njmg v. garfield_opinion

8/2/2019 NJMG v. Garfield_Opinion

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NOT TO BE PUBLISHED WITHOUTTHE APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION

BERGEN COUNTY

DOCKET No. BER-L-1274-12

CIVIL ACTION

OPINION

Argued: March 16, 2012Decided: March 16, 2012

Honorable Peter E. Doyne, A.J.S.C.

Dina L. Sforza, Esq. appearing on behalf of the plaintiff, North Jersey MediaGroup, Inc. (North Jersey Media Group, Inc.).

Joseph T. Rotolo, Esq. appearing on behalf of the defendants, City of Garfield andAndrew Pavlica, Custodian of Records for City of Garfield (Joseph T. Rotolo, Esq.).

Introduction

On February 10, 2012, the North Jersey Media Group, Inc., d/b/a The Record

(plaintiff or NJMG) filed a verified complaint and an order to show cause. NJMG

sought a judgment declaring defendants, the City of Garfield and Andrew Pavlica,

Custodian of Records for the City of Garfield (Garfield and Pavlica when addressed

individually, defendants when referenced collectively), in violation of the Open Public

Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA or the Act), directing defendants to

NORTH JERSEY MEDIA GROUP,INC., d/b/a THE RECORD,

Plaintiff

v.

CITY OF GARFIELD and ANDREWPAVLICA, Custodian of Records forthe City of Garfield,

Defendants.


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release the requested records to plaintiff, and imposing a civil penalty of $1,000 upon the

appropriate party for knowingly and willfully denying access to the requested records,

and requested counsel fees and costs pursuant to the Act. NJMG also sought similar

relief by way of the common-law right of access to public records.

Facts/ Procedural History

NJMG is a New Jersey corporation. It publishes a daily newspaper called The

Record which is circulated throughout northern New Jersey and more specifically,

Bergen, Passaic, and Hunterdon Counties. Plaintiff is currently engaged in the gathering,

editing and reporting of information for the publication of news stories. It devotes

significant time and resources to covering the State of New Jersey and its political

subdivisions, including Garfield, and the conduct of its public employees and officials.

Garfield is a municipality organized pursuant to the laws of the State of New Jersey.

Pavlica is the custodian of records for Garfield.

According to the press release issued by the Bergen County Prosecutors Office

(BCPO), attached to plaintiffs verified complaint as Exhibit A, on December 10, 2011,

at approximately 1:20 p.m., Malik Williams (Williams), of Garfield, turned himself in

to the Garfield Police Department (GPD) after the GPD issued an Aggravated Assault

warrant on December 9, 2011. What next transpired is presently unclear, but the

following is alleged: at approximately 3:25 p.m. Williams ran from the processing room

and out of a rear door of the police department. He was then followed by members of the

GPD and Bergen County Canine Police, who tracked him to a private residential garage.

Williams was then shot and killed by two police officers, one each from the GPD and

Bergen County Police Department, when, after opening one of the garage doors, the


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officers encountered Williams, who is alleged to have been armed with tools thought to

be taken from the garage.

The matter before the court arises from Garfields denial of two OPRA requests

submitted by NJMG for certain records pertaining to the shooting. On December 27,

2011, Kimberly A. Lueddeke (Lueddeke), a reporter for The Record, submitted a GPD

form setting forth a request for public records seeking [a]ny video recording taken Dec.

10, 2011 showing Malik A. Williams, of Garfield. Later that day the request was

denied, and it was indicated on the form the video (the video) sought was a criminal

investigatory record, and there existed an on going investigation.

On January 18, 2012, Lueddeke made another request, in the same manner, this

time seeking [a]ny use of force reports filed by Garfield police officers for incidents

occurring on Dec. 10, 2011. This request was denied on January 19, 2012, with the

words under investigation written on the form.

Written correspondence between various counsel for plaintiff and Joseph J.

