The Appellate Division recently held, in a case of first impression, that Use of Force Reports (UFRs) involving juveniles must be disclosed under OPRA, with redaction of the name of the juvenile. Digital First Media v. Ewing Tp.

The OPRA request sought UFRs from Ewing Township in connection with the arrest of a minor. Ewing denied the request, taking the position that the UFR was a juvenile record and therefore was completely confidential. The court rejected this argument. It determined, consistent with the position of the Attorney General, that disclosure of the UFR, with redaction of the juvenile’s identity, satisfies the laws mandating preservation of a juvenile’s confidentiality.

This is clearly the correct result. UFRs are public records under OPRA. If a portion of a UFR contains confidential information, that does not make the entire record exempt; instead, that part of the record should be redacted, as OPRA requires with regard to all other publicly-accessible records.

The law is clear that a custodian must make a reasonable search for records that are responsive to an OPRA request. However, there’s no law that defines what constitutes a reasonable search, and there are no court cases that provide guidance as to what a custodian must do to satisfy the reasonable search requirement.

The absence of standards governing searches leads to unnecessary, wasteful litigation. A recent Appellate Division opinion illustrates this problem. In Lawyers Comm. for 9/11 Inquiry v. State Police, the requestor asked the State Police for records related to the FBI’s investigation of a suspicious van in East Rutherford during the afternoon of September 11, 2001. The State Police denied the requests on the basis that it had no responsive records.

The requestor challenged this denial in the Law Division, claiming that the State Police did not make a sufficient search for records. In the trial court, the State Police submitted certifications from three officers, who explained how and where they searched, and stated that they found no responsive records. For reasons not described in the Appellate Division opinion, the trial judge required the State Police to submit additional certifications further detailing the search for records. The trial judge ultimately ruled that the State Police made a reasonable search and had “looked in the most logical places where anything related to the 9/11 inquiry would be.”

The Appellate Division affirmed. It noted that the requestor offered nothing but speculation in response to the State Police’s certifications, and that its argument that the search was improper lacked sufficient merit to warrant further discussion.

As can be seen, even though the requestor had no basis to indicate that the search was unreasonable, the agency still had to go to great lengths to prove to the court that its search was reasonable. If there were case law providing guidance as to what is a reasonable search, this matter might have been resolved without litigation. But in the absence of such standards, the requestor felt free to pursue litigation, in both the trial and appellate courts, despite lacking a basis for claiming that the State Police failed to make a legally proper search.

In an opinion issued today, the Appellate Division held that police body-worn camera footage does not fall within OPRA’s criminal investigatory records exemption. Rivera v. Tp. of Bloomfield.

This exemption applies only to a record pertaining to a criminal investigation that is not required by law to be made, maintained or kept on file. The footage here pertained to a criminal investigation into a 2017 police shooting, but the Appellate Division determined that the “not required by law” prong of the exemption was not satisfied. The court said that an Attorney General Law Enforcement Directive governing police body cameras constituted such a requirement of law, in accordance with Supreme Court OPRA precedent.

Although this is the first appellate opinion to address the important issue of OPRA requests for body camera video, the opinion is unpublished and therefore not precedential. Perhaps the court saw no need to publish the opinion because the law is settled that Attorney General directives have the force of law under OPRA, and the body camera directive clearly requires that footage be made, maintained and kept on file.

It’s important to note that the court did indicate that body camera footage may be withheld, under appropriate circumstances, even though the criminal investigatory exemption does not apply. The pertinent AG Directive gives the prosecutor the discretion to determine, on a case-by-case basis, that law enforcement interests require maintaining confidentiality of the video. However, in this case, according to the court, the prosecutor did not explain the need to maintain confidentiality.

Requestors often seek access to police department internal affairs records, but the courts and the GRC have consistently held that these records are exempt under OPRA. See this post, and also this one, for some examples. In an unpublished opinion issued today, the Appellate Division once again turned away an effort to make internal affairs files public. Doe v. City of Trenton.

The court held that these records are exempt because the Attorney General’s Internal Affairs Policy and Procedure makes them confidential and exempt from public disclosure. The court did not engage in additional analysis, presumably because the confidentiality of internal affairs records is so well-settled.

In an opinion issued today, the Appellate Division held that a domestic violence offense report, which an officer is required to file after responding to a domestic violence call, is exempt under OPRA. North Jersey Media Group v. Passaic County Prosecutor’s Office. The court determined that this report is exempt because the Domestic Violence Act and the court rules provide full confidentiality to domestic violence records.

Unfortunately, as has occurred with several other fairly recent Appellate Division cases involving OPRA issues of first impression, the opinion is not published and therefore not precedential.