The Status of Access to Police Records:  O’Shea, NJMG v. Lyndhurst, and Paff v. OCPO

In enacting OPRA, the Legislature created two exemptions for police records.  The first exemption is the “ongoing investigation exemption.” N.J.S.A. 47:1A-3(a).  For that exemption to apply, an investigation must be ongoing and the police agency must prove that release of the records would be “inimical to the public interest.”   Even if the police do prove that releasing the records while the investigation is ongoing would be harmful, ultimately the records must be released after the investigation concludes.

OPRA’s other exemption, the “criminal investigatory records” (CIR) exemption, is much more stringent.  If a record constitutes a CIR, then it is forever exempt from access.  The statute defines a CIR as one that is 1) “not required by law to be made, maintained, or kept on file” and 2) which “pertains to any criminal investigation or related civil enforcement proceeding.”  N.J.S.A. 47:1A-1.1.   Both elements must be met in order to shield the record from the public.

Because the very first line of OPRA instructs that “any limitations on the right of access . . . shall be construed in favor of the public’s right of access,” courts have always applied the CIR exemption narrowly.  Accordingly, since 2009, the courts have held that the Attorney General’s Guidelines are “laws” that negate the “not required by law to be made, maintained, or kept on file” element of the CIR exemption.  Thus, records such as Use of Force Reports (UFRs) have been publicly accessible since the AG’s Use of Force Policy requires every officer in the state to complete a UFR after he uses any level of force against a citizen.  See O’Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009).

That all changed in 2015, when another panel of the Appellate Division disagreed with O’Shea and held that only duly promulgated regulations, executive orders, statutes, or judicial decisions constitute “laws” for purposes of the CIR exemption.  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). Thus, the court held that even if an AG Guideline requires every officer in the state to make a certain record, that record still is not accessible to the public because it was not required to be made by a “law.”  It also applied the second element of the CIR exemption so broadly that if a record even tangentially relates to a criminal defendant, the court held that it “pertained to any criminal investigation.”  The Appellate Division’s decision in NJMG v. Lyndhurst has been detrimental to transparency because it has rendered nearly every police record off limits!

Since NJMG v. Lyndhurst was decided, agencies have had justification to deny access to UFRs and other police records.  Technically, though, trial courts are not bound by NJMG v. Lyndhurst and could instead apply O’Shea.  This is because when there are conflicting Appellate Division opinions, a trial court is free to choose which decision to apply.  Last week, a third published Appellate Division decision involving the CIR was issued, giving the trial courts another decision to choose from.  See Paff v. Ocean County Prosecutor’s Office, __ N.J. __ (2016).

The Paff court expressly disagreed with NJMG v. Lyndhurst.  It instead held that not only are AG Guidelines “laws” that satisfy the “required by law to be made, maintained or kept on file” standard, but so are local policies and directives from a Chief of Police.  The Paff court also disagreed with NJMG v. Lyndhurst’s holding that “an officer’s decision to activate a [dash cam] to document a traffic stop or pursuit of a suspected criminal violation of the law may make the recording ‘pertain to a criminal investigation, albeit in its earliest stages.’”  Thus, per Paff, dash cam footage is accessible and UFRs would be accessible.

Because there was a dissent in Paff, the case automatically goes to the Supreme Court.  The Supreme Court also accepted the plaintiff’s appeal in NJMG v. Lyndhurst.  While trial courts are free to apply either O’Shea/Paff or NJMG v. Lyndhurst at the present moment, ultimately the Supreme Court will issue decisions which will be binding upon every court in the state.   Those landmark decisions will define the scope of access to police records and determine how transparent the police must be.

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

My OPRA Request Was Denied. Now What?

OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request).  A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.

But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records.   This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing a lawsuit in Superior Court is as follows:

  1. A Verified Complaint and Order to Show Cause is filed.  Each county has a designated “OPRA Judge” who will hear the matter.
  2. The OPRA Judge will review and sign the Order to Show Cause, which sets a briefing schedule and a hearing date.
  3. The pleadings are then served upon the public agency and custodian.
  4. Often, a public agency may work with your attorney to settle the case by producing records and paying the attorneys’ fees.
  5. If the parties are unable to settle, the agency will file an answer and opposition to your lawsuit.
  6. Your attorney then has an opportunity to file a reply brief
  7. A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the Judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In certain circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  8. If you win, the Judge will order the agency to produce records to you and your attorney will file a fee application asking the Court to order the agency to pay your counsel fees and costs of suit.  (Many attorneys, like Pashman Stein Walder Hayden, represent requestors on a contingency basis which means that if you lose, you will not owe any counsel fees).

