pre-filed for Introduction in the 2000
Session) and Senate Bill No. 2003, 209th Legislature (December
14, 2000), with Assembly Bill No. 1309, 209th Legislature (Fifth
Reprint) (January 8, 2002), and L. 2001, c. 404, § 2.
In its initial version, the legislation did not single out
criminal investigatory records for special treatment within the
definition of "government record." However, a Senate floor
amendment offered by Senator Martin to the Assembly-passed
version of Assembly Bill No. 1309 changed that. The amendment
excluded from the definition of government records, "criminal
investigatory records," which it defined as "a record which is
not required by law to be made, maintained or kept on file that
is held by a law enforcement agency which pertains to any
criminal investigation or related civil enforcement proceeding."
See Assembly Bill No. 1309 (Fifth Reprint). Such records were
"deemed . . . confidential" for the purposes of the statute, as
were other documents covered by other exemptions. The purpose
was to narrow access to criminal investigatory records. See
Statement to Senate Bill No. 2003 with Senate Floor Amendments,
209th Legislature (Proposed by Senator Martin) (Adopted May 3,
2001) ("The amendments exempt criminal investigatory records of
a law enforcement agency from the statutory right of access.
28 A-2523-14T1
However, a common law right of access could be asserted to these
and other records not accessible under the statute.").
Also part of the floor amendment was the provision now
codified at section 3(b), described above, which requires
disclosure of specified information about a criminal
investigation, notwithstanding any exemption from disclosure,
provided it does not jeopardize persons' safety, the
investigation, or is otherwise inappropriate. The provisions of
section 3(b) were largely drawn from an executive order of
Governor Whitman, see Exec. Order No. 69, ¶ 3 (Whitman) (May 15,
1997), which in turn largely incorporated the terms of an
executive order of Governor Kean. See Exec. Order No. 123, ¶ 2
(Kean) (Nov. 12, 1985).
Beginning with an order of Governor Hughes in 1963,
"[f]ingerprint cards, plates and photographs and other similar
criminal investigation records which are required to be made,
maintained or kept by any State or local government agency" were
exempt from disclosure under the RTKL. Exec. Order No. 9, ¶
2(e) (Hughes) (Sept. 30, 1963). Governor Kean continued this
exemption, with the proviso that the information, ultimately
identified in section 3(b), "shall be made available to the
public as soon as practicable unless it shall appear that the
release of such information will jeopardize the safety of any
29 A-2523-14T1
person or any investigation in progress or be otherwise
inappropriate." Exec. Order No. 123, ¶ 2 (Kean). The order
went on to state that "'as soon as practicable' shall generally
be understood to mean within 24 hours." Ibid.
Thus, Senator Martin's amendment restored, with respect to
criminal investigatory records, the RTKL's "required by law"
standard. Criminal investigatory records were exempt from
access if they were "not required by law to be made, maintained
or kept on file." In other words, the public's right of access
to criminal investigatory records reverted to what existed pre-
OPRA: access was granted to records "required by law to be made,
maintained or kept on file." However, the drafters also
codified the mandate to release of identified information, in
place since Governor Kean's 1985 order.
In view of this history, it is appropriate to interpret the
"criminal investigatory records" exception in OPRA in light of
pre-OPRA case law interpreting the RTKL's "required by law"
standard in cases involving requests for records pertaining to
criminal investigations. According to well-established
principles of statutory construction, the Legislature's
reinsertion of the RTKL's formulation reflected its approval of
prior judicial interpretation, as it applied to criminal
investigatory records.
30 A-2523-14T1
The construction of a statute by the
courts, supported by long acquiescence on
the part of the Legislature, or by continued
use of the same language or failure to amend
the statute, is evidence that such
construction is in accordance with the
legislative intent. The persuasive effect
of such legislative inaction is increased
where the statute has been amended after a
judicial construction without any change in
the language so interpreted.
[Lemke v. Bailey, 41 N.J. 295, 301 (1963)
(citations omitted).]
"Moreover, courts will not impute a legislative intention to
alter an established judicial interpretation absent a 'clear
manifestation' of such intent." Coyle v. Bd. of Chosen
Freeholders of Warren Cnty., 170 N.J. 260, 267 (2002) (citation
omitted). The case for inferring legislative endorsement of
prior judicial interpretation is especially strong in this case,
which presents not merely the acquiescence in prior language, or
amendment without change of prior language, but the affirmative
restoration of prior language after its deletion in earlier
versions of the legislation.16
We recognize that OPRA generally commands that limitations
on access to government documents "shall be construed in favor
of the public's right of access." N.J.S.A. 47:1A-1. By
16
We thus part company with the view of the panel in O'Shea,
supra, 410 N.J. Super. at 381, that gave little weight to
decisions under the RTKL, in interpreting the "criminal
investigatory records" exception.
31 A-2523-14T1
contrast, as noted, the "required by law" standard was narrowly
construed, including as applied to records related to criminal
investigations. See Shuttleworth, supra, 258 N.J. Super. at
581; Home News Publ'g Co. v. State, 224 N.J. Super. 7, 11 (App.
Div. 1988). We do not construe OPRA's general rule of
construction as a basis to deviate from the established
interpretation of the "required by law" standard, which by
amendment was reinserted into OPRA. The OPRA rule of
construction guides statutory interpretation where the statute
is unclear, or ambiguous. The "required by law" standard was
already clearly defined by established case law.
B.
According to pre-OPRA judicial interpretation, documents
are "required by law to be made, maintained or kept on file," if
so mandated by a statute, regulation, executive order, or
judicial decision. We are not persuaded that a generic record
retention policy, or an internal agency directive of a public
official would suffice to satisfy the "required by law" standard
with respect to criminal investigatory records.
