How to Monitor Police Agencies: Part 3

In this third part of our series about using OPRA to monitor police agencies, we will discuss how to ensure that individual officers meet the qualifications for their duty assignments and are properly trained.

Generally, personnel records are exempt from access under OPRA. However, we previously blogged about the personnel records exemption and explained that there are three exceptions. The third exception provides that the following records are accessible:

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

[N.J.S.A. 47:1A-10.]

This means that you are able to obtain any records which prove that an employee meets the requirements of the job.

For police officers, this means that you can obtain training certificates for courses that they are required to take in order to take in order to be police officers. Among the required courses that every police officer in New Jersey must complete include:

  • basic police academy training
  • annual firearms requalification training
  • use of force training
  • vehicular pursuit training
  • domestic violence training
  • cultural diversity training
  • bias intimidation crimes training

Other courses may be necessary in order for a police officer to be promoted or to hold a specific duty assignment. Some of these courses include:

  • Breathalyzer training courses and recertification for those who operate breathalyzers
  • 911 dispatcher and call-taker training and recertification for those who work in 911 call centers
  • K-9 training for those who work with canine partners

Any of these records can be requested and will help the public ensure that officers are properly trained and qualified for the positions that they hold.

Sample OPRA requests:
“Pursuant to OPRA and the common law, I seek the Officer Jones’ use of force training certificates for years 2015-2017.”
“Pursuant to OPRA and the common law, I seek the annual firearms recertification certificates for all of the police officers in your police department for the year 2017.”

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How to Monitor Police Agencies: Part 2

We recently blogged about how you can use OPRA to gain access to records which shine light on the use of force by police officers. This blog discusses other types of police records that will help you monitor your local police department.

Internal Affairs Annual Summary Reports:

The Attorney General’s Internal Affairs Policy requires law enforcement agencies to release an annual summary report to the public which “summarizes the types of [internal affairs] complaints received and the dispositions of those complaints.” This report, usually in the form of a chart, will help you monitor the types of complaints that are being lodged against officers.

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek your police department’s Internal Affairs Annual Summary Report for 2016.”

Internal Affairs Public Synopsis of Disciplinary Action:

Requirement 10 of the Attorney General’s Internal Affairs Policy also requires law enforcement agencies to periodically disclose to the public “a brief synopsis of all complaints where a fine or suspension of ten days or more was assessed to an agency member.” While the report will not identify the officer by name, it should briefly outline the nature of the transgression and the fine or sentence that was imposed. This permits the public to see details of more serious internal affairs allegations that were sustained and will highlight an agency’s most egregious problems.

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek your agency’s Public Synopsis of Disciplinary Actions for years 2014 to 2017. This report is required pursuant to Requirement 10 of the Attorney General’s Internal Affairs Police.”

Vehicle Pursuit Reports:

Vehicle pursuits not only put the suspect and police officers at risk, but also other people who happen to be in their way. Every year there are reports where innocent bystanders are injured or killed when a vehicle slams into theirs during the course of a police pursuit.

There are two reports which will help you monitor vehicle pursuits. First, pursuant to the Attorney General’s Police Vehicular Pursuit Policy an officer must complete a “Police Pursuit Incident Report” for every pursuit. If you read about a pursuit in the newspaper, you can request this report to find out more details about who was involved in the incident.

Second, the Attorney General’s policy requires every municipal police agency to submit an annual agency “Vehicular Pursuit Summary Report” to the county prosecutor, which will detail the total number of pursuits and other useful information. You can compare these reports to other towns or look to see if any particular officer engages in pursuits more frequently.

A sample of both reports can be found here:

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek a copy of the Police Pursuit Incident Report for the vehicle chase that occurred last night near Exit 151 on the Garden State Parkway and the police department’s Vehicular Pursuit Summary Report for 2016.”

How to Monitor Police Agencies: Part 1

Police officers have the ability to arrest and detain suspects, to seize property, and to lawfully use force against people when justified.  Because police officers are given these tremendous powers, we hold them to very high standards—we expect that they will be honest, trustworthy, and follow the law and the Constitution.

In a two-part series, we will discuss how you can use OPRA to monitor police conduct. This blog highlights records you can request to monitor the use of force by police officers.

Use of Force Reports:

Pursuant to the Attorney General’s Use of Force Policy, every time an officer uses any level of force against an individual they must complete a Use of Force Report (“UFR”).  A UFR is a simple one-page report that provides information about a specific use of force incident, such as the names and biographical data of those involved and the type of force that was used. A model form is available here.

