Category Archives: OPRA Cases

Supreme Court Rules That AG Can Publish the Names of Disciplined Police

On June 7, 2021, the New Jersey Supreme Court ruled in favor of the Attorney General by upholding Law Enforcement Directives Nos. 2020-5 and No. 2020-6, which ordered law enforcement agencies throughout the state to annually publish the names of police officers who were either terminated, demoted or suspended for more than 5 days.  We previously blogged about the Directives here and here.

Chief Justice Stuart Rabner delivered the opinion of a unanimous court finding that Attorney General Gurbir S. Grewal had the authority to issue the Directives, which are, “consistent with legislative policies,” and, “satisfy the deferential standard of review for final agency decisions.”  The Court noted that the Directives are “designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another.”

However, one critical aspect of the Directives remains open for further evaluation – the demand that the New Jersey State Police reveal the names of approximately 500 Troopers who were seriously disciplined up to 20 years ago. Calling this a “serious issue,” the Court appointed a Superior Court Judge Ernest Caposela, A.J.S.C., to hear testimony and make a ruling regarding access to past discipline.

CJ Griffin represented amici curiae National Coalition of Latino Officers and the Law Enforcement Action Partnership in favor of transparency. Although the Directives provide some transparency, both organizations have written in support of Senate Bill No. S2656 and Assembly Bill No. A5301, which make police disciplinary records subject to OPRA.

Several newspapers covered the Supreme Court’s decision:

To view the NJ.com article, click here.
To view the NorthJersey.com article, click here.
To view the New Jersey Law Journal article, click here.
To view the Hudson County View article, click here.

Sunshine Week Begins With Supreme Court OPRA Case

It’s Sunshine Week and this year it kicks off in New Jersey with oral arguments before our Supreme Court in an important Open Public Records Act (OPRA) case.

On March 15, 2021, the Supreme Court will hear Bozzi v. City of Jersey City, a case that asks whether a list of names and addresses of dog license holders are accessible under OPRA. The plaintiff seeks the list for commercial purposes–he intends to mail dog owners information about his invisible fences.  The case is listed as the second case of the day, which means arguments will begin sometime after 11:00 a.m. You can watch it here.

CJ Griffin of Pashman Stein Walder Hayden will be participating in the case and will be arguing last. Griffin filed an amicus curiae brief on behalf of Libertarians for Transparent Government, arguing that the Legislature has rejected numerous bills that attempted to exempt dog owner lists or that sought to limit the ability of commercial requestors to utilize OPRA. The amicus brief also explains that limiting this commercial requestor’s right of access will cause harm to all the other requestors who might seek lists of dog owners to benefit the public in some way.

Unfortunately, public agencies sometimes use OPRA’s privacy provision not as a shield to protect legitimate privacy rights, but rather as a sword to attack a requestor’s reason for seeking records, something that should be irrelevant.  In this case, a commercial requestor’s right to obtain public records is under attack, but in other instances the ones under attack are the so-called “gadflies” or the persistent reporters who are thorns in the sides of politicians.  If the Court decides in the City’s favor in this case, the consequences will not be limited only to the addresses of dog license owners or to commercial requestors.  Public agencies will undoubtedly think of far-fetched reasons to invoke OPRA’s privacy provision so that the balancing test applies.  Requestors will then have to sue and convince courts that that their reasons for wanting the records serve a “legitimate public purpose.”  In other words, an interest requirement will be engrafted into OPRA where one does not exist, and as a result, all requestors, whether commercial or not, will have to fight harder to access information that should be statutorily available to them as of right.

. . .