The distinction between documents "required by law," and
documents created through the exercise of discretion, was
recognized in Irval Realty Inc. v. Board of Public Utility
Commissioners, 61 N.J. 366 (1972), which involved civil
32 A-2523-14T1
investigational records. Id. at 369-71. After a gas explosion,
the plaintiffs sought reports that a utility prepared and filed
with the Board of Public Utility Commissioners (PUC), and an
investigative report prepared by the PUC staff. Id. at 369-70.
The utility's report was prepared pursuant to a formally
promulgated PUC regulation requiring utilities to report certain
accidents. Id. at 370. The Court held that the RTKL
encompassed the utility's reports because the PUC's regulation
had "the force of law and require[d] that such reports be made."
Id. at 375. The Court did not so find as to the PUC staff's
reports, stating, "Whether the investigation reports prepared by
members of defendant's staff meet this definition is less clear,
but need not be decided here since they certainly qualify as
public records within the scope of the common law rule." Ibid.17
See also Attorney General George F. Kugler, Jr., New Jersey's
Right to Know, A Report On Open Government 9 (1974) (stating
that the "required by law" precondition "clearly embodies
administrative rules and regulations as well as statutes").
In another utility case, the Court held that an order of
the Board of Public Utilities (BPU), which directed solid waste
17
The Court did not address the exemption under section 3 of the
RTKL governing release of documents pertaining to ongoing
investigations, where release would be inimical to the public
interest. See L. 1963, c. 73, § 3.
33 A-2523-14T1
utilities to provide the BPU with customer lists, did not
satisfy the RTKL's "required by law" standard, meaning the lists
were not subject to release under the RTKL. In re Request for
Solid Waste Util. Customer Lists, 106 N.J. 508, 525 (1987) ("In
re Request"). The Court stated: "The lists are not 'records
which are required by law to be made, maintained[,] or kept on
file by any board . . . .' [T]he order was merely an
administrative directive, and not the equivalent of either a
statute or a Board regulation . . . and therefore not subject to
disclosure as public records." Ibid. (citation omitted).
In another case, the Court also held that the RTKL did not
cover documents pertaining to a background character
investigation, performed in response to the Governor's
discretionary request. Nero v. Hyland, 76 N.J. 213, 220-21
(1978). The records were not "required by law to be made,
maintained or kept on file" because "[n]o statute, regulation,
executive order or judicial decision require[d] that the
Governor conduct a character investigation . . . ." Ibid. The
Court rejected the trial court's "engrafting upon [the RTKL] the
definition of a public record contained in the Destruction of
Public Records Law [(DPRL)], N.J.S.A. 47:3-16." Id. at 221.
The Court directly addressed a RTKL request for documents
pertaining to a criminal investigation in State v. Marshall, 148
34 A-2523-14T1
N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997). In his effort to collaterally challenge his
conviction, Marshall sought access to the entire investigative
file in his case. Id. at 268.
The Court broadly and unqualifiedly held, "The Right-to-
Know Law does not provide defendant with the right to inspect
the law-enforcement files sought in this case because no law or
regulation requires that such files 'be made, maintained or
kept.'" Id. at 272-73 (citation omitted). The court cited with
approval River Edge Savings & Loan Association v. Hyland, 165
N.J. Super. 540, 545 (App. Div.), certif. denied, 81 N.J. 58
(1979), for the proposition that "no law required that results
of law-enforcement official's investigation into alleged
criminal offense be maintained or kept, and thus such results
were not subject to Right-to-Know Law." Marshall, supra, 148
N.J. at 273. The court also approvingly cited Asbury Park
Press, Inc. v. Borough of Seaside Heights, 246 N.J. Super. 62,
67 (Law Div. 1990), for the principle that "no law required that
police reports be maintained or kept and thus reports were not
subject to [the] Right-to-Know Law." Marshall, supra, 148 N.J.
at 273.
We applied these principles in denying a newspaper's claim
under the RTKL to access to a police department's
35 A-2523-14T1
investigational reports in Daily Journal v. Police Department of
Vineland, 351 N.J. Super. 110, 120-21 (App. Div.), certif.
denied, 174 N.J. 364 (2002).
We have found no case holding that criminal
investigation reports are public records
under the RTKL. Indeed, the courts have
held to the contrary, on the basis that no
law or regulation requires the making,
maintaining or keeping on file the results
of a criminal investigation by a law
enforcement officer or agency.
[Id. at 120.]
We rejected the contention that the "required by law" standard
was satisfied by N.J.S.A. 40:48-6, which we stated "provides how
. . . governmental material shall be kept in order to secure the
material against fire and ordinary theft," or by N.J.S.A.
40A:14-118, which "provides only for the creation of a police
force and for the maintenance, regulation and control thereof."
Id. at 121. Thus, the incidental or indirect creation or
retention of documents is not enough.
We reached a similar conclusion in Shuttleworth, where, as
here, the plaintiff sought records involving a fatal police
shooting of a criminal suspect. Shuttleworth, supra, 258 N.J.
Super. at 579-81. The shooting victim in that case, named
Watson, was already in custody. Id. at 578. Specifically, the
plaintiff sought "all reports relating to Watson's arrest and
the related firearm discharges[,] . . . tape recordings of the
36 A-2523-14T1
investigation, the police inventory of Watson's possessions, and
copies of any rules or procedures of the Camden Police
Department pertaining to firearms in the area of prisoner
detentions." Id. at 580. We rejected the plaintiff's argument
that N.J.S.A. 40:48-6 or provisions of the municipal code
required "that the investigative reports . . . be made,
maintained or kept on file." Ibid. We stated, "Rather, they
provide how material which is in the possession of the
government, whether by virtue of some legal requirement or
otherwise, is to be maintained. Thus, they need not be
'maintained' by law within the meaning of the [RTKL]." Ibid.18
A broad reading of the "required by law" exception to the
"criminal investigatory record" exception, as suggested by NJMG,
also conflicts with the Legislature's intent as expressed by the
adoption of the provision, previously found in Governor Kean's
and Governor Whitman's executive orders, mandating disclosure of
specified information about a reported crime. See N.J.S.A.