You can request UFRs relating to a single specific incident of force that you read about in the news or you can request all of an agency’s UFRs for a specific timeframe. By requesting all of an agency’s UFRs during a specific timeframe, you can determine how often force is used and whether there are any patterns that emerge, such as whether a specific officer uses force far more frequently than other officers or whether certain races are the target of force more often than others.

Sample OPRA requests:
“Pursuant to OPRA and the common law, I would like all of your police department’s Use of Force Reports from January 1, 2017 to present date.”

“Pursuant to OPRA and the common law, I seek all UFRs that were created as a result of the police-involved shooting that occurred on May 1, 2017 involving a suspect named Bob Jones.”

Police Use of Deadly Force Attorney General Deadly Notification Report:

Where deadly force is used, a “Police Use of Deadly Force Attorney General Deadly Notification Report” must also be completed. This is true even if the deadly force does not actually result in death. If a police officer shoots at someone, that action constitutes the use of deadly force even if the officer misses. A model AG Notification Report is available here.

Sample OPRA request:
“Pursuant to OPRA and the common law, I would like all of your police department’s Police Use of Deadly Force Attorney General Deadly Notification Reports for the year 2016.”

Body-Worn Camera Footage:

Recently, The Lab @ DC released a report which suggests that Body Cams do not change police behavior and cause them to use force less often.  Body Cams do, however, promote transparency over the police. For example, The Trentonian has recently published Body Cam footage that has exposed police officers bragging about roughing up suspects. The public obviously has a significant interest in knowing that its officers are behaving this way so that it can advocate for discipline or leadership change.

Because Body Cam Footage is required to be made and maintained by Attorney General Law Enforcement Directive No. 2015-1, it cannot be exempt under OPRA’s criminal investigatory records exemption. It may, however, be exempt under the ongoing investigation exemption depending on the nature of the tape, when it was created, and whether releasing it would be harmful to the public interest. The Supreme Court, however, has said that the public’s interest is in disclosure where police use of force is involved and that an agency should not need to withhold police video for more than a few days in most instances.

Sample OPRA request:
“Pursuant to OPRA and the common law, I seek all Body-Worn Camera Footage for the police-involved shooting that occurred on 5/1/17 at 29 Main Street.”

Dash Camera Footage:

The Supreme Court has recently ruled that dash camera videos that relate to criminal incidents are not subject to OPRA because there is no law that requires it to be made, thus it is a criminal investigatory record. That may change when the Court decides Paff v. Ocean County Prosecutor’s Office next year. In the interim, the Court has made it clear that dash cam footage should be routinely disclosed under the common law right of access.  Accordingly, make sure to invoke the common law when you file your records request.

Dash camera footage that relates to a non-criminal incident, however, is subject to OPRA. So, if your mayor was caught on tape after being pulled over for a DWI, that video should be publicly accessible.

Sample OPRA request:
“Pursuant to OPRA and the common law right of access, please provide all dash camera footage from the incident that occurred on October 1, 2017 wherein Mayor Jones was pulled over for a DWI.”

Appellate Division Significantly Expands Student Records Exemption

It is widely accepted that student records are exempt from public access under OPRA, either under the Federal Education Rights and Privacy Act (“FERPA”) or New Jersey’s Pupil Records Act (“NJPRA”). In other words, everyone accepts that students are entitled to privacy and that the public is not able to access grade cards, discipline records, and other sensitive information. However, when it comes to records that relate to an individual student but involve a significant expenditure of public funds, such as settlement agreements, most courts have permitted access to them so long as the record is redacted so that the student cannot in any way be identified.

Last week, however, the Appellate Division changed course when it issued L.R. v. Camden City Public School District. In a published decision that will be binding upon all trial courts, the Appellate Division shut down all access to any record that “relates” to an “individual student.” The public is no longer entitled to even a redacted copy of the record. Their reasoning? The NJPRA exempts “information related to an individual student” and a record still “relates” to an individual student even if it is de-identified. The Court explained its reasoning:

For example, a document reflecting a school district’s settlement of claims for special services by a hypothetical disabled student, Mary Jones, remains a “student record,” even if her name and other personal identifiers are removed from the settlement agreement. The record still “relates” to Mary Jones and discusses aspects of her life. The document does not cease becoming a “student record,” or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child’s name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names. Jane Eyre surely was Charlotte Bronte’s novel even though it bore the pen name of “Currier Bell”; likewise the works of Samuel Clemens were no less his own despite being issued under the pseudonym of “Mark Twain.”