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

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

 

 

Pashman Stein’s OPRA Cases Make News

Several of Pashman Stein’s OPRA cases have been covered extensively by the press lately. Here is a rundown of the coverage.

McClimate v. Cumberland County

The Daily Journal has covered McClimate v. Cumberland County, a case where Pashman Stein has filed a suit on behalf of a retired county employee who seeks records pertaining to her insurance coverage.  Despite repeated requests that the county provide the actual cost sheet that Horizon Blue Cross gave the county, the county instead insisted on providing only a summary chart that it created.  Ms. McClimate seeks the actual cost breakdown from Horizon so that she can determine whether the County is charging her the proper premium.

Paff v. Bayonne

The Jersey Journal recently covered Paff v. City of Bayonne, a case where Pashman Stein represented open government proponent John Paff in a quest for records pertaining to two settlement agreements.  Mr. Paff sought the agreements, or, in the event the agreements were not finalized, correspondence related to the settlement.  Bayonne denied the request, saying any such correspondence would be exempt pursuant to the attorney-client privilege.  After Mr. Paff filed his suit and argued that correspondence between adversaries is not privileged, Bayonne admitted that it should have stated that no such correspondence even existed.  Bayonne settled the case by admitting its error and paying Mr. Paff’s attorneys’ fees.

Gilleran v. Township of Bloomfield

Patricia Gilleran’s security camera case continues to get news coverage.  Pashman Stein secured a victory for Ms. Gilleran in the trial court and in the Appellate Division, where both courts held that Ms. Gilleran was entitled to security footage from a camera outside Bloomfield’s municipal building.  The case is now pending in the Supreme Court.  Debbie Gallant wrote an article for the Society of Professional Journalists, detailing Ms. Gilleran’s case and the quest to obtain security camera footage from Bloomfield.   Bloomfield Life, Baristanet, and Essex News Daily have also recently covered Ms. Gilleran’s case.

Paff v. Moorestown

Numerous newspapers, including the Philadelphia Inquirer, are covering John Paff’s OPRA lawsuit against the Moorestown Township.  Mr. Paff filed suit to obtain minutes from an October 2012 meeting of the Moorestown Ethical Standards Board.  After Mr. Paff filed suit and argued that public access to minutes cannot be delayed for more than three years and that the agency should release the unapproved minutes, the Board rushed to convene a meeting to approve the 2012 minutes and then released them to Mr. Paff.

DeSanctis v. Borough of Belmar

More Monmouth Musings is covering a lawsuit Pashman Stein filed on behalf of Joy DeSanctis, who is seeking e-mail correspondence between Belmar officials and FEMA regarding Superstorm Sandy funds and the building of the pavilions.  Belmar refused to search for e-mail correspondence, insisting that DeSanctis needed to tell her the exact names of the Belmar officials or FEMA officials who were communicating with each other.  Ms. DeSanctis argues that she has no way of knowing such information, but that Belmar certainly knows and that her request is valid pursuant to Burke v. Brandes, 429 N.J. Super. 169 (2012).

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

How Soon Must Government Records Be Available to Requestors?

Section 5 of OPRA is clear that government records must be available “as soon as possible.” It then provides an outer time limit for public agencies—records must be produced as soon as possible, “but not later than seven business days after receiving the request.”  Unfortunately, fewer and fewer public agencies comply with these rigid timelines.  Most agencies produce records on the 7th business day, even though they are supposed to be available “as soon as possible.”  And many agencies have moved to automatically taking an extension of time for each and every OPRA request, even requests that would require minimal time and effort to fulfill.  The New Jersey Supreme Court has stated that the purpose of OPRA is to ensure “swift access” to government records, but the actions of many public agencies have made obtaining government records a drawn out, lengthy process.

