Gannett Satellite Info. Network, LLC v. Twp. of Neptune, DOCKET NO. A-4006-18

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: The opinion of the court was delivered by YANNOTTI, P.J.A.D.
• Citation: 253 A.3d 1173,467 N.J.Super. 385
• Parties: GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a Asbury Park Press, Plaintiff-Respondent/ Cross-Appellant, v. TOWNSHIP OF NEPTUNE, Defendant-Appellant/ Cross-Respondent.
• Decision Date: 08 April 2021
• Docket Number: DOCKET NO. A-4006-18

467 N.J.Super. 385
253 A.3d 1173

GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a Asbury Park Press, Plaintiff-Respondent/ Cross-Appellant,
v.
TOWNSHIP OF NEPTUNE, Defendant-Appellant/ Cross-Respondent.

DOCKET NO. A-4006-18

Superior Court of New Jersey, Appellate Division.

Argued February 23, 2021
Decided April 8, 2021

Jonathan F. Cohen argued the cause for appellant/cross-respondent (Plosia Cohen, LLC, attorneys; Jonathan F. Cohen, Warren, and James L. Plosia Jr., Chester, of counsel and on the briefs).

Thomas J. Cafferty argued the cause for respondent/cross-appellant (Gibbons, PC, attorneys; Thomas J. Cafferty, of counsel and on the briefs; Nomi I. Lowy, Lauren James-Weir, and Charlotte Howells, Newark, on the briefs).

Carl R. Woodward, III, argued the cause for amici curiae New Jersey State League of Municipalities, New Jersey Institute of Local Government Attorneys, and New Jersey School Boards Association (Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, attorneys; Carl R. Woodward, III, Roseland, on the brief).

Steven R. Cohen argued the cause for amicus curiae New Jersey State Policeman's Benevolent Association (Selikoff & Cohen, PA, attorneys; Steven R. Cohen, Mount Laurel, of counsel and on the brief).

Robert A. Honecker, Jr., argued the cause for amicus curiae Monmouth County Chiefs of Police Association (Ansell Grimm & Aaron, PC, attorneys; Robert A. Honecker, Jr., Ocean, of counsel and on the brief).

David L. Disler argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, PC, attorneys; Vito A. Gagliardi, Jr., of counsel; David L. Disler, Morristown, on the brief).

Raymond R. Chance, III, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Raymond R. Chance, III, of counsel; Suzanne Davies, Deputy Attorney General, on the brief).

CJ Griffin argued the cause for amici curiae American Civil Liberties Union of New Jersey, Association of Criminal Defense Lawyers of New Jersey, Libertarians for Transparent Government, Latino Leadership Alliance of New Jersey, and New Jersey Foundation for Open Government (Pashman Stein Walder Hayden, PC, and American Civil Liberties Union of New Jersey Foundation, attorneys; CJ Griffin, of counsel and on the brief).

Before Judges Yannotti, Mawla, and Natali.

The opinion of the court was delivered by YANNOTTI, P.J.A.D.

467 N.J.Super. 390

In May 2017, Gannett Satellite Information Network, LLC (Gannett), an entity that publishes the Asbury Park Press, submitted

467 N.J.Super. 391

a request to the Township of Neptune seeking copies of the Internal Affairs (IA) file of Philip Seidle, who had been a Sergeant in the Township's Police Department. Gannett sought access to the records pursuant to the common law and the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Township denied the request.

253 A.3d 1177

Gannett then commenced this action to compel the Township to disclose the records. The trial court determined that the records were exempt from disclosure under OPRA, but Gannett was entitled to the records under the common law. The court also awarded Gannett attorney's fees. The Township appeals and Gannett cross appeals from the trial court's judgment.

For the following reasons, we conclude the trial court correctly found that Gannett was not entitled to access to Seidle's IA file pursuant to OPRA, but disclosure was required under the common law right of access. We also conclude the trial court erred in awarding of attorney's fees to Gannett. Therefore, we affirm in part and reverse in part on the appeal, and affirm on the cross appeal.

I.

On June 16, 2015, Seidle shot and killed his ex-wife Tamara near a heavily populated area of Asbury Park, using his service revolver, in the presence of their seven-year-old daughter. On March 10, 2016, Seidle pled guilty to aggravated manslaughter. He was later sentenced to a thirty-year prison term.