Of course, we only know that Charlotte Bronte authored Jane Eyre because she revealed that fact. Had she chosen to remain anonymous, no one would know that Jane Eyre “relates” to Charlotte Bronte.

The problem with the decision is that it fails to consider NJPRA’s purpose: to provide students with “reasonable privacy.” N.J.S.A. 18A:36-19. That goal is fulfilled by de-identifying student records. Beyond our state courts, numerous federal courts have also held that a de-identified record no longer “relates” to an individual student and is thus no longer exempt under FERPA.

The Appellate Division’s decision is overbroad. It will exempt any and all settlement agreements relating to students. This means the public will have no way of monitoring how its school board is spending money. Did the school board pay its own attorneys $200k to fight a trip-and-fall suit worth $10k? The public will have no way to know, because now those settlements have now been rendered categorically exempt—despite the fact that the lawsuit itself was publicly filed and available through a courts record request.

School boards will no doubt utilize the L.R. decision to exempt all sorts of records. Was an individual student discussed in a closed session? If so, a school board will no doubt try to use L.R. to justify non-disclosure of those minutes—even though redaction would suffice to protect the student’s privacy.

The Appellate Division recognized that this case is worthy of Supreme Court review and stayed its decision. Hopefully, the Supreme Court will restore a common sense approach that protects the privacy of students, but also permits the public to provide financial oversight over school boards. In other words, redaction can simultaneously advance the NJPRA’s goal of ensuring a student’s reasonable privacy and OPRA’s goal of promoting transparency.

 

 

PSWH Files NJ Supreme Court Amicus Briefs Dealing with Transparency

Recently, Pashman Stein Walder Hayden has filed several amicus curiae briefs in pending Supreme Court appeals dealing with transparency issues:

Paff v. Ocean County Prosecutor’s Office:  This case will provide further guidance on whether dash cam videos are available under OPRA. While the Court recently ruled that dash cam recordings of a police-involved shooting were not subject to OPRA in North Jersey Media Group Inc. v. Twp. of Lyndhurst, this appeal considers arguments that were not made in that case.  We filed an amicus brief in support of transparency on behalf of Latino Leadership Alliance, Garden State Equality, People’s Organization for Progress, and the NJ Chapter of the Society of Professional Journalists. This will be one of the most important cases on the Court’s docket this year, as dash camera footage is vital to transparency and police accountability.

Brennan v. Bergen County Prosecutor’s Office:  The Court will determine whether the names and addresses of individuals bidding on government property at an auction are subject to access under OPRA or whether OPRA’s privacy provision would shield such information.  The issue of whether addresses are protected by OPRA’s privacy provision has popped up repeatedly. In earlier cases, the courts found a minimal privacy interest and granted access to records containing addresses, but lately, the courts have trended the other way.  We filed an amicus brief in support of the requestor on behalf of Libertarians for Transparent Government.

Kean Federation of Teachers v. Ada Morell:   The Court will consider whether a public agency complied with the Open Public Meetings Act (OPMA) obligation to make meeting minutes “promptly available” to the public (N.J.S.A. 10:4-14) when it took ninety-four days and fifty-eight days, respectively, to release the minutes of two meetings.  We filed an amicus brief in support of the requestor on behalf of Libertarians for Transparent Government arguing that there is no requirement in OPMA that minutes be “approved” prior to releasing them to the public and that permitting agencies to use an optional “approval” process to delay access to meeting minutes undermines OPMA’s “promptly available” requirement.

Victory Achieved in Supreme Court Police Records Case

We have previously written about our nearly three-year battle to secure access to police records relating to the police-involved shooting of Kashad Ashford in 2014.  We are happy to announce that the Supreme Court of New Jersey has issued a landmark ruling in this case and has restored transparency over the use of force by police officers.  Our press release is available here.

In a decision written by Chief Justice Stuart Rabner, the Court unanimously ruled that use of force reports, the names of officers involved in the shooting, and dash camera footage of the incident should be released.  The decision is legally significant and promotes transparency in several ways.

First, the Supreme Court agreed that the Attorney General’s policies are “laws” that defeat the criminal investigatory records exemption.  Thus, in any instance where a record is required to be “made, maintained, or kept on file” by an Attorney General guideline, policy, or directive, an agency may not claim the criminal investigatory records exemption.  A partial list of Attorney General guidelines, policies and directives are available here.  Some of the records that are required to be made and thus are not automatically exempt include vehicle pursuit reports, bias incident offense reports, and body-worn camera footage.