Rotolo, Esq., (Rotolo), counsel for Garfield, then followed. In short, counsel for the

parties disagreed concerning the applicability of OShea v. Twp. of W. Milford, 410 N.J.

Super. 371 (App. Div. 2009), which held the use of force report (UFR) then at issue did

not constitute a criminal investigatory record and therefore was accessible under OPRA.

On January 23, 2012, Jennifer A. Borg, Esq. (Borg) wrote on plaintiffs behalf to

Pavlica, citing OShea and restating plaintiffs request. Rotolo, who was copied on

Borgs letter to Pavlica, responded on January 24, 2012. Rotolo recognized the holding

of OShea but argued the UFRs in that case were accessible as they did not pertain to a

particular criminal investigation, unlike the UFR relating to the incident involving


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Williams.1 Lastly, Dina L. Sforza, Esq., (Sforza) as counsel for plaintiff, responded to

Rotolos letter on February 8, 2012, arguing OShea is clear with respect to the

accessibility of UFRs and, while it did not address the video specifically, the OShea

courts rationale, by analogy, would render it accessible under OPRA as well.

On February 10, 2012, plaintiff filed a verified complaint, an order to show cause,

and a brief in support of the order to show cause. With respect to the alleged violation of

OPRA, plaintiff requests: 1) a declaration defendants actions were in violation of OPRA;

2) defendants be directed to release the requested records to plaintiff forthwith; 3) the

imposition of a civil penalty of $1,000 upon the appropriate party for knowingly and

willfully denying access to the requested records; 4) counsel fees and costs pursuant to

N.J.S.A. 47:1A-6; and 5) such other relief as the court may deem just and equitable.

With respect to the alleged violation of New Jersey common law, plaintiff requests: 1) a

declaration defendants actions were illegal and invalid; 2) defendants be directed

permanently to release the requested records to plaintiff forthwith; 3) counsel fees and

costs pursuant to OPRA; and 4) such other relief as the court may deem just and

equitable.

On March 2, 2012, defendants filed an answer demanding judgment dismissing

plaintiffs complaint and payment of costs of suit and attorneys fees. Defendants state

the requested records were not accessible as the records were within OPRAs recognized

exceptions, and, even if they were and therefore should be released, no award of counsel

fees or sanctions was justified. On March 5, 2012, defendants filed a certification by

1 Rotolo, like Borg, did not directly address the video which was the subject of plaintiffs first request.Importantly, though, on the correspondence he authored, Rotolo copied Frank Puccio, Esq. (Puccio),Executive Assistant Prosecutor for the BCPO, thereby providing his office with notice of plaintiffs requestand the dispute it engendered.


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Garfield Police Chief Kevin Amos (Amos and the Amos Cert.), a certification by

Rotolo (the Rotolo Cert.), and a letter brief in response to the order to show cause filed

by plaintiff. The latter two submissions will be discussed as needed below, but the Amos

Cert. is sufficiently important to warrant a fuller explication.

In pertinent part, the Amos Cert. states immediately after the incident, the BCPO

took complete control of the matter and announced it would conduct a complete

investigation in order to determine what action, if any, should be taken, and the GPD has

not been involved in any aspect of the investigation and has . . . been excluded from

participation of any aspect of the investigation. The GPD, though, the Amos Cert.

provides, is conducting two internal affairs investigations, one with respect to Williams

ability escape from GPD headquarters and the other with respect to the shooting itself,

though the latter is suspended pending the completion of the BCPOs investigation.

Further, the Amos. Cert. states the GPD officer involved in the shooting, whose identity

has not been publicly disclosed, has been on leave since the day of the incident and was

scheduled to return to duty March 1, 2012.2 In addition, the officer has been afforded

twenty four hour protection, while local activists . . . have engaged in numerous

marches and protests, which have been non-violent and generally controlled . . . but

increasingly pointed and accusatory.