47:1A-3(b). Were access to investigative records as extensive
as NJMG suggests, notwithstanding the "criminal investigatory
records" exception, then there would have been little need to
18
Strictly speaking, these observations were dictum, as the
court stated it did not need to decide whether the police
investigative file was a public record under the RTKL. Id. at
581.
37 A-2523-14T1
mandate disclosure of information in section 3(b). We are
unpersuaded by NJMG's argument that the principal purpose of
adding section 3(b) was simply to assure the speedy release of
the specified information.
We recognize that the RTKL authority reviewed above does
not expressly address whether an internal agency directive
satisfies the "required by law" standard. Nor do the cases
address the impact of judicial decisions requiring the creation
or preservation of investigational materials. However, we are
unprepared to endorse including them within the universe of
documents "required by law to be made, maintained or kept on
file."
First, the Court in Marshall spoke definitively and without
reservation that the defendant's law enforcement file did not
include "required by law" documents. See Marshall, supra, 148
N.J. at 273. We hesitate to find exceptions to the Court's
definitive statement of law. See White v. Twp. of N. Bergen, 77
N.J. 538, 549-50 (1978) (noting that trial and intermediate
appellate courts are "bound, under the principle of stare
decisis, by formidable precedent"). Moreover, we are unprepared
to explore the applicability of any judicial mandates to create
or preserve investigatory records, inasmuch as NJMG does not
38 A-2523-14T1
rely on any such requirement, and the issue has not been briefed
by the parties.19
Second, administrative directives of the Attorney General,
similar to the BPU order in In re Request, are "not the
equivalent of either a statute or a . . . regulation." See In
re Request, supra, 106 N.J. at 525. Concededly, an
administrative directive may be deemed, in one sense, to carry
the full force and effect of law within the administrative
structure. See O'Shea, supra, 410 N.J. Super. at 382 (stating
that Attorney General's "Use of Force Policy" which requires
police departments to complete and maintain UFRs "has the force
of law for police entities," based on the Attorney General's
authority under the Criminal Justice Act of 1970, N.J.S.A.
19
For example, the Court has held that police officers must
retain notes of witness interviews, in order to preserve them
for post-indictment production under Rule 3:13-3. State v.
W.B., 205 N.J. 588, 607-08 (2011) (stating "law enforcement
officers may not destroy contemporaneous notes of interviews and
observations at the scene of a crime after producing their final
reports"). The Court has also mandated the creation and
retention of documents pertaining to identifications "as a
condition to the admissibility." State v. Delgado, 188 N.J. 48,
63 (2006); see also R. 3:11. There is no indication the Court
intended or anticipated that such records would, as a
consequence of its mandate, be subject to access under OPRA as
government records "required by law to be . . . kept on file,"
even before a defendant is entitled to their release under court
rule. Rather, the failure to maintain these records may result
in an adverse inference charge in the case of destroyed notes,
W.B., supra, 205 N.J. at 608-09, or the exclusion of an out-of-
court identification. Delgado, supra, 188 N.J. at 63-64.
39 A-2523-14T1
52:17B-97 to -117 to adopt "guidelines, directives and policies
that bind local police departments"). On the other hand, the
same may be said of the BPU order in In re Request — it had the
force of law as it concerned the regulated utilities. In re
Request, supra, 106 N.J. at 513.
The issuance of directives, such as the UFR directive,
usually lies within the Attorney General's discretion and may be
withdrawn or modified at will. They also are internal to the
agency and related agencies. Attorney General directives
address other aspects of the investigative process. See, e.g.,
Delgado, supra, 188 N.J. at 61-62 (discussing Attorney General
guidelines requiring preservation of materials pertaining to
identification procedures). On the other hand, "[a]gencies
should act through rulemaking procedures when the action is
intended to have a 'widespread, continuing, and prospective
effect,' deals with policy issues, materially changes existing
laws, or when the action will benefit from rulemaking's flexible
fact-finding procedures." In re Provision of Basic Generation
Serv. for Period Beginning June 1, 2008, 205 N.J. 339, 349-50
(2011) (quoting Metromedia, Inc. v. Dir., Div. of Taxation, 97
N.J. 313, 329-31 (1984)); see also Woodland Private Study Grp.
v. N.J. Dep't of Env't Prot., 109 N.J. 62, 69-76 (1987)
(analyzing the difference between internal agency directives,
40 A-2523-14T1
which may be adopted informally, and directives that affect the
general public and must be adopted through formal rule-making);
In re Request, supra, 106 N.J. at 518-19 (discussing
administrative agency's informal action, as distinct from formal
rulemaking or adjudication).
Treating internal agency directives on record creation or
retention as "required by law" would also create an anomaly
under the law. OPRA retained the provision of the RTKL that
authorizes agencies to exempt documents from disclosure by
"regulation promulgated under the authority of any statute or
Executive Order of the Governor." N.J.S.A. 47:1A-1; see also
Irval, supra, 61 N.J. at 374 (stating this exemption power was
not intended to be "unlimited" and must "be exercised only when
necessary for the protection of the public interest"). Thus, an
agency may, through formally promulgated regulations, both
require the making of a document, and exempt it from access. By
its plain language, the exemption power refers to promulgated
regulations, and does not extend to informally adopted agency
directives. See N.J.S.A. 47:1A-1. It would, therefore, be
anomalous to treat documents required or preserved pursuant to
internal directives as documents "required by law," since the
41 A-2523-14T1
directive's author would lack the accompanying power to control
its accessibility, which is otherwise granted under OPRA.20
C.