Even if this Court considered a commercial interest to be insufficient to gain access to the dog license records in this case, there are clearly other reasons for requesting these records that do advance “legitimate public purposes.”  For example, someone who encounters a neighbor’s aggressive dog might want to determine if the dog is licensed and vaccinated.  . . .  Someone who runs a local animal rights group might want to contact other dog owners to rally them to pass better animal welfare laws, to lobby for a local dog park, or to alert them to local dangers to dogs.  An animal rescue organization might want to independently verify that the dogs it has adopted out have been properly licensed and vaccinated, or it might want to screen prospective adopters to determine if they have other pets (or had other pets that they surrendered) that they are not disclosing on their adoption applications.  A watchdog group like LFTG might want to investigate whether public officials are failing to license their own pets all while hypocritically ticketing members of the public for failing to do so.  Or, it might want to verify that the list of licenses is accurate and that all of the money collected from licenses are distributed in the proper accounts and transmitted in full to the proper state agencies. . . . A research organization might seek the names and addresses of dog license owners so that it can map them and determine whether certain neighborhoods have more licensed dogs than others and whether there is any correlation to economic factors, such as income, in the ownership or licensure of dogs.

NJ Advance Media previously wrote about the case when it was pending in the trial court. Both the trial court and the Appellate Division ruled that the list must be disclosed.

Supreme Court Takes Jail Settlement Agreement Case

Today the New Jersey Supreme Court agreed to hear the plaintiff’s appeal in Libertarians for Transparent Gov’t v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020), a published decision that shut down public access to non-litigation settlement agreements that resolve a public employee’s internal discipline.

CJ Griffin of Pashman Stein Walder Hayden filed the successful petition for certification. We will blog soon with more details about the case and the issues before the Supreme Court. In the meantime, readers can view John Paff’s blog for more details about the matter when it was pending in the trial court.

2020 Transparency Year in Review

Happy New Year! The year 2020 was a year unlike any other. As we look back at transparency issues that arose over the past year, we hope that this blog finds our readers healthy and well.

Pandemic Creates Transparency Hurdles

Transparency was front and center in New Jersey in 2020, although sometimes it was the lack of transparency that was the focus.

On March 9, 2020, Governor Murphy issued Executive Order No. 103 to declare a Public Health Emergency in New Jersey. Days later, the Legislature rushed to amend the Open Public Meetings Act (OPRA) so that public agencies would not have to comply with the statute’s seven-day deadline during the pandemic. As a result, many requestors have found their OPRA requests stalled for weeks or months with no response. Given that Governor Murphy will likely continue to extend the Public Health Emergency declarations for quite some time, requestors can expect access to be slow for many more months.

Another major transparency hurdle in 2020 was the Emergency Health Powers Act. The 2005 law is designed to give the Governor vast powers during a public health crisis, but it also contains an expansive exemption that sates: “Any correspondence, records, reports and medical information made, maintained, received or filed pursuant to this act shall not be considered a public or government record under [OPRA].” N.J.S.A. 26:13-26. Several media outlets reported that the State was using the exemption to keep important information from the public, such as records about which medical facilities lacked protective gear or information about hospital capacity and supplies at nursing homes.

Police Use of Force Records

Access to police use of force records continues to be a challenge, despite the Supreme Court’s landmark 2017 decision in North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that such records should be accessible to the public.

In January, the Appellate Division granted our client’s appeal in Rivera v. Township of Bloomfield and held that police body-worn camera videos are subject to OPRA. The video at issue recorded police shooting and killing a man in Bloomfield in August 2017.

In February, the Appellate Division granted our client’s appeal in Digital First Media v. Ewing Township, 462 N.J. Super. 389 (App. Div. 2020). In that case, The Trentonian newspaper sought a copy of a Use of Force Report (UFR) that related to force that Ewing police officers used against a teenager. Although the trial court held that the UFR could not be released due to a statute that exempts records relating to juveniles charged as delinquent, the Appellate Division granted our appeal and ruled that the UFR must be released with the juvenile’s name redacted. Ewing Township was also required to pay the newspaper’s legal fees.

In October, we published a blog detailing how the State rarely complies with Attorney General Law Enforcement Directive 2019-4, which requires disclosure of videos of police deadly force incidents within 20 days. Per our count, only one video had been released within the 20-day deadline all year.

Transparency in Police Discipline

In 2020, there were some positive advances in transparency regarding police discipline on a policy level, but also a mixed bag when it came to judicial opinions on this issue.

