John Paff v. Ocean County Prosecutor's Office

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4226-14T3
JOHN PAFF,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 30, 2016
v. APPELLATE DIVISION
OCEAN COUNTY PROSECUTOR'S OFFICE,
Defendant-Appellant.
_____________________________________
Argued February 3, 2016 – Decided June 30, 2016
Before Judges Fuentes, Kennedy, and Gilson
(Judge Gilson dissenting).
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No.
L-1645-14.
Samuel Marzarella, Supervising Assistant
Prosecutor, argued the cause for appellant
(Joseph D. Coronato, Ocean County
Prosecutor, attorney; Mr. Marzarella and
Nicholas D. Norcia, Assistant Prosecutor, on
the brief).
Richard M. Gutman argued the cause for
respondent.
Annmarie Cozzi, Bergen County Senior
Assistant Prosecutor, argued the cause for
amicus curiae County Prosecutors Association
of New Jersey (Sean F. Dalton, President,
attorney; Ms. Cozzi, of counsel and on the
brief).
Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey Foundation (American Civil Liberties
Union of New Jersey Foundation, attorneys;
Edward L. Barocas, Iris Bromberg, Jeanne
LoCicero, and Mr. Shalom, on the brief).
Ian C. Kennedy, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney; Mr.
Kennedy, of counsel and on the brief).
The opinion of the court was delivered by
KENNEDY, J.A.D.
This appeal concerns the public's right to access
recordings from the mobile video recorders (MVRs) in police
vehicles under the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13, and the common law. Plaintiff, John Paff, filed
a verified complaint and an order to show cause seeking MVR
recordings of an incident involving a Tuckerton Borough police
officer's arrest of a driver for eluding and motor vehicle
offenses. Judge Vincent Grasso ordered the recordings to be
disclosed pursuant to OPRA, holding that they were government
records, which were neither exempt as a "criminal investigatory
record," N.J.S.A. 47:1A-1.1, nor excepted as part of an
"investigation in progress," N.J.S.A. 47:1A-3(a). He also held
that the driver's "expectation of privacy" did not justify
withholding the recordings and, later, entered an order awarding
plaintiff counsel fees and costs.
2 A-4226-14T3
Defendant, Ocean County Prosecutor's Office (OCPO), and
amici, the New Jersey Attorney General (Attorney General) and
the County Prosecutors Association of New Jersey (Prosecutors
Association), urge reversal. Amicus American Civil Liberties
Union of New Jersey (ACLU) joins with plaintiff in arguing for
an affirmance. Having reviewed the record and applicable law,
we affirm.
I.
The facts that follow are drawn from the limited record
developed before the Law Division on the order to show cause,
which consists of various certifications submitted by the
parties. The MVR recordings were made by dashboard cameras on
Barnegat Township police vehicles during a motor vehicle stop on
January 29, 2014.
On that date, a Tuckerton Borough police officer patrolling
in a marked vehicle activated his overhead lights to effectuate
a motor vehicle stop. The driver, however, did not stop and a
motor vehicle chase ensued. As the vehicle headed toward
Barnegat Township, police there were alerted. Two Barnegat
Township police vehicles joined the chase, with their MVRs
recording the fleeing vehicle, its subsequent stop in a
municipal parking lot in Barnegat Township, and the driver's
arrest. The MVRs of the two Barnegat police vehicles captured
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audio and video of the Tuckerton police officer and his police
dog during the arrest of the driver.
Following her arrest, the driver was charged with eluding,
N.J.S.A. 2C:29-2(b), resisting arrest, N.J.S.A. 2C:29-2(a), and
various motor vehicle offenses. The Tuckerton police officer
who initiated the stop was later the subject of an internal
affairs investigation, and he was charged in April 2014 with
second-degree official misconduct, N.J.S.A. 2C:30-2, third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and other
offenses arising from his use of the police dog during the
arrest. In January 2015, an Ocean County grand jury returned an
indictment against the officer.
The incident was the subject of news reports, and, on May
20, 2014, plaintiff, a New Jersey resident who operates a
website focused on public affairs, sent written requests to the
OCPO and Barnegat Township for copies of "the video of this
incident" and any summonses issued to the driver. Plaintiff
cited both OPRA and the common law as authority for his
requests.
The OCPO denied plaintiff's requests in a letter dated May
28, 2014, asserting that the records were exempt as part of a
"criminal investigation in progress" and "an internal affairs
matter." Later, however, that office gave plaintiff copies of
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the criminal complaint and motor vehicle summonses issued to the
driver, but declined to release the MVR recordings, citing the
"active criminal investigation" exemption.
Plaintiff filed a verified complaint and an order to show
cause seeking the MVR recordings under OPRA and the common law.
Thereafter, the parties submitted briefs and certifications
supporting their positions with respect to the release of the
MVR recordings. The driver, who was not a party to the action,
wrote to the OCPO objecting to the release of the recordings,
citing privacy concerns.
In a certification dated July 1, 2014, John Halliday, a
detective with the OCPO, stated that the MVR recordings "pertain
to two ongoing, active criminal investigations – that of the
police officer involved, as well as the victim who eluded
police." He added that both the OCPO and the Tuckerton Borough
Police Department are conducting "separate internal affairs
investigations" arising from the events of January 29, 2014.
Halliday further stated in a second certification dated
September 2, 2014, that "while not every police department" in
the State uses MVRs, "when these videos are produced they are
the work product of the police officer who operates the dash
cam." This statement was followed by an assertion that
disclosure of the video recordings would "compromise ongoing
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criminal and internal affairs investigations and jeopardize any
further developments in these investigations."
Jeffrey Ryan, a sergeant in the Barnegat Township Police
Department, also submitted a certification, in which he
identified himself as the individual responsible for "training
officers in the use of [MVR] equipment." He supplied a copy of
the "general order" governing the use of MVRs first issued by
the Barnegat Police Chief in March 2008 and revised on January
9, 2014. Therein, the chief announced that:
It is the policy of this agency to use
mobile video recorders in order to protect
the members of this agency and to record
information related to motorist contacts and
other patrol related activities. In
addition, the equipment will provide
valuable instructional material to be used
in in-service training. While evidence may
be captured on the recordings, the use of
video and audio recording equipment by
members of the patrol division in the
performance of their duties is not intended
as a device to document all evidentiary
material relative to future court
proceedings. Any evidence obtained is a by-
product of the primary purpose for the
installation of mobile video recording
equipment.
. . . .
The record function of the MVR
equipment is automatically initiated when
the patrol vehicle's emergency lights are
activated or the wireless microphone is
turned on. Whenever the video recording has
been activated officers shall ensure that
the audio portion is also activated.
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Section I of the general order sets forth the "pre-
operational procedure" for the use of MVRs in patrol vehicles
required in Barnegat Township, and it explicitly provides,
"[a]ll officers assigned to the patrol division shall receive
training in the use and operation of the MVR."
Section II of the order explains in detail the procedures
required for using the MVRs, and subsections B and C set forth
the circumstances in which recordings are mandatory. Because
both of these subsections are pertinent to our opinion, we quote
them both at length herein:
B. Recording Incidents.
The record function of the MVR
equipment is automatically initiated when
the patrol vehicle's emergency lights are
activated or the wireless microphone is
turned on. Whenever the video recording has
been activated officers shall ensure that
the audio portion is also activated.
Whenever the emergency lights are
activated officers shall not deactivate the
recording function of the MVR equipment
except for dismounted posts or traffic
details.
An officer may manually activate the
system at his/her discretion. This allows a
recording to be made without alerting a
potential violator as a result of activating
the emergency lights.
When the recording function is
activated to document any incident or MV
stop, the unit will not be deactivated until
such time as the incident has been completed
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or the detained vehicle has been released
and the officer has called back in service.
