Fuster v. Twp. of Chatham

• Docket Number: A-1673-22
• Decision Date: 27 December 2023
• Parties: ANTONIO FUSTER and BRIANNA DEVINE, Plaintiffs-Appellants, v. TOWNSHIP OF CHATHAM and GREGORY LACONTE, in his official capacity as Records Custodian, Defendants-Respondents
• Court: New Jersey Superior Court — Appellate Division

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ANTONIO FUSTER and BRIANNA DEVINE, Plaintiffs-Appellants,
v.
TOWNSHIP OF CHATHAM and GREGORY LACONTE, in his official capacity as Records Custodian, Defendants-Respondents

No. A-1673-22

Superior Court of New Jersey, Appellate Division

December 27, 2023

Argued November 14, 2023

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1814-22.

CJ Griffin argued the cause for appellants (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, on the briefs).

Peter Joseph King argued the cause for respondents (King Moench & Collins, LLP, attorneys; Peter Joseph King, on the brief).

Before Judges Rose, Smith and Perez Friscia.

OPINION

PEREZ FRISCIA, J.S.C. (temporarily assigned).

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Plaintiffs Antonio Fuster and Brianna Devine appeal from a January 17, 2023 Law Division order which entered judgment in favor of defendants Township of Chatham and its custodian of records Gregory LaConte. Plaintiffs had requested, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access, the release of a body worn camera (BWC) video-recorded statement that Fuster had provided to a Chatham Police Department (Department) officer regarding allegations of sexual misconduct against plaintiffs' special needs son. The statement was recorded pursuant to the Body Worn Camera Law (BWCL), N.J.S.A. 40A:14-118.3 to -118.5. Defendants denied release of the recording, claiming that the video was confidential. After hearing argument on the order to show cause seeking disclosure, the motion judge found the BWC recording was exempt under OPRA and not subject to release under the common law right of access. As a result, the judge denied plaintiffs' OPRA fee application.

Plaintiffs' argument that the BWCL's exemption provision, N.J.S.A. 40A:14-118.5(L), abrogates OPRA's exemptions is without merit. We conclude OPRA's exemption, N.J.S.A. 47:1A-9(b), applies to preclude disclosure of the BWC recording because our case law has long-established that information received by law enforcement regarding an individual who was not arrested or charged is confidential and not subject to disclosure.

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See N. Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor's Off., 447 N.J.Super. 182, 204 (App. Div. 2016). A review of the plain language of the BWCL's inspection provision, N.J.S.A. 40A:14-118.5(k), which provides that a review of a BWC recording is subject to OPRA, demonstrates the four exemptions listed in N.J.S.A. 40A:14-118.5(L) are in addition to OPRA's exemptions. Further, reading OPRA in pari materia with the BWCL demonstrates the Legislature did not intend to preclude the application of OPRA's exemptions to BWC recordings.

We further reject plaintiffs' argument they are entitled to the BWC recording under the common law right of access. We conclude the common law right of access does not compel release of the BWC recording because under the balancing of interests factors established by our Supreme Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), law enforcement's and the individual's interests in confidentiality outweigh the public's and plaintiffs' interests in disclosure.

Therefore, we affirm the judge's order that plaintiffs were not entitled to disclosure of the BWC recording under either OPRA or the common law right of access.

I.

We discern the following pertinent facts from the record. On May 25, 2022, Fuster went to the Department to report alleged sexual misconduct

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perpetrated against his son by a male relative. An investigatory interview occurred at the police station, which was recorded by an officer using a BWC. Fuster did not witness the alleged misconduct he reported.

The Department, along with other agencies, investigated the allegations and determined there was insufficient probable cause to file charges. The Department notified plaintiffs of the decision not to prosecute. Plaintiffs strongly disagreed with this determination.

Fuster emailed a request for copies of police reports and his videorecorded statement pursuant to OPRA. Ten days later, the Department's records clerk responded by email, providing copies of the police reports but denying disclosure of the video recording. The Department explained that the request for the BWC video was denied because it related to a juvenile case, which resulted in no charges.

Thereafter, plaintiffs made several requests, all of which were denied. The next day, Fuster sought the BWC video "under the [c]ommon [l]aw right of access." Fuster next requested preservation of the "recordings indefinitely in their original unaltered form." Devine also requested to review "the BWC video. "On behalf of the Department, LaConte denied her request, stating "[a]fter reviewing the [video] footage, disclosure would not advance the public interest to warrant disclosure. Any disclosure could potentially impede agency

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investigative functions by providing info[rm]ation potentially involving third parties, who also have a privacy right." A list of OPRA exemptions was attached.

