SHABSI GANZWEIG VS. TOWNSHIP OF LAKEWOODA-4613-14T2 (L-1292-14, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4613-14T2
SHABSI GANZWEIG,
Plaintiff-Respondent,
v.
TOWNSHIP OF LAKEWOOD, MARY
ANN DEL MASTRO in her official
capacity as Records Custodian
and Township Clerk of the Township
of Lakewood, OFFICE OF
THE PROSECUTOR OF THE COUNTY
OF OCEAN, and MARC E. ROESSLER in his
official capacity as Assistant Prosecutor
of the County of Ocean,
Defendants-Appellants.
_____________________________
Argued on November 1, 2016 – Decided August 28, 2017
Before Judges Reisner, Koblitz and Sumners
(Judge Reisner concurring in part, dissenting
in part).
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-1292-
14.
William Kyle Meighan, Assistant Prosecutor,
argued the cause for appellant Ocean County
Prosecutor's Office (Joseph D. Coronato, Ocean
County Prosecutor, attorney; Samuel
Marzarella, Supervising Assistant Prosecutor,
of counsel and on the brief; Mr. Meighan, on
the brief).
Bathgate, Wegener & Wolf, PC, attorneys for
appellants Township of Lakewood and Mary Ann
Del Mastro, join in the brief of appellant
Ocean County Prosecutor's Office.
Walter M. Luers argued the cause for
respondent.
Annmarie Cozzi, Senior Assistant Prosecutor,
argued the cause for amicus curiae County
Prosecutors Association of New Jersey (Sean
F. Dalton, President, County Prosecutors
Association, attorney; Ms. Cozzi, of counsel
and on the brief).
Ian C. Kennedy, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General (Christopher S. Porrino, Attorney
General, attorney; Mr. Kennedy, of counsel and
on the brief).
PER CURIAM
The Ocean County Prosecutor's Office, the Township of
Lakewood, and others appeal from an October 24, 2014 order finding
they violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-
1 to -13, when they denied a Lakewood resident access to records
relating to a traffic stop. They also appeal a March 24, 2015
grant of approximately $22,000 in counsel fees and costs. 1 The
parties asked us to delay this opinion with the hope that our
1
We granted amicus curiae status to the County Prosecutors
Association of New Jersey and the Attorney General.
2 A-4613-14T2
Supreme Court would resolve the issues raised by way of its
recently issued opinion North Jersey Media Group, Inc. v. Township
of Lyndhurst, ___ N.J. ___ (2017). The parties now agree that the
Court left open the accessibility of dash-cam videos containing
an audio track recorded under a local police directive, which it
will likely determine when deciding Paff v. Ocean County
Prosecutor's Office, 446 N.J. Super. 163, 183 (App. Div.), certif.
granted, 228 N.J. 403 (2016). See N. Jersey Media, supra, slip
op. at 28-31.
Because we agree with the majority opinion in Paff, supra,
446 N.J. Super. at 193, we affirm the access to the videos.2 To
provide a more complete record should further review be necessary,
we remand for consideration of the common law right of access to
the dash-cam videos. Because the Ocean County Prosecutor's Office
issued a press release disclosing some information regarding the
investigation, we also remand to the trial court to determine
whether the written reports requested need to be supplied. N.
Jersey Media, supra, slip op. at 36. We further remand the counsel
fee award for the court to review whether time spent obtaining the
written records alone is appropriate. Any time spent exclusively
2
For the reasons expressed in Paff, we will not consider the
applicability of the executive order exemption, an issue raised
by defendants for the first time on appeal. Paff, supra, 446 N.J.
Super. at 190-91.
3 A-4613-14T2
to obtain records that the trial court determines need not have
been supplied should be subtracted from the total time and the fee
award adjusted. We thus affirm in part and remand in part.