When a recording function has
documented an event that is a major criminal
incident involving serious injury, loss of
life, or catastrophic property damage,
neither the officer(s) involved, nor the
personnel recording the incident will
deactivate the MVR. Investigative Division
personnel or a Division Commander will
deactivate the MVR only when the event has
ceased.
When a recording function has
documented a police involved shooting or use
of force by an officer(s) that results in
the serious bodily injury or death of
another person, the MVR will only be
deactivated at the direction of the officer
in charge of Professional Standards. Such
deactivation approval will be documented in
the CAD incident log.
Notwithstanding any other provision of
this order, when an officer is involved in a
major criminal incident, is present at a
major crime scene, or both, a supervisor may
authorize the deactivation of the audio
portion of the MVR only when and if the
supervisor determines that the incident has
ceased and that it is no longer necessary to
properly document the incident.
When an officer is requested to provide
information regarding an event that has been
captured on MVR equipment, the officer shall
be made aware of the existence of the MVR
and shall be given an opportunity to review
the recording prior to any statements.
C. Types of Incidents to Record–
Officers using MVR equipped vehicles shall
record the following situations:
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All traffic stops, criminal enforcement
stops, motorist aid situations, motor
vehicle collisions, and pedestrian contacts
in their entirety.
The MVR will be activated prior to the
initiation of the stop or detention and
prior to the officer contacting
communications to advise of the stop or
detention, unless it is unsafe or
impracticable.
If an officer fails to activate the MVR
prior to the contact, the reason will be
indicated in detail in the associated CFS
entry.
Whenever standardized field sobriety
tests are conducted during a motor vehicle
stop, the officer should when practicable
adjust the MVR so as to allow for a visual
record of the tests.
At no time should the standardized
field sobriety tests be conducted in the
area immediately in front of the patrol
vehicle.
Police pursuits as defined by
department policy.
Major crime scenes.
Situations which arise wherein the
officer by reason of training or experience
determines that the incident should be
recorded.
Any special operation that should be
documented.
The order also establishes review procedures for MVR recordings
and, essentially, provides that recordings may be reviewed to
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assess the performance of the officer, his need for further
training, or his satisfactory performance of his duties.
As Sergeant Ryan set forth in his certification, the
"recording" function of the MVR in a patrol vehicle is
"automatically initiated when the patrol vehicle's lights are
activated." Also, when an MVR has recorded the "use of force by
an officer that results in the serious bodily injury or death of
another person," it shall "only be deactivated at the direction
of the officer in charge of Professional Standards."
Following oral argument, Judge Grasso issued written
opinions on July 31 and October 2, 2014. In his July 31
opinion, the judge concluded that the MVR recordings were
government records, but, at that point in the proceeding, the
OCPO had failed to carry its burden to produce specific,
reliable evidence establishing that the recordings were exempt
from disclosure as "criminal investigatory records" under
N.J.S.A. 47:1A-1.1. See Courier News v. Hunterdon Cty.
Prosecutor's Office, 358 N.J. Super. 373, 382–83 (App. Div.
2003).
Moreover, Judge Grasso held that the recordings were not
exempt from disclosure as pertaining to an "investigation in
progress," N.J.S.A. 47:1A-3(a), because any investigations of
the driver of the vehicle or the officer "began after the video
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was made." The judge explained that under the specific terms of
N.J.S.A. 47:1A-3(a), "the ongoing investigation exception does
not work retroactively to render public documents confidential
once an investigation begins." He then held that the traffic
stop, having been made at 11:00 a.m. in a public parking lot,
did not entitle the driver to a "reasonable expectation of
privacy in the video."
Judge Grasso concluded his opinion by adjourning the case
until September 2014 to permit the OCPO to submit "supplemental
briefs, certifications and evidence" on whether the MVR
recordings were exempt under N.J.S.A. 47:1A-1.1 as a "criminal
investigatory record."
On October 2, 2014, Judge Grasso issued his second opinion,
following receipt of additional briefs and certifications from
the parties, as well as conducting an in camera review of the
MVR recordings. In that opinion, he decided that because the
Barnegat Police Chief had issued a standing order requiring the
use of MVRs during motor vehicle stops, and at such times as the
patrol officers had activated their overhead lights, the
recordings were required by law to be made and maintained and,
thus, were not "criminal investigatory records" as defined under
N.J.S.A. 47:1A-1.1.
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Citing O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371,
383–84 (App. Div. 2009), Judge Grasso determined that the
"binding and enforceable" nature of the general order issued by
the Barnegat Police Chief, carried with it the "force of law"
for the making and maintaining of MVR recordings in municipal
patrol vehicles. He explained that the general order had been
issued in accordance with the delegation of power provided by
the Legislature under N.J.S.A 40A:14-118.
Further, Judge Grasso rejected the argument that the
Attorney General's Guidelines on Internal Affairs Policies and
Procedures exempted the recordings from disclosure, reasoning
that the recordings were made before and not as part of the
internal affairs investigation. After reviewing the MVR
recordings in camera, he also determined that the driver did not
have a reasonable expectation of privacy that might otherwise
justify withholding public access. The judge explained that the
stop took place in a public area, and the recordings did not
disclose anything of a highly personal nature.
Finally, Judge Grasso found no basis to deny access to the
recordings because the OCPO had not yet released the MVR
recordings as part of its criminal discovery. Because he
determined that the MVR recordings were accessible under OPRA,
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the judge did not reach the question whether the recordings
would have to be disclosed under the common law.
Subsequently, Judge Grasso entered an order memorializing
his October 2 decision, granting judgment in favor of plaintiff
on his OPRA claim, directing the OCPO to grant access to the MVR
recordings, and dismissing the common law count as moot. After
reviewing a fee application, the judge awarded plaintiff $27,560
in attorney's fees and costs.
This appeal followed.
II.
On appeal, the OCPO makes nine arguments: (1) the OPRA
burden of proof does not apply to the MVR recordings; (2) the
MVR recordings are criminal investigatory records and, thus, not
government records; (3) even if the records are government
records, they are exempt from disclosure under executive orders
issued by Governor Whitman; (4) the records are exempt from
disclosure as an investigation in progress; (5) the records are
exempt as discovery materials; (6) the records are exempt under
privacy provisions of OPRA; (7) the records should not be
disclosed under the common law; (8) plaintiff was not entitled
to an attorney's fee award; and (9) the trial judge committed
error in awarding attorney's fees. The Attorney General and the
13 A-4226-14T3
Prosecutors Association join in arguments two, four, six, and
seven.
A.
We review a trial judge's legal conclusions concerning
access to public records under OPRA de novo. Drinker Biddle &
Reath, LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super.
489, 497 (App. Div. 2011). We will not disturb factual findings
as long as they are supported by adequate, substantial, and
credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc.,
110 N.J. 464, 475 (1988). If a court conducts an in camera
review of documents and engages in a balancing of interests in
connection with a common-law-based request to inspect public
records, we apply a more deferential standard of review.
Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App.
Div.), certif. denied, 133 N.J. 429 (1992). Nevertheless, "to
the extent [the appellate court] can be said to be reviewing
essentially a legal determination, [it] can review the documents
which the trial judge ordered disclosed." Ibid.
New Jersey has traditionally maintained a strong public
policy that "government records shall be readily accessible for
inspection, copying, or examination by the citizens of this
State." N.J.S.A. 47:1A-1. The OPRA statute ensures, with
exceptions, that "all government records shall be subject to
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public access." Ibid. A person who is denied access to a
government record may challenge the denial in Superior Court.
N.J.S.A. 47:1A-6. In OPRA cases, the records custodian has the
burden to show that its denial of access was authorized by law.
See Asbury Park Press v. Monmouth Cty., 406 N.J. Super. 1, 7
(App. Div. 2009) (citing N.J.S.A. 47:1A-6), aff'd, 201 N.J. 5
(2010).