Second, the Supreme Court addressed the ongoing investigation exemption (N.J.S.A. 47:1A-3a) for the first time.  This exemption permits nondisclosure of records pertaining to an ongoing investigation where release would be “inimical to the public interest.”  The Court said this means that the public’s interest in disclosure must actually be weighed against the state’s interest in nondisclosure.  The Court made it clear that while officer safety and integrity of an investigation are important concerns, the public’s interest in transparency when police use deadly force weighs in favor of access.  In order to overcome this important right to transparency, an agency cannot present “generic reasons” for non-disclosure—it must make a “particularized showing” of potential harm.

Third, the Court rejected the State’s argument that the names of officers who use force against citizens are confidential.  This is a very important component of this case, as the State argued that the public is not entitled to know the names of officers who shoot suspects unless those officers are criminally charged.  Eventually, in other cases, the State took the position that the public is never entitled to know which officers use even minor levels of force, such as wrist strikes.  The Supreme Court’s decision restores transparency over the use of force by police, which will permit civil rights advocates to collect use of force reports and analyze trends in the use of force.

Finally, the Court granted access to dash cam footage.  Although in this case the Court said access was granted under the common law only because neither party pointed to a “law” that required dash cam footage to be made, maintained, or kept on file, the Court left open the question as to whether a local directive of the chief of police constitutes a “law” that would satisfy that standard and defeat the criminal investigatory records exemption.  That question will be answered later this year or in early 2018 when the Court hears Paff v. Ocean County Prosecutor’s Office.   Importantly, as noted above, body-worn camera footage is required to be maintained pursuant to Attorney General Directive No. 2015-1, so such videos are not automatically exempt as criminal investigatory records.

This landmark ruling has garnered national attention from the news media, including an editorial by the New York Times.

Supreme Court Restores Access to Electronically Stored Information

Last year, in Paff v. Township of Galloway, 444 N.J. Super. 495 (App. Div. 2016), the Appellate Division issued a rather shocking decision —in essence, the court held that even though OPRA includes electronically stored information is in the definition of “government records,” an agency has no obligation to extract that data because it would be “creating a new record.”

Mr. Paff’s request involved a log of emails that included the “to,” “from,” “subject,” and “date.” The agency admitted that it could print the log and it would take only two to three minutes to do so, but it argued that printing out that data in the format of a log would be creating a new record.   Since Paff v. Township of Galloway was issued, we have seen public agencies try to argue that they do not have to print payroll reports, accounts receivables reports, and other common reports from their databases because doing so would be “creating a new record.”

Thankfully, in a unanimous decision, the Supreme Court of New Jersey restored OPRA access to electronically stored information. The Court held that “A document is nothing more than a compilation of information—discrete facts and data. By OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.” The Court noted that OPRA contemplates the “programming of information technology,” and that this is precisely what is required to extract the electronic information that Mr. Paff sought.

The Supreme Court also found that the Appellate Division erred in giving the Government Record Council’s (GRC) guidance to the Township of Galloway “substantial deference.” In fact, the Court reminded lower courts that the GRC’s decisions and guidance are not entitled to any deference, let alone substantial deference. This is important because too often agencies try to convince lower courts that they must follow what the GRC says, even though the OPRA statute states otherwise.

In today’s world, there are fewer and fewer records that exist only in paper form and much information is now stored electronically in databases and accounting programs. The Supreme Court’s decision ensures that the public is entitled to access such electronically stored information, just as OPRA says.

Email Searches Must Include Search of Township Server and Personal Email Boxes

Pashman Stein Walder Hayden recently secured a victory in Matt Mills v. Township of Monroe, a case that challenged the sufficiency of a public agency’s search for emails responsive to an OPRA request.

In this case, Mr. Mills requested emails sent to or from various township employees and officials relating to the township’s EMS services. After the township responded to the request and produced emails, Mr. Mills noticed that not everything was produced. After he followed up, the township produced more emails, but Mr. Mills was still aware of other emails that were not produced. This included emails from one township councilman’s private email account. After Mr. Mills once again followed up, he still felt certain that not all emails were produced. Ultimately, he filed a request to the County and found that there were even more emails from one councilman in particular, but that were not produced by the township. At that point, Mr. Mills filed suit against the township.