We derive the following facts from the material supplied by
the parties. On August 31, 2013, a Lakewood Township Police
Officer stopped a driver for an illegal left turn, N.J.S.A. 39:4-
123. The driver and passenger provided their names. The officer
permitted the vehicle to leave without issuing a summons, but less
than a minute later, the officer grew suspicious that the occupants
of the car had given him fictitious names, and stopped the car
again.
The officer searched the car after the second stop and
discovered a controlled dangerous substance (CDS). This second
search was recorded by a dash-cam on another Lakewood police car
that responded to the scene, as well as one located on the car of
the officer under investigation. The officer issued the driver
motor vehicle summonses for possession of CDS by a driver, N.J.S.A.
39:4-49.1 and making an illegal left turn. Both the driver and
passenger were charged with the crimes of use or possession with
intent to use CDS, N.J.S.A. 2C:36-2, possession or distribution
of a hypodermic syringe or needle, N.J.S.A. 2C:36-6, hindering
apprehension, N.J.S.A. 2C:29-3, and possession of CDS, N.J.S.A.
4 A-4613-14T2
2C:35-10(a)(1). They were indicted for hindering apprehension,
N.J.S.A. 2C:29-3, and possession of CDS, N.J.S.A. 2C:35-10(a)(1).
After the charges were formalized in an indictment, credible
information surfaced that the officer illegally searched the car
and falsified documents to conceal the wrongdoing. In light of
this information, the Ocean County Prosecutor's Office dismissed
the indictment against the driver and passenger and charged the
police officer with official misconduct. A member of the
Prosecutor's Office certified that the "investigation into the
actions of [the officer] is still pending."
Pursuant to OPRA, plaintiff Shabsi Ganzweig, a resident of
Lakewood, sought "copies of the audio and video and all
communications to dispatch and the Watch Commander" as well as
"all reports in connection with" the August 31, 2013 traffic stop.
Plaintiff's request to the township clerk of Lakewood was
forwarded to an assistant prosecutor who denied the OPRA request.
The assistant prosecutor stated the requested records were
"criminal investigatory records under OPRA, which 'means 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.' N.J.S.A. 47:1A-1.1." (Emphasis added). Because the
"requested documents 'pertain' to the pending criminal case
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against" the officer, and because the statute included an exception
for information pertaining to "ongoing investigation[s]" if
"inimical to the public interest," N.J.S.A. 47:1A-3(a),3 the
assistant prosecutor claimed the office was not required to release
the requested recordings and reports. He also stated "the
requested records form the basis of an internal affairs
investigation" and such records, according to the "Attorney
General's Internal Affairs Policy & Procedures," are considered
"confidential." The assistant prosecutor also refused disclosure
based on the "common law right of access," claiming plaintiff
3
N.J.S.A. 47:1A-3 has two parts. "[S]ection 3(a) exempts from
disclosure records that 'pertain to an investigation in progress
by any public agency' if their examination 'shall be inimical to
the public interest.'" N. Jersey Media, supra, slip op. at 19
(quoting N.J.S.A. 47:1A-3(a)). Section 3(b) provides categories
of "information concerning a criminal investigation" that "shall
be available to the public within 24 hours or as soon as
practicable, of a request." N.J.S.A. 47:1A-3(b). Among the
required disclosures, the statute mandates the release of
"information as to the identity of the investigating and
arresting personnel and agency" and "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." N.J.S.A. 47:1A-
3(b). A public agency may, however, withhold information
otherwise required under section 3(b) when "it shall appear that
the information requested or to be examined will 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.
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lacked the "personal or particular interest in the material sought"
required under the common law.
After plaintiff filed a complaint and order to show cause
alleging a violation of OPRA and the common law right of access,
defendants furnished a Vaughn index: a detailed affidavit listing
the withheld records with the claimed exemptions. See 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).