We interpret next what constitutes a document that
"pertains" to a criminal investigation. The issue is relevant
both to (1) the interpretation of "criminal investigatory
record" in N.J.S.A. 47:1A-1.1 — which is defined as a document
that "pertains to any criminal investigation or related civil
enforcement proceeding" and is "not required by law to be made,
maintained or kept on file"; and (2) the interpretation of the
ongoing investigation exception in N.J.S.A. 47:1A-3(a) — which
exempts from disclosure records that "pertain to an
investigation in progress by any public agency" if release would
be "inimical to the public interest" and the record was not
already open for public inspection.
The ongoing investigation exception, as noted above, was
first established in the RTKL. OPRA added the "exception-to-
the-exception" for documents already open to the public. L.
2001, c. 404, § 5. Aside from minor wording changes, the RTKL
20
To the extent the panel's decision in O'Shea relied upon the
opposite view, that is, that the "required by law" standard may
be satisfied by "guidelines, directives and policies," O'Shea,
supra, 410 N.J. Super. at 383, we respectfully disagree.
However, the holding in O'Shea was also based on the fact that
the UFRs did not "pertain" to an investigation. Id. at 385-86.
42 A-2523-14T1
exception remained unchanged in OPRA. However, we have found no
pre-OPRA, RTKL case that expressly interprets the phrase
"pertain to an investigation."
OPRA cases have established that a document that is created
before an investigation starts, and therefore does not "pertain"
to an investigation at that point, does not change its character
once an investigation begins, even if the document relates to
the investigation. For example, a 9-1-1 tape created before an
investigation begins does not pertain to an investigation
commenced later, even if triggered by the 9-1-1 call. Courier
News, supra, 358 N.J. Super. at 376, 380-81. In Serrano, the
court addressed the "pertain to an investigation" language used
in the ongoing investigation exception. Serrano, supra, 358
N.J. Super. at 366. "The tape that is the subject of this
appeal was created hours before the police investigation began.
If it was a public record when created, then it would remain
accessible to the public under N.J.S.A. 47:1A-3(a) even if its
release would be inimical to the public interest." Ibid.; cf.
O'Shea, supra, 410 N.J. Super. at 385-86 (rejecting argument
that a UFR generically pertains to a criminal investigation, as
"it cannot be assumed that a UFR might become part of a criminal
investigation"). On the other hand, when an officer turns on a
mobile video recorder to document a traffic stop or pursuit of a
43 A-2523-14T1
suspected criminal violation of law, that recording may pertain
to a "criminal investigation," albeit in its earliest stages.21
However, there are other documents that police prepare,
whether or not an investigation is commenced, which may partly
pertain to an investigation that has already commenced. For
example, daily activity logs or CAD reports are apparently
prepared on a regular basis, regardless of whether an officer is
performing a community caretaking function, such as assisting a
boy who fell off a bicycle; or investigating a crime, such as
interviewing a confidential informant regarding an ongoing
investigation into gang activity. An entry about the former
activity would not "pertain to an investigation," but the latter
would. Similarly, a UFR prepared after a police officer shoots
a dangerous dog may not pertain to a criminal investigation.
However, a UFR documenting the use of force in the course of
arresting a criminal suspect would. We conclude that entries
related to criminal investigative activities are properly deemed
to "pertain[] to any investigation."
21
We do not address whether a recording initiated to document a
suspected non-criminal violation of motor vehicle law or a
subsequent stop would properly be deemed to "pertain[] to any
criminal investigation." See N.J.S.A. 47:1A-1.1.
44 A-2523-14T1
D.
Applying these principles, we are persuaded that most of
the documents sought by the reporters fall within the criminal
investigatory records exception, because they are "not required
by law to be made, maintained or kept on file" and they
"pertain[] to any criminal investigation." See N.J.S.A. 47:1A-
1.1.
The reporters seek documents that report officers' daily
activities, including CAD reports detailing information received
by or from police dispatchers, log book notations, daily
activity logs, daily bulletins, daily statistical sheets, tally
sheets, and vehicle logs. The requesters also seek various
forms of audio and video recordings (as well as transcriptions),
including recordings of the pursuit and shooting; communications
among police officers and between police officers and others;
and recordings made by mobile video recorders (MVRs). The
reporters also requested various reports or officer work
product, including UFRs, police reports, incident reports,
operation reports, investigation reports, offense reports, and
supplemental reports. All of these documents are exempt. No
law cited to the court required their creation or retention.
They pertain to a criminal investigation, to the extent the
entries concern or address an officer's involvement in the
45 A-2523-14T1
search for the attempted burglary suspect, the pursuit of
Ashford and Bynes once they were identified as suspects, the
shooting of Ashford and arrest of Bynes, the subsequent
investigational activities related to Bynes's arrest, and the
SRT investigation of the fatal shooting.
We reject NJMG's argument that these documents are
"required by law" because the various LEAs are governed by the
DPRL and regulations, which require adoption of record retention
schedules. N.J.S.A. 47:3-19, -20. No person may destroy public
records under his or her control without obtaining consent under
the DPRL or regulations thereunder. N.J.S.A. 47:3-17. These
provisions of law have been in place unchanged since 1953. L.
1953, c. 410, §§ 5, 6.
