Category Archives: Law enforcement records

A New Supreme Court OPRA Opinion–The County Prosecutors Association is Not Covered by OPRA or the Common Law Right to Public Records

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The Supreme Court recently issued a new opinion dealing with OPRA’s section that defines what is a public agency that’s subject to OPRA. The Court held that the County Prosecutors Association of New Jersey (CPANJ)–501(c) nonprofit made up of the 21 county prosecutors– is not a public agency under OPRA. The Court also held that CPANJ is not a public entity whose records are covered by the common law. ACLU v. CPANJ.

The Court determined that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The “core question” here was whether a county prosecutor is a “political subdivision.” The Court concluded (as did the Appellate Division) that a prosecutor is not a political subdivision, so CPANJ is not a public agency within the meaning of OPRA.

Significantly, the Court rejected the argument that CPANJ is covered by OPRA because it engages in governmental law enforcement functions. The Court emphasized that OPRA’s definition of a covered entity does not have a “governmental function test.” The only question, said the Court, is whether an entity falls within the language of OPRA’s definition of a public agency.

When I wrote about the Appellate Division’s decision in this case, I commented that the requestor’s effort to obtain records from CPANJ was actually unnecessary, given that it could use OPRA to seek from prosecutors’ offices, the Attorney General’s Office, or any other public agency these agencies’ communications with CPANJ. The Supreme Court alluded to this point in its opinion, noting that the “decision affirming the dismissal of the ACLU’s OPRA claim against CPANJ does not preclude the ACLU from requesting the same categories of documents from one or more public agencies subject to OPRA.”

Appellate Division Issues Useful Opinion on OPRA’s Exemption for Investigations in Progress

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The Appellate Division’s recent unpublished opinion in Benigno v. Office of the State Comptroller doesn’t break any new ground, but it contains helpful reminders of the legal standards that govern some common OPRA issues.

The requestor sought records concerning an investigation by the Office of the State Comptroller (OSC) into the training provided by the requestor’s company, “Street Cop Training,” to various police departments. (It’s not relevant to the OPRA issues, but here’s an article discussing the OSC’s report alleging the company conducted problematic training sessions).

The court upheld the denial of the request on various grounds. The records were confidential under OPRA’s exemption for an “investigation in progess.” The Appellate Division discussed how the records met all the criteria for this exemption: at the time of the request, the OSC was engaged in an investigation; the requested records were created as part of this investigation; and it would be “inimical to the public interest” to reveal the OSC’s “investigative playbook” to the party being investigated.

The court also held that the request was invalid as an overbroad request for information. The request consisted of demands for “all” documents, correspondence, etc. related to the investigation. As I’ve noted before, requestors keep making this type of improper request, even though the case law has consistently said that OPRA does not allow this.

Finally, the Appellate Division rejected the requestor’s effort to obtain the records under the common law, concluding that the need for confidentiality of the investigation far outweighed any interest in disclosure.

Supreme Court to Review Whether OPRA’s Exemptions Apply to Police Body Worn Camera Videos

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The Supreme Court recently announced that it has granted review of a case that presents the novel issue of whether OPRA exemptions apply to police body worn camera recordings. Fuster v. Boro of Chatham.

My post on the Appellate Division’s opinion in this matter explains this case in more detail. In brief, the requestor argues that the Legislature abrogated the application of OPRA exemptions to body worn camera (BWC) videos when it enacted the BWC statute in 2021.

OPRA clearly precludes disclosure of the video requested here, pursuant to the exemption established in case law that maintains the confidentiality of investigative records regarding a person who has not been arrested or charged. But the requestor argues that this OPRA exemption does not apply to a BWC, because the BWC permits withholding BWC videos only for certain reasons, which do not include this OPRA exemption.

The Appellate Division didn’t buy this argument, but it remains to be seen how the Supreme Court will interpret the interplay of the two statutes. The stakes in this case are quite high: acceptance of the requestor’s position would mean that OPRA effectively no longer applies to requests for police BWC recordings.

In addition to this important issue, the case presents another question that may have a significant impact on law enforcement agencies. In granting review, the Supreme Court also said that it will consider whether the BWC video in question should be released under the common law. This will require the Court to examine whether the strong privacy and confidentiality interests that typically support not disclosing investigatory records should apply here.