In enacting OPRA, the Legislature declared that some records should be so readily available that the 7-day outer limit is not applicable at all.  Some records, such as budgets and contracts, must be made available “immediately.”  Simply put, any person should be able to walk into city hall (or send an email to the city clerk) and “immediately” receive a copy of the city’s budget, contracts, vouchers, etc.  Unfortunately, this is not always how it works.

As detailed in an article by The Record, a records requestor went to the Clifton Board of Education to obtain a copy of, among other records, a contract between the BOE and a tree cutting service.  Initially she was told that she would have to wait 7 business days.  Because she wanted the contract for the BOE meeting the next night and knew her rights, the requestor demanded that she was entitled to “immediate” access to the contract.  Ultimately, the BOE let her look at the contract, but would not let her take pictures of it with her phone’s camera or have an actual copy of the contract. Even though a copy of the contract had already been made, the BOE’s employee tore that copy up and instead told the requestor that the contract would be released “within 7 business days.”   The requestor filed a complaint with the Government Records Council,* alleging it is a violation of both OPRA’s “immediate access” provision.  It is also clear that the record was not produced “as soon as possible.”

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

*Pashman Stein represents the requestor in this case.

 

Names Sought on GWB Scandal-Related Legal Bills

Sam Samaro, partner at Pashman Stein, is quoted on the Bridgegate-related article that appeared on January 25, 2016 on Northjersey.com:

http://www.northjersey.com/news/names-sought-on-gwb-scandal-related-legal-bills-1.1498955

 

 

CJ Griffin Quoted in The Lacey Reporter in Regards to OPRA Case in Ocean County

Published in The Lacey Reporter.com

A local activist is suing the Ocean County Prosecutor’s Office over what his attorney is calling a “cover up” of documents related to the unlawful arrest of Lacey Reporter contributor Andrew Flinchbaugh. Transparency activist Harry Scheeler, who previously founded a local news website covering Galloway Township is behind the suit.

For the rest of the article, click here.

New Jersey Supreme Court Accepts Security Camera Case

The New Jersey Supreme Court has granted the Township of Bloomfield’s Motion for Leave to appeal in Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 490 (App. Div. 2015, making the Appellate Division’s decision subject to the Court’s review.

In this case, Ms. Gilleran initially filed an OPRA request for a week’s worth of video footage from a security camera at the rear of the Municipal Building. She sought the footage to confirm whether certain politically connected individuals were visiting the municipal complex, as was rumored.  The camera is in plain sight and sits above the mayor’s parking spot.  At the Township’s request, Ms. Gilleran narrowed her request to a single day of footage.   The Township denied the request, stating it was exempt pursuant to a provision of OPRA that “emergency or security information or procedures for any building or facility which, if disclosed, would jeopardize security of the building or facility or persons therein’ is exempt from disclosure.” Ms. Gilleran sued to gain access to the video footage.

In opposing Ms. Gilleran’s suit, the Township essentially argued that the security-related exemption was a blanket exemption.  No one from the Township watched the tape, but it argued that the footage “could” contain images of victims reporting crimes to the police station next door, confidential informants, or others reporting crimes.  The trial court ruled that the exemption was not a blanket exemption and that without watching any of the tape, the Township could not meet its burden of proof.  The Appellate Division affirmed in a published opinion and agreed that the exemption was not a blanket exemption.  The appellate panel held:

With respect to the particular camera in this case and information contained on its recordings, Administrator Ehrenburg’s certification was not sufficiently specific to establish a risk to the safety of any person or property or jeopardy to the security measures taken for the building. Bloomfield provided no specific information from police officials stating that the identity of informants, crime victims, or confidential witnesses would in fact be revealed and specifying what kinds of activities occurred outside the police station during the period of recordings that Gilleran requested. It provided no information by the persons responsible for installing or operating the security camera to indicate that important security strategies or techniques would be disclosed. For example, there was no indication that the security camera might have blind spots in its apparent surveillance area, or that the clarity and sharpness of the imagery recorded would be revealed in a way that might compromise the strategic deterrent effect of the security camera or overall security system of the building. The Administrator’s “conclusory and general allegations of exemptions,” see Newark Morning Ledger, supra, 423 N.J. Super. at 162, were insufficient to justify withholding the recordings from disclosure.

