Monthly Archives: April 2015

New York Times Article on Pros and Cons of Public Access to Police Camera Videos

This New York Times article of April 26, 2015 discusses issues that are being raised across the country with regard to giving the public full access to the recordings made by police body and motor vehicle cameras. The article’s title–“Downside of Police Body Cameras: Your Arrest Hits YouTube”– nicely summarizes the problem: privacy interests may be harmed if a video of any person’s interaction with the police is available to the public. This concern results from the assumption that public record laws would require disclosure to a requestor of any police camera video recording. The article notes that many states are seeking to amend their laws to preclude access to such videos.

New Jersey law does not have a specific provision governing disclosure of police camera videos, but the Appellate Division is considering the question of whether these videos fall within one of OPRA’s exemptions from disclosure. See this New Jersey OPRA Law Reporter post. The Appellate Division case focuses on the applicability of OPRA’s sections affording confidentiality to records in criminal investigations, but as the Times article shows, the statute’s requirement that agencies protect individuals’ privacy interests should also be taken into account in considering whether videos should be released.

In New Jersey, police departments should expect to confront the privacy issue whenever they receive requests for disclosure of a video, regardless of whether a criminal investigation is involved. The police come in contact with members of the public in a variety of ways that do not involve criminal activity or an arrest, from routine traffic stops to helping at the scene of an accident. OPRA custodians for police departments will have to deal with the sensitive issue of whether releasing videos in these situations–in effect, allowing them to be posted on the internet– will harm the privacy interests of the individuals shown in the videos.

Until a court addresses this issue, custodians will have to assess the privacy question on a case-by-case basis, under the test established by the Supreme Court in its Burnett opinion, which calls for balancing the requestor’s interest against the affected individual’s privacy interest.


Significant OPRA Issues To Be Decided By Appellate Division

There are a number of cases now on appeal that involve important OPRA issues. For a summary of pending appeals of particular interest to law enforcement agencies, see this New Jersey OPRA Law Reporter post. Here are two other appellate matters that will have a major impact on all New Jersey public agencies that are covered by OPRA.

-Gannett v. Borough of Raritan, A-3999-13T1

This appeal involves significant issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format. The case is especially notable because the court must determine the reasonableness of the $600,000 attorney fee award granted to the plaintiff for prevailing. This is far and away the largest attorney fee award under OPRA.

-IMO NJ Firemen’s Assn Obligation to Provide Relief Applications Under OPRA, A-2810-13T2

This appeal presents a novel question: whether a public agency may file a declaratory judgment action asking the court to determine that it properly denied an OPRA request, before the requestor has challenged the denial.


Trial Court Grants Enhanced Attorney Fee Award to OPRA Plaintiff

A public agency faces the risk, in litigating an OPRA matter, of paying the plaintiff’s attorney fees if the plaintiff prevails in the case. To assist agencies in evaluating the potential cost of a records dispute, this blog will report on court-ordered attorney fee awards under OPRA.

In a recent case, Ganzweig v. Tp. of Lakewood, the trial judge awarded $21, 401.10 in attorney fees to a successful OPRA plaintiff. In making this award, the judge accepted as reasonable the $315 hourly rate requested by attorney Walter Luers, Esq., who frequently represents plaintiffs in OPRA litigation.

The award in this case is of particular interest because the judge added a 30% contingency enhancement, increasing the total amount awarded by several thousand dollars. Although trial judges are permitted to enhance a fee award, the New Jersey Supreme Court has cautioned that such an increase is rarely appropriate in OPRA matters. The Ganzweig opinion shows that despite the Supreme Court’s effort to limit enhancement of OPRA attorney fee awards to exceptional cases, trial courts will provide OPRA plaintiffs’ attorneys with substantial fee increases in cases presenting novel legal issues.

Law Enforcement Alert: Major OPRA Decisions Coming

Surprisingly, there are only three published court opinions dealing with law enforcement records under OPRA, and two of them, Serrano and Courier News, involve the same record (911 call tapes). See also O’Shea (use of force reports). But the lack of such case law is about to end, as several important issues concerning OPRA’s law enforcement and security provisions are now pending with the Appellate Division. Over the next several months, the law governing access to critical law enforcement records may be dramatically different.

The following is a list of the major law enforcement-related cases before the court:

-In re Adoption of N.J.A.C. 13:1E-3

A challenge to the validity of a regulation promulgated by the Department of Law and Public Safety, which establishes an OPRA exemption for information that may lead to revealing the duty assignment of a law enforcement officer, including the amount of overtime paid to an individual officer.

-North Jersey Media Group v. Township of Lyndhurst, et al.

The Attorney General, on behalf of the State Police, appeals a trial court ruling which granted a newspaper’s request for disclosure of the records concerning the investigation of the fatal shooting by police of a black man during a chase. The key issue before the Appellate Division is whether these records, which include incident and investigative reports, are exempt criminal investigatory records under OPRA. See this New Jersey OPRA Law Reporter post describing this case in more detail.

-Paff v. Bergen County

The issue in this appeal is whether the names of officers and complainants shown in internal affairs complaints  must be disclosed.

-Paff v. Galloway Tp.

The issue in this appeal is whether the township must create and disclose a log of all emails sent by the police chief during a 2-week period. The trial judge granted the request for a log showing the sender, receiver, date, time and subject matter of each email. The Township appealed and several organizations have joined the case as amici, including the League of Municipalities, the NJ Association of Chiefs of Police and the NJ ACLU. In its brief, the Police Chiefs Association expresses its concern that the trial court ruling is inconsistent with the confidentiality needed for investigations and will have a “crippling effect” on police departments.