The Court in Nero expressly declined to read the DPRL "in
pari materia" with the RTKL. Nero, supra, 76 N.J. at 221. As
discussed above, we have also repeatedly held that general, non-
specific record preservation statutes or regulations do not
satisfy the "required by law" standard under the RTKL. See
Daily Journal, supra, 351 N.J. Super. at 120-21 (regarding
N.J.S.A. 40:48-6, stating that a statute that "provides how
. . . governmental material shall be kept in order to secure the
material against fire and ordinary theft" does not satisfy the
"required by law" standard); Shuttleworth, supra, 258 N.J.
46 A-2523-14T1
Super. at 580 (stating that statute or code that merely
"provide[s] how material which is in the possession of the
government, whether by virtue of some legal requirement or
otherwise, is to be maintained" does not satisfy the RTKL).
We reach the same conclusion with respect to general
retention schedules adopted pursuant to the DPRL. Were we to
reach the opposite conclusion, then the criminal investigatory
records exception would have virtually no effect. Particularly
in light of the legislative history, and the RTKL case-law
shielding criminal investigatory records, we shall not presume
that the exception is insignificant surplusage. See In re Civil
Commitment of J.M.B., 197 N.J. 563, 573 ("Interpretations that
render the Legislature's words mere surplusage are
disfavored."), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175
L. Ed. 2d 361 (2009).
Requested records that fall outside the criminal
investigatory records exception include the recording of the
9-1-1 call, which are "required by law" to be maintained for no
less than thirty-one days according to promulgated regulations.
N.J.A.C. 17:24-2.4.22 Also outside the exception are motor
22
We do not address whether a countervailing privacy claim by a
9-1-1 caller may lead to the withholding of a 9-1-1 recording,
notwithstanding that it is not exempt from the definition of
(continued)
47 A-2523-14T1
vehicle accident reports, which are required by law to be made
available to the public. N.J.S.A. 39:4-131. In addition, those
portions of the CAD records and other logs of police activity,
which do not discuss or relate to the criminal investigations,
are excepted because they do not "pertain[] to any criminal
investigation."
IV.
As discussed above, even if documents are not exempt from
OPRA as criminal investigatory records, they may be shielded
from public access if they pertain to an investigation in
progress and release would be "inimical to the public interest."
We have already reviewed the meaning of the "pertain to"
language. The related issue presented on appeal is the trial
court's rejection of the State's argument that release of the
withheld documents would be "inimical to the public interest."
Although we conclude that most of the records requested were
exempt under the criminal investigatory records exception, for
the sake of completeness we address the trial court's
consideration of this issue.
A case-by-case analysis is appropriate. Cf. Irval, supra,
61 N.J. at 375-76 (rejecting, under common law analysis, after
(continued)
government record. See Serrano, supra, 358 N.J. Super. at 371-
72 (Coburn, J., concurring).
48 A-2523-14T1
review of disputed documents, defendant's claim that public
interest in confidentiality outweighed plaintiff's interest in
access in the case presented, but observing "nevertheless the
facts of another case may quite possibly call for a different
result"). The Irval Court stated that, as a general rule, a
trial judge should "call for and examine the report or other
record" to determine "[i]f in his sound judgment some part or
all of the information therein contained should not be revealed
. . . ." Ibid.
In our own decision in Irval, we rejected the general
argument that "if inspection [by the public] of utility company
accident reports were permitted the reports would be less than
candid." Irval Realty, Inc. v. Bd. of Pub. Util. Comm'rs., 115
N.J. Super. 338, 345 (App. Div. 1971), aff'd, 61 N.J. 366
(1972). Moreover, we found no threat to the public interest in
permitting review of the Board's own reports, once its
investigation was completed. Id. at 345-46.
In Serrano, we were unpersuaded that release of 9-1-1
recordings was "inimical to the public interest" assuming for
argument's sake they were deemed to pertain to an ongoing
investigation. Serrano, supra, 358 N.J. Super. at 367. In
particular, we rejected the argument that release of the 9-1-1
tape to a news organization, and its anticipated widespread
49 A-2523-14T1
dissemination, would interfere with the selection of a jury.
Ibid. We surmised that the 9-1-1 caller had no presumed
expectation of privacy; the public's interest in release was
substantial; any difficulties in impaneling a jury would be
manageable; and we noted the attorney for the defendant agreed
that release would not deprive the defendant of a fair trial.
Id. at 367-69.
In Courier News, we likewise rejected the argument that
release of 9-1-1 recordings was "inimical to the public
interest," where the defendant asserted that public
dissemination of the recording would risk tainting the jury
pool, and anticipated playback at trial of an electronically
enhanced version of the recording would cause juror confusion.
Courier News, supra, 358 N.J. Super. at 381-83. We found that
the first concern did not present an insurmountable barrier to
selecting a fair and unbiased jury, and the second concern was
purely speculative. Ibid.
On the other hand, our courts have recognized "a real need
to deny access where there is an ongoing law enforcement
investigation, or where the protection of witness information or
a witness's identity is at stake. . . ." Shuttleworth, supra,
258 N.J. Super. at 585 (applying common law balancing). The
Court in Marshall recognized the public interest in
50 A-2523-14T1
confidentiality of ongoing criminal investigations, albeit in
the context of applying the common law right to inspect public
documents:
The receipt by appropriate law enforcement
officials of information concerning the
existence or occurrence of criminal
activities is critical to the uncovering and
the prosecution of criminal offenses, and is
thus crucial to effective law enforcement.
In order that the flow of such information
be not impeded or cut off, the law has long
treated the information as confidential and
privileged against disclosure, thereby
protecting witness security, the State's
relationship with its informants and
witnesses, and other confidential
relationships, among other things.
[Marshall, supra, 148 N.J. at 273 (quoting
River Edge Sav. & Loan Ass'n, supra, 165
N.J. Super. at 543-44).]
