NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1994-15T2
WILLIAM J. BRENNAN,
Plaintiff-Appellant/
Cross-Respondent,
v.
MIDDLESEX COUNTY PROSECUTOR'S
OFFICE and JAMES O'NEILL, Custodian
of Records for the Middlesex
County Prosecutor's Office,
Defendants-Respondents/
Cross-Appellants.
————————————————————————————————
Submitted September 19, 2017 – Decided August 29, 2018
Before Judges Reisner, Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-0293-15.
Law Office of Donald F. Burke, attorneys for
appellant/cross-respondent (Donald F. Burke
and Donald F. Burke, Jr., on the brief).
Thomas F. Kelso, Middlesex County Counsel,
attorney for respondents/cross-appellants
(Benjamin D. Leibowitz, Senior Deputy County
Counsel, on the brief).
PER CURIAM
Plaintiff William J. Brennan appeals from an October 23, 2015
Law Division reconsideration order1 that reversed and vacated
previous orders compelling the Middlesex County Prosecutor's
Office (MCPO) to produce mobile video recordings (MVRs) of all New
Brunswick Police Department pursuits from "January 2004 to
present," pursuant to the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13. The MCPO cross-appeals from an earlier Law
Division order, asserting the court incorrectly found it created
a list of cases utilizing Promis Gavel that involved the New
Brunswick Police Department charging individuals with eluding an
officer, N.J.S.A. 2C:29-2(b).2
We reject plaintiff's argument, and affirm the order under
review. In light of that disposition, we find it unnecessary to
address the cross-appeal. We therefore affirm on the appeal and
dismiss the cross-appeal as moot.
On December 15, 2014, plaintiff sent an email to the MCPO
requesting "[v]ideo and audio recording of police pursuits engaged
in by members of the New Brunswick Police Department from January
2004 to present," in accordance with OPRA and the common law. Two
1
Plaintiff also appeals from a November 19, 2015 order denying
his request for counsel fees.
2
Defendant asserts it did not produce the Promis Gavel list, but
rather plaintiff obtained that list from a related civil
proceeding.
2 A-1994-15T2
days later, the MCPO custodian of records emailed plaintiff,
explaining the MCPO did not "maintain a file on 'police pursuits,'"
and "[t]he only way . . . to identify cases involving an eluding
charge is to utilize the Judiciary Communications Network,
commonly referred to as the [P]romis [G]avel computer system."
However, he further explained the MCPO is not authorized to use
Promis Gavel to research OPRA requests. He also advised the
request would require "excessive research," and "these MVRs are
exempt as criminal investigatory records . . . ."
The trial judge initially ordered the MCPO to produce the
requested MVRs and awarded counsel fees, concluding the MVRs were
not exempt from disclosure. The MCPO moved for reconsideration
after we decided North Jersey Media Group, Inc. v. Township of
Lyndhurst, and held that MVRs constitute exempt criminal
investigatory records "when an officer turns on a mobile video
recorder to document a traffic stop or pursuit of a suspected
criminal violation of law." 441 N.J. Super. 70, 105 (App. Div.
2015), aff'd in part & rev'd in part on other grounds, 229 N.J.
541 (2017). The trial court granted the motion, and held,
"Clearly[,] MVRs fall within the Appellate Division's
understanding of the criminal investigatory record exception[,]
and based on Lyndhurst[,] the MVRs produced by . . . [d]efendant
3 A-1994-15T2
are exempt from disclosure."3 The judge ordered the MCPO to
produce five emails about the videos, but denied counsel fees.
In June 2016, a different panel of this court disagreed with
Lyndhurst, when it decided Paff v. Ocean County Prosecutor's
Office, 446 N.J. Super. 163, 186 (App. Div.), rev'd, ____ N.J. ____
(2018). On July 11, 2017, our Supreme Court issued its decision
in Lyndhurst, affirming in part and reversing in part. Relevant
to the matter under review, the Court declined to address whether
the MVRs in that case were "required by law," because the record
lacked sufficient facts regarding the creation of the MVRs. 229
N.J. at 567-69. Instead, the Court indicated it would address
this issue when it decided Paff v. Ocean County Prosecutor's
Office. Ibid. On August 13, 2018, the Court decided Paff,
concurring "with the panel's dissenting judge that the MVR
recordings were not 'required by law' within the meaning of
N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory
records under that provision, and that they are therefore not
subject to disclosure under OPRA." ____ N.J. ____ (slip op. at 4).
3
Just before plaintiff filed his appellate brief, the MCPO sua
sponte turned over the subject videos, apparently in an attempt
to render the appeal moot, and perhaps to resolve discovery
disputes in a related civil rights case. However, plaintiff
continued with his appeal, seeking counsel fees.
4 A-1994-15T2
The Court's holding in Paff defeats plaintiff's principal
arguments on appeal that "the trial court erred in concluding the
MVRs requested were exempt from disclosure as criminal
investigatory records" and that he "is a prevailing party entitled
to an award of reasonable [counsel] fees." The MVRs plaintiff
sought here were created at a time when they were not required by
law to be made. Moreover, given the broad request for MVRs related
to "police pursuits," plaintiff's OPRA request, by its own
phrasing, pertained to criminal investigations.
Plaintiff's brief also included an alternative argument, that
the trial court "erred in not requiring the MVRs to be produced
under the common law." In deciding the motion for reconsideration,
the trial court stated, "With regard to the [c]ommon [l]aw [r]ight
of [a]ccess, the [c]ourt is not persuaded to reconsider its
previous denial. Plaintiff did not articulate a reason for seeking
the tapes and therefore, the balance weighs in favor of the
government's right of confidentiality." Plaintiff's brief fails
to set forth any specific reasons presented to the trial court
regarding his interest in reviewing the MVRs at issue. As the
trial court correctly noted, "[p]laintiff . . . has articulated
nothing more than his interest as a taxpayer."
To gain access to materials under the common law right of
access: "(1) 'the person seeking access must establish an interest
5 A-1994-15T2
in the subject matter of the material'; and (2) 'the citizen's
right to access must be balanced against the State's interest in
preventing disclosure.'" Mason v. City of Hoboken, 196 N.J. 51,
67 (2008) (quoting Keddie v. Rutgers, 148 N.J. 36, 50 (1997); see
also Paff, ____ N.J. ____ (slip op. at 35). Because plaintiff
failed to establish an interest in the MVRs, we affirm the trial
court's rejection of plaintiff's request to gain access to the
MVRs under the common law right of access.
Affirmed as to the appeal; the cross-appeal is dismissed as
moot.
6 A-1994-15T2