Category Archives: OPRA Cases

Lawsuit Challenges Essex County Prosecutor’s Refusal to Disclose Police Videos and Name of Newark Officer Who Fatally Shot Fleeing Motorist


Last week, CJ Griffin filed an OPRA lawsuit on behalf of Richard Rivera against the Essex County Prosecutor’s Office (ECPO) relating to its refusal to disclose the name of a Newark police officer who shot at a fleeing vehicle during a pursuit in January 2019, killing the driver and injuring the passenger. The lawsuit also seeks access to footage from police body-worn cameras and dash cameras.

ECPO denied the request because it is “concerned” that the officer may refuse to testify before the grand jury if his or her name is publicly disclosed. Mr. Rivera’s lawsuit argues that this is not a lawful basis for denying access to the information and videos and that transparency is important when police-involved shootings occur.

In 2017, we won an appeal in the New Jersey Supreme Court on a similar issue in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017). In Lyndhurst, the Supreme Court ruled that the public was entitled to learn the identities of the police officers involved in fatal shootings and see videos of those incidents “shortly after the incident,” after investigators “have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.” The Court stated that disclosure should ordinarily occur “within days of an incident, well before a grand jury presentation or possible trial.” In coming to such conclusions, the Court stated that the public has a significant interest in knowing the details about police-involved shootings and that non-disclosure of such information can undermine confidence in law enforcement.

As we previously wrote, in February 2018, the Attorney General issued Law Enforcement Directive 2018-1 to codify the Supreme Court’s decision.  The Directive states that videos of police-involved shootings should be released when the “initial investigation” is “substantially complete,” which means that the principal witnesses have been interviewed and the evidence has been gathered. This should “typically will occur within 20 days of the incident itself.” Only in extraordinary circumstances could a video be withheld longer than 20 days.

In this case, the police-involved shooting occurred on January 28, 2019 and ECPO still refuses to release the officer’s identity or the police videos more than three months later.

NJ Advance Media has written an article about the lawsuit, which provides more details about the underlying shooting incident. A hearing date has not yet been set by the court.

*Photo by Matt Popovich on Unsplash

Court: Carteret Mayor’s Facebook Page is Subject to OPRA

In September 2018, we filed a lawsuit on behalf of long-time client Steven Wronko seeking the list of users that Carteret Mayor Daniel J. Reiman has banned from his Facebook page.

Carteret opposed the lawsuit, arguing that Mayor Reiman’s Facebook page was simply a personal page and that he has constitutional right to ban members of the public and a privacy interest in keeping the ban list secret.

We responded and provided over 200 pages of screenshots from the Mayor’s Facebook page which showed that Mayor Reiman used his Facebook page to declare weather emergencies and keep the public informed during severe weather events; to talk about redevelopment projects happening in the Borough; and to discuss personnel issues, such as the suspension of a police officer. We also showed that residents frequently posted on the Page about issues they were having with government services and Mayor Reiman or “staff” would respond to those inquiries and try to resolve the issues. Our brief is available here.

On January 11, 2019, the Honorable Alberto Rivas, A.J.S.C., heard oral arguments and found that Mayor Reiman’s Facebook page is subject to OPRA because it is used to conduct the Mayor’s official business. He adopted the fact-sensitive analysis used by Judge Mizdol in Larkin v. Glen Rock, a similar case we won last year.

Judge Rivas ordered Carteret to produce the ban list and to pay Mr. Wronko’s legal fees. A copy of the Order is here.

 

2018 Year in Review

Happy New Year! 2018 was a very busy year for the OPRA team at Pashman Stein Walder Hayden.

Here’s a look back on some of the highlights…

 

CJ Griffin Interviewed for Marketplace Reports on NPR

CJ Griffin, a member of Pashman Stein Walder Hayden’s Media Law Group, was interviewed by Marketplace regarding a prior OPRA lawsuit she brought against the City of Newark seeking its Amazon HQ2 bid.

The public radio program, “What’s in Those Amazon HQ2 Bids? It’s Not Entirely Clear” by Renata Sago and Leila Goldstein, aired on Tuesday, November 6th.