This case presented a frequent problem that occurs: all too frequently, Records Custodians permit employees to search their own email boxes when a request for e-mails comes in. This creates several potential problems. First, an individual employee may not even know how to correctly search their email boxes for responsive emails. Second, a search of an individual’s email box on their local desktop will not recover emails that they may have deleted as a matter of course. Third, if the individual employee has emails that are incriminating or embarrassing, they may opt not to produce them.   The problem is exacerbated when a public employee uses their personal emails to conduct government business, as the Custodian has no control over those email accounts and items deleted from the personal account (such as yahoo or gmail) may not be recoverable from a server.

The Honorable Georgia M. Curio, A.J.S.C., found the township violated OPRA by failing to properly search for responsive emails. She found that a proper search must include a search of the township’s email server, so as to ensure that even emails that were deleted from local inboxes would be recovered. She ordered the township to conduct a new search of the township server, to produce all of the emails that are found, and to submit a sworn certification that describes the search and the township’s records retention policy. Because it was clear that at least some of the officials used private accounts to conduct government business, the judge ordered each individual named in the OPRA requests to perform searches of their private email accounts and to submit sworn certifications about their searches.

NJ Advance Media has covered Mr. Mills’ victory.  Additionally, the South Jersey Times wrote an editorial encouraging public agencies to stay away from private email use.

 

Borough Invokes Automatic Fee for OPRA Requests

The Borough of Flemington has made the news recently when it voted to impose an automatic special service charge on all OPRA requests that the Custodian estimates will take over two hours to fulfill.  When the Custodian receives such a request, she will provide an estimate to the requestor who will then have to pay one-third of the costs in advance.

We previously discussed the imposition of special service charges on this blog.  While OPRA does permit a special service charge where a request requires an “extraordinary expenditure of time and effort to accommodate,” as previously discussed, neither the courts nor the GRC have considered a mere two hours of time to be an “extraordinary expenditure of time.”

The Borough will likely find significant opposition, and perhaps a legal challenge, to this new policy.

A3626 Will Hinder Transparency Over Police Shootings

OPRA permits agencies to withhold most criminal investigatory records, but requires them to disclose certain enumerated information to the public:

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim’s family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant’s name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

[N.J.S.A. 47:1A-3(b).]

This disclosure requirement permits the public to know information about crimes that have occurred in their communities.

Currently pending in the Legislature is A3626, which amends N.J.S.A. 47:1A-3(b) to provide that “personal identifying information of violent crime victims and witnesses are confidential.”  “Personal identifying information” is defined as including, but not limited to the following information about the victim of a violent crime (“a crime involving force or the threat of force”):  “identity, name, home and work addresses, home and work telephone numbers, home and work fax numbers, social security number, driver’s license number, email address, or social media address of a violent crime victim or witness.”

Unfortunately, A3626 will significantly decrease transparency in the State, specifically with regard to police-involved shootings. It is not implausible to think that agencies will argue that officers who witness another officer shoot a suspect are now “witness[es] to a violent crime” (or potential violent crime, as all police-involved shootings are investigated for criminality).  Even under the current statutory scheme, agencies already deny access to the names of officers involved in shootings and other uses of force. See North Jersey Media Group Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015) (agency argues that public has no right to use of force reports or names of officers involved in shooting a suspect).

Moreover, given that A3626 exempts the identity of a victim, it also plausible that agencies will begin refusing to release information about a specific crime because their response would confirm that a specific person was a victim to the crime. For example, if the media is aware that John Doe was brutally shot and makes a request for Section 3(b) information about John Doe’s shooting, agencies might “neither confirm nor deny” that such shooting occurred because responding to the request would confirm that John Doe was a victim and such information would be exempt under A3626. See North Jersey Media Group Inc. v. Bergen County Prosecutor’s Office, 447 N.J. Super. 182 (App. Div. 2016) (permitting agencies to “neither confirm nor deny” the existence of complaints against a specific person where such information is exempt).

While it’s clear that the Sponsors of the bill simply want to protect victims of crime, A3626 is not needed. Most of the actual personal information that A3626 exempts is already exempt, such as social security numbers, telephone numbers, and driver’s license numbers.  See N.J.S.A. 47:1A-5(a).  Moreover, as it is currently written, N.J.S.A. 47:1A-3(b) already permits an agency to withhold the identity of the victim it the agency determines releasing the information “will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release.”

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.