[Gilleran v. Twp. of Bloomfield, supra, 440 N.J. Super. at 498)]

Defendants filed a motion for leave to appeal to the Supreme Court.  In accepting the case, the Supreme Court’s website presents the question as: “Does the Open Public Records Act require the Township to disclose video recordings from a security camera surveilling the back of the Township’s municipal building (i.e., Town Hall)?”

Organizations who wish to file amicus curiae briefs have until January 20, 2015 to file their motions for leave to appear and accompanying briefs, pursuant to Rule 1:13-9.

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

Transparency of Police Conduct Consistent with Public’s Right to Know

The following article was authored by Pashman Stein Partner Sam Samaro and appeared in the New Jersey Law Journal on October 29, 2015.

In March of 1991, a Los Angeles resident by the name of George Holliday noticed some commotion outside his apartment. He grabbed a camcorder, went out onto his balcony and shot the now iconic footage of Rodney King being beaten by the police. The resulting prosecution of the officers involved occurred because, and only because, the incident happened to take place within eyeshot of a citizen with a video camera. At the time, videotaped evidence of police misconduct was extremely rare.

Today, it is not so rare. It has been estimated that as many as two-thirds of all American adults own smart phones. That means that most people walking the streets these days are carrying high-quality video equipment in their pockets or purses, and ever more frequently they are using those devices to record what they see in their daily lives, including altercations involving the police. On top of that, state and local governments have come under increasing pressure to add camera equipment to patrol cars and even patrol officer uniforms. As a consequence, police departments in many communities are now required to make their own video recordings of traffic stops, arrests and other interactions with citizens. We can anticipate a time when most things police do in public will be recorded by someone.

It is fair to say that law enforcement agencies are less than enthusiastic about this development. They argue, not without merit, that the videos only tell part of the story and often contain important evidence which, if released too soon, could compromise ongoing criminal investigations of suspects or internal affairs investigations of officers. They worry that the repeated showing of such videos in the media and their availability online creates unjustified cynicism about the police and may actually subject officers to retribution attacks.

For the rest of the article, please click here.

GRC Rules that Agencies Must Accept Electronic Requests

While overwhelmingly most agencies accept emailed or faxed requests or have an online portal to submit OPRA requests, there are a handful of agencies that do not. The Government Records Council (GRC) recently ruled that the refusal to accept at least one form of electronically submitted requests violates OPRA.

On September 29, 2015, the GRC ruled in Russo v. City of East Orange (Essex), GRC Complaint No. 2014-430, that “the City’s policy of banning submission of OPRA requests electronically represents an unreasonable obstacle on access.” In its decision, the GRC recounted East Orange’s history regarding the issue of request submission policies.  In 2009, Paff v. City of E. Orange, 407 N.J. Super. 221, 228 (App. Div. 2009), the Appellate Division ruled that East Orange was not compelled by the statute to accept faxed OPRA requests since it did not have a designated fax line. However, it also held that an agency cannot “impose an unreasonable obstacle to the transmission of a request for a governmental record,” such as only accepting hand-delivered requests.  Since at that time East Orange also accepted “electronically submitted” OPRA requests, the Appellate Division held that the refusal to accept faxed requests was not unreasonable.

Now, however, East Orange only accepts hand-delivered or mailed OPRA requests. The GRC noted that not only did East Orange fail to notify requestors that it did not accept emailed OPRA requests. It also held that “[a]llowing for at least one form of electronic transmission method is reasonable in a time when citizens and public agencies are increasingly relying on technology to perform their daily duties. Additionally,  allowing for  at  least  one  electronic  method  will  provide  an  efficient  and expedient method for requestors to obtain records.”

Pashman Stein filed an action in July 2015 on behalf of Patricia Gilleran against East Orange, seeking an order compelling the City to respond to Ms. Gilleran’s e-mailed OPRA request. Oral argument on that case will be heard on October 28, 2015.

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

CJ Griffin Quoted in The Trentonian News Article

CJ Griffin quoted in The Trentonian News article: Advocate sues AG’s office over lack of information in Radazz Hearns shooting

http://www.trentonian.com/general-news/20151020/advocate-sues-ags-office-over-lack-of-information-in-radazz-hearns-shooting