“There’s hundreds of millions or billions of dollars, of tax dollars, at stake,” said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. “That’s taxpayer money. When you give tax breaks, that impacts other people, so the public has a right to know.”

To listen to the story, click here

For more background on the lawsuit, click here.

Lawsuit Seeks Settlement/Separation Agreement For Corrections Officer

NJ Advance Media has written about the recent lawsuit we filed on behalf of Libertarians for Transparent Government seeking a settlement/separation agreement between Cumberland County and a corrections officer who allegedly had inappropriate relationships with inmates. The lawsuit also asks the Court to find that Cumberland County violated OPRA when it told Plaintiff that the corrections officer was “terminated for disciplinary reasons,” when the Pension Board’s meeting minutes state that he was allowed to “retire in good standing.”

PSWH partner CJ Griffin is quoted in the article:

Attorney CJ Griffin, representing the plaintiff, argued that the county has provided a distorted view of Ellis’ case.

“By indicating that Ellis had been terminated for a disciplinary infraction, it leads the public to believe that Ellis paid a price for his admitted misconduct,” the suit states, “In reality, according to the pension board’s minutes, Cumberland County instead allowed him to ‘retire in good standing.'”

The South Jersey Times also published an editorial on the case, arguing that settlement agreements with employees should never be confidential.

For more information on the lawsuit and to review the pleadings, visit John Paff’s “NJ Open Government Notes” blog.

For questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.

 

 

Supreme Court Rules Dash Cams Pertaining to Criminal Investigations Are Not Subject to OPRA

This week, the New Jersey Supreme Court issued a split decision (4-3) in Paff v. Ocean County Prosecutor’s Office and once again ruled that dash camera videos that pertain to criminal investigations are not subject to the Open Public Records Act (OPRA).

While the decision is a serious disappointment to transparency advocates, it does not actually change the status quo. Last year, in North Jersey Media Group Inc. v. Township of Lyndhurst, a unanimous Supreme Court ruled that the dash cam video of a police-involved deadly shooting was not subject to OPRA because there was no Attorney General (AG) guideline or other law (statute, regulation, etc.) that required it to be made or maintained.[1]

The Court made it clear in Lyndhurst, however, that dash camera videos of police shootings should generally be released under the common law right of access within a few days of an incident. The AG subsequently issued a directive requiring their release within 20 days.

In Lyndhurst, the Court specifically said that it was not answering the question presented by Paff (which was pending on the Court’s docket): whether a directive by a local chief of police could satisfy the “required by law” standard, just as an AG directive does. Thus, the Paff case became a new opportunity for transparency advocates to convince the Court that dash camera videos are accessible under OPRA.

Unfortunately, the Court rejected that argument and thus the law remains the same: dash camera videos are only available under the common law right of access. But, it was a very close decision (4-3). Justice Albin wrote a biting dissent, which Justice LaVecchia and Justice Timpone joined, concluding that “[i]n the wake of today’s majority opinion, the operations of our government will be less transparent and our citizenry less informed, which may lead to greater misunderstanding and more distrust between the public and the police.”

We think Justice Albin’s assessment is right and we hope that the Legislature or the Attorney General will accept his invitation for action:

In accordance with Lyndhurst, the Attorney General or the Legislature can undo the damage caused by today’s decision. The Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained, as he did with Use of Force Reports.

The public — particularly marginalized communities — will have greater trust in the police when law enforcement activities are transparent.

The public pays for the dash cameras. Why can’t we see the videos?

What Videos are Still Available?

  • Dash Cam Videos Relating to Crimes: These are probably not available under OPRA in most circumstances, but generally should be available under the common law per Lyndhurst.
  • Dash Cam Videos of Police Using Deadly Force: Same. Also, AG Directive 2018-1 requires disclosure under the common law within 20 days if the video depicts a deadly shooting or an incident where police use force that results in “serious bodily injury.”
  • Dash Cam Videos of a DWI: A DWI is not a crime, so these should generally be available under OPRA.
  • Dash Cam Videos of Traffic Stops: These should generally be available, unless the traffic stop turns criminal.
  • Body Camera Videos: We think these should be subject to OPRA because an AG Guideline requires them to be maintained. At the same time, the AG Guideline attempts to exempt body cam videos relating to criminal investigations. We have this issue pending on appeal.
  • Security Camera Videos: The Supreme Court ruled in 2016 that security camera videos are not subject to OPRA, but access should be granted under the common law where a person states a sufficient interest in the video.