The threshold question in an OPRA claim is whether the
plaintiff has requested "government records" pursuant to the
statute. O'Shea, supra, 410 N.J. Super. at 380 (citation
omitted). The statute broadly defines a "government record" as:
[A]ny paper, written or printed book,
document, drawing, map, plan, photograph,
microfilm, data processed or image processed
document, information stored or maintained
electronically or by sound-recording or in a
similar device, or any copy thereof, that
has been made, maintained or kept on file in
the course of his or its official business
by any officer, commission, agency or
authority of the State or of any political
subdivision thereof . . . .
[N.J.S.A. 47:1A-1.1.]
Clearly, then, the MVR recordings at issue in this case fit
within this broad definition and thus are presumptively "subject
to public access" unless they are expressly exempted from
disclosure.
15 A-4226-14T3
In deciding whether the records in this case are exempt
from disclosure, we first address the burden of proof arguments
raised by the OCPO. We then address the "criminal investigatory
records" exemption, as well as the "investigation in progress"
exception. We concur with Judge Grasso's well-reasoned opinions
rejecting the "criminal investigatory record" exemption set
forth in OPRA, as applied to the facts of this case, as well as
the "investigation in progress" exception, and, therefore, we
affirm the judgment of the Law Division. We also address other
OPRA provisions raised by the OCPO and amici, and we conclude
that they do not apply to the facts herein. Finally, we reject
the remaining arguments on appeal as without sufficient merit to
warrant discussion in a written opinion.
B.
As we noted earlier, "OPRA provides for ready access to
government records by the citizens of this State." Burnett v.
Cty. of Bergen, 198 N.J. 408, 421–22 (2009) (citing Mason v.
City of Hoboken, 196 N.J. 51, 64–65 (2008)). "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." Times of Trenton Publ'g Corp.
v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)
(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office,
16 A-4226-14T3
374 N.J. Super. 312, 329 (Law Div. 2004)). Accordingly, OPRA
directs that "all government records shall be subject to public
access unless exempt," and that "any limitations on the right of
access . . . shall be construed in favor of the public's right
of access." N.J.S.A. 47:1A-1. "Consistent with those aims, the
statute broadly defines government records to include documents
made, maintained or kept in the course of official government
business, but exempts twenty-one categories of information from
the definition." Burnett, supra, 198 N.J. at 422 (citing
N.J.S.A. 47:1A-1.1).
OPRA places on the custodian of the records "the burden of
proving that the denial of access is authorized by law."
N.J.S.A. 47:1A-6. Specifically, OPRA states that "[a] person
who is denied access to a government record . . . may:
institute a proceeding to challenge the custodian's decision by
filing an action in Superior Court . . . [and t]he public agency
shall have the burden of proving that the denial of access is
authorized by law." Ibid.
Here, the OCPO argues that when the records fall within a
statutory exemption under OPRA, the public agency must make only
a facial showing, and then the burden shifts to the requester.
We reject this argument because it is inconsistent with the
statute and existing case law.
17 A-4226-14T3
OPRA unequivocally states that "[t]he public agency shall
have the burden of proving that the denial of access is
authorized by law." N.J.S.A. 47:1A-6. Consistent with the
plain language of OPRA, the burden of proof is on the government
entity seeking to deny access. See, e.g., O'Shea, supra, 410
N.J. Super. at 380–81 (acknowledging that the government agency
has the burden even when asserting that the "criminal
investigatory record" exemption applies); Courier News supra,
358 N.J. Super. at 382-83 ("Under OPRA, a public agency seeking
to restrict the public's right of access to government records
must produce specific reliable evidence sufficient to meet a
statutorily recognized basis for confidentiality.").
The OCPO argues that two cases stand for the proposition
that the public agency need only make a facial showing, and that
the burden then shifts to the party seeking access. See Educ.
Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 286–87 (2009), and
Michelson v. Wyatt, 379 N.J. Super. 611, 621 (App. Div. 2005).
However, we find that neither of these cases stand for the
proposition advanced by the OCPO.
In Education Law Center, the Supreme Court discussed a
qualified privilege and explained that after the governmental
agency had carried its burden of proof to establish the
privilege, the requester could make a further showing that might
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overcome the public agency's assertion of the privilege. Educ.
Law Ctr., supra, 198 N.J. at 287 (discussing the deliberative
process privilege). In Michelson, the plaintiff sought medical
coverage information for every municipal employee, as well as
their claims histories – records, unlike those at issue here,
clearly not subject to OPRA disclosure. Michelson, supra, 379
N.J. Super. at 615; N.J.S.A. 47:1A-10. We held that "when the
requested material appears on its face to encompass
legislatively recognized confidentiality concerns, a court
should presume that the release of the government record is not
in the public interest." Id. at 621 (emphasis added).
Accordingly, we reject the argument advanced by the OCPO.1
C.
The OCPO, the Attorney General, and the Prosecutors
Association argue that the MVR recordings in this case are
excluded from OPRA under the "criminal investigatory record" and
"investigation in progress" exemptions. Plaintiff and the ACLU
contend that the OCPO failed to carry its burden of proving
either of these exclusions, and the MVR recordings are
government records to which the public has a right of access
1
Additionally, the argument, even if it had any basis in the
law, begs the question because it assumes that the MVR
recordings are clearly exempted from disclosure under OPRA.
Obviously, the recordings are not clearly exempt under the
statute given our analysis.
19 A-4226-14T3
under OPRA. While these two exclusions overlap as applied to
criminal investigations, they are distinct, and we will evaluate
them separately.
1. The Criminal Investigatory Records Exemption
As we explained above, OPRA broadly defines a government
record to include any document, photograph, or image "made,
maintained or kept" by, among others, a municipality in the
course of its official business. N.J.S.A. 47:1A-1.1. It then
declares, however, that "[a] government record shall not
include" various categories of "information which [are] deemed
to be confidential." Ibid. One such category is a "criminal
investigatory record," 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." Ibid.
Thus, to prove that a record is a criminal investigatory record,
the public agency must show that the record: (1) is not required
by law to be made and (2) pertains to a criminal investigation
or related civil enforcement proceeding. O'Shea, supra, 410
N.J. Super. at 380–81.
We have addressed the "criminal investigatory record"
exemption in two cases that have reached different conclusions
regarding the first element in the definition of a criminal
20 A-4226-14T3
investigatory record; that is, the record "is not required by
law to be made, maintained, or kept . . . by a law enforcement
agency." See N. Jersey Media Grp. v. Twp. of Lyndhurst, 441
N.J. Super. 70, 95–96 (App. Div.), leave to appeal granted, 223
N.J. 553 (2015), and O'Shea, supra, 410 N.J. Super. at 381
(quoting N.J.S.A. 47:1A-1.1). We shall examine these cases to
determine if they are reconcilable, and we will then review the
record in light of our conclusions respecting the scope of this
phrase.
In undertaking this task, we are mindful that "our goal is
to interpret the statute consistent with the intent of the
Legislature." Oberhand v. Dir., Div. of Taxation, 193 N.J. 558,
568 (2008). Applying well-settled rules of statutory
construction, "we give a statute's words and phrases their usual
and ordinary meaning, N.J.S.A. 1:1-1, because the words of a
statute ordinarily provide the most reliable indication of
legislative intent." Cty. of Bergen Emp. Benefit Plan v.
Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 132
(App. Div. 2010). "When the language in a statute is clear and
unambiguous, and susceptible to only one interpretation," we
presume the Legislature meant what it said and that the plain
meaning governs. Burnett, supra, 198 N.J. at 421.
21 A-4226-14T3
We are also guided by the statutory command that OPRA
"shall be construed in favor of the public's right of access."
Fair Share Hous. Ctr., Inc. v. N.J. State League of Municips.,
207 N.J. 489, 501 (2011) (quoting N.J.S.A. 47:1A-1). Where the
statute is unclear, the Court has resolved any ambiguities in a
manner consistent with its broad purpose. Id. at 502; Sussex
Commons Assocs. v. Rutgers, 210 N.J. 531, 540–41 (2012).
