Asbury Park Press v. Ocean County

• Citation: 864 A.2d 446,374 N.J. Super. 312
• Parties: ASBURY PARK PRESS, Plaintiff, v. OCEAN COUNTY PROSECUTOR'S OFFICE, and Thomas Kelaher, Defendants.
• Decision Date: 28 September 2004
• Court: Superior Court of New Jersey

864 A.2d 446

374 N.J. Super. 312

ASBURY PARK PRESS, Plaintiff, v. OCEAN COUNTY PROSECUTOR'S OFFICE, and Thomas Kelaher, Defendants.

Superior Court of New Jersey, Law Division, Ocean County.

Decided September 28, 2004.

Thomas J. Cafferty, Somerset, for plaintiff (McGimpsey & Cafferty, attorneys).

Marc E. Roessler, Beachwood, for defendants (Ocean County Prosecutor, attorney).

Richard D. Pompelio, Sparta, for amicus curiae New Jersey Victims of Crime Compensation Board.

Susan H. Curcio, Hammonton, for amicus curiae New Jersey Crime Victims' Law Center.

SERPENTELLI, A.J.S.C.

In this Action in Lieu of Prerogative Writs, the Asbury Park Press (hereinafter "Press" or "plaintiff") seeks to compel the Ocean County Prosecutor's Office and Prosecutor Thomas Kelaher (hereinafter, collectively "Prosecutor" or "defendant") to release a copy of a 911 tape and transcript relating to a double homicide which occurred in Dover Township on May 7, 2004. On that date, Josephine O'Brien and Anthony Napolean were shot in their home and during the incident, Napolean called 911 for emergency assistance. Both O'Brien and Napolean subsequently died from the shootings. O'Brien's son, Peter O'Brien (hereinafter "criminal defendant") is charged with the murders.

On May 14, 2004, the Press requested, pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (hereinafter "OPRA" or "Act"), the tape and transcript of the 911 call. The Prosecutor denied the request on May 24, 2004. On June 16, 2004, the Press filed an Order to Show Cause seeking a judgment directing the Prosecutor to release the tape and transcript. A hearing was held on July 2, 2004.

In denying the request, the Prosecutor listed several reasons for withholding the tape and transcript. He stated the release would:

(1) violate the privacy provision set forth in N.J.S.A. 47:1A-1;

(2) violate the Victim's Rights Amendment which provides that "a victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system." N.J. Constitution, Article I, Paragraph 22;

(3) violate the Crime Victim's Bill of Rights which provides that a crime victim is "[t]o be treated with dignity and compassion by the criminal justice system". N.J.S.A. 52:4B-36a.

The Prosecutor's response said that "[the] request is also denied because the [criminal] defendant `opposes the release of the 911 tape in any form to the Asbury Park Press.'" The Prosecutor was quoting a letter from Deputy Public Defender Francisco Gonzalez, the attorney for the criminal defendant.

The Press argues that pursuant to OPRA the defendant is obligated to release the 911 tape and transcript since they are both a "government record" as defined in N.J.S.A. 47:1A-1.1 and because there is no exemption in OPRA protecting such information. The plaintiff further contends that the reasons for not releasing the tape and transcript are without merit. First, the Press asserts that the "privacy provision" of N.J.S.A 47:1A-1 is not substantive law since it is contained within the first section of OPRA, which is entitled "Legislative findings." In the plaintiff's view, that section constitutes a preamble or preface having no directory or binding force of law. A portion of that section states, "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. In essence, the Press argues that the first section of the Act contains precatory language merely stating the anticipated goals to be achieved by the mandatory sections that follow it. As such, it does not limit the rights of public access as contained in the balance of the Act. Second, the Press argues that the Victim's Rights Amendment and Crime Victim's Bill of Rights do not apply to this situation because both enactments seek to insure the victim's ability to participate in criminal proceedings and be treated with compassion and respect by the criminal justice system. They were not intended to be a limitation or implied exemption to an OPRA request.

The New Jersey Crime Victims' Law Center and the New Jersey Victims of Crime Compensation Board were granted leave to appear as amici curiae and submit briefs. Both parties reinforce the Prosecutor's position that release of the tape and transcript would violate the New Jersey Constitution under the Victim's Rights Amendment and the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38.