A Reminder from the Appellate Division: When Internal Affairs Reports are Requested, Make a Complete Analysis of the Factors of the Common Law Balancing Test

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In its 2022 opinion in Rivera v. Union County Prosecutor’s Office, the Supreme Court held that police internal affairs (IA) records are exempt under OPRA, but may be disclosable under the common law right to know. A common law records request requires the public body to conduct a balancing test, which evaluates whether the public interest in disclosure outweighs the need for confidentiality of the record.

The Appellate Division recently issued an unpublished opinion reversing the denial of a common law request for IA reports, because the trial judge had failed to conduct a complete analysis of the factors of the balancing test. 21st Century Media v. Ewing Twp.

In Rivera, the Supreme Court directed that in conducting the balancing test with regard to a request for IA records, courts and record custodians must consider certain factors: those that apply to all common law record requests (referred to as the “Loigman” factors), as well as other factors that relate specifically to IA reports. The additional considerations for IA records, identified by the Rivera Court, are:

-the nature and seriousness of the misconduct, and whether it was substantiated;

-the nature of the discipline imposed on the official;

-the nature of the official’s position, and

-the official’s record of misconduct.

In 21st Century Media, neither the town nor the trial judge referred to these criteria in denying the request for disclosure of IA reports concerning certain indicted police officers. The town’s denial letter said only that the public interest in disclosure “does not outweigh the rights of [the officers] to a fair and impartial trial, and the presumption of innocence….” The judge’s ruling that the records should not be released did not mention this rationale, and instead was based on the conclusion that there was no showing the officers had engaged in repeated misconduct.

The Appellate Division reversed, because the judge had not evaluated the common law balancing test factors. The Appellate Division remanded the case to the trial judge, ordering the judge to review the IA reports in camera and apply the Rivera and Loigman factors to determine whether the IA reports should be released.

This opinion shows that a denial of a common law request for IA reports (or any other type of government record) will not be upheld if the public body fails to demonstrate that it took the various balancing test factors into account. And although 21st Century Media is an unpublished opinion, it is clearly consistent with precedential case law. In fact, the Supreme Court in 2023 expressly cautioned that record custodians must “carefully review each [common law] request and provide a response that comports with the law.” Gannett Satellite Network v. Neptune Tp.

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question here.

Reminder: OPRA Does Not Permit Disclosure of Mugshots

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Today’s top news story is Trump’s mugshot, taken upon his booking on Georgia felony charges. Apparently, mugshots are publicly accessible under Georgia law. But in New Jersey, mugshots cannot be accessed under OPRA.

As I discussed in this post, the GRC has consistently ruled that OPRA exempts arrest photos from disclosure to the public. The GRC bases this conclusion on Executive Order 69 (Whitman), which exempts “fingerprint cards, plates and photographs and similar criminal investigation records….”

This executive order is still in force; notably, the Attorney General’s current Law Enforcement Guidelines reference it in the section concerning police department records.

There are no court cases addressing OPRA requests for photos of arrested defendants, but the GRC’s position that Executive Order 69’s exemption applies to mugshots seems reasonable.

2022 OPRA Case Law Review

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Here’s a look back at the most important OPRA opinions issued by the courts this year.

The Supreme Court issued two OPRA opinions in 2022, both in March–Libertarians for Transp. Govt. v. Cumberland County and Rivera v. Union County Prosecutor. In Libertarians, the Court held that an internal settlement agreement between a public employer and its employee is an exempt personnel record, but the portion of the agreement that contains the reason for the employee’s separation from employment must be disclosed. In Rivera, the Court reaffirmed that records of police internal affairs investigations are exempt under OPRA, but may be disclosable under the common law ability to access government records.

See also this post for additional analysis of how these two opinions have a significant impact on OPRA law and practice.

The Appellate Division also issued some major OPRA opinions, addressing issues of first impression:

–Underwood Properties v. Hackensack dealt with a common problem in OPRA matters–an attorney, in the course of representing a client, submits an OPRA request under his own name, rather than the client’s name, and then the client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is also one of the few published opinions that addresses the calculation of a requestor’s attorney fee award.

–C.E. v. Elizabeth Public Sch. Dist. held that settlements of OAL cases involving IDEA special education challenges must be disclosed under OPRA.

–ACLU v. CPANJ held that the County Prosecutors Association of New Jersey is not an agency subject to OPRA.

Appellate Division: The County Prosecutors Association of NJ is Not an Agency Subject to OPRA

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The Appellate Division today issued a precedential OPRA opinion. Deciding an issue of first impression, the court held that the County Prosecutors Association of New Jersey (CPANJ) is not a public agency under OPRA. ACLU v. CPANJ.