We remain mindful that "OPRA's clear purpose . . . 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." Educ. Law Ctr., supra, 198 N.J. at 284
(citation omitted). "OPRA's promise of accessible public
records enables citizens and the media [to] play a watchful role
in curbing wasteful government spending and guarding against
corruption and misconduct." Sussex Commons, supra, 210 N.J. at
541 (alteration in original) (citation omitted).
In O'Shea, we affirmed the trial court's order requiring
the municipality to provide access to the "use of force reports"
(UFRs) from its police department. O'Shea, supra, 410 N.J.
Super. at 388. We rejected the defendant's argument that the
UFRs were exempt from disclosure as "criminal investigatory
records" under N.J.S.A. 47:1A-1.1, or that they were shielded
from disclosure as records pertaining to "an investigation in
22 A-4226-14T3
progress" by a public agency under N.J.S.A. 47:1A-3(a). Id. at
384–86.
In addition, we found that the Attorney General's Use of
Force Policy requiring the completion of UFRs by local police
departments, issued pursuant to N.J.S.A. 52:17B-98, had the
force of law. Id. at 384. Accordingly, we held that the UFRs
were not criminal investigatory records and were not exempt from
access under OPRA. Id. at 385–86.
In so holding, we rejected the argument that case law
decided under OPRA's predecessor statute, the Right-to-Know Law
(RTKL), L. 1963, c. 73, repealed by OPRA, L. 2001, c. 404,
provided guidance on interpreting OPRA's definition of
government records and exemptions to that definition. Id. at
381. We explained that the RTKL "strictly defined" the phrase,
"required by law," and was repealed expressly because it was
"less encompassing" in allowing public access to records than
the public policy of New Jersey required. Ibid.
Now, OPRA expresses this State's public policy favoring
transparency in government and disclosure of government
documents. N.J.S.A. 47:1A-1. The statute endeavors "to
maximize public knowledge about public affairs." Times of
Trenton, supra, 183 N.J. at 535 (citation omitted).
23 A-4226-14T3
Accordingly, our rejection of the OCPO's arguments was
consistent with both the letter and the purpose of the statute.
In North Jersey Media Group, another panel of the appellate
division rejected O'Shea's position and concluded that "it is
appropriate to interpret the criminal investigatory records
exception in OPRA" by looking at "pre-OPRA case law interpreting
the RTKL's 'required by law' standard in cases involving
requests for records pertaining to criminal investigations." N.
Jersey Media Grp., supra, 441 N.J. Super. at 96 (expressly
disagreeing with that portion of O'Shea that held the RTKL was
inapplicable).
That case involved an OPRA request seeking extensive
records from local, county, and state law enforcement agencies
concerning a fatal police shooting of a criminal suspect. Id.
at 81–82. Among the records sought therein were police MVR
recordings. Ibid. Writing for the court, Judge Ostrer
explained that a record is "required by law to be made" if its
creation is "mandated by a statute, regulation, executive order,
or judicial decision." Id. at 97. Thus, the court held that a
record subject to "a generic record retention policy, or an
internal agency directive of a public official" is not one that
is required to be made by law. Ibid.
24 A-4226-14T3
While there is much in North Jersey Media Group with which
we agree, and we laud Judge Ostrer's impressive exegesis
concerning OPRA's legislative history, we find it unnecessary at
this point to engage in a detailed dissection of the many issues
that the opinion dealt with because we disagree with three of
the conclusions that our colleagues drew from their examination
of the facts and the legislative history of OPRA.
First, we disagree with the conclusion that the floor
amendment proposed by Senator Martin to Assembly Bill 1309,
which was adopted as part of the OPRA statute "restored, with
respect to criminal investigatory records, the RTKL's 'required
by law' standard," Id. at 95, and thereby justified a narrow
interpretation of the phrase. Indeed, at a hearing before the
Senate Judiciary Committee on March 9, 2000, respecting public
access to government records, Senator Martin remarked:
The problem with the [RTKL] is that it only
requires . . . documents that are required
by law to be made public . . . . 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 made available to them, are not
required to be made . . . . And so it
creates an enormous loophole . . . .
. . . I fundamentally believe that the
public is entitled to the records of its
government . . . .
[Issues dealing with public access to
government records: Hearing on S. 161, 351,
25 A-4226-14T3
573, and 866 Before the S. Judiciary Comm.,
2000 Leg., 209th Sess. 1-2 (N.J. 2000)
(statement of Sen. Robert J. Martin, Member,
S. Comm. on RTKL precluding certain
documents from public access).]
Given this statement, the legislative history of the statute,
and OPRA's express mandate that it must be construed in favor of
public access, N.J.S.A. 47:1A-1, it is anomalous to suggest that
the phrase "required by law" nonetheless must be interpreted to
broaden the scope of documents concealed from public view. See
N. Jersey Media Grp., supra, 441 N.J. Super. at 96–97.
Second, we disagree with the conclusion that the issuance
of a directive by the Attorney General, like that considered in
O'Shea, which required local police departments to prepare and
complete UFRs, are merely "internal agency directives on record
retention or creation" not within the meaning of "required by
law" under OPRA. Id. at 97. The Attorney General's directive
is not a prescription for the mechanism of storage or retrieval
of documents; rather, it is a clear expression of policy
pertaining to citizen encounters with members of law enforcement
agencies.
An Attorney General directive that is binding upon a local
police department which requires the recordation and
memorialization of incidents where the police have employed
physical force against a citizen is not, in our view, an example
26 A-4226-14T3
of a "generic record retention policy." Further, the suggestion
that by recognizing such Attorney General directives as
"required by law" gives rise to an anomaly in that an agency may
thereby "both require the making of a document, and exempt it
from access," id. at 103, is simply puzzling and, in any event,
not a persuasive reason for allowing a governmental agency to
hide the reports.
Third, we disagree with the suggestion that an officer's
decision to activate an MVR to document a traffic stop or
pursuit of a suspected criminal violation of the law may make
the recording "pertain to a criminal investigation, albeit in
its earliest stages." Id. at 105. Such a broad suggestion
implies too much, in our view; would be factually inaccurate in
most instances; and certainly is not true where, as here, the
MVR automatically starts when the officer simply activates his
overhead lights.
Accordingly, we part ways with the holding of North Jersey
Media Group, and we are persuaded that the rationale we employed
in O'Shea is more consistent with the legislative intent
expressed in OPRA. We return now to a consideration of the
matter at hand.
Here, the Law Division held that the MVR recordings were not
"criminal investigatory records" because the recordings were, in
27 A-4226-14T3
fact, "required by law" to be made. In reaching that conclusion,
the judge reasoned that the order of the Barnegat Township Police
Chief, requiring all officers to activate MVRs when making a
traffic or law enforcement stop, was authorized by statute and
unequivocally binding upon the police officers within the
department, and thus had the force of law. We agree.
When the facts of this case are examined, whether one
employs the rationale of O'Shea or considers the Legislature's
intent as revealed in the legislative history and the plain
language of OPRA, the MVR recordings were clearly required by law
to be made. A record required by a local law enforcement order,
issued pursuant to the delegation of power provided by N.J.S.A.
40A:14-118, is the equivalent of a record required by law.
While O'Shea dealt with an Attorney General directive that
applied statewide, 410 N.J. Super. at 382 (citing N.J.S.A.