Serrano v. South Brunswick Tp., 358 N.J.Super. 352, 817 A.2d 1004 (App.Div. 2003), is the leading case discussing the application of OPRA to 911 tapes. However, that opinion specifically makes clear that the decision was not meant to be applied to all 911 tape cases. The court prefaces its analysis with this paragraph:

We emphasize that our disposition is based on the particular circumstances with which we are confronted, including the characteristics of the 911 call involved in this case, and in particular the caller's express lack of objection to the disclosure. We do not predict what disposition may be appropriate in other cases involving 911 tapes.

[Id. at 362, 817 A.2d at 1010.]

The facts of Serrano are quite distinct from the present case. In Serrano, the defendant, Michael Janicki, placed a 911 call at 11:15 p.m., three hours before he allegedly killed his father. At 2:15 a.m., Janicki's mother called 911, as a result of which police officers arrived at the scene and began a criminal investigation. A reporter made a request to South Brunswick Township for the release of the tape of the first 911 call, in addition to police reports and EMS records, all of which were denied. The case reached the Appellate Division after the prosecutor's office filed an appeal from a decision of the Government Records Council (hereinafter "GRC") directing the prosecutor to allow access to the tape. The Appellate Division affirmed the GRC's decision. Id. at 356, 817 A.2d at 1006.

The court focused on the issue of whether this 911 tape fit into the "records of investigation in progress" exemption, N.J.S.A. 47A:1-3. Id. at 366, 817 A.2d at 1012. Its analysis of that provision is not relevant to this case since the defendant has not asserted that exemption. Interestingly enough, at the end of its discussion regarding "records of investigation in progress," the Appellate Division felt compelled to mention another portion of OPRA not referenced in the briefs in that case or in the GRC's final decision. The court discussed at length the "expectation of privacy" provision of N.J.S.A. 47:1A-1. The Serrano court stated:

With the enactment of OPRA, it is reasonable to anticipate that its declaration of the "public policy" respecting the "citizen's reasonable expectation of privacy" will be considered extensively by the GRC and the courts.

....

In the absence of a privacy claim with respect to the subject 911 tape, we leave for other occasions interpretation of the "citizen's reasonable expectation of privacy" declared in N.J.S.A. 47:1A-1. Plainly, the issues presented on such occasions could be complex and challenging, and we recognize that they might entail a consideration and balancing of the interests, not only of those who call 911 or who utilize other police or emergency communications services, but others who are mentioned in or affected by the calls; ... and the extent and nature of the interplay, if any, between the "citizen's reasonable expectation of privacy" and the mandate also set forth in N.J.S.A. 47:1A-1, to "construe[ ] in favor of the public's right of access" any limitations in the statute on that right.

[Id. at 368-69, 817 A.2d at 1014-15.]

Judge Coburn in his concurring opinion explored the privacy issue in greater depth. He emphasized that "in approving publication of the tape here, where there happened to be no objection from the caller, the court is not concluding that all 911 tapes are open to the public under OPRA." Id. at 371, 817 A.2d at 1016 Coburn, J.A.D., concurring). He asserted that the OPRA privacy statement is "patterned" after the Kentucky right-to-know statute, which was considered in Bowling v. Brandenburg, 37 S.W.3d 785 (Ky.Ct.App.2000). That case held that 911 calls were exempt from disclosure under Kentucky's privacy provision. Judge Coburn opined that there is an expectation of privacy in 911 calls and therefore the tapes should be considered confidential under the statute. He said, "[b]ecause of our Legislature's adoption of the language borrowed in large part from the Kentucky statute, it appears to me that both the contents of a 911 call and the caller's identity should be treated by the recipient as confidential under N.J.S.A. 47:1A-1." Serrano, supra, 358 N.J.Super. at 373,817 A.2d at 1017 (Coburn, J.A.D., concurring). Judge Coburn acknowledged that the statutory restriction would not preclude 911 tapes from being released under the common law right to know.

However, neither the majority nor concurring opinions in Serrano focused on the fact that the Act's only mention of an expectation of privacy was contained in the "Legislative findings" unlike, as will be discussed, the laws of other states, including Kentucky, which contain explicit mandates concerning privacy expressed as exemptions from the disclosure requirements.

The issue was again alluded to but not decided in Courier News v. Hunterdon County Prosecutor's Office, 358 N.J.Super. 373, 817 A.2d 1017 (App.Div.2003). In that case, a 911 call was made concerning a death that had occurred in the home of the subsequently charged homeowner. The law enforcement authorities immediately concluded that the death was a homicide and seized the 911 tape as evidence in the criminal investigation. The Courier News formally requested a copy of the tape. The court ordered that the tape be released, finding that it was a government record...