CPANJ is a 501(c) nonprofit made up of the 21 county prosecutors. The organization characterizes its goal as “the promotion of the orderly administration of criminal justice within the State and the fair and effective enforcement of the constitution and laws of this State through the cooperation of all law enforcement agencies….” In its opinion, the Appellate Division describes CPANJ as a means by which the county prosecutors fulfill their obligation to aid the Attorney General, specifically by “participat[ing] as stakeholders in the drafting of directives and guidelines to be issued by the Attorney General, which
thereafter are binding on the prosecutors.”

The ACLU submitted OPRA requests for various records to CPANJ. The court held that CPANJ correctly denied the requests on the basis that it is not a public agency under OPRA. The crux of this holding is that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The court said that CPANJ was formed by prosecutors, not counties, and prosecutors are not political subdivisions. And CPANJ itself has no statutory powers. The Appellate Division concluded: “[W]hile CPANJ has a role in formulating criminal justice policy, it does so as a private entity that has no governmental authority.”

For these reasons, the court also held that records of CPANJ are not subject to the common law right of access to government records.

A puzzling aspect of this case, not addressed by the court, is why the ACLU even bothered to pursue this litigation. Since the ability already exists, under OPRA and the common law, for requestors to obtain information about prosecutors’ actions, there seems to be no need for public access to CPANJ records.

According to the court’s opinion, the ACLU sought records from CPANJ to investigate how prosecutors and their staff members “coordinate their efforts on criminal justice policy;” determine how these efforts are funded; and “monitor prosecutorial transparency and accountability….” But this is precisely the type of information that is obtainable from agencies that are subject to OPRA, such as prosecutors offices and the Attorney General’s Office.

Another Supreme Court Opinion on OPRA and Law Enforcement Records: Police Departments Must Respond to Requests for Complaint-Summonses Information

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Only 10 days after issuing an opinion on OPRA and police disciplinary information, on June 17 the Supreme Court issued another ruling on law enforcement records and OPRA. The Court held that a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses. Simmons v. Mercado.

The case involved an OPRA request to the Millville Police Department for DWI, drug possession, and drug paraphernalia complaints and summonses. Police departments do not maintain these records; instead, police officers enter arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records. The Supreme Court opinion notes that police departments have access to the Judiciary’s eCDR system.

The Supreme Court rejected the argument that requests for these records may only be made to the Judiciary, as the custodian of the eCDR system. The Court said that the records were “made” by the department’s police officers when they inputted arrest information, and therefore they are “government records” of the department under OPRA that must be disclosed by the department.

Of course, the police department (or any other agency) cannot disclose a record without having the ability to retrieve that record from somewhere. In this case, the police department has the ability to retrieve the information through its access to the Judiciary’s eCDR system; presumably for this reason, the Court considered both the police department and the Judiciary to be “concurrent” custodians of the electronic information in question.

Supreme Court Upholds Validity of Attorney General’s Directive Mandating Disclosure of Names of Disciplined Officers

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Today the Supreme Court issued its opinion upholding the Attorney General’s June 2020 Law Enforcement Directive that requires the public disclosure of the names of police officers who have committed serious disciplinary violations. The court determined that the Attorney General reasonably exercised his power to enact this new requirement under his statutory law enforcement authority. In re AG Law Enforcement Directives 2020-5 and 2020-6.

The Court dealt with the threshold issue–the apparent conflict between the Directive and OPRA’s personnel records exemption–in an elegant and straightforward fashion. Chief Justice Rabner, writing for the unanimous Court, found that there is no conflict: OPRA expressly states that the personnel exemption does not apply to personnel records “required to be disclosed by another law,” and, the Court said, the Attorney General’s Directive is such a law.

The name of any law enforcement officer subjected to serious discipline after the date of promulgation of the Directive now must be publicly disclosed.

However, the Attorney General had also ordered the release of the identities of State troopers and other State law enforcement officers who settled serious disciplinary matters in the 20 years before the Directive was enacted. The Court held that these names cannot currently be released. It ordered that there first must be additional litigation, to be held before a judge to be designated, concerning whether officers who settled their disciplinary cases prior to the Directive have valid promissory estoppel claims precluding the public release of their identities.

Police department custodians should note that the Court said similar court proceedings will likely be needed if their departments, which are not covered by the Attorney General’s requirement to disclose the names of officers who were disciplined in the past, also decide to release the names of officers who fall within this category.