52:17B-97 to -117; In re Gen. Discip. Hearing of Carberry, 114
N.J. 574, 577–78 (1989); In re Carroll, 339 N.J. Super. 429, 439
(App. Div.), certif. denied, 170 N.J. 85 (2001)), and here we
consider an order issued by the police chief of one
municipality, such distinction does not warrant a different
result. That is, in our view, a distinction without a
difference. The chief had the statutory authority to issue the
order, and it is clearly binding and enforceable on the members
28 A-4226-14T3
of the department. We do not consider that simply because the
order does not have statewide application, it is not "required
by law."2
Our dissenting colleague concludes that the chief's order
does not constitute a "law" because it does not have "statewide
application" and was "only issued by a local police chief." In
reaching this conclusion, our colleague apparently adopts the
rationale of North Jersey Media Group that a record is "required
by law" only if it is "mandated by a statute, regulation,
executive order or judicial decision" that applies statewide.
N. Jersey Media Grp., supra, 441 N.J. Super. at 97.
At the outset, we point out that our conclusions are rooted
in the record created by the OCPO to justify its decision to
refuse release of the MVR recordings. Our holding is that the
OCPO did not meet its burden of proof to show that an exemption
to disclosure applies under OPRA. The failure of proof is thus
a critical part of our holding herein, which our dissenting
colleague does not address.
Our research discloses that the phrase "required by law" is
contained within 435 statutes, and has been employed over 700
2
We note that further guidance on the scope of the "criminal
investigatory records" exemption to OPRA may be provided because
our Supreme Court has granted leave to appeal in North Jersey
Media Group. See N. Jersey Media Grp. v. Twp. Of Lyndhurst, 223
N.J. 553 (2015).
29 A-4226-14T3
times by the Supreme Court and the Superior Court in reported
decisions. The very ubiquity of the phrase makes it impossible
to ascribe a precise definition to the word "law," and therefore
we must derive its meaning from the "context in which it was
employed." Seatrain Lines, Inc. v. Medina, 39 N.J. 222, 230
(1963).3
Unlike our colleagues in North Jersey Media Group, and our
dissenting colleague here, we perceive no reason to support the
conclusion that the intent of the Legislature in enacting OPRA
would have restricted the phrase to statutes or regulations with
statewide application. Our understanding is that the
Legislature wished to shield from disclosure those materials
reflecting the professional judgments and efforts of
investigators and others employed within the context of a
criminal investigation where such disclosure would compromise
their efforts or endanger witnesses or others identified
therein. Cf. Irval Realty Inc. v. Bd. of Pub. Util. Comm'rs, 61
N.J. 366 (1972). However, the Legislature manifestly did not
intend to exclude from disclosure those materials that must be
3
Our dissenting colleague notes that "law" is "generally
understood to include duly enacted statutes, ordinances, [and]
regulations . . . ." Nonetheless, a municipal ordinance, of
course, cannot have "statewide application," and, therefore,
could not have been what the "Legislature had in mind" in
employing the word here, our colleague concludes without
explanation.
30 A-4226-14T3
generated in accordance with established authority and,
consequently, would not reflect the professional judgments and
discretionary efforts of law enforcement officers.
Given the context in which the phrase "required by law" is
employed by OPRA, the MVR recordings – which, in accordance with
the chief's highly detailed order, are generated automatically
whenever an officer activates the overhead lights in the police
vehicle - fall within the latter category. We need no further
explanation, lest we needlessly repeat our earlier conclusions.
Judge Grasso did not address the second component of the
criminal investigatory record exemption; that is, whether the
MVR recordings pertained to a criminal investigation. Given the
sparse record created by the OCPO in support of its election to
deny public access to the MVR recordings, there is little to
commend a remand to the Law Division for further consideration
of that issue. The burden of proof on this issue, as we have
explained, was the OCPO's obligation. The unexplained,
conclusory statements of Detective Halliday do not constitute
"specific reliable evidence" justifying the conclusion that
these records "pertain" to a criminal investigation, thereby
mandating their exemption from disclosure. Courier News, supra,
358 N.J. Super. at 382–83. Thus, the OCPO failed to carry its
burden on this issue.
31 A-4226-14T3
Addressing MVR recordings, as we noted earlier, our
colleagues in North Jersey Media Group reasoned, "when an
officer turns on [an MVR] to document a traffic stop or pursuit
of a suspected criminal violation of law, that recording may
pertain to a criminal investigation, albeit in its earliest
stages." N. Jersey Media Grp., supra, 441 N.J. Super. at 104–
05. Nonetheless, that case did not address the facts that
obtain here: the automatic activation of the MVR whenever the
patrol vehicle switched on its overhead lights. Accordingly, we
cannot conclude on this record that the Barnegat officers were
investigating anything when the lights were activated.
In O'Shea, Judge Kestin, writing for the court, reasoned:
In the absence of a factual showing that any
of the reports sought in this matter
pertained to an actual criminal
investigation or to an existing related
civil enforcement proceeding, we decline to
adopt the position urged by defendant that
UFRs should, generically, be regarded to be
shielded from public access as records
[pertaining to an investigation].
[O'Shea, supra, 410 N.J. Super. at 385.]
The certifications of Detective Halliday stated, in
conclusory fashion, that the "video recording pertains to two
ongoing, active criminal investigations . . . . The video also
pertains to two separate internal affairs investigations of [the
Tuckerton police officer] . . . ." These bald statements, as we
32 A-4226-14T3
have noted, are hardly the type of evidence which would compel
our adoption of their conclusions.
The existing record makes clear that the MVR recordings
were made before there was any contemplation of a criminal
investigation concerning the Tuckerton police officer. Further,
given the mandate of the general order of the Barnegat Police
Chief, it is abundantly clear that the MVR recordings were not
initiated as part of an investigation into a suspected eluding,
but rather the recordings commenced simply because the Barnegat
officers activated their overhead lights.
The Attorney General suggests that this record allows us
to reach the opposite conclusion inferentially because the
incident began with a vehicle failing to stop in Tuckerton
Borough, and the Barnegat police were notified when the vehicle
was being pursued. This, indeed, is the conclusion reached by
our dissenting colleague. We reject that conclusion, however,
given the OCPO's utter failure to adduce any evidence in the Law
Division that the officers here departed in any way from the
mandate of the general order. Moreover, the purpose of the MVR
recordings, as explained by the police chief in the general
order, militates against this conclusion. Therein, the chief
explained that the recordings are primarily intended to protect
the officers in the discharge of their official duties and serve
33 A-4226-14T3
as a training device, rather than fulfill an investigatory or
evidentiary function.
2. The Investigation in Progress Exception
The "investigation in progress" exception to OPRA is
defined in N.J.S.A. 47:1A-3 and provides that:
Notwithstanding the provisions of [OPRA],
where it shall appear that the record or
records which are sought to be inspected,
copied, or examined shall pertain to an
investigation in progress by any public
agency, the right of access provided for in
[OPRA] may be denied if the inspection,
copying or examination of such record or
records shall be inimical to the public
interest; provided, however, that this
provision shall not be construed to allow
any public agency to prohibit access to a
record of that agency that was open for
public inspection, examination, or copying
before the investigation commenced.
[N.J.S.A. 47:1A-3(a).]
Consequently, the public agency must prove that the
records: (1) pertain to an investigation in progress, and (2)
that their release would be inimical to the public interest.
Courier News, supra, 358 N.J. Super. at 380 (citation omitted).
Whether a record is "inimical to the public interest" is a
determination that must be made on a case-by-case basis.
Moreover, the need for confidentiality declines after the close
of the investigation. Keddie v. Rutgers, 148 N.J. 36, 54
(1997).
34 A-4226-14T3
Here, Judge Grasso held that the MVR recordings preceded
any investigation and, thus, the "investigation in progress"
exception did not apply. See N.J.S.A. 47:1A-3(a) ("[T]his
provision shall not be construed to allow any public agency to
prohibit access to a record . . . that was open [to the public]
before the investigation commenced.").
Given the record before us, Judge Grasso properly held that
the video preceded any investigation. Moreover, although he did
not explicitly address the second prong of this exception –
whether disclosure would be inimical to the public interest –
Judge Grasso's examination of the MVR recordings, like ours,
does not support a conclusion that their release would meet that
standard. Detective Halliday's unsupported and unexplained
statements in his September 2014 certification are insufficient
to create a fact issue for further consideration on a remand.
