A Landmark Opinion: Appellate Division Upholds Confidentiality of Police Investigatory Records

The Appellate Division issued an OPRA opinion today of extraordinary importance. The court resolved a number of unsettled legal issues and clearly established what records are exempt from disclosure under OPRA’s exemption for criminal investigatory records. North Jersey Media Group v. Township of Lyndhurst, et al.

As predicted in my post discussing the oral argument in this case, the Appellate Division reversed a trial court ruling which had determined that the criminal investigatory exemption did not apply to any of the records of an ongoing criminal investigation into the fatal shooting by local police of a black suspect during a chase. The appellate court held that nearly all such records are covered by this exemption.

The Appellate Division’s opinion deals with several key issues concerning the application of OPRA’s investigatory records provisions. The most significant part of the opinion is the holding that under the criminal investigatory records exemption, virtually every record connected with a criminal investigation is confidential, including:

-mobile video recordings and other video and audio recordings

-CAD reports

-log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins

-Use of Force reports

-all other police reports, such as incident reports, operations reports and investigation reports

The court said that the only law enforcement records not covered by the exemption are 9-1-1 calls, which are required by law to be made or maintained; motor vehicle accident reports, which are required by statute to be public; and the portions of CAD records and other activity logs which do not discuss or relate to a criminal investigation.

Although the court held that virtually all the requested records in this case were exempt, it also noted that any records not covered by the criminal investigative exemption may fall within OPRA’s additional provision that records of an investigation in progress may be withheld if their release would be “inimical to the public interest.” The court accepted the legitimacy of the State’s argument that this standard would be met by by releasing records containing witness statements, which could taint other witnesses’ recollections and thereby undermine the integrity of the investigation.

The Appellate Division stated that a trial court should review the State’s claims in this regard confidentially, on an ex parte basis. And it noted that this procedure also must be applied to evaluating a common law request for release of investigatory records.

The court did rule against the State in one fairly minor respect–it said that the State did not fully comply with OPRA’s requirement that certain information about a criminal investigation must be made public, such as the identity of the investigating personnel and the use of weapons by the police. Notably, the court emphasized that this section of OPRA refers to information, not records, meaning that it may be released orally or by  press release. The court ordered the State either to release the information, or make an argument to the trial court, upon remand, that disclosure of such information would be harmful.

As may be seen, the Lyndhurst opinion provides crucial, comprehensive guidance to the law enforcement community, for the first time since the enactment of OPRA, as to what records and information must be released concerning an in-progress criminal investigation.

 

Leave a Reply

Your email address will not be published. Required fields are marked *