The same judge who decided the OPRA request in Paff issued a
written opinion finding a violation of OPRA and directing the
release of the police reports, as well as the police dash-cam
recordings of the two traffic stops. The judge did not reach the
issue of access to the records under the common law. He issued a
separate written opinion awarding plaintiff $21,401.10 in attorney
fees and $398.46 in costs. The parties consented to a stay pending
appeal.
"The purpose of OPRA 'is to maximize public knowledge about
public affairs in order to ensure an informed citizenry and to
minimize the evils inherent in a secluded process.'" O'Shea v.
Twp. of W. Milford, 410 N.J. Super. 371, 379 (App. Div. 2009)
(quoting Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty.
Dev. Corp., 183 N.J. 519, 535 (2005)).
7 A-4613-14T2
In North Jersey Media, the Chief Justice set forth the
statutory framework of OPRA, which we need not repeat here. N.
Jersey Media, supra, slip op. at 10-13. We review de novo a trial
judge's legal conclusions concerning access to public records
under both OPRA and the common law. Drinker Biddle & Reath, LLP
v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 497
(App. Div. 2011). The two issues presented here are 1) whether
the recordings constitute an official record legally required by
law to be maintained, based on Lakewood police directives requiring
the dash-cam filming of all traffic stops and 2) whether the
reports should be provided, either pursuant to OPRA, N.J.S.A.
47:1A-3(b), or the common law right of access.
I. ACCESSIBILITY OF RECORDS
In supplemental briefing supplied after the North Jersey
Media decision, defendants urge us to side with the dissent in
Paff with regard to whether the dash-cam videos are required by
law to be maintained. See Paff, supra, 446 N.J. Super. at 199
(Gilson, J., dissenting). We instead agree with the majority for
the reasons expressed so convincingly by Judge Kennedy. Id. at
185-87. The dash-cam recordings were required to be made by a
local police directive and thus do not fit the definition of
"criminal investigatory records," which need not be released.
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Even if not criminal investigatory records, however, the
prosecutor need not release the recordings pursuant to OPRA if
they both pertain to an ongoing investigation and it would be
inimical to the public interest to release them. The recordings
do pertain to an ongoing investigation, but defendants have not
provided specific reasons to classify the release of the records
as "inimical to the public interest" under section 3(a). "[I]ssues
about officer safety, the reliability of ongoing investigations,
and transparency are pertinent to this inquiry." N. Jersey Media,
supra, slip op. at 41. The prosecutor must give "particularized
reasons." Ibid. Such a showing is absent here, where the
prosecutor provides generalities only.
Thus, we affirm the release of the recordings under OPRA. As
an alternative route to affirmance, plaintiff urges us to remand
for the trial court to determine whether, similar to the dash-cam
videos in North Jersey, the recordings should be accessible through
the common law. Public records are accessible through the common
law upon the following showing: "(1) the person seeking access
must establish an interest 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." Id. at 45 (quoting
Mason v. City of Hoboken, 196 N.J. 51, 67-68 (2008)).
9 A-4613-14T2
In North Jersey Media, the Court found the common law criteria
had been met where the media sought dash-cam videos of an officer
shooting a civilian. Id. at 48. Defendants correctly distinguish
North Jersey Media by pointing out that no death or use of force
was involved here and plaintiff is a private citizen rather than
the media. Nonetheless, it could well be argued that the public's
legitimate interest in how its police officers conduct themselves
constitutes a "particular interest" in the information, well
beyond that of idle curiosity, requiring disclosure under the
common law. Rather than militate towards secrecy, "the public
interest" in an investigation into police malfeasance may well
support disclosure. That an internal affairs investigation is
ongoing is not necessarily grounds to deny access when the incident
is already public and resulted in the dismissal of a criminal
indictment against two individuals. The trial court on remand
should consider and rule on this common law argument to create a
full record in the event our Supreme Court adopts the position of
the dissent in Paff, holding that the police directive to activate
the dash-cam on every traffic stop does not mean the records were
required to be kept by law. See Paff, supra, 446 N.J. Super. at
199 (Gilson, J., dissenting).