PSWH partner CJ Griffin submitted a brief on behalf of several amicus curiae and participated in the nearly three-hour oral argument. Griffin has litigated dozens of police records cases, including Lyndhurst.  Contact CJ at cgriffin@pashmanstein.com


[1] A criminal investigatory record is a record that is 1) held by a law enforcement agency; 2) pertain to any criminal investigation and 3) are “not required by law to be made, maintained, or kept on file.”

Amazon suit continues to get coverage

The New York Times has published an article about the serious lack of transparency regarding the proposals that cities have submitted bids to Amazon for their HQ2 Headquarters. Despite the fact that the taxpayers of the winning city will be on the hook for billions of dollars in incentives, too many cities are still keeping the public in the dark about what Amazon is being offered.

The article references our lawsuit, which secured access to the City of Newark’s bid, which we published.

Update: Court Orders Disclosure of Facebook “Blocked Users” Lists

We previously wrote about an OPRA lawsuit we filed on behalf of citizen seeking a list of users that various public officials from Glen Rock have blocked from their official Facebook accounts. Today we are happy to report that the suit was successful.

In Larkin v. Glen Rock, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that the lists of blocked users from each of the Facebook pages in questions were “government records” that are subject to access under OPRA. In her 23-page opinion, the judge noted that there is no “one-size-fit-all” approach to determine whether a particular Facebook account falls within OPRA’s scope. Rather, she applied a “fact-sensitive review” of the Facebook pages at issue to conclude that they were indeed subject to OPRA.  Among other things, the judge noted that:

  • The mayor and each council member’s Facebook pages “clearly identified them as elected members of the Glen Rock governing body”
  • Each page was “separate and distinct from their personal, friends and family Facebook pages”
  • Each page was used for “discussing matters directly pending before the Mayor and Council,” including topics such as “ordinances, resolutions, budgets, and committees on which the Mayor or council member serves.”
  • The posts on each page “shared ideas, answered questions and interacted with constituents and the public at large about the Borough’s official business”
  • The Borough’s website had linked to the Facebook pages
  • The officials encouraged the public to “like” the pages in order to get information about the Borough’s business

The court also rejected Glen Rock’s argument that those who were blocked by the public officials had a right to privacy.

 

Court Issues Jail Death Records Opinion

On June 4, 2018, the Appellate Division issued an unpublished OPRA opinion titled Benedetto v Russo and Union County. While the opinion is not binding on lower courts because it is unpublished, we think it is helpful in several ways.

First, the case involves very important records: incident reports regarding suicide and suspicious deaths within a County Correctional Facility. Given the widespread coverage regarding several deaths in the Hudson County Jail recently, it is important that the public has access to information about these deaths and the conditions inside the jail.

In this case, Union County argued that the incident reports regarding jail deaths could not be disclosed because N.J.A.C. 10A:31-6.10(a)(4) exempts “[a]ny information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation.”  Additionally, Union County argued that records relating to drug overdoses could not be disclosed pursuant to N.J.A.C. 10A:31-6.10(a)(3), which exempts a “record, which consists of any alcohol, drug or other substance abuse information, testing, assessment, evaluation, report, summary, history, recommendation or treatment.” Thus, Union County argued the incident reports were medical records and exempt pursuant to both of those regulations.

The trial court ruled that these exemptions did not apply. The Appellate Division affirmed, agreeing with the trial court that the requestor did not seek “inmate medical records,” but rather sought “incident reports.” This is an important ruling because public agencies frequently try to categorize a record as something it is not.

