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Saturday, July 29, 2017

Dash-cam footage is public in most cases North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15)

Dash-cam footage is public in most cases
North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15) (076184) Argued November 9, 2016 -- Decided July 11, 2017
RABNER, C.J., writing for the Court.
This appeal explores the scope of the Open Public Records Act (OPRA)’s exemptions for criminal investigatory records and records of investigations in progress, as well as the common law right of access.
On September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car. The police tried to stop the suspect’s car, but the driver—later identified as Kashad Ashford—eluded them and led police on a high-speed chase. At one point, Ashford tried to ram a patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass. According to the Attorney General’s press release, Ashford tried to get free of the barrier by accelerating, which caused the car to “jerk[] in a rear and forward motion.” An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers—as well as others—fired at Ashford, who was pronounced dead hours later.
Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The records custodians gave varied responses. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause. At the time, NJMG owned The Record and the South Bergenite. The two-count complaint alleged violations of OPRA and the common law right of access. NJMG sought release of the requested records, or their review in camera, along with fees and costs.
On January 12, 2015, the Honorable Peter E. Doyne, A.J.S.C., found that defendants had improperly withheld the requested records. In a detailed written opinion, he concluded that neither OPRA’s criminal investigatory records exception nor its ongoing investigation exception applied. The court directed defendants to release unredacted copies of records within three days in response to NJMG’s OPRA requests.
The Appellate Division reversed the order of disclosure and remanded for reconsideration. 441 N.J. Super. 70, 118-19 (App. Div. 2015). The panel concluded that, aside from the 9-1-1 recording, motor vehicle accident reports, and portions of Computer Aided Dispatch reports and other logs that do not relate to the criminal investigations, the requested documents fell within the criminal investigatory records exception. The Appellate Division remanded to the trial court to reconsider NJMG’s request under N.J.S.A. 47:1A-3(a) and the common law.
On remand, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that defendants were not required to release the names of the officers or disclose two remaining Use of Force Reports (UFRs), three dash-cam videos, and three police reports. The court relied heavily on the need to maintain the integrity of the ongoing investigation.
The Court granted defendants’ motion for leave to appeal, 223 N.J. 553 (2015), and relaxed the Court Rules to consider the judgment entered on remand.
HELD: NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law. Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.
1. Under OPRA, N.J.S.A. 47:1A-1 to -13, “government records” are subject to disclosure unless a public agency can demonstrate that an exemption applies. This appeal involves two specific exemptions. A record need only satisfy one exception to be exempt from disclosure.   
2. To qualify for OPRA’s criminal investigatory records exception—and be exempt from disclosure—a record (1) must not be “required by law to be made,” and (2) must “pertain[] to a criminal investigation.” N.J.S.A. 47:1A-1.1. The Attorney General’s Use of Force Policy requires that “[in all instances when physical, mechanical, or deadly force is used, each officer who has employed such force shall complete” a “Use of Force Report.” The Court agrees that the Policy has “the force of law for police entities.” O’Shea v. Township of West Milford, 410 N.J. Super. 371, 382 (App. Div. 2009). And because Use of Force Reports are “required by law to be made,” they cannot be exempt from disclosure under OPRA’s criminal investigatory records exemption.  
3. No one has pointed to an Attorney General directive relating to the use of dash-cams. NJMG points to general retention schedules to implement the Destruction of Public Records Law and contends they satisfy the “required by law” standard. If that were the case, the Right to Know Law’s narrow definition of public records would have been anything but narrow. And because many records that pertain to criminal investigations must be retained, the criminal investigatory records exception would have little meaning. The Court is unable to conclude that the Legislature intended those results. To be exempt from disclosure, a record must also “pertain[] to any criminal investigation.” N.J.S.A. 47:1A-1.1. Here, the actions of the police all pertained to an investigation into actual or potential violations of criminal law. The recordings also pertained to the Shooting Response Team investigation into Ashford’s fatal shooting. The records fall within the criminal investigatory records exception.   
4. N.J.S.A. 47:1A-3(b) requires the release of “information as to the identity of the investigating and arresting personnel.” The certification of Paul Morris, Chief of Detectives of the Division of Criminal Justice, focuses on why defendants need not identify by name the officers who discharged their weapons. The carefully detailed reasons apply to nearly all cases in which an officer uses deadly force. Although section 3(b) does not require the State to demonstrate an actual threat against an officer, generic reasons alone cannot satisfy the statutory test. OPRA requires the State to show that disclosure of the identity of an officer “will jeopardize the safety of any person . . . or any investigation in progress” or “would be harmful to a bona fide law enforcement purpose or the public safety.” Ibid. OPRA adds that “[whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.” Ibid. Here, although defendants offered a brief explanation, their reasons did not satisfy those standards.  
5. To avail itself of the ongoing investigation exception, a public agency must show that (1) the requested records “pertain to an investigation in progress by any public agency,” (2) disclosure will “be inimical to the public interest,” and (3) the records were not available to the public before the investigation began. N.J.S.A. 47:1A-3(a). Investigative reports prepared after a police shooting ordinarily contain factual details and narrative descriptions of the event. As a result, the danger to an ongoing investigation would typically weigh against disclosure of reports while the investigation is underway, particularly in its early stages. The release of UFRs presents far less of a risk of taint to an ongoing investigation because UFRs contain relatively limited information. Also, defendants in this case raised only general safety concerns. Under the circumstances, the UFRs should have been released without redactions.  
6. NJMG also sought access to records in this case under the common law, which requires a greater showing than OPRA: (1) the person seeking access must establish an interest in the subject matter of the material; and (2) the citizen’s right to access must be balanced against the State’s interest in preventing disclosure. The Attorney General’s interest in the integrity of investigations is strongest when it comes to the disclosure of investigative reports, witness statements, and other comparably detailed documents. In those areas, the State’s interest outweighs NJMG’s. The balance can tip in favor of disclosure, however, for materials that do not contain narrative summaries and are less revealing. Footage of an incident captured by a police dashboard camera, for example, can inform the public’s strong interest in a police shooting that killed a civilian. It can do so without placing potential witnesses and informants at risk and without undermining the integrity of an investigation. Based on its in camera review of the certifications the State submitted in this case, the Court notes that the State advanced only generic safety concerns. Under the circumstances of this case, the public’s substantial interest in disclosure of dash-cam recordings warranted the release of those materials under the common law right of access.   
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part. JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and