Accordingly, we decline to remand on this issue given the record
made by the OCPO.
3. Remaining Arguments
Finally, we address the OCPO's arguments concerning the
applicability of other OPRA exclusions because those exclusions
are not applicable to the facts of this case.
35 A-4226-14T3
a.
The OCPO argues that the MVR recordings are excluded from
public access under the executive order exemption. See N.J.S.A.
47:1A-9(a) ("The provisions of this act . . . shall not abrogate
any exemption of a public record or government record from
public access heretofore made pursuant to . . . Executive Order
of the Governor . . . ."). It then cites an executive order
issued by Governor Whitman that exempted "fingerprint cards,
plates and photographs and similar criminal investigation
records that are required to be made, maintained or kept by any
State or local governmental agency." Exec. Order No. 69 (May
15, 1997), Laws of New Jersey 1997, Vol. 2 at 2321.
However, the OCPO did not raise the executive order
exemption before the trial court. "Generally, issues not raised
[before the trial court], even constitutional issues, will not
ordinarily be considered on appeal unless they are
jurisdictional in nature or substantially implicate public
interest." State v. Walker, 385 N.J. Super. 388, 410 (App.
Div.) (citing Nieder v. Royal Indem. Ins., 62 N.J. 229, 234
(1973), and Ferraro v. Demetrakis, 167 N.J. Super. 429, 431–32
(App. Div.), certif. denied, 81 N.J. 290 (1979)), certif.
denied, 187 N.J. 83 (2006). On the other hand, "[a]n issue not
raised below may be considered by th[is] court it if meets the
36 A-4226-14T3
plain error standard or is otherwise of special significance to
the litigant, to the public, or to achieving substantial
justice, and the record is sufficiently complete to permit its
adjudication." Ibid.
Here, the OCPO may not rely on the executive order
exemption. While the exemption implicates the public's interest
in the access to public records, the OCPO, as the governmental
agency denying access, had an obligation to raise this argument
within a reasonable time. OPRA proceedings are designed to be
summary proceedings with the goal that records be produced in a
reasonable time to the public. Mason, supra, 196 N.J. at 69
("[C]itizens are entitled to swift access to public records, and
both the public and governmental bodies are logically entitled
to have any disputes brought and addressed in the same, rapid
manner."); see also N.J.S.A. 47:1A-6 (action filed in Superior
Court must "proceed in a summary or expedited manner"); N.J.S.A.
47:1A-5(i) (public agency must grant or deny access to
government record "as soon as possible, but not later than seven
business days"). Consequently, we decline to afford the OCPO,
as the governmental agency, the unfair advantage of raising a
new exclusion for the first time on appeal or remand, especially
given Judge Grasso's adjournment of the return date of the order
37 A-4226-14T3
to show cause to allow the parties additional time to marshal
and submit "supplemental briefs, certifications and evidence."
Moreover, in light of the OCPO's failure to raise the
executive order exemption below, this court shall not consider
whether any other circumstances warrant consideration of this
exemption on appeal. See Walker, supra, 385 N.J. Super. at 410
(emphasizing that an issue not raised in the trial court should
not be considered on appeal).
b.
The OCPO also argues that the MVR recordings are unfiled
discovery, which is protected by N.J.S.A. 47:1A-9(b) as a
"privilege or grant of confidentiality" established or
recognized by judicial case law, and thus is not required to be
disclosed. We have recognized that OPRA incorporates the
confidentiality afforded to unfiled discovery materials.
Drinker Biddle, supra, 421 N.J. Super. at 497–98; see also
Estate of Frankl v. Goodyear Tire & Rubber Co., 181 N.J. 1, 10
(2004) (citations omitted) ("The universal understanding in the
legal community is that unfiled documents in discovery are not
subject to public access."). In Drinker Biddle, we held that
when a public agency received discovery from a private party
during litigation, and the materials were never filed, the
materials remained confidential and inaccessible under OPRA even
38 A-4226-14T3
though the materials were then in the possession of a public
agency. Drinker Biddle, supra, 421 N.J. Super. at 498.
Here, the OCPO did not receive the MVR recordings through
discovery from a private party. Instead, the recordings were
made by a governmental agency as part of law enforcement
training activities and not as discovery materials for
litigation. That the recordings have turned out to be relevant
discovery in subsequently filed criminal and civil actions does
not make them unfiled discovery within the meaning of N.J.S.A.
47:1A-9(b).
c.
The OCPO and the Prosecutors Association argue that the
trial court erred in determining that the public's interest in
disclosure of the video outweighed the driver's privacy interest.
We disagree.
OPRA's privacy clause states that "a public agency has a
responsibility and an obligation to safeguard from public access
a citizen's personal information with which it has been
entrusted when disclosure thereof would violate the citizen's
reasonable expectation of privacy." N.J.S.A. 47:1A-1; see also
Burnett, supra, 198 N.J. at 427. To balance competing interests
in privacy and public access, a court must apply the Doe
factors:
39 A-4226-14T3
(1) the type of record requested; (2) the
information it does or might contain; (3)
the potential for harm in any subsequent
nonconsensual disclosure; (4) the injury
from disclosure to the relationship in which
the record was generated; (5) the adequacy
of safeguards to prevent unauthorized
disclosure; (6) the degree of need for
access; and (7) whether there is an express
statutory mandate, articulated public
policy, or other recognized public interest
militating toward access.
[Id. at 427 (quoting Doe v. Poritz, 142 N.J.
1, 88 (1995)).]
This balancing exercise requires a case-specific analysis, and
appellate review of the trial court's application of the factors
is de novo. In re N.J. Firemen's Ass'n, 443 N.J. Super. 238,
264 (App. Div. 2015) (citations omitted), certif. granted, 224
N.J. 528 (2016).
In this case, the trial court reviewed the MVR recordings
in camera and determined that the driver had no privacy
expectation that overcame the public's right of access. Having
conducted an independent in camera review, and in consideration
of the Doe factors, we agree. The recordings requested are from
MVRs in police vehicles. The information contained relates to a
motor vehicle stop that took place in a public setting. The
recordings do not contain personal information about the driver.
Focusing only on the privacy interest, there is no potential
harm in any subsequent disclosure of the recordings because, if
40 A-4226-14T3
they are not excluded under OPRA, the public has a right to view
them. There is also no injury from disclosure to the
relationship during which the recordings were made. Drivers and
passengers in vehicles operating on public roadways do not have
a reasonable expectation of privacy in an MVR recording. The
reality of modern life is that video recordings are made in many
public places. The other Doe factors also militate in favor of
public access as compared to any legitimate expectation of
privacy a driver might have.4
d.
The remainder of the arguments on appeal, including the
OCPO's challenge to the counsel fee award, are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). Furthermore, as we affirm the judgment of the
Law Division ordering the disclosure of the MVR recordings under
OPRA, we need not conduct a common law analysis.
Affirmed.
4
Plaintiff filed a motion to supplement the record with a letter
concerning the privacy issue. We deny that motion because we
generally do not consider facts or materials that were not
presented to the trial court. See Liberty Surplus Ins. v.
Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007). Moreover, given
our resolution of the privacy issue, there is no need for a
consideration of the supplemental letter.
41 A-4226-14T3
_____________________________________
GILSON, J.S.C. (temporarily assigned), dissenting.
The majority holds that an order issued by a chief of
police in one municipality makes MVR recordings "documents" that
are "required by law to be made" within the meaning of the Open
Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The
majority also holds that the MVR recordings did not pertain to a
criminal investigation of an eluding incident. Accordingly, the
majority concludes that the MVR recordings are not "criminal
investigatory records" under OPRA. I disagree. I would reverse
the order of the Law Division and hold that the MVR recordings
in this case are exempt as criminal investigatory records.
