North Jersey Media Group, Inc. v. Township of Lyndhurst
116 A.3d 570
| N.J. Super. Ct. App. Div. | 2015Background
- On Sept. 16, 2014 a multi-jurisdictional police pursuit ended in the fatal shooting of Kashad Ashford; the Attorney General's Shooting Response Team (SRT) assumed the investigation.
- Reporters from North Jersey Media Group (NJMG) sought a broad set of law-enforcement records (9-1-1 calls, CAD logs, dispatch logs, incident/ investigation/ use-of-force reports, MVR audio/video, UFRs, etc.) under OPRA and the common law.
- Some recordings and redacted materials were produced; many requested records were withheld or not acknowledged because the OAG/ SRT said an investigation was ongoing.
- Trial court ordered production (without redactions), rejected the State’s request to submit an ex parte, in camera showing, and found limited OPRA exceptions inapplicable; it also awarded presumptive fees to NJMG.
- On appeal the Appellate Division reversed in part, holding the trial court misapplied OPRA exemptions for criminal investigatory records, erred in denying in camera/ex parte submission, and remanded for reconsideration under clarified standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of OPRA's "criminal investigatory records" exclusion (what "pertains to" and what is "required by law") | Most requested records are government records subject to disclosure; internal directives and retention rules make them "required by law" | Exception applies: many documents "pertain to" an investigation and are not "required by law" to be made/kept, so they are exempt | Agreed with State: the trial court construed "required by law" too broadly; many records (investigatory reports, CAD entries pertaining to the investigation, MVR recordings, UFRs as to investigatory matters) are exempt unless mandated by statute/regulation/executive order or binding judicial mandate |
| Whether generic retention statutes/regulations or internal agency directives satisfy "required by law" | DPRL and agency retention policies make records "required by law" | Only statutes, regulations, executive orders, or judicial decisions qualify; internal directives or general retention rules are insufficient | Held internal directives and general retention schedules do not, by themselves, satisfy "required by law" for the OPRA exception |
| Applicability of the "ongoing investigation" exception (N.J.S.A. 47:1A-3(a)) and the need for in camera/ex parte review | Public interest and passage of time justify disclosure; public's right outweighs speculative harms | Release could be inimical to public interest by tainting witnesses and harming investigation; the State should be permitted to submit an ex parte, in camera justification | Held the trial court abused its discretion by refusing an in camera/ex parte submission; courts should consider case-specific, in camera/ex parte showings when an ongoing investigation is claimed |
| Scope of section 3(b) (information that must be released quickly) — whether it requires production of underlying documents or merely information | Section 3(b) requires disclosure of the underlying records or at least the contained information; press release was inadequate | Section 3(b) requires release of specified "information," not full records; a press release can satisfy it if complete | Held section 3(b) requires disclosure of the specified information (not necessarily the underlying records); the OAG's press release omitted some required items (e.g., identity of investigating personnel and specific weapon/use-of-force details) and must provide them or justify withholding under the statutory narrow exception |
Key Cases Cited
- O'Shea v. Township of West Milford, 410 N.J. Super. 371 (App. Div. 2009) (discussing Attorney General directives and UFRs)
- State v. Marshall, 148 N.J. 89 (1997) (Right-to-Know Law does not grant access to law-enforcement investigative files absent a law/ regulation requiring their retention)
- Keddie v. Rutgers, 148 N.J. 36 (1997) (common-law access balancing test; three predicates for common-law inspection)
- Loigman v. Kimmelman, 102 N.J. 98 (1986) (factors for balancing public interest vs. confidentiality)
- Serrano v. South Brunswick Twp., 358 N.J. Super. 352 (App. Div. 2003) (9-1-1 tapes created before an investigation remain public)
- Irval Realty, Inc. v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366 (1972) (records "required by law" must be mandated by statute/regulation, not merely administrative directive)
- Shuttleworth v. City of Camden, 258 N.J. Super. 573 (App. Div. 1992) (in camera/ex parte review and balancing for investigatory materials)