The second reason this case is important is because it reinforces the rule that public agencies cannot meet their burden of proving that a record is exempt simply by making factual assertions in legal briefs. Instead, public agencies must produce affidavits, certifications, or other “legally competent evidence” if it wishes to cite facts not in the record. Unsworn assertions by attorneys in a brief are simply not evidential.

Too often in an OPRA case, a public agency will produce no evidence whatsoever and will ask the trial court to accept what was argued in a brief or to make a ruling based on assumptions. This case confirmed that is not acceptable.

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

New Jersey Supreme Court Issues Important Ruling on OPRA’s Privacy Provision

CJ Griffin of Pashman Stein Walder Hayden Submitted Amicus Curiae
Brief on Behalf of Non-profit Organization
in Brennan v. Bergen County Prosecutor’s Office

Hackensack, NJ (May 23, 2018) – The Supreme Court of New Jersey has issued its opinion in Brennan v. Bergen County Prosecutor’s Office, in which Pashman Stein Walder Hayden partner CJ Griffin submitted an amicus curiae brief on behalf of Libertarians for Transparent Government, a non-profit organization. The Court’s decision today provides important guidance to lower courts on how to apply the Open Public Records Act’s privacy provision.

The case involved an OPRA request by an activist seeking the names and addresses of individuals who had purchased sports memorabilia from the Bergen County Prosecutor’s Office (“BCPO”) during a public auction. The auction received considerable news attention.

The trial court ruled that the names and addresses of the successful bidders were disclosable under OPRA, but the Appellate Division reversed. It found that the bidders had a reasonable expectation that their names and addresses would remain confidential. The Supreme Court reversed, finding that “the sale of government property at a public auction is a quintessential public event that calls for transparency.”

Griffin, who also participated in oral argument before the Supreme Court, argued that there is no reasonable expectation that your identity will remain private when you engage in financial transactions with the government and that home addresses are generally not entitled to any level of protection. According to Griffin, this case was just one example of how lower courts have over-applied OPRA’s privacy provision.

“Today’s decision is important not only because the requestor will be able to learn about who purchased government property, but also because the Supreme Court made it abundantly clear that OPRA’s privacy provision should be applied only in the unique cases where there is truly a legitimate privacy interest at stake,” said Griffin.

In 2009, the Supreme Court issued Burnett v. County of Bergen, its first opinion analyzing OPRA’s privacy provision. In Burnett, the Court was faced with a request that sought access to millions of records which contained names, addresses, and social security numbers. The Court held that where a citizen has a reasonable expectation of privacy, lower courts must apply a 7-factor balancing test that allows a requestor to gain access to records only if his or her interest outweighs the privacy interest. According to Griffin, Burnett has been over-applied to instances where there is no reasonable expectation of privacy. Today’s decision should correct that practice; the Court held that courts should apply the Burnett factors “only where a party first presents a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.”

“The lower courts have been applying the Burnett balancing test any time an agency claims privacy as a defense, no matter how frivolous the privacy claim is. This practice has engrafted an interest requirement into OPRA where one should not exist,” said Griffin. “Today’s decision is exactly what we wanted from the Court and will hopefully cause lower courts to restrain from applying a balancing test where one is unnecessary.”

Today’s decision also makes it clear that there is generally no privacy interest in a home address. The lower courts have been split on this issue, with some appellate panels ruling that home addresses are exempt and others ruling that home addresses are accessible. The Government Records Council, an administrative agency tasked with adjudicating denials of access, has generally found that home addresses are exempt.

“Public access to home addresses is important,” said Griffin. “For example, New Jersey has residency requirements for government employees and public officials. If home addresses are redacted from records, the public cannot verify that these residency requirements are actually satisfied.”

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

About Pashman Stein Walder Hayden

Pashman Stein Walder Hayden is a full-service mid-size business law firm offering a wide range of corporate and personal legal services. Headquartered in Hackensack, New Jersey with an office in Red Bank, New Jersey, the firm serves a diverse client base including regional Fortune 500 companies, emerging growth entities, and individuals, as well as out-of-state corporate counsel, law firms and individuals with interests in the New York metropolitan region. For more information, please visit www.pashmanstein.com. The firm also publishes an OPRA blog at www.njopra.com.