Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
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Saturday, December 22, 2012


« Citation



DOCKET NO. A-3797-11T4
September 25, 2012

Argued September 12, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, Docket No. L-141-12.

Donald M. Doherty, Jr., argued the cause for appellant.

John Scott Abbott argued the cause for respondents.


Plaintiff Frank Alfano, Jr. made a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), for police reports generated in connection with an incident involving a bicyclist falling from the Margate Bridge. Defendant Margate City denied the request and plaintiff instituted an action to secure the production of the records sought. After oral argument on the return date of an order to show cause, the trial judge dismissed the complaint. We reverse and remand for further proceedings consistent with this opinion.
The relevant facts are not in dispute. On November 18, 2011, a newspaper reported that a bicyclist had "tumbled over the railing on the Margate Bridge." The bicyclist fell onto the roof of a building and was injured.
On November 21, 2011, plaintiff filed an OPRA request for all police and fire department reports generated by Margate City concerning this incident. The Margate Fire Department complied with this request and provided plaintiff with a copy of a November 18, 2011 report. The report did not identify the bicyclist, but it did indicate that the Department had responded to a report that "a male had jumped off the bridge." The report further stated that, after the "male had jumped on the roof of a building under the bridge," he was "subdued by police and handcuffed."
The Margate Police Department denied plaintiff's request for a report it had prepared concerning this incident. Upon the advice of the county prosecutor's office, it advised plaintiff that the report he sought was exempt from disclosure because it was a "criminal investigatory record" not accessible under OPRA. Plaintiff thereafter filed a complaint and order to show cause against Margate City, the Chief of Police and the City's custodian of records, alleging violations under OPRA.
After oral argument on the order to show cause, the trial judge entered an order supported by a written opinion dismissing plaintiff's complaint with prejudice. The judge reviewed the police department's report in camera. He stated that
[a] review of the records sought reveals that this investigation involves a suicide attempt. The male attempted to jump off the Margate Bridge into the water, but instead landed on the roof of a small building by a piling. The report also reveals the man's name, certain comments he made, together with names of family members, friends and witnesses.

Because the Margate Police had "concluded its investigation with no charges being filed" against any party, the judge found that the report did not constitute a criminal investigatory record that is exempt from disclosure under OPRA.
However, the judge went on to find that the report could not be disclosed because to do so would violate the reasonable expectation of privacy of the bicyclist and the individuals interviewed by the police. The judge explained that
[w]hile the law has traditionally viewed suicide and attempted suicide as a crime, any enlightened person recognizes that such a traumatic event affects more people than the principal. The Court believes that when furnishing information to an investigating police officer, anyone close to the principal, and the principal as well, did so with a reasonable expectation of privacy that the information provided would be kept confidential.

In balancing plaintiff's interest in obtaining the report and the right to privacy of the affected individuals, the judge primarily focused on
the potential harm from nonconsensual disclosure. This matter involves a suicide attempt; the man involved and his family and friends were interviewed for the police report shortly thereafter. The potential impact of a suicide attempt on this gentleman and his family is huge: disclosure of same, especially in such a small community, could have severe adverse effects on the man and his family.

Based upon these considerations, the judge found that plaintiff was not entitled to the police report because disclosure would violate the privacy expectations of the individuals referred to in the report.
In so ruling, the judge rejected plaintiff's offer, proffered for the first time during oral argument, to accept a redacted copy of the report with the names of all of the individuals and "the salacious details" of the incident redacted. While not addressed in his written opinion, at oral argument, the judge advised plaintiff's counsel that "I could give you a very heavily redacted copy here, but I don't know what value it'd be to you at all."
On appeal, plaintiff argues that the trial judge erred in dismissing his OPRA claim by refusing to provide him with a redacted copy of the police report with all of the parties' names and identifying information redacted. He requests that we reverse the order and remand the matter to the trial court to redact the report and to address his request for counsel fees.
The trial judge's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review on appeal.O'Shea v. Twp. of West Milford, 410 N.J. Super. 371, 379 (App. Div. 2009).
The purpose of OPRA "'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp.183 N.J. 519, 535 (2005)(quoting Asbury Park Press v. Ocean County Prosecutor's Office374 N.J. Super. 312, 329 (Law Div. 2004)). In furtherance of that purpose, the Legislature has declared that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.
OPRA defines "[g]overnment record" broadly as
any paper, . . . document, . . . data [] or image processed document, information stored or maintained electronically . . . or any copy thereof, that has been made, maintained or kept on file in the course of his or her official business by any officer, . . . agency . . . of the State or of any political subdivision thereof.

[N.J.S.A. 47:1A-1.1.]

That same statute, however, contains exemptions from the definition of government record. One of these exemptions is for a "criminal investigatory record," which is defined as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." Ibid.
We have reviewed the disputed police report and we agree with the trial judge that it is not exempt from disclosure as a "criminal investigatory record." There is nothing in the record to support a finding that the police were actively investigating a crime or attempted crime when the report was prepared. No criminal charges were ever filed after the report was prepared. The report, therefore, is similar to an incident report that is regularly maintained on file, and provided to the public, by police departments.
We also agree with the trial judge that the bicyclist who was the subject of the report, and the individuals who spoke to the police, had a reasonable expectation of privacy concerning the subject matter of the report. Indeed, plaintiff conceded as much by seeking a redacted copy of the report with all personal identifying information deleted.
Under OPRA, "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1. Our Supreme Court has recognized that, when privacy interests are implicated, in order to balance the competing interests of OPRA - the public's right to access and a public agency's duty to safeguard from public access a person's private information - the following seven factors should be applied:
(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Burnett v. Cnty. of Bergen198 N.J. 408, 427-28 (2009) (citing Doe v. Poritz142 N.J. 1, 88 (1995)).]

The trial judge correctly applied these factors in concluding that disclosure of the bicyclist's identity could have severe consequences for him and his family because of the "traumatic event" that was the subject of the report. The disclosure of the names of bicyclist's family members would also serve to reveal his identity. Thus, we believe that the judge correctly held that there was "no overarching need for a citizen to obtain this individual and his family's names."
Where we part company with the trial judge, however, is with his decision to bar access to the entire report rather than provide plaintiff with a redacted copy that would have deleted all personal identifying information. While plaintiff originally sought the entire report, he eventually agreed to accept a redacted version with all names and information that might identify the bicyclist deleted.
We disagree with the judge's conclusion that plaintiff could not be given a redacted report. While finding that the report raised privacy concerns, the judge nevertheless advised plaintiff, on the record and in his written opinion, that the report concerned a suicide attempt and the judge went on to describe some of the information in the report. Thus, the judge implicitly recognized, and we hold, that there was information in the report that could be publicly disclosed without adversely affecting the privacy rights of any person.
In the face of the statutory requirements that "government records shall be readily accessible [,]" N.J.S.A. 47:1A-1, and that "any limitations on the right of access . . . shall be construed in favor of the public's right of access[,]" ibid., plaintiff should have been provided with a copy of the report with the names of the individuals, together with any personal information that could be used to identify them, redacted. Accordingly, we reverse the order dismissing plaintiff's complaint and remand for the trial court to redact the report to remove this identifying information. On remand, the court shall also address plaintiff's request for counsel fees. We do not retain jurisdiction.
Reversed and remanded.