Tag Archives: police and Opra

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.

Transparency a Focus at Legislature’s First Police Reform Hearing

On July 15, 2020, the Senate Law and Public Safety Committee held its first public hearing on police reform in New Jersey. The hearing was intended to be a discussion on policing issues in general and no particular legislative bill was before the committee, but police transparency was a frequent topic.

The hearing opened with live testimony from Attorney General Gurbir Grewal, who acknowledged that even after his recent decision to disclose the names of officers who receive major discipline, New Jersey still lags behind the rest of the nation when it comes to providing transparency over the police disciplinary process. Grewal testified:

We are one of a shrinking number of states where police disciplinary records remain shrouded in secrecy, virtually never seeing the light of day. In recent months, I have come to recognize that our policy isn’t just bad for public trust, it’s bad for public safety. And it’s time for our policy to change.

Although he did not embrace any particular bill, such as S-2656, a bill introduced by Senator Loretta Weinberg to make police internal affairs and disciplinary records subject to OPRA, it can be inferred from the Attorney General’s testimony that he may be inclined to support such a bill and believes it that full transparency is the right thing to do. The Attorney General testified:

“[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.”

The only way to be a national leader is to embrace full access to actual internal affairs files–all of them, even those that are not sustained. That is indeed what more than a dozen states do, as the Attorney General testified.

The police unions have have already obtained a stay of the Attorney General’s recent directive requiring disclosure of major discipline. Multiple police unions testified against transparency at the hearing. Therefore, the Attorney General’s testimony addressed the fact that legislative action was needed to make internal affairs records public.

The public was invited to submit written testimony in advance of the meeting. Attorney CJ Griffin submitted personal written testimony explaining why the Attorney General’s recent directive fails to provide real transparency and providing a helpful chart that compares New Jersey to other states on the issue of internal affairs access.  Griffin concluded by saying:

“Unfortunately, in New Jersey we are unable to proactively review IA investigation files to root out the complaints that were erroneously dismissed or expose the shoddy IA investigations. Instead, we have to wait until tragic situations occur for IA information to become public. At that point, the damage is already done.

I was not born and raised in New Jersey, so I feel a sense of pride and ownership in having chosen to make this state my home. In that regard, I have bragged to friends and fellow advocates about the areas of law where we lead the nation. But, in this area—police transparency—we are, as the Attorney General recognized, at the “back of the pack.” We must not only catch up to most other states; we must lead.

 

You can read Griffin’s full submission here.

Griffin also recently submitted an amicus curiae brief on behalf of two non-profit law enforcement organizations, opposing the police unions’ lawsuits to stop the Attorney General’s directives to disclose the names of officers who receive major discipline. You can read about that brief here. The Appellate Division will hear oral arguments in mid-September.

An archived recording of the hearing can be viewed on the Legislature’s website. Additional police reform hearings will be held.

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.

Pashman Stein Secures OPRA Win in Police Shooting Case

Recently, Pashman Stein secured a victory in the case North Jersey Media Group v. Township of Lyndhurst, et al.  Below are links to media covering this important decision, in which the Hon. Peter E. Doyne, A.J.S.C., ruled that the Defendant public agencies violated OPRA and compelled the Defendants to produce records relating to the police shooting of a man in Lyndhurst in September 2014.

http://www.nj.com/bergen/index.ssf/2015/01/judge_orders_release_of_records_in_fatal_bergen_co.html

http://www.northjersey.com/opinion/opinion-editorials/access-to-public-records-1.1194621 

http://www.northjersey.com/news/judge-rules-police-must-avoid-delays-in-public-records-requests-1.1192002