In Libertarians for Transparent Government v. New Jersey State Police, the requestor sought the name of a state trooper who was “required to separate from employment” for “engaging in racially offensive behavior.” Although both lower courts denied access to the name, the Supreme Court granted certification and was set to review the case. In mid-June, the Attorney General’s office reversed course, granted access to the name, paid the requestor’s legal fees, and issued Law Enforcement Directives 2020-5 and 2020-6. The Directives require disclosure of the names of officers who receive “major discipline,” information that had never been disclosed before.

Shortly after the Directives were issued, several police unions filed challenges and argued that the Attorney General lacked the authority to compel such disclosures. In October 2020, the Appellate Division upheld the Directives. Shortly thereafter, the Supreme Court granted certification and oral argument is set for March 2021. In the interim, the Directives are stayed and no disclosures have been made.

In mid-June, the Appellate Division reversed a trial court decision that had compelled access to internal affairs reports relating to the former Police Director of the City of Elizabeth Police Department who had resigned after it came to light that he used “racist and misogynistic slurs.” The Appellate Division concluded that internal affairs reports are confidential pursuant to the Attorney General’s Internal Affairs Policy and cannot be released even pursuant to the common law right of access. A petition for certification is pending.

In late June, a bill was introduced in the Senate to make all police disciplinary records subject to OPRA, including police internal affairs files. Although Senate Bill No. 2656 has not yet been heard in a committee, more than 100 organizations have endorsed it. New Jersey is one of only 21 states that treat all internal affairs records confidential.

During a July 15th public hearing before the Senate Law and Public Safety Committee, Attorney General Gurbir S. Grewal seemed to embrace greater transparency in internal affairs investigations, stating: “[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.”

In early December, the Attorney General released the internal affairs files of Philip Seidle, a former Neptune police officer who shot and killed his wife in 2015. The Asbury Park Press had been fighting in court to gain access to the files for several years. Its case remains pending as to whether the newspaper is entitled to legal fees and whether such files are subject to access under OPRA.

Other Significant Transparency Decisions

There were a few OPRA decisions by the Appellate Division this year, at least two of which will be reviewed by the Supreme Court next year.

In February, the Appellate Division ruled in Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), that there was no privacy interest that precluded a commercial requestor from obtaining a list of dog license holders so that he could send them solicitations for his electric fence installation service. The Supreme Court granted certification in a separate case that reached the same conclusion, Bozzi v. City of Jersey City, and the case is pending.

In June, the Appellate Division held in Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020), that complaints and summonses are not “government records” that are subject to OPRA because the judiciary (which is not subject to OPRA) is the custodian of records and not the police departments who enter them into the judiciary’s computer system. The Supreme Court granted certification and the case is pending.

In September, the Appellate Division issued a disappointing opinion in Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020). In that case, our client learned that a county corrections officer had faced disciplinary charges for “engaging in sex” with two inmates and bringing them contraband, but that because the officer agreed to cooperate with an investigation he was allowed to retire in good standing with a pension pursuant to a separation agreement. In response to an OPRA request our client filed, Cumberland County stated that the officer was “terminated” and it denied access to the agreement. The trial court ruled that the County violated OPRA by falsely stating the officer was terminated when he was really permitted to retire in good standing and it compelled access to the agreement. Unfortunately, the Appellate Division reversed. Although it agreed that the County had not been truthful about the officer’s reason for separation, it found that the agreement was exempt under OPRA’s personnel record exemption. It remanded the case back to the trial court to determine whether access should be granted under the common law, but the case is currently stayed while a petition for certification is pending in the Supreme Court.

In December 2020, John Paff reported that Cumberland County settled a lawsuit relating to the same officer for $150,000, in which a woman inmate had alleged that he and other corrections officers had sexually abused her.

The danger of the Libertarians decision is that it will permit public agencies to enter into agreements with employees and keep the details of those agreements a secret. This deprives the public of the ability to determine whether the agreement was reasonable and advanced the public’s interests. It will also likely allow the exchange of money without any public oversight whatsoever, something that is highly problematic.