Thus, I would remand for a determination of whether the MVRs
recordings could be accessed under the common law, an issue the
Law Division never reached.
I.
The facts are contained in certifications submitted in
connection with an order to show cause application. While the
record is based on a summary proceeding, certain material facts
are established by the record.
This incident began with a driver eluding a police officer
in Tuckerton Borough and ended with the driver allegedly being
assaulted through the use of a police dog when the driver was
eventually stopped and arrested in Barnegat Township. There
were, thus, two separate and distinct criminal investigations:
(1) the driver's eluding and motor vehicle offenses; and (2) the
Tuckerton police officer's alleged misconduct and aggravated
assault concerning his use of a police dog during the arrest of
the driver.
The MVR recordings at issue were made by dashboard cameras
in Barnegat Township police vehicles. Given these facts the
only logical explanation is that the Barnegat police were
notified of the eluding incident as the car chase was headed
towards Barnegat. Consequently, the responding Barnegat police
officers who activated their MVRs did so in response to an
ongoing eluding incident.
II.
The majority correctly points out that OPRA accords the
public a broad right of access to government records "to ensure
an informed citizenry and to minimize the evils inherent in a
secluded process." Times of Trenton Publ'g Corp. v. Lafayette
Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury
Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super.
312, 329 (Law Div. 2004)).
In enacting OPRA, however, the Legislature also recognized
that certain "confidential" information collected by the
2 A-4226-14T3
government needed to be exempted from disclosure. N.J.S.A.
47:1A-1.1. One such category of exempted information is
"criminal investigatory records." Ibid. OPRA defines a
"criminal investigatory record" 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." Ibid.
The majority correctly points out that the starting point
in interpreting a statute is to look at the plain language of
the statute. See Acoli v. N.J. State Parole Bd., 224 N.J. 213,
227 (2016). OPRA's definition of "criminal investigatory
record" makes clear that there are two factors that must be
shown by the public agency: (1) the record is not required by
law to be made, and (2) the record pertains to a criminal
investigation or related civil enforcement proceeding. N.J.S.A.
47:1A-1.1; see also N. Jersey Media Grp., Inc. v. Twp. of
Lyndhurst, 441 N.J. Super. 70, 90 (App. Div.), leave to appeal
granted, 223 N.J. 553 (2015); O'Shea v. Twp. of W. Milford, 410
N.J. Super. 371, 380-81 (App. Div. 2009).1
1
I agree with the majority that the public agency bears the
burden to establish that a document or record is exempt under
OPRA. I also agree with the majority's holding that the driver
had no privacy expectations that overcame the public's right of
access.
3 A-4226-14T3
A.
Turning to the first factor, the question is whether the
MVR recordings here were required by law to be made. The Law
Division held, and the majority agrees, that the MVR recordings
were required by law to be made because the Barnegat Chief of
Police had issued a "general order" in his municipality to
activate MVRs when there is a traffic or law enforcement stop.
I submit that the plain language of OPRA does not support the
conclusion that an order issued by a municipal chief of police
creates a "law" requiring a document to be made within the
meaning of OPRA.
The term "law," though given a variety of meanings
depending on its context, Seatrain Lines, Inc. v. Medina, 39
N.J. 222, 230 (1963), is generally understood to include duly
enacted statutes, ordinance, regulations, decisional law
established by courts, and executive orders. Id. at 231
(holding in context of the Temporary Disability Benefits Law,
the word "law" meant "statutory law or common law rule or
doctrine"); State v. Atlantic City Elec. Co., 23 N.J. 259, 270
(1957) (stating that "the rules and regulations of a State
administrative agency, duly promulgated under properly delegated
powers, have the force and effect of law"); Winberry v.
Salisbury, 5 N.J. 240, 247-48 (holding that the word "law" in
4 A-4226-14T3
the phrase "subject to law" meant substantive as opposed to
procedural law, and included not only legislation but also
common law), cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L.
Ed. 638 (1950); State v. Duble, 172 N.J. Super. 72, 75 (App.
Div. 1979) (holding that it has long been recognized that "a
municipal resolution, unlike an ordinance, is not a law" and
that "the term law 'when used without restriction or
qualification, refers to the public law of the state'" (first
citing then quoting In re Hague, 104 N.J. Eq. 31, 63 (Ch.),
aff'd by an equally divided court, 104 N.J. Eq. 369 (E. & A.
1929))); see also Clark v. Degnan, 163 N.J. Super. 344, 372
(App. Div. 1978), aff'd as modified, 83 N.J. 393 (1980).
Importantly, when counties or municipalities enact ordinances,
they do so only when the State Legislature expressly delegates
the authority for them to act. Holmdel Builders Ass'n v. Twp.
of Holmdel, 121 N.J. 550, 566 (1990).
Consequently, when enacting the "criminal investigatory
records" exemption in OPRA, the Legislature would have
understood the term "law" to include duly enacted statutes,
regulations, executive orders, and decisional case law.
Moreover, since the Legislature was not delegating power under
OPRA to municipalities, there is nothing to suggest that it
would have contemplated ordinances. Even more clearly, nothing
5 A-4226-14T3
in the plain language use of "law" would suggest that the
Legislature had in mind orders issued by a local police chief
that did not go through any legislative, municipal, or
regulatory review process. In other words, unlike laws and
regulations, the order that was issued here was issued by one
individual without any established process of review or comment
by the public.
Both the Law Division and the majority point to N.J.S.A.
40A:14-118 as the statute that delegates the authority to the
chief of police to create a "law." N.J.S.A. 40A:14-118,
however, provides a specific delegation of power to the
"governing body of any municipality" to create a police force;
it does not provide a chief of police authority to create law.
Specifically, that statute authorizes the "governing body of any
municipality, by ordinance," to create a police force, "provide
for a line of authority relating to the police function," and
appoint a chief of police. Ibid. N.J.S.A. 40A:14-118 then goes
on to state:
Any such ordinance, or rules and
regulations, shall provide that the chief of
police, if such position is established,
shall be the head of the police force and
that he [or she] shall be directly
responsible to the appropriate authority for
the efficiency and routine day to day
operations thereof, and that he [or she]
shall, pursuant to policies established by
the appropriate authority:
6 A-4226-14T3
a. Administer and enforce rules and
regulations and special emergency
directives for the disposition and
discipline of the force and its
officers and personnel;
b. Have, exercise, and discharge the
functions, powers and duties of the
force;
c. Prescribe the duties and assignments
of all subordinates and other
personnel;
d. Delegate such of his [or her]
authority as he [or she] may deem
necessary for the efficient operation
of the force to be exercised under his
[or her] direction and supervision; and
e. Report at least monthly to the
appropriate authority in such form as
shall be prescribed by such authority
on the operation of the force during
the preceding month, and make such
other reports as may be requested by
such authority.
Nowhere in N.J.S.A. 40A:14-118 did the Legislature expressly or
implicitly delegate to a chief of police authority to make a
"law." While the Barnegat Chief of Police may have been
authorized to issue his order to the police officers working
under him, such a directive does not become a law. I,
therefore, disagree with the majority's holding that a record
required by a local law enforcement order "is the equivalent of
a record required by law."
7 A-4226-14T3
OPRA's legislative history also does not support the
conclusion that the term "law" should be read broadly. In North
Jersey Media Group, a panel of this court thoroughly analyzed
the Legislature's intent in enacting OPRA. N. Jersey Media
Grp., supra, 441 N.J. Super. at 93-97. As noted by both the
majority here and the panel in North Jersey Media Group, the
Legislature expressed its concern that OPRA's predecessor
statute, the Right-to-Know Law, L. 1963, c. 73, repealed by
OPRA, L. 2001, c. 404, was too limited in providing access to
public records. N. Jersey Media Grp., supra, 441 N.J. Super. at
93-94. The Legislature thus enacted OPRA with its broad
provisions to increase access to public records. Id. at 94.
