Tag Archives: Police records

AG Issues New Police Shooting Video Directive

Last week, Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-1, which provides instructions to law enforcement agencies in this State regarding public access to dash camera and body camera footage of police-involved shootings.  We find that there are both pros and cons to this new directive.

On one hand, we are very happy to see that the new Attorney General clearly understands that transparency advances public trust in law enforcement. The overall spirit of this directive is positive and it recognizes that law enforcement do not need permanent confidentiality over their records–the directive requires disclosure of police shooting videos within 20 days, in most cases. The presumption of access is important and we hope that agencies will follow the directive and will not seek constant extensions of time to release these videos.

On the other hand, the new directive does not give the public any more access than already existed pursuant to the Supreme Court’s decision in North Jersey Media Group v. Township of Lyndhurst. If anything, the new directive may make access to police shooting videos slower, as the Lyndhurst decision held that access must be granted “within a few days” and the new directive sets a timeline of 20 days.  We fear that  requestors will now need to wait for 20 days after an incident to file an OPRA request, then wait an additional 7 business days to gain access to the video. This is much slower than what we have experienced the past several months since the Lyndhurst decision was issued.

We are also disappointed that the directive only applies to videos which depict the use of deadly force or where other force results in “serious bodily injury.”  We think that the spirit of the Lyndhurst decision makes it clear that most police videos should be released relatively soon after an incident occurs, but the new directive applies Lyndhurst very narrowly and the public will still struggle to gain access to police video which shows other types of misconduct or more minimal uses of force.  For example, we think that if a police officer uses a racial slur toward a suspect while arresting them, the public should be able to see the video.  The new directive, however, would not require disclosure unless the suspect was seriously injured.  This is problematic.

News Coverage:
PSWH Partner CJ Griffin was quoted in NJ Advance Media’s article on the new directive.


For assistance with OPRA matters, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.


How to Monitor Police Agencies: Part 3

In this third part of our series about using OPRA to monitor police agencies, we will discuss how to ensure that individual officers meet the qualifications for their duty assignments and are properly trained.

Generally, personnel records are exempt from access under OPRA. However, we previously blogged about the personnel records exemption and explained that there are three exceptions. The third exception provides that the following records are accessible:

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

[N.J.S.A. 47:1A-10.]

This means that you are able to obtain any records which prove that an employee meets the requirements of the job.

For police officers, this means that you can obtain training certificates for courses that they are required to take in order to take in order to be police officers. Among the required courses that every police officer in New Jersey must complete include:

  • basic police academy training
  • annual firearms requalification training
  • use of force training
  • vehicular pursuit training
  • domestic violence training
  • cultural diversity training
  • bias intimidation crimes training

Other courses may be necessary in order for a police officer to be promoted or to hold a specific duty assignment. Some of these courses include:

  • Breathalyzer training courses and recertification for those who operate breathalyzers
  • 911 dispatcher and call-taker training and recertification for those who work in 911 call centers
  • K-9 training for those who work with canine partners

Any of these records can be requested and will help the public ensure that officers are properly trained and qualified for the positions that they hold.

Sample OPRA requests:
“Pursuant to OPRA and the common law, I seek the Officer Jones’ use of force training certificates for years 2015-2017.”
“Pursuant to OPRA and the common law, I seek the annual firearms recertification certificates for all of the police officers in your police department for the year 2017.”

How to Monitor Police Agencies: Part 2

We recently blogged about how you can use OPRA to gain access to records which shine light on the use of force by police officers. This blog discusses other types of police records that will help you monitor your local police department.

Internal Affairs Annual Summary Reports:

The Attorney General’s Internal Affairs Policy requires law enforcement agencies to release an annual summary report to the public which “summarizes the types of [internal affairs] complaints received and the dispositions of those complaints.” This report, usually in the form of a chart, will help you monitor the types of complaints that are being lodged against officers.

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek your police department’s Internal Affairs Annual Summary Report for 2016.”

Internal Affairs Public Synopsis of Disciplinary Action:

Requirement 10 of the Attorney General’s Internal Affairs Policy also requires law enforcement agencies to periodically disclose to the public “a brief synopsis of all complaints where a fine or suspension of ten days or more was assessed to an agency member.” While the report will not identify the officer by name, it should briefly outline the nature of the transgression and the fine or sentence that was imposed. This permits the public to see details of more serious internal affairs allegations that were sustained and will highlight an agency’s most egregious problems.

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek your agency’s Public Synopsis of Disciplinary Actions for years 2014 to 2017. This report is required pursuant to Requirement 10 of the Attorney General’s Internal Affairs Police.”

Vehicle Pursuit Reports:

Vehicle pursuits not only put the suspect and police officers at risk, but also other people who happen to be in their way. Every year there are reports where innocent bystanders are injured or killed when a vehicle slams into theirs during the course of a police pursuit.

There are two reports which will help you monitor vehicle pursuits. First, pursuant to the Attorney General’s Police Vehicular Pursuit Policy an officer must complete a “Police Pursuit Incident Report” for every pursuit. If you read about a pursuit in the newspaper, you can request this report to find out more details about who was involved in the incident.

Second, the Attorney General’s policy requires every municipal police agency to submit an annual agency “Vehicular Pursuit Summary Report” to the county prosecutor, which will detail the total number of pursuits and other useful information. You can compare these reports to other towns or look to see if any particular officer engages in pursuits more frequently.

A sample of both reports can be found here:

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek a copy of the Police Pursuit Incident Report for the vehicle chase that occurred last night near Exit 151 on the Garden State Parkway and the police department’s Vehicular Pursuit Summary Report for 2016.”

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.