10 A-4613-14T2
II. PRESS RELEASE
North Jersey Media allows the State to reveal information
from an ongoing criminal investigation, not required by law to be
kept, but required to be revealed pursuant to N.J.S.A. 47:1A-3(b),
through a press release rather than release of the actual police
reports. N. Jersey Media, supra, slip op. at 36. Plaintiff argues
that defendants "never released any information about the motor
vehicle stops and the persons arrested in connection with those
stops," and thus did not fully comply with section 3(b). The
Ocean County Prosecutor's Office published a press release that
stated the officer's arrest was "the result of an investigation
. . . in connection with the search of a motor vehicle in August
2013 which resulted in the seizure of illegal controlled dangerous
substances." The press release did not provide details of the
stop or the names of the driver or passenger in the stopped car.
We remand the matter to the trial court to determine whether this
press release met the requirement of section 3(b) by including all
information required to be provided. We also of necessity remand
for a review of counsel fees with that question in mind. If some
counsel fees accrued solely to pursue police records not required
to be released, that portion of the counsel fees should be deducted
from the total fee awarded.
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Affirmed in part and remanded in part for a review of the
release of police reports and counsel fees in conformity with this
opinion.
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____________________________________
REISNER, P.J.A.D., concurring in part and dissenting in part.
For the reasons set forth below, I concur in part and dissent
in part from the majority opinion.
As the Supreme Court recently made clear, the dash-cam video
at issue here was a "criminal investigatory record" within the
meaning of N.J.S.A. 47:1A-1.1. N. Jersey Media Group, Inc. v.
Twp. of Lyndhurst, __ N.J. __, __ (2017) (slip op. at 19). The
dash-cam was activated when the officer decided to stop the
suspect's car a second time, due to a belief that the car might
contain drugs. Hence, the video "pertained to an investigation
into actual or potential violations of criminal law." Ibid.
Therefore, unless the video was "required by law to be made,
maintained or kept on file," N.J.S.A. 47:1A-1.1, it was protected
from disclosure under OPRA from the moment it was created.
Because I agree with Judge Gilson's dissent in Paff v. Ocean
County Prosecutor's Office, 446 N.J. Super. 163, 194-203 (App.
Div.) (Gilson, J., dissenting) certif. granted, 228 N.J. 403(2016), I cannot join in the majority opinion here. I find Judge
Gilson's opinion persuasive for the reasons he cogently stated,
including the following:
The majority's conclusion that the word
"law" deserves a broad reading rests on the
directive in N.J.S.A. 47:1A-1 to construe
the provisions of OPRA "in favor of the
public's right of access." That provision,
however, was not meant to eliminate the
exemptions to OPRA. To hold that an order
issued by a municipal chief of police makes
a document required by law, would, by
logical extension, effectively eliminate the
criminal investigatory records exemption.
Applying the majority's reasoning, any time
there is a written directive calling for a
document to be created in a police
department that document would be required
by law to be made and, thus, would not come
within the ambit of "criminal investigatory
records." It is hard to imagine that there
are any criminal investigatory documents
created in a police department for which
there is not an order, directive or
instruction calling for that document to be
prepared. For example, if a police
department issued instructions that officers
were to prepare reports concerning all
criminal investigations, under the reasoning
used by the majority any and all such
reports would be subject to disclosure under
OPRA.
[Id. at 199.]
I concur in the majority's decision to remand this case to
the trial court for further consideration of plaintiff's common
law claims, as well as the issues concerning the press release and
the counsel fee award. Because release of these records implicates
state-wide concerns, and for the sake of completeness, I would
also permit the Prosecutor's Office to raise, on remand, the
argument it sought to raise for the first time on this appeal,
concerning the applicability of the executive order exemption. See
N.J.S.A. 47:1A-1; N.J.S.A. 47:1A-9(a).
2 A-4613-14T2