The Monmouth County Prosecutor's Office (MCPO) investigated the response of law enforcement to Tamara's death and on June 30, 2016, issued a report, which detailed its findings. In the report, the MCPO recounted the Seidles' history of domestic violence.

The MCPO described in detail seven specific incidents of domestic violence reported to the Neptune Township Police Department (NTPD) involving Seidle and Tamara that occurred between 1994 and 2015. The MCPO also described an additional domestic violence

467 N.J.Super. 392

incident was reported to the Tinton Falls Police Department in 2012.

The MCPO's report also noted that seven calls had been made to the NTPD concerning the Seidles' child custody issues. In addition, Seidle or Tamara made seven "traditional" calls to the NTPD but they "did not touch in any way on their relationship ...."

The MCPO stated that its investigation had "disclosed a critical flaw in the domestic violence policies and procedures that currently exist statewide." It found "domestic violence incidents" that do not result in the "filing of criminal charges or a temporary restraining order may still call into question the fitness-for-duty of a police officer."

The MCPO added that, "a police officer who has numerous [IA] complaints - either due to internal departmental policy violations or from complaints by citizens - raises a red flag which may warrant a fitness-for-duty evaluation by the agency." To address these concerns, the MCPO implemented an Early Warning System for all law enforcement agencies in Monmouth County.

By letter dated May 24, 2017, Gannett submitted a request to the Township for access to Seidle's IA file pursuant to OPRA and the common law. The Township denied the request. The Township provided Gannett a Vaughn ¹ index describing the documents withheld, which related to twenty-eight separate incidents involving Seidle and his ex-wife.

On July 19, 2017, Gannett filed a verified complaint claiming that the Township's failure to provide it with access to Seidle's IA file was a violation of OPRA and the common law. The trial court entered an order requiring the Township to show cause why the relief sought in the complaint

253 A.3d 1178

should not be granted. Thereafter, the Township filed a motion to dismiss the complaint.

467 N.J.Super. 393

The judge heard oral argument on the motion and ordered the Township to submit the records to the court for an in-camera review. By letter dated December 8, 2017, the attorney for the Township informed the court that Seidle opposed public disclosure of his IA file. The attorney stated that Seidle believed disclosure of the file would be an invasion of his privacy and prejudice him in the wrongful death action his children and Tamara's estate had brought against him.

Gannett objected to the court's consideration of the December 8, 2017 letter, and the judge conducted a telephone conference, in which she referred to the MCPO's report and an article that appeared in the Asbury Park Press on January 22, 2018, titled "Philip Seidle, Killer Cop: Ex-Wife ‘did not become a victim until I killed her.’ " The author of the article obtained information from several sources, including police reports, the MCPO's report, public court documents, and letters and records provided by Seidle.

On August 1, 2018, the judge filed a written opinion on Gannett's complaint. The judge noted that the file contained several types of documents, including IA investigative reports, citizen complaints, police and incident reports, fitness-for-duty evaluations, disciplinary notices and decisions, domestic violence records, and newspaper articles. The documents were dated from March 27, 1994, through May 10, 2016.

The judge stated that all but six of the twenty-eight incidents reflected in the Township's Vaughn index had been publicly disclosed, and facts related to the domestic violence incidents were disclosed in the MCPO's report. The judge noted, however, that the IA file "provides far more detail about the previously disclosed events" than the MCPO's report or the Asbury Park Press article.

The judge determined that the records were exempt from disclosure under OPRA. The judge noted that the Attorney General's Internal Affairs Policy and Procedures (IAPP) governed IA investigations by local law enforcement agencies. The IAPP, which

467 N.J.Super. 394

was first issued in 1991 and thereafter amended, provides that records pertaining to such investigations are confidential.

The judge noted that N.J.S.A. 40A:14-181 required all law enforcement agencies to adopt and implement guidelines consistent with the IAPP, thereby bestowing "the imprimatur of statutory authority on the IAPP." The judge concluded that "because the confidentiality provisions of the IAPP had been codified by statute," the records are exempt from disclosure...