In November, Governor Murphy signed A-1649 into law. Commonly known as “Daniel’s Law,” it exempts the addresses of current and former judges, prosecutors, and law enforcement officers from OPRA. It is unclear how public agencies will be able to comply with this law since there is no central list of such addresses to cross reference.

For more information about this blog or questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.

Motion for reconsideration filed in case involving sustained allegations of “racist and misogynistic slurs”

We recently blogged about Rivera v. Union County Prosecutor’s Office, where the trial court granted access to the internal affairs reports of the former Police Director of the City of Elizabeth Police Department, who was the subject of an internal affairs investigation that concluded that he used “racist and misogynistic slurs” in the workplace. As an update, the Appellate Division reversed that decision and concluded that the records were not subject to OPRA on June 19, 2020.

Unfortunately, the Appellate Division did not simply deny access under OPRA. It also concluded that the internal affairs reports were not accessible under the common law. Plaintiff has filed a motion for reconsideration, arguing that it was palpably incorrect for the Appellate Division to reach the issue of common law access because: 1) the trial court never reached the issue below; 2) the parties never briefed the issue before the Appellate Division; 3) the parties never addressed common law access at oral argument; and 4) no court ever reviewed the actual records in camera.

A copy of the motion for reconsideration brief is here.

For questions about this blog or OPRA in general, please contact CJ Griffin at cgriffin@pashmanstein.com or 201-488-8200.

 

State releases name of trooper who engaged in “racially offensive behavior;” Modifies Internal Affairs Policy

In 2017, CJ Griffin of Pashman Stein Walder Hayden filed an OPRA lawsuit against the New Jersey State Police on behalf of Libertarians for Transparent Government, seeking the identity of a state trooper who had been “required to separate from employment” for “engaging in racially offensive behavior.” The trial court dismissed the lawsuit and the Appellate Division affirmed that dismissal, but the New Jersey Supreme Court agreed to hear the case. The appeal is pending.

Today, the State released the name of the trooper.

Additionally, the Attorney General revised the Attorney General Internal Affairs Policy and Procedures so that every police department in the state must start disclosing the names of police officers who commit serious disciplinary violations. Beginning August 31, 2020, police departments must disclose the names of officers who are sanctioned by termination, reduction in rank or grade, and/or a suspension of greater than five days. The State will release the names of officers who received major discipline over the past 20 years.

“This is a victory not only for my client, but also the public,” said CJ Griffin, a partner at Pashman Stein Walder Hayden. “However, we hope this is just the first step and that full transparency will follow soon. The reality is that most internal affairs investigations do not result in major discipline, so New Jersey’s internal affairs functions will still largely remain a complete and total secret. Plus, there are too many loopholes with this policy–agencies can avoid disclosure by simply imposing 4-day suspensions or permitting an officer to resign instead of terminating them.”

“It’s great that we’ll now know the names of police officers who receive major sanctions, but what about all the hundreds of complaints every year that are not sustained? We need full access to actual internal affairs investigation files so that we can ensure that the investigations were conducted correctly and fairly and that bad behavior wasn’t swept under the rug. We shouldn’t have to just put blind faith in our police that internal affairs investigations are thorough and accurate — transparency lets us hold internal affairs units accountable. Transparency builds trust and community trust benefits police departments.”

Today’s policy change by the Attorney General came not long after the Star Ledger published an editorial demanding that internal affairs records be open for public inspection. More than a dozen other states have open internal affairs records, including places such as Florida and Colorado.

 

 

Judge Rules IA Report of Former Police Director Who Used “Racist and Misogynistic Slurs” is Subject to OPRA; City & Prosecutor’s Office Appeal

Readers may recall from numerous news articles that in April 2019, the Union County Prosecutor’s Office (UCPO) concluded that former City of Elizabeth Police Director James Cosgrove used “racist and misogynistic” language in the workplace. The Attorney General issued a press release confirming the internal affairs investigation’s findings, calling on Cosgrove to resign, and making leadership changes at UCPO.