-Dashboard camera videos

It appears that the Appellate Division will address the question of whether videos taken by police dashboard cameras are public records. Although several trial courts have ordered disclosure of such videos, the Appellate Division has not resolved the issue. However, the Ocean County Prosecutor’s Office has indicated it will appeal such an order by Judge Grasso, in Ganzweig v. Lakewood Township. Because Judge Grasso awarded the plaintiff attorney fees in Ganzweig last month, the case is now final and appealable.


Oral Argument Held in Important Case on Criminal Investigatory Record Exemption

On April 21, 2015, the Appellate Division held oral argument in North Jersey Media Group, Inc. v. Township of Lyndhurst, et al. (“Lyndhurst”). All law enforcement agencies should be aware of this appeal, which concerns the confidentiality of police investigations. The court’s opinion will likely set key precedent on the interpretation of OPRA’s exemption for criminal investigatory records.

The case involves a newspaper’s request for records of a criminal investigation into the fatal shooting by local police of a black suspect during a chase. The newspaper essentially asked for all records connected with the investigation, including police vehicle video and audio recordings, police log entries, incident and investigation reports, as well as “all police reports.” The State Police released some information, as required by OPRA’s ongoing investigation section, N.J.S.A. 47:1A-3b, and also disclosed public records, such as tapes of 9-1-1 calls. It denied access to the rest of the requested records under the criminal investigatory records exemption.

The trial judge, however, held that this exemption did not apply to any of the records. According to the judge, the State had failed to prove that the various police reports made as part of the investigation were not required by law to be made, maintained or kept, and therefore did not fall within the statute’s exemption for criminal investigatory records. As a result, he ordered that all requested records be disclosed.

The Attorney General, on behalf of the State Police, appealed the trial court’s ruling, and obtained from the Appellate Division a stay of the disclosure order pending appeal. The court has proceeded quickly with the appeal, holding argument only three months after the appeal was filed.

I know, from my experience in arguing hundreds of cases before the Appellate Division, that no one can  predict with absolute certainty the outcome of an appeal based on the comments and questions of the judges at oral argument. However, my impression, from watching the argument in this case, is that the judges were uncomfortable with the trial court’s broad determination that the criminal investigatory exemption simply did not apply to any of the records in the investigatory file. The judges’ questioning of the parties’ attorneys appeared to suggest that they agree with the State’s argument that the exemption covers the type of records involved here. I think the judges may issue an opinion stating that the criminal investigatory exemption does apply here, and remanding the matter to the trial court for review of specific records in the file.

In response to a judge’s question about a potential remand, the newspaper’s attorney contended that if there were a remand proceeding, the State should supply his client with an index describing each document. The State’s attorney responded with a cogent explanation of the danger of requiring this approach: it would enable the target of a criminal investigation to obtain a description of the investigatory file concerning him. The judges did not give an indication of how they would rule on this issue.

In my view, the criminal investigatory exemption clearly should have been applied here.  The legislature intended to protect the confidentiality of criminal investigations by precluding public access to the various reports and records created by law enforcement officers in the course of the investigation–precisely the records in question in this case. And this policy in favor of confidentiality would also be undermined by requiring disclosure of a detailed index of all documents held by the investigating agency, which would effectively reveal the direction of an uncompleted investigation.

The significance of this appeal for the law enforcement community cannot be overstated. The court’s opinion will directly affect the operations of law enforcement agencies. If the Appellate Division agrees with the trial court’s analysis, most criminal investigatory records will be subject to release. If the court reverses and hold that the records are confidential, the analysis in the court’s opinion will govern how agencies must respond to OPRA requests for investigative records.

Appellate Division Opinion–When A Custodian Must Supply A Privilege Log To The GRC

In an unpublished opinion, Katon v. NJ Dept. of Law and Public Safety, the Appellate Division emphasized that a custodian must provide to the GRC a document-by-document description and argument when various exemptions are claimed for a number of records. Although unpublished court opinions are not precedential, this opinion is useful because it shows how a court reacted to the common situation of a case involving numerous documents which are subject to several different exemptions.

The Katon case involved three parts of a request to the Office of the Attorney General (OAG) for:

(1) All records collected and/or created as part of the [OAG’s] fact-finding review of intelligence gathering conducted by the New York Police Department (NYPD) in New Jersey…

(2) All records upon which OAG relied for its determination that the NYPD’s activities in the state did not violate New Jersey civil or criminal laws.

(3) All records reflecting the OAG’s determination [with regard to the legality of the NYPD’s activities]….

The custodian indicated that there were 610 pages of responsive documents and withheld all of them. Before the GRC, the custodian did not describe each of these records or present arguments about specific documents. Instead, the custodian argued that all of the documents were confidential, under the exemptions for attorney work product, attorney-client privilege, deliberative process privilege, and security and surveillance measures and techniques. The GRC upheld the denial on the basis of the deliberative process privilege, and did not address any of the other cited exemptions.

The Appellate Division agreed that request no. 2 was properly denied because it sought exclusively deliberative material. The court said that by definition, a request asking what records were “relied upon” by the agency in making its decision would expose the agency’s deliberative process.

However, the court found that the deliberative process privilege did not similarly apply automatically to the remaining requests, and therefore, said the court, each responsive document would have to be reviewed to determine whether it fell within the deliberative process privilege, or one of the other claimed bases for confidentiality. The court remanded the case to the GRC for such review, holding that the custodian must supply the GRC with a privilege log identifying the withheld documents and explaining the basis for the confidentiality of each one.

This opinion is a reminder that when multiple exemptions are claimed for a number of records, and that decision is challenged before a court or the GRC, the custodian cannot simply make general arguments about the confidentiality of the documents. Instead, the custodian must provide the tribunal with some type of index that shows why each individual record should be considered exempt from disclosure.