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.