See also Loigman, supra, 102 N.J. at 107-08 (discussing "the
vital public interest in . . . the success of criminal
prosecutions and the protection of potential witnesses and
informants").
In reference to criminal investigations, the need for
confidentiality generally declines once the investigation is
closed; but the need for confidentiality, at least as to some
materials — such as those pertaining to confidential informants
— may survive. See Keddie, supra, 148 N.J. at 54 (recognizing
"the need for confidentiality is greater in pending matters than
in closed cases," but stating "[e]ven in closed cases . . .
51 A-2523-14T1
attorney work-product and documents containing legal strategies
may be entitled to protection from disclosure"); River Edge Sav.
& Loan Ass'n, supra, 165 N.J. Super. at 545 (noting that "even
inactive investigatory files may have to be kept confidential in
order to convince citizens that they may safely confide in law
enforcement officials") (internal quotation marks and citation
omitted); cf. Shuttleworth, supra, 258 N.J. Super. at 585
(stating that the "same values do not survive a balancing after
the investigation is closed").
The trial court dismissed as exaggerated the State's fear
that premature release of witness statements might taint other
witnesses' independent recollections and undermine the integrity
of the investigation into the police shooting. However, absent
review of Lt. McGrath's proposed ex parte, in camera submission,
we cannot be so sure.
First, we are convinced that where an investigation is
ongoing, the public reporting of one witness's recollections may
risk causing another witness to question his or her own
recollections, or intentionally or unintentionally conform them
to the reported reality. Assessing the extent of the risk is a
fact-sensitive inquiry. Notably, the United States Department
of Justice recently documented that phenomenon in its report on
the fatal police shooting in Ferguson, Missouri. See Dep't of
52 A-2523-14T1
Justice Report Regarding the Criminal Investigation into the
Shooting Death of Michael Brown by Ferguson, Missouri Police
Officer Darren Wilson (March 4, 2015) 46, 58, available at
http://www.justice.gov/sites/default/files/opa/press-releases/
attachments/2015/03/04/doj_report_on_shooting_of_michael_brown.
pdf (discussing witnesses' alteration of statements after
watching media reports). In other contexts, the Court has
recognized the fallibility of memory, and its susceptibility to
suggestion and error. State v. Henderson, 208 N.J. 208, 268-71
(2011). We have also endorsed prophylactic measures to prevent
witnesses, who may be in league with each other, from learning
what others have said and tailoring their testimony accordingly.
See Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233
(1992) (addressing a trial court's discretion regarding witness
sequestration).
Second, the trial court's rejection of the State's concern
was premature, as the court did not review the documents at
issue, nor permit the State to explain, ex parte, the reasons
why release would compromise its ongoing investigation. An
assessment of the public's interest will often require review of
requested documents in camera. See Loigman, supra, 102 N.J. at
108-09; Keddie, supra, 148 N.J. at 53-54. In some cases, in
camera review of a Vaughn index may be appropriate, because the
53 A-2523-14T1
release of even a "detailed Vaughn index" to a requesting party
"may in some cases enable astute parties to divine with great
accuracy the names of confidential informers, sources, and the
like . . . ." Loigman, supra, 102 N.J. at 111.
Where appropriate, a court should also allow the
governmental entity to submit an ex parte explanation as to why
disclosure is inimical to the public interest. "Because of the
in camera nature of the review, the custodian, if necessary or
appropriate, can explain ex parte the significance of documents
and the impact their disclosure might have and the trial judge
can state his reasons for non-disclosure." Shuttleworth, supra,
258 N.J. Super. at 589 (applying common law right to inspect).
Applying these principles, we conclude it was error for the
court to deny the State's motion to submit the proposed McGrath
certification ex parte and in camera. As discussed above, there
are few requested records in this case that fall outside the
"criminal investigatory record" exception; any that did would
still be subject to review under the "ongoing investigation
exception." Moreover, the foregoing discussion is relevant to
the court's consideration of NJMG's claim of a common law right
to inspect the documents, which we discuss below.
54 A-2523-14T1
V.
With respect to section 3(b), the State contends: (1) NJMG
is entitled only to the information delineated in the
subsection, and not documents that contain such information; and
(2) the State disclosed all the information required. We agree
with the State as to the first point, but not as to the second.
Had the Legislature intended section 3(b) to oblige a
public agency to release records, as opposed to information, it
would have said so. We are guided by the plain language of the
statute. In interpreting a statute, "[i]f the plain language is
clear, the court's task is complete." In re Kollman, 210 N.J.
557, 568 (2012). We assign to words their generally accepted
meaning. In re Petition for Referendum on Trenton Ordinance 09-
02, 201 N.J. 349, 358 (2010). We must "read every word in a
statute as if it was deliberately chosen and presume that
omitted words were excluded purposefully." State v. Scott, 429
N.J. Super. 1, 6-7 (App. Div. 2012) (internal quotation marks
and citation omitted), certif. denied, 214 N.J. 117 (2013). In
particular, we presume the Legislature acts intentionally when
it uses "particular language in one section of the statute but
omits it in another section of the same Act." N.J. Dep't of
Children & Families v. A.L., 213 N.J. 1, 21 (2013) (internal
quotation marks and citation omitted).
55 A-2523-14T1
We conclude the word "information," as used in the statute,
is not synonymous with tangible records, such as written
documents, notes, or recordings that contain the specified
information. The required "information" may be conveyed in a
newly drafted press release. Conceivably, the information could
be provided in a public oral announcement.