After UCPO denied an OPRA request for Cosgrove’s internal affairs reports, CJ Griffin filed a lawsuit on behalf of Plaintiff Richard Rivera seeking access to the reports pursuant to OPRA and the common law right of access. See Richard Rivera v. Union County Prosecutor’s Office, Docket No. UNN-L-2954-19. Mr. Rivera is Co-Chair of the Latino Leadership Alliance of New Jersey’s Civil Rights Protection Project, a former municipal police officer, and a well-known civil rights advocate.

The City of Elizabeth intervened in the suit and vigorously defended UCPO’s denial of access alongside UCPO.

In February 2020, the Hon. James Hely, J.S.C. of the Superior Court, Union County, held that Cosgrove’s internal affairs reports were subject to access under OPRA. Judge Hely issued an order compelling the UCPO to produce the reports for in camera review so that the identities of witnesses and complainants could be protected by redaction.

Elizabeth and UCPO moved for reconsideration and a stay of the order. In an opinion denying those motions, Judge Hely wrote in part:

At the dawn of the 20th century, WEB Dubois declared “the problem of the 20th century is the problem of the color line.” The Souls of Black Folks (1903).

We are now 20 years into the 21st century and racial hostility, animus, and discrimination remain a reality in these United States. Indeed, it is often an undercurrent [in] political rhetoric at the national and local level to this very day.
. . .

It seems to be the defense position that since action was taken as a result of their investigation, the public should not see the truth. Many political leaders and members of the public contend that racism and sexism are relics of the past. It is obvious from what [is] already known about the internal investigation that such denials are fantasy.

. . .

. . . I do not find that greater harm will result if I do not grant the stay. Quite the opposite. The public deserves to know the level of overt racism and/or sexism that was uncovered about the highest official or officials of the Elizabeth Police Department. To allow this matter to be further swept under the rug of public scrutiny would be to foster the illusion that racism and sexism are behind us.

UCPO and the City of Elizabeth have appealed the order, arguing that the public should not have access to the reports. The Appellate Division agreed to hear the appeal on an interlocutory basis and the case is currently pending. Oral argument was in May.

For more information about this post or OPRA in general, contact CJ Griffin at cgriffin@pashmanstein.com or 551-208-1283.

 

NJ Supreme Court grants certification in OPRA case regarding identity of State Trooper who engaged in “racially offensive” behavior

The New Jersey Supreme Court has granted an OPRA requestor’s Petition for Certification and agreed to hear an appeal in Libertarians for Transparent Government v. New Jersey State Police.

The question the Court certified is:

“Does section ten of the Open Public Records Act, N.J.S.A. 47:1A-10, require disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

For background, N.J.S.A. 47:1A-10 states that personnel records are generally exempt under OPRA, but provides three exceptions to the exemption. At issue in this case is the first exception, which states that:

an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record”

Each year, the Office of Professional Standards of the New Jersey State Police issues a public report detailing major discipline that is imposed upon State Troopers.  The 2015 report disclosed the following:

Member pled guilty to acting in an unofficial capacity to the discredit of the Division while off-duty by having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures. The member was required to forfeit all accrued time and separate from employment with the Division.

Upon reviewing that report, the requestor filed an OPRA request asking for the Trooper’s name, title, date of separation and the reason therefor, pursuant to N.J.S.A. 47:1A-10. The State Police denied the request, arguing that it was exempt pursuant to N.J.S.A. 47:1A-10 and the Attorney General’s Internal Affairs Policies & Procedures.

Pashman Stein Walder Hayden partner CJ Griffin sued on behalf of the requestor and argued that “date of separation and the reason therefor” meant that the public is entitled to know the real reason a particular employee separated from employment. In this case, the State Police gave the reason, but would not provide the name or date of separation, frustrating the statute’s purpose. Clearly, the public has a significant interest in knowing the identity of a Trooper who engaged in “racially offensive behavior.” Moreover, the the phrase “required to . . . separate from employment” makes it unclear whether the Trooper was fired or whether he or she was permitted to retire in good standing and move on to another law enforcement position.

