N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst

• Decision Date: 11 July 2017
• Citation: 229 N.J. 541,163 A.3d 887
• Court: New Jersey Supreme Court
• Parties: NORTH JERSEY MEDIA GROUP, INC., Plaintiff–Appellant, v. TOWNSHIP OF LYNDHURST, Helen Polito, RMC, in her capacity as the Custodian of Records for the Township of Lyndhurst, Borough of North Arlington, Kathleen Moore, in her capacity as the Custodian of Records for the Borough of North Arlington, Borough of Rutherford, Margaret M. Scanlon, RMC, in her capacity as the Custodian of Records for the Borough of Rutherford, Bergen County Police Department, Captain Uwe Malakas, in his capacity as Custodian of Records for the Bergen County Police Department, Defendants, and New Jersey State Police and Sergeant Harry Rocheskey, in his capacity as Custodian of Records for the New Jersey State Police, Defendants–Respondents.

229 N.J. 541

163 A.3d 887

NORTH JERSEY MEDIA GROUP, INC., Plaintiff–Appellant,

v. TOWNSHIP OF LYNDHURST, Helen Polito, RMC, in her capacity as the Custodian of Records for the Township of Lyndhurst, Borough of North Arlington, Kathleen Moore, in her capacity as the Custodian of Records for the Borough of North Arlington, Borough of Rutherford, Margaret M. Scanlon, RMC, in her capacity as the Custodian of Records for the Borough of Rutherford, Bergen County Police Department, Captain Uwe Malakas, in his capacity as Custodian of Records for the Bergen County Police Department, Defendants,andNew Jersey State Police and Sergeant Harry Rocheskey, in his capacity as Custodian of Records for the New Jersey State Police, Defendants–Respondents.

Supreme Court of New Jersey.

Argued November 9, 2016

Decided July 11, 2017

Samuel J. Samaro argued the cause for appellant (Pashman Stein, attorneys; Mr. Samaroand Jennifer A. Borg, of counsel; Mr. Samaro, CJ Griffin, and James W. Boyan III, on the briefs).

Raymond R. Chance, III, Assistant Attorney General, argued the cause for respondents (Christopher S. Porrino, Attorney General of New Jersey, attorney; Mr. Chanceand Jeffrey S. Jacobson, Assistant Attorney General, of counsel; Mr. Chance, Mr. Jacobson, and Daniel M. Vannella, Deputy Attorney General, on the briefs).

Thomas J. Cafferty argued the cause for amici curiae The Reporters Committee for Freedom of the Press, New Jersey Press Association, Advance Publications, Inc., American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, First Look Media, Inc., Gannett Co., Inc., Investigative Reporting Workshop at American University, MPA—The Association of Magazine Media, National Association of Black Journalists, National Newspaper Association, The National Press Club, National Press Photographers Association, The New York Times Company, Online News Association, Society of Professional Journalists, and the Tully Center for Free Speech (Gibbons, attorneys; Mr. Caffertyand Nomi I. Lowy, of counsel and on the brief).

Walter M. Luers argued the cause for amici curiae New Jersey Foundation for Open Government and Police Accountability Project of New Jersey Libertarian Party (Mr. Luersand Richard M. Gutman, attorneys; Mr. Gutman, on the brief).

Alexander R. Shalomargued the cause for amici curiae American Civil Liberties Union of New Jersey, Association of Black Women Lawyers of New Jersey, Black Lives Matter–NJ, Garden State Bar Association, Garden State Equality, Latino Action Network, Latino Leadership Alliance, LatinoJustice—PRLDEF, and People's Organization for Progress (Edward L. Barocas, Legal Director, attorney; Mr. Barocas, Mr. Shalom, Iris Bromberg, and Jeanne M. LoCicero, on the brief).

Michael A. Bukosky argued the cause for amicus curiae State Troopers Fraternal Association and Bergen County Policemen's Benevolent Association Conference (Loccke, Correia, & Bukosky, attorneys).

Jeffrey S. Mandel, attorney for amicus curiae Association of Criminal Defense Lawyers of New Jersey, joined in the brief of American Civil Liberties Union of New Jersey (Cutolo Mandel, attorneys).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

This appeal explores the scope of two exceptions in the Open Public Records Act (OPRA): exemptions for criminal investigatory records, N.J.S.A. 47:1A–1.1, and records of investigations in progress, N.J.S.A. 47:1A–3. The matter also implicates the common law right of access.

The case arises out of a high-speed chase in which a suspect eluded the police, crashed into a guardrail, and reportedly placed officers in danger as he tried to drive away. The officers then fired at the suspect and killed him. Two reporters filed OPRA requests for the names of the officers who used deadly force. The reporters also sought access to Use of Force Reports, dash-cam videos, activity logs, various investigative reports, and related items.