Plaintiffs filed an order to show cause and a two-count verified complaint, seeking release of the video. Plaintiffs alleged the Department erred in denying disclosure of the BWC video because: OPRA required "readily accessible" review of the "government record" since the BWCL abrogated the application of OPRA's exemptions; and under the common law right of access plaintiffs established a "significant interest" and "need." Plaintiffs also requested attorney's fees under OPRA. Defendants filed an answer and opposition.

After argument, the judge entered an order, accompanied by a cogent written statement of reasons, granting judgment in favor of defendants and denying plaintiffs' application for attorney's fees.

On appeal, plaintiffs argue the judge's order was erroneous because: the clear language of the BWCL provisions, N.J.S.A. 40A:14-118.5(j)(2) to (3), (k), mandates disclosure of the video recording as no exemption exists under N.J.S.A. 40A:14-118.5(L) and OPRA's exemptions are abrogated; a common law right of access to the video exists; and they are entitled to attorney's fees under OPRA. In opposition, defendants maintain disclosure is precluded under OPRA because the BWCL does not preempt OPRA's exemptions, plaintiffs do not

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prevail under the common law balancing of interests, and there is no entitlement to attorney's fees.

II.

"[D]eterminations about the applicability of OPRA and its exemptions are legal conclusions" reviewable de novo. ACLU of N.J. v. Cnty. Prosecutors Ass'n of N.J., 474 N.J.Super. 243, 256 (App. Div. 2022) (quoting Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 273-74 (2017)), certif. granted, 253 N.J. 396 (2023). Our review of "the determination regarding the common law right of access is de novo as well." Bergen Cnty. Prosecutor's Off., 447 N.J.Super. at 194.

To effectuate the Legislature's intent when interpreting a statute, a court must first examine the plain language and ascribe to its words their ordinary meaning. Conforti v. County of Ocean, 255 N.J. 142, 163 (2023). "Where statutory language is clear, courts should give it effect unless it is evident that the Legislature did not intend such meaning." Bubis v. Kassin, 184 N.J. 612, 626 (2005) (quoting Rumson Ests., Inc. v. Mayor of Fair Haven, 177 N.J. 338, 354 (2003)). We "ascribe[] to the statutory words their ordinary meaning and significance and read[] them in context with related provisions so as to give sense to the legislation as a whole." W.S. v. Hildreth, 252 N.J. 506, 518 (2023) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the language [of a

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statute] is clear, the court's job is complete." In re DiGuglielmo, 252 N.J. 350, 360 (2022) (quoting In re Expungement Application of D.J.B., 216 N.J. 433, 440 (2014)). On appeal, the interpretation of a statute is reviewed de novo. In re Registrant H.D., 241 N.J. 412, 418 (2020).

"When 'a literal interpretation would create a manifestly absurd result, contrary to public policy,' or 'would lead to results inconsistent with the overall purpose of the statute,' such interpretations should be rejected in favor of the spirit of the law." Bergen Cnty. Prosecutor's Off., 447 N.J.Super. at 199 (quoting Hubbard v. Reed, 168 N.J. 387, 392-93 (2001)). A court may examine "legislative history, committee reports, and contemporaneous construction" to determine legislative intent. DiProspero, 183 N.J. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). "When considering the meaning of legislation, we assume the Legislature is 'thoroughly conversant with its own legislation and the judicial construction of its statutes.'" Est. of Burns, ex rel. Burns v. Care One at Stanwick, LLC, 468 N.J.Super. 306, 319 (App. Div. 2021) (quoting Brewer v. Porch, 53 N.J. 167, 174 (1969)).

"When two or more statutory schemes are analyzed, they 'should be read in pari materia and construed together as a unitary and harmonious whole.'" Liberty Ins. Corp. v. Techdan, LLC, 253 N.J. 87, 103-04 (2023) (quoting State v. Nance, 228 N.J. 378, 395 (2017)). "OPRA requires government agencies to

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balance the public's strong interest in disclosure of government records 'with the need to safeguard from public access personal information that would violate a reasonable expectation of privacy.'" Scheeler v. Off. of the Governor, 448 N.J.Super. 333, 348 (App. Div. 2017) (quoting Burnett v. County of Bergen, 198 N.J. 408, 427 (2009)).

A.

BWCL and OPRA

The Legislature enacted the BWCL, which became operative on June 1, 2021, mandating that officers utilize "a [BWC] that electronically records audio and video" to capture their activities, with limited exceptions. N.J.S.A. 40A:14-118.3(a). The BWCL provides that a BWC "shall be activated whenever [an] officer is responding to a call for service or...