Griffin argued that disclosure of the Trooper’s name was required pursuant to the New Jersey Supreme Court’s decision in South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), a unanimous opinion written by retired Supreme Court Justice Gary S. Stein. In that case, it was widely rumored that the agency’s executive director was under scrutiny for misusing government credit cards.  The agency met in executive session and discussed its investigation into the matter, then worked out an agreement by which the executive director would “resign in good standing” and receive payment of his salary and fringe benefits for nearly a year after his “resignation.” OPRA did not exist at the time, but Executive Order No. 11 (EO 11) contained language essentially identical to N.J.S.A. 47:1A-10 and required disclosure of an employee’s “date of separation from government service and the reason therefor.”  Applying that provision of EO 11, the Court found it was insufficient for the agency to simply tell the public that there was a “resignation” or “voluntary separation,” but rather that it must disclose “the results of the [agency’s] investigation.”  The Court recognized that disclosure of such information was necessary so that the public could intelligently make an evaluation of whether the agency acted reasonably in permitting the executive director to resign in good standing with several months of salary and benefits.

Unfortunately, in this case, the trial court and Appellate Division both affirmed the State Police’s denial of access. Neither court addressed the New Jersey Supreme Court’s decision in South Jersey Publishing. The Supreme Court will now hear the requestor’s appeal.

The successful Petition for Certification can be found here. Amicus curiae briefs are due on December 26, 2019.

Third Circuit Issues Important OPRA Decision on Legal Fees

According to N.J.S.A. 47:1A-6, a records requestor who prevails in any proceeding shall be entitled to an award of reasonable attorneys’ fees. We have written about OPRA’s fee-shifting provision before, noting that without the fee-shift most requestors would not have the funds to challenge denials of access. As a result, the state would be far less transparent.

On August 14, 2019, the United States Court of Appeals for the Third Circuit issued an important published opinion relating to OPRA’s mandatory fee-shifting provision.

The case, titled Golden v. New Jersey Institute for Technology, involved OPRA requests filed by Pulitzer Prize-winning journalist Daniel Golden, who was seeking records from NJIT to use as research for his book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” Many of the responsive records in NJIT’s files originated from the FBI and were purportedly subject to prohibitions on public dissemination.

The records custodian reached out to the FBI to determine how to respond to the request and the FBI directed NJIT to withhold most of the records “[i]n no uncertain terms.” NJIT thus denied the OPRA requests by claiming the records were exempt.  Golden sued.

After the lawsuit was filed and removed to federal court, the FBI reviewed the previously withheld records and NJIT produced thousands of pages of documents that it had formerly deemed to be exempt. Golden moved for attorney’s fees, arguing that he was a prevailing party because his lawsuit was the “catalyst” for NJIT’s release of records that were not exempt. The District Court denied the fee motion and was “persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.”

The Third Circuit disagreed and all but stated, “If a public agency permits a third party–even if it’s the FBI–to dictate its OPRA response, then that public agency will be on the hook for attorneys’ fees if it turns out that the denial of access was unlawful.” The court made it clear that it is the custodian who has the obligation “to parse the requested records, decide whether exemptions appl[y], and withhold documents pursuant to those exemptions” and that obligation cannot be outsourced to a third party outside the agency.

Importantly, the Third Circuit flatly rejected the argument that OPRA’s fee-shifting provision contains any “reasonableness” requirement. State courts have reached the same conclusion based on the plain language of OPRA, but public agencies still make this argument to trial courts.

This decision is important because there are often times where issues of first impression are litigated and the agency was operating under good faith when it denied a request, but nonetheless was wrong as a matter of law. In such situations, the OPRA requestor is still entitled to an award of attorneys’ fees. Indeed, OPRA contains a mandatory fee-shifting provision so that requestors can find competent counsel to litigate those types of cases.

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.”