Monthly Archives: July 2019

Pashman Stein Walder Hayden Notes Impact of Dash Cam Case on 2nd Anniversary of Landmark New Jersey Supreme Court Decision in North Jersey Media Group v. Township of Lyndhurst

When Pashman Stein Walder Hayden partners CJ Griffin and Samuel J. Samaro received the unanimous decision in North Jersey Media Group Inc. v. Twp. of Lyndhurst, 229 N.J. 541 (2017), from the New Jersey Supreme Court on July 11, 2017, it was clear that this hard-fought matter was a landmark case that would have significant impact on transparency about the use of force by police in the state of New Jersey. The Court had granted access via the Open Public Records Act (OPRA) and common law to police records and dash cam footage of a high-speed police chase and the fatal use of force on a black, male suspect, documents that the State had for more than two years refused to release.

It has been two years since the case set a precedent about the usage of OPRA in obtaining law enforcement records, dash cam footage, and Use of Force Reports. The case received national attention, as reporters applauded the affirmation of government transparency as a fundamental principal that trumps a police agency’s interest in keeping videos and reports secret. “In New Jersey, police officers are required to complete Use of Force Reports any time they use any amount of force against a suspect, whether it is twisting someone’s arm, using leg or wrist strikes, or using deadly force, which is any time a weapon is fired,” said Griffin. “The State sought to shield Use of Force Reports from the public permanently and keep the public from learning the identities of officers who use deadly force against citizens. Thankfully the Supreme Court made that information public.”

Griffin adds, “We continue to litigate for information on police shootings and conduct across the state. For example, an appeal is pending on whether a Use of Force Report relating to force used against a juvenile suspect is accessible via OPRA because it directly pertains to the conduct of the police officer, or, as the law enforcement agency counters, is exempt as juvenile records for delinquency crimes. We also continue to file numerous cases for access to body camera footage and other information about police-involved shootings.”

“At this two-year milestone,” Samaro states, “the Lyndhurst decision continues to be impactful. The unprecedented access to police reports has revealed misconduct details and use of force statistics that had never been viewed or analyzed before. We used solid legal arguments to obtain access to this information, and in doing so, opened a movement for greater transparency in our law enforcement agencies.”

As a direct result of the Lyndhurst decision, a public database was created of more than 70,000 Use of Force Reports, searchable by town and by specific officer. It has been reported that the State Attorney General Gurbir Grewal is taking steps to improve police oversight, and that he is acting in part on the information provided in the Use of Force report that derived from the Lyndhurst decision.

Michael S. Stein, chair and managing partner of Pashman Stein, said, “The Lyndhurst case took a stand not only for the journalists who sought the truth about the fatal shooting of Kashad Ashford, but also for the nearly 30 amici curiae that participated in the litigation on behalf of diverse communities who want to ensure that the press and public have meaningful access to law enforcement records. At Pashman Stein, we are committed to taking on these high impact public interest cases, and to use advocacy to advance civil rights and government transparency.”

Judge rules North Arlington improperly imposed service charge for Facebook records

Last week, Bergen County Assignment Judge Bonnie J. Mizdol issued an opinion finding that the Borough of North Arlington unlawfully imposed a special service charge upon a records requestor who sought records from the Borough’s Facebook pages.

The OPRA request at issue in Wronko v. North Arlington sought the list of individuals who had been banned from the Borough’s Facebook page, as well as a list of any words that had been censored and the list of page administrators. In response, the Borough insisted it needed to use an outside IT consultant to capture the screenshots necessary to fulfill the request, which would cost $200 for 2 hours of time.

OPRA permits a special service charge only in limited circumstances. Specifically, N.J.S.A. 47:1A-5(d) provides that:

If a request is for a record: . . . requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

Otherwise, “electronic records and non-printed materials shall be provided free of charge.” N.J.S.A. 47:1A-5(b)(1).

After hearing expert testimony from both parties, Judge Mizdol concluded “that production of the requested documents does not require a substantial amount of manipulation of information technology.”  The court found that capturing screenshots of the Facebook pages that contained the list of banned users and censored words “did not require any expertise in the field of information technology” and that any person with a “basic level of computer skills” would be able to fulfill the request by utilizing Facebook’s “Help” pages or a “simple Google search for ‘how to take a screenshot.'”

Importantly, the Court noted that it is imperative that agencies be able to fulfill modern day OPRA requests:

OPRA requests increasingly involve information technology in this digital age. Those hired to serve as an OPRA Records Custodian, thus, must have the requisite skills to reply to requests for government records located on such digital platforms. If a custodian does not have such skills, the municipality has the ability to rely on information technology experts or hire third party help. However, shifting costs related to same [to the requestor] requires the presence of a substantial amount of manipulation on information technology.

Unfortunately, the imposition of special service charges seems to be on the uptick. Many requestors may simply walk away from a request if the agency seeks to impose a significant fee, but it is possible to challenge the fees in court. In this case, Judge Mizdol ordered the agency to release the records without any fee and to pay the requestor’s legal fees.