The principal provision of OPRA generally authorizes access
to "government records," N.J.S.A. 47:1A-1 (emphasis added),
defined to include, among other things, tangible items such as
"any paper, written or printed book, document, drawing, map,
plan, photograph, microfilm, data processed or image processed
document." N.J.S.A. 47:1A-1.1. The drafters recognized that
"information" is not limited to its tangible forms. See
N.J.S.A. 47:1A-1.1 (stating that "[g]overnment records" include
"information stored or maintained electronically," exempting
"information received by" a legislator, "including but not
limited to information in written form or contained in any e-
mail or computer data base") (emphasis added); N.J.S.A. 47:1A-
2.2 (discussing government records containing personal
"information"). Section 3(b) refers only to "information" and
not specific tangible records.
As discussed above, section 3(b) was drawn from Governor
Whitman's executive order. That order expressly authorized
56 A-2523-14T1
public officials to respond orally to requests for the specified
information. "The law enforcement official responding to oral
requests should make best efforts to respond orally over the
telephone . . . ." Exec. Order No. 69 (Whitman), ¶ 3. Although
this provision was not imported into OPRA, we reject NJMG's
assertion this non-inclusion imbues "information" with a
different meaning. Therefore, we conclude the State was
permitted to comply with section 3(b) by providing the
"information" in a press release.
However, we agree with NJMG that the State failed to
include all the information required by the law. In particular,
the State omitted "information as to the identity of the
investigating and arresting personnel and agency and the length
of the investigation." N.J.S.A. 47:1A-3(b). The press release
also did not include information on the "use of weapons and
ammunition by . . . the police." Ibid. The OAG did not "issue
a brief statement" explaining the omissions. Nor did the State
argue that its omissions were warranted because release of the
information would "jeopardize the safety of any person or
jeopardize any investigation in progress or may be otherwise
inappropriate to release." Ibid. The State shall promptly
release the omitted information, or, upon remand, make a
57 A-2523-14T1
sufficient showing under section 3(b) to the trial court why it
should be excused from doing so.
VI.
Lastly, we consider the State's appeal from the trial
court's order compelling release of the documents pursuant to
the common law right of access. The State concedes the
requested records are public records, subject to the common law
right to inspect. See Nero, supra, 76 N.J. at 222 (stating
"[t]he elements essential to constitute a public record are
. . . that it be a written memorial, that it be made by a public
officer, and that the officer be authorized by law to make it")
(internal quotation marks and citation omitted). The State also
concedes that NJMG has the requisite standing to request
inspection. See, e.g., S. Jersey Publ'g Co. v. N.J. Expressway
Auth., 124 N.J. 478, 487 (1991) ("[A] newspaper's interest in
keep[ing] a watchful eye on the workings of public agencies is
sufficient to accord standing under the common law.") (internal
quotation marks and citation omitted); Irval, supra, 61 N.J. at
372 (stating that some showing of interest is required to
enforce the common law right to inspect). The State challenges
the court's balancing of NJMG's interest in the documents
against the LEAs' interest in confidentiality.
58 A-2523-14T1
The principles governing the common-law balancing are well-
settled. We discussed some of them in our discussion above of
the balancing under the "inimical to the public interest"
standard under the RTKL and OPRA. The balancing of the
competing interests in disclosure and confidentiality often
involves an "exquisite weighing process by the trial judge."
Loigman, supra, 102 N.J. at 108 (internal quotation marks and
citation omitted). The Loigman Court recognized the "vital
public interest in . . . the success of criminal prosecutions
and the protection of potential witnesses and informants." Id.
at 107-08. Toward that end, pursuant to executive order, NJSP
investigative files may not be disclosed without court order or
executive order. Id. at 107-08 (citing Exec. Order No. 48
(Hughes)).
Since there is a high degree of need for
confidentiality in such materials, more than
a showing of good faith and citizen status
will be required to overcome the public
interest in confidentiality. It does not
constitute a clear showing of such public
need to say only that there may be something
corrupt that should be exposed for the
benefit of the public.
[Id. at 108.]
Loigman specifically addressed a request under the common
law to inspect documents related to an OAG audit of a
prosecutor's office's confidential account. Loigman, supra, 102
59 A-2523-14T1
N.J. at 101. The Court identified several factors the trial
court should consider in balancing the requester's needs against
the public agency's interest in confidentiality:
(1) the extent to which disclosure will
impede agency functions by discouraging
citizens from providing information to the
government; (2) the effect disclosure may
have upon persons who have given such
information, and whether they did so in
reliance that their identities would not be
disclosed; (3) the extent to which agency
self-evaluation, program improvement, or
other decisionmaking will be chilled by
disclosure; (4) the degree to which the
information sought includes factual data as
opposed to evaluative reports of
policymakers; (5) whether any findings of
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether
any agency disciplinary or investigatory
proceedings have arisen that may
circumscribe the individual's asserted need
for the materials. Against these and any
other relevant factors should be balanced
the importance of the information sought to
the plaintiff's vindication of the public
interest.
[Id. at 113 (citation omitted).]
The motivation of the requester is a relevant consideration
in the balancing process under the common law. "Somewhat
different but related considerations arise when the citizen
seeks access to information to further a public good" as opposed
to a private interest. Loigman, supra, 102 N.J. at 104. In
connection with requests for a criminal investigatory file, the
60 A-2523-14T1
Court held in Marshall that "the common-law right to inspect
public documents may not be invoked in a pending criminal case
by a defendant seeking discovery rights beyond those granted by
Rule 3:13-2 to -4." Marshall, supra, 148 N.J. at 274.
As we noted, the need for confidentiality in investigative
materials may wane after the investigation is concluded. With
respect to grand jury proceedings, for example, "our case law
has with increasing frequency expanded the right of victims and
some other persons with particular interest to gain access [to
grand jury transcripts] after completion of the criminal case."