The trial court ordered the records disclosed. For the most part, the Appellate Division concluded the items were exempt from disclosure under OPRA. N. Jersey Media Grp., Inc. v. Township of Lyndhurst (NJMG ), 441 N.J.Super. 70, 78–79, 105, 116 A. 3d 570 (App. Div. 2015). We consider the two exemptions the panel analyzed and the common law right of access.

OPRA's criminal investigatory records exception does not apply to records that are "required by law to be made, maintained or kept on file." N.J.S.A. 47:1A–1.1. As a result, the exemption does not cover Use of Force Reports, which the Attorney General requires officers to prepare after the use of deadly force.

To analyze OPRA's exemption for records of ongoing investigations, courts must weigh various factors to decide whether disclosure will "be inimical to the public interest." N.J.S.A. 47:1A–3(a). We conclude that the danger to an ongoing investigation would typically weigh against disclosure of detailed witness statements and investigative reports while the investigation is underway, under both OPRA and the common law. Footage captured by dashboard cameras, however, presents less of a risk. Under the common law, the public's powerful interest in disclosure of that information, in the case of a police shooting, eclipses the need for confidentiality once the available, principal witnesses to the shooting have been interviewed. In an ordinary case, investigators take statements from those witnesses soon after an incident, while the events are fresh in mind.

We therefore affirm in part and reverse in part the judgment of the Appellate Division.

I.

To recount the facts, we rely on press releases and certifications by the Attorney General and other law enforcement officers, as well as other materials in the record.

Shortly after 2 a.m. on September 16, 2014, a North Arlington resident called 9–1–1 to report an attempt to break into a car in her driveway. The caller described the suspect and the car he drove away in—a black SUV. Police dispatchers in North Arlington radioed information to officers in the area, and officers from North Arlington, Lyndhurst, Rutherford, and the Bergen County Police Department (BCPD) looked for the vehicle. At some point, New Jersey State Police troopers also got involved. An officer from Lyndhurst first spotted the SUV, which the police confirmed was stolen.

The police tried to stop the suspect's car, but the driver—later identified as Kashad Ashford—eluded them and led police on a high-speed chase through several towns for about four minutes. At one point, Ashford tried to ram a Lyndhurst patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass on Route 3.

Officers then positioned their patrol cars around the SUV and ordered Ashford to stop the car. He refused. According to the Attorney General's press release, Ashford instead tried to get free of the barrier by accelerating, which caused the car to "jerk[ ] in a rear and forward motion."

An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers—as well as others—fired at Ashford, who was pronounced dead hours later. A passenger in the SUV, Jemmaine Bynes, was not shot. Police took him into custody and charged him with several firearms offenses and receiving stolen property.

When law enforcement officials are involved in a fatal shooting, the Director of the Division of Criminal Justice must be notified immediately—"before any investigation of the incident is undertaken other than to secure the scene." Attorney General, Law Enforcement Directive No. 2006–5 (Directive) , at 1–2 (Dec. 13, 2006). In response, the Attorney General's Shooting Response Team (SRT) may—and, in some cases, must—conduct an investigation into the use of deadly force. Id. at 2.

Here, the SRT launched an investigation, and the Attorney General issued a press release hours after the event. The release recounted many of the facts described above. Press Release, Attorney General, Attorney General's Shooting Response Team Investigates Fatal Shooting in Rutherford Involving State Police & Local Officers (Sept. 16, 2014). It did not, however, reveal the names of the officers involved or say how many fired their weapons. Ibid.

Each officer who uses deadly force must complete a "Use of Force Report" (UFR) along with "[a]ny reports made necessary by the nature of the underlying incident." Attorney General, Use of Force Policy , at 7 (Apr. 1985, revised June 2000). The UFR calls for information about the officer, the type of force used, and the subject and his or her conduct.

Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The Record reporter asked Lyndhurst, North Arlington, Rutherford, and the BCPD for incident or investigation reports; log book notations and activity logs; audio recordings and written transcripts, including all 9–1–1 calls; arrest reports; UFRs; dash-cam videos from Mobile Video Recorders (MVRs) in police vehicles; motor vehicle accident reports; Computer Aided Dispatch reports (CADs); Mobile Data Terminal Printouts; and all information required to be released under N.J.S.A. 47:1A–3(b). The reporter filed a similar request with the State Police later the same day.

The South Bergenite reporter asked Lyndhurst to disclose the following documents "as they [were] created": police reports about the pursuit; UFRs; "[a]ny additional documentation" about the incident; and "[a]ny video tape" or transcript "obtained during the course of the investigation."

The records custodians gave varied responses, which are described in the Appellate Division's decision. NJMG , supra , 441 N.J.Super. at 82–83, 116 A. 3d 570. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause on November 3, 2014. At the time, NJMG owned The Record and the South Bergenite ,...