The Legislature also created twenty-one exemptions, including
the pre-existing criminal investigatory records exemption.
N.J.S.A. 47:1A-1.1; N. Jersey Media Grp., supra, 441 N.J. Super.
at 93-94. The panel in North Jersey Media Group is persuasive
in its analysis of the specific legislative history in
concluding that the history of that exemption warrants a narrow
reading of the "required by law" factor. Id. at 97.
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
8 A-4226-14T3
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.
Further, in my view, a review of existing case law also
does not support the conclusion that an order issued by a chief
of police creates documents that are "required by law to be
made." Our court has addressed the criminal investigatory
records exemption in two cases that adopt different
interpretations of the scope of what "required by law" means.
See N. Jersey Media Grp., supra, 441 N.J. Super. at 96-103;
9 A-4226-14T3
O'Shea, supra, 410 N.J. Super. at 381-85. In O'Shea, the court
held that the Attorney General's "Use of Force Policy" that
required the completion of Use of Force Reports (UFRs) has the
force of law for police entities. Id. at 384. Accordingly, in
O'Shea, the court held that UFRs were not criminal investigatory
records and were not exempt from access under OPRA. Id. at 385-
86. In so holding, the O'Shea court rejected the argument that
case law decided under the Right-to-Know Law provided guidance
on interpreting OPRA's "not required by law to be made"
standard. Id. at 381.
In North Jersey Media Group, another panel rejected
O'Shea's ruling and concluded that "it is appropriate to
interpret the 'criminal investigatory records' exception in
OPRA" by looking at "pre-OPRA case law interpreting the [Right-
to-Know Law's] 'required by law' standard in cases involving
requests for records pertaining to criminal investigations." N.
Jersey Media Grp., supra, 441 N.J. Super. at 96 & n.16
(expressly disagreeing with O'Shea's conclusion that the Right-
to-Know Law was inapplicable). North Jersey Media Group arose
from an OPRA request that sought various records from local,
county, and state law enforcement agencies concerning a fatal
police shooting of a criminal suspect. Id. at 81-82. Police
MVR recordings were among the records sought. Ibid. The court
10 A-4226-14T3
in North Jersey Media Group held that a record is "required by
law to be made" if its creation is "mandated by a statute,
regulation, executive order, or judicial decision." Id. at 97.
Thus, a record subject to "a generic record retention policy, or
an internal agency directive of a public official" is not one
that is required to be made by law. Ibid.
I believe that under either the rationale used in O'Shea or
the rationale used in North Jersey Media Group, the MVR records
here were not required by law to be made. Under the definition
of "required by law" adopted by North Jersey Media Group, a
local law enforcement order clearly would not be considered an
order that requires a record to be made by law. While the
definition adopted by O'Shea was broader than the definition
used in North Jersey Media Group, the O'Shea definition would
also not cover a local order that applied only in one
municipality. O'Shea dealt with an Attorney General directive
that applied statewide. Moreover, the Attorney General, as the
chief law enforcement officer of the state, has the statutory
authority to issue such statewide directives. See O'Shea,
supra, 410 N.J. Super. at 382 (citing "Criminal Justice Act of
1970," N.J.S.A. 52:17B-97 to -117; In re Gen. Disciplinary
Hearing of Carberry, 114 N.J. 574, 577-78 (1989); and In re
Carroll, 339 N.J. Super. 429, 439 (App. Div.), certif. denied,
11 A-4226-14T3
170 N.J. 85 (2001)). In contrast, here, we are dealing with an
order issued by the chief of police of one municipality. Such a
local order does not constitute an order that makes records
"required by law to be made" under OPRA because it does not have
statewide application and it was only issued by a local police
chief.2
In summary, a review of the language of OPRA, its
legislative history, and case law do not support the conclusion
that the MVR records in this case were required to be made by
law. As the majority noted, further guidance on the scope of
the "criminal investigatory records" exemption to OPRA may be
provided given that our Supreme Court has granted certification
to review the decision in North Jersey Media Group. N. Jersey
Media Grp., supra, 223 N.J. 553. In the meantime, the analysis
provided in North Jersey Media Group is persuasive in its
comprehensive review of the legislative history of OPRA and the
case law under the Right-to-Know Law. See N. Jersey Media Grp.,
supra, 441 N.J. Super. at 92-103.
2
Effective March 1, 2015, a new statute required MVRs to be
placed in all new police vehicles that are primarily used in
traffic stops. N.J.S.A. 40A:14-118.1. That statute, however,
was declared unconstitutional by the Council on Local Mandates.
In re Complaint Filed by Deptford Twp., No. COLM-0003-15
(Council on Local Mandates April 20, 2016),
http://www.state.nj.us/localmandates/decisions. Moreover, the
statute did not expressly require when MVR recordings would need
to be made.
12 A-4226-14T3
B.
The trial court, here, did not address the second factor of
the criminal investigatory record exemption; that is, whether
the MVR recordings pertained to a criminal investigation.
Nevertheless, the majority reviewed the record and concluded
that the OCPO had not carried its burden to establish that the
MVR recordings pertained to a criminal investigation. I again
disagree. While the record was summary, the record supports the
conclusion that the MVR recordings were initiated to investigate
an in-progress eluding incident.
Both North Jersey Media Group and O'Shea discussed this
second factor of the criminal investigatory records exemption.
Addressing MVR recordings, the court in North Jersey Media Group
concluded that "when an officer turns on a mobile video recorder
to document a traffic stop or pursuit of a suspected criminal
violation of law, that recording may pertain to a 'criminal
investigation,' albeit in its earliest stages." N. Jersey Media
Grp., supra, 441 N.J. Super. at 104-05. The North Jersey Media
Group court did 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.'" Id. at 105 n.21 (alteration in
original). Moreover, the court in North Jersey Media Group also
13 A-4226-14T3
held that a record created before an investigation started does
not pertain to that investigation. Id. at 104.
In O'Shea, the court reasoned:
In the absence of a factual showing that any
of the reports sought in this matter
pertained to an actual criminal
investigation or to an existing related
civil enforcement proceeding, we decline to
adopt the position . . . that UFRs should,
generically, be regarded to be shielded from
public access as records [pertaining to an
investigation].
[O'Shea, supra, 410 N.J. Super. at 385.]
The certifications currently in the record state that the
"video recording pertains to two ongoing, active criminal
investigations . . . . The video also pertains to two separate
internal affairs investigations of the [Tuckerton] police
officer . . . ." The certifications also add that disclosure of
the MVR recordings "would compromise ongoing criminal and
internal affairs investigations and jeopardize any further
developments in these investigations." The existing record
makes clear that the MVR recordings at issue here were made
before there was any contemplation of a criminal investigation
concerning the Tuckerton police officer. Nevertheless, the
existing record also supports the conclusion that the MVR
recordings were started at a time when the Barnegat police were
already investigating an eluding incident.
14 A-4226-14T3
In evaluating the existing record, it is important to focus
on the language used by the Legislature in enacting OPRA. The
word "pertains" is defined as "to relate to someone or
something" or "to have a connection to a person or thing."
Pertain, Merriam-Webster.com, http://www.merriam-
webster.com/dictionary/pertain (last visited June 20, 2016).
Our Supreme Court has stated that an "investigation" begins when
"the inquiry departs from the routine and focuses with special
intensity upon a particular party." McClain v. Coll. Hosp., 99
N.J. 346, 357 (1985) (quoting Ctr. for Nat'l Policy Review on
Race & Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C. Cir.
1974)). Applying the plain meaning of the word "pertains" to
the facts of this case, the MVR recordings pertained to the
eluding investigation.
In summary, I would hold that the MVR recordings here were
exempt from disclosure under OPRA as criminal investigatory
records. Consequently, I would reverse the order of the Law
Division and remand for a determination of whether plaintiff is
entitled to access under the common law.
15 A-4226-14T3