Shuttleworth, 258 N.J. Super. at 585, n.6; see also State v.
Doliner, 96 N.J. 236, 246 (1984) (stating that "a strong showing
of a particularized need" must be made to secure access to grand
jury materials).
We applied the Loigman principles in Shuttleworth which, as
noted above, involved the request for documents pertaining to a
Camden Police investigation into the fatal police shooting of a
suspect in custody. Shuttleworth, supra, 258 N.J. Super. at
578. The investigation in Shuttleworth was closed, and a
determination had already been made not to prosecute the
involved officer or officers. Ibid. We affirmed the trial
court's release of an autopsy report "precisely because the
investigation was closed without the filing of charges."
61 A-2523-14T1
Shuttleworth, supra, 258 N.J. Super. at 595. On the record
presented, we were unable to determine which other documents the
trial court actually ordered disclosed pursuant to the common
law right to inspect. We remanded for an in camera review of
documents listed on a Vaughn index. Id. at 589-91.
By contrast, in Daily Journal, we affirmed the trial
court's denial of access to records of a grand jury presentment
regarding alleged government corruption. Daily Journal, supra,
351 N.J. Super. at 127-31. Although the investigation was also
closed, the trial court found that the interests in
confidentiality were warranted, particularly in light of the
unique nature of the presentment process. Id. at 128-30. Other
circumstances may establish an overriding need for
confidentiality, despite the closing of an investigation. See
Keddie, supra, 148 N.J. at 54; River Edge Sav. & Loan Ass'n,
supra, 165 N.J. Super. at 545.
As a procedural matter, a court must make a threshold
determination whether an in camera review of documents is
warranted. Loigman, supra, 102 N.J. at 109. The review itself
may cause unjustified risks to the public's interest in
conducting effective criminal investigations. Ibid. The court
may first require the submission of a Vaughn index, to identify
the documents at issue, and the asserted rationale for
62 A-2523-14T1
nondisclosure. Id. at 109-10. The court may, if appropriate,
require the submission of the index in camera, as well as a
further explanation of the reasons for non-disclosure. Id. at
111-12.
Applying these principles, the trial court's order granting
access to the requested materials is flawed because it is based
on an incomplete record. We recognize the intense public
interest in a case involving the possible use of excessive force
by police. The issue has arisen in cases across the country.
The public's need to know is not limited to the public's
interest in knowing what happened in a particular case.
Information may assist the public in evaluating the adequacy of
police procedures in general, and the claim that police force is
used disproportionately against members of minority groups.
Access to records related to fatal police shootings may also be
relevant to public policy debates about proposed reforms.
In this case, the discrepancy between the OAG's press
release and the investigating detective's subsequent
certification raises obvious questions about what happened
immediately prior to the shooting. As noted, it was asserted in
the press release that Ashford rammed a police vehicle before
being shot. The detective's certification stated only that
Ashford's engine revved "as if" to force his way out from the
63 A-2523-14T1
spot where the car was lodged against the guardrail. The
discrepancy between these two documents also raises questions
about the reliability or accuracy of the information upon which
the press release was based.
The requesters' and the public's interest in access must be
balanced against the substantial interests in conducting a
thorough and effective investigation, untainted by premature
release of investigative materials. In order to engage in a
proper balancing of interests, the trial court should have
considered the proposed in camera and ex parte submission by Lt.
McGrath. See Shuttleworth, supra, 258 N.J. Super. at 589. If
the court were still unpersuaded that non-disclosure was
warranted, the court should have ordered the State to prepare a
Vaughn index, for submission in camera if appropriate. See
Loigman, supra, 102 N.J. at 108-12. The court should have
reviewed the documents themselves in camera, applying the
Loigman factors, and retaining the ability to release a document
in a redacted form.
The government's interest in confidentiality may decline
once investigative activity ceases. The investigation was
ongoing according to certifications submitted to the trial court
in December. Over eight months have elapsed since the SRT began
its investigation. It is unclear that the investigation is
64 A-2523-14T1
still ongoing and, if it is, the nature of those continuing
activities. The trial court should ascertain, based upon in
camera submissions if appropriate, the current status of the
investigation, as part of its balancing of competing interests.
Conceivably, one part of the investigation may be closed,
while another part is still active. For example, the gathering
of evidence of alleged criminal activity by Ashford and Bynes
may have ceased, in view of their deaths. In other respects,
records regarding the actions of Ashford and Bynes, and
statements of Bynes, may still be relevant to the SRT's work.
Such facts may be relevant in justifying the release of some
documents, but not others.
VII.
In sum, we remand to the trial court to reconsider
plaintiff's requests in light of the principles set forth in
this opinion. We have identified those records that are exempt
from OPRA pursuant to the criminal investigatory records
exception. N.J.S.A. 47:1A:1.1. With respect to the requests
for any records that fall outside that exception, the court
shall consider whether their release would be inimical to the
public interest under N.J.S.A. 47:1A-3(a). In so doing, the
court shall review, in camera, McGrath's proposed ex parte
certification. However, the State shall promptly comply with
65 A-2523-14T1
its disclosure obligation under N.J.S.A. 47:1A-3(b), or make a
sufficient showing to the trial court why it should be excused
from doing so.
The trial court shall also reconsider its determination
that plaintiffs are entitled to access under the common law. In
so doing, the court shall consider McGrath's proposed
certification. The court shall also determine whether a Vaughn
index should be prepared and, if so, whether it should be
submitted in camera. In light of those submissions, the court
shall determine whether to review the withheld documents in
camera, and whether release of the requested records is
warranted, in whole or in part, with or without redaction.
Affirmed in part, reversed in part, and remanded for
reconsideration. We do not retain jurisdiction.
66 A-2523-14T1