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.

A trial court issued an opinion yesterday which provides helpful guidance on OPRA’s exemption for security. WNBC v. Allendale Bd. of Ed. et al. The court determined that this exemption covers information showing the date, time and duration of security drills that are held monthly by schools.

A statute requires schools to conduct regular drills to practice responding to emergency situations that do not involve fires. To enforce this statute, the New Jersey Department of Education requires school districts to fill out forms containing information about each drill. In the WNBC case, the requestor asked a number of Bergen County districts to provide all of these forms for the past few years. The school districts released the forms, but redacted, under the security exemption, the date, time of day, and duration of each drill. Information on lockdown procedures and the identity and location of participants was also withheld, but the plaintiff did not challenge these redactions.

Judge Contillo agreed with the districts’ argument that public disclosure of date/time/duration information would jeopardize the safety and security of the schools and their occupants. He found that the risk was “very real;” the judge concluded that with the information, “a potential assailant could pinpoint when the drills are most likely to occur, and know how long they tend to last, creating a ‘window of opportunity’ in which to inflict maximum damage with reasonable accuracy.” Accordingly, the judge sustained the redactions as falling within OPRA’s exemption for security information.

The opinion is useful because there are few court cases addressing OPRA’s security exemption. Also, two additional important aspects of this opinion should be noted:

(1) This case provides a model example of how an agency should litigate a security exemption challenge under OPRA. Just three weeks ago, the Appellate Division issued an opinion which rejected a municipality’s security exemption argument because the town did not submit certifications that specifically explained the potential risks of disclosure of the record in question. In contrast, in the WNBC case, the districts produced specific evidence of the dangers of disclosure, including a number of certifications by various record custodians, police chiefs and emergency personnel. The judge found this evidence to be persuasive.

(2) The trial court’s analysis of the security argument is relevant to the various pending OPRA cases seeking disclosure of information about the Governor’s travels (discussed in recent New Jersey Law Reporter posts, here and also here). In both WNBC and the travel cases, the key issue is whether disclosing certain information will reveal patterns that a potential wrongdoer can use to get around security measures and cause harm.

In the WNBC opinion, Judge Contillo recognized the danger posed by revealing the past pattern of drills to a person intent on doing harm. For example, the judge said, knowing when drills tend to be scheduled provides information on when the entire school population is likely to be congregated outside an empty building. The plaintiff argued that this risk could be avoided by scheduling future drills randomly.  The judge rejected this position, because the law does not require districts to schedule drills randomly, and consequently a judge has no authority to impose such a mandate upon districts..

In addition, Judge Contillo correctly rejected the related argument–which also comes up in the gubernatorial travel cases–that the security exemption should not apply because someone who wants to cause harm at a school could find ways to do so that do not involve making predictions based on review of past pattern information. The judge astutely observed that this analysis is improper under OPRA: “The inquiry is not whether easier or alternative methods [of inflicting harm] exist, but whether the method at issue–i.e., disclosure of the date/time/duration data–would create a risk to the school community.”

In this opinion, the Appellate Division rejected the ACLU’s challenge to a regulation adopted by the Department of Law and Public Safety which exempts from disclosure under OPRA any information that may reveal the duty assignment of a law enforcement officer. This is the first time the appellate court has addressed, under OPRA, the validity of a regulation precluding access to a record.

The regulation exempts a law enforcement officer’s duty assignment, as well as any information that may reveal the assignment, including “overtime data pertaining to an individual law enforcement officer.” The ACLU argued that this exemption is contrary to OPRA’s requirements and the public interest. The court disagreed. It determined that a law enforcement officer’s duty assignment falls within OPRA’s exemption for personnel records. The court also emphasized that the Department’s regulation is consistent with the public interest, by protecting officers and the public.

The court’s opinion also dealt with a separate appeal by the New Jersey 2d Amendment Society, which sought disclosure of the State Police’s Firearms Applicant Investigation Guide. This case involved another Department of Law and Public Safety OPRA regulation, which exempts from disclosure certain types of standard operating procedures.The Appellate Division did not rule on the request for the Guide, but instead remanded the case to the trial court for consideration of whether the Guide fell within the exemption regulation.

As a result, this part of the opinion is of limited usefulness for agencies. On the other hand, agencies should be aware of the portion of the opinion discussing the duty assignment regulation, as it contains valuable guidance for dealing with issues presented by OPRA requests for this type of information.

While the opinion has resolved the key question of the validity of the duty assignment regulation, there are still many open issues. One is whether a law enforcement officer’s overtime information can be confidential. The regulation expresses the Department’s position that there are situations where overtime information may reveal an officer’s duty assignment. The court did not discuss this issue, but it “caution[ed]” the State Police against improperly denying access to overtime information, which is typically open to the public. This tension between the need for confidentiality of officer duty assignments and the interest in disclosure of a public employee’s compensation is sure to generate more litigation.

On May 13, 2015, in a precedential opinion, the Appellate Division held that Bloomfield Township should not have denied an OPRA request for a day’s recordings of a video camera stationed at the back of its municipal building. See Gilleran opinion. What’s truly significant about this opinion is that although disclosure was ordered in this case, the court emphasized that custodians are not always required to release such videos, and the judges provided helpful guidance as to how to handle future requests for such records.

The Township argued that it properly denied the OPRA request for the security camera recordings on the basis of the statute’s exemptions for “security information or procedures for any buildings…which, if disclosed, would jeopardize security….” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons [or] property….” It relied on a certification by its Administrator, which stated that the camera is part of the building’s security system, and also noted that the area shown by the camera may be used by police officers, informants and crime victims.

The court rejected the argument that a building security camera’s recordings are per se exempt from disclosure, and held that the Administrator’s certification was too general to support confidentiality; in the words of the court, the certification “was not sufficiently specific to establish a risk to the safety of any person or property or jeopardy to the security measures taken for the building.” Therefore, Bloomfield failed to satisfy its burden of proving that the recordings were exempt.

But the court stated that its ruling in favor of disclosure was based only on the inadequate certification submitted by Bloomfield. The court went on to provide examples of statements in a certification that could potentially satisfy the security and safety exemptions. For example, there were no statements from the police indicating that the identity of informants or victims would in fact be revealed by the videos, nor was there a specific explanation of how the security system would be compromised.

The court recognized the critical law enforcement interests at stake where a requestor seeks disclosure of a building’s security camera, commenting: “In an age when security and surveillance camera recordings may be vital to the identification and prosecution of criminal offenders, and may provide a deterrent against planned acts of violence and other criminal conduct, we do not agree indiscriminately with…[the] argument that the public has an ‘unfettered’ right of access to security camera recordings with the exception of precise and very limited redactions.”

In addition, the court gave custodians guidance on how to handle a request for a video showing hours of recordings. When this occurs, said the court, the agency is not obligated to review all of the footage and withhold only the parts showing confidential information. The court rejected this approach (which had been suggested by the requestor here) as “impractical,” “unreasonably burdensome,” and not within the Legislature’s contemplation. Instead, the request may be denied, if supported by the type of evidence of potential security harm described above.

In short, the Gilleran opinion is important and likely to be cited often by agencies.

As a side issue, it’s interesting to note that the court mentioned, in a footnote, that its opinion does not address the privacy issues raised by OPRA requests for recordings made by police body cameras. This New Jersey OPRA Law Reporter post discusses these issues.