With respect to the requested documents, the Amos Cert. provides no UFR

concerning the incident of December 10, 2011, has yet been prepared even though a UFR

is generally prepared by the involved officer and is made part of his investigative

report. As to the video, the Amos Cert. provides it is the GPDs policy and practice to

2 The Amos Cert. later provides the officers anticipated return to duty will be during the first week ofMarch. At oral argument, Rotolo confirmed the officer returned on March 1 or March 2, 2012.


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maintain a videotape record of certain areas within headquarters, including the arrest

room where individuals are processed, fingerprinted and interviewed, and one such

videotape record was made while Williams was present at headquarters. The Amos Cert.

then sets forth the video is and will become part of the investigations mentioned above.

Lastly, the Amos Cert. opines it would be inappropriate to release the requested

information at this time because the release of the information may jeopardize the

investigation or the safety of Garfield Police Officers.

Plaintiffs counsel filed a reply on March 8, 2012. The court entertained oral

argument on March 16, 2012.

Legal Standards

A. OPRA

1. Generally

The Act, N.J.S.A. 47:1A-1 to -13, plainly identifies its purpose at the outset: to

ensure that government records, unless exempted, are readily accessible to citizens of

New Jersey for the protection of the public interest. To accomplish that aim, OPRA sets

forth a comprehensive framework for access to public records. Mason v. City of

Hoboken, 196 N.J. 51, 57 (2008) (internal citation omitted).

OPRA provides government records shall be readily accessible for inspection,

copying, or examination by the citizens of this State, with certain exceptions, for the

protection of the public interest, and any limitations on the right of access [under the Act]

shall be construed in favor of the publics right of access. N.J.S.A. 47:1A-1. A

government record is defined as:

any paper, written or printed book, document, drawing,map, plan, photograph, microfilm, data processed or image


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processed document, information stored or maintainedelectronically or by sound-recording or in a similar device,or any copy thereof, that has been made, maintained or kept

on file in the course of his or its official business by anyofficer, commission, agency or authority of the State or of

any political subdivision thereof, including subordinateboards thereof, or that has been received in the course ofhis or its official business by any such officer, commission,agency, or authority of the State or of any politicalsubdivision thereof, including subordinate boards thereof.The terms shall not include inter-agency or intra-agencyadvisory, consultative, or deliberative material.

[Id. 1.1.]

Records are typically available during the public agencys regular business hours

with an exception for smaller towns, agencies, and school districts. Id. 5. The records

may be redacted to protect personal information, and the records custodian may charge a

fee for copying and related services. Ibid. Typically, any request for a record must be

made using the agencys official request form. Ibid. The custodian must respond to all

requests within seven business days, unless the applicant fails to provide necessary

contact information. Ibid.

If access to a government record is denied, the person denied access, and only that

person, may challenge the decision by filing a complaint in Superior Court or with the

Government Records Counsel. Id. 6. The application must be brought within forty-

five days of the denial. Mason, supra, 196 N.J. at 68 ([A] 45-day statute of limitations

should apply to OPRA actions, consistent with the limitations period in actions in lieu of

prerogative writs.).

The proceeding will go forward in a summary or expedited manner. N.J.S.A.

47:1A-6; see Courier News v. Hunterdon Cnty. Prosecutors Office, 358 N.J. Super. 373,

378 (App. Div. 2003). As such, the action is commenced by order to show cause


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supported by a verified complaint. Ibid. In Courier News, the Appellate Division held

the trial court had failed to follow proper procedure when it denied a newspaper its right

to summary adjudication on an OPRA action. The trial judge had erroneously applied the

standard for preliminary relief to the summary action and dismissed plaintiffs action

without prejudice. Id. at 377. As a result, the Appellate Division, recognizing the Acts

policy of expediency, invoked original jurisdiction over the matter. Id. at 379.

In OPRA actions, the public agency has the burden of proving the denial is

authorized by law. N.J.S.A. 47:1A-6. As such, the agency must produce specific

reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.

Absent such a showing, a citizens right of access is unfettered. Courier News, supra,

358 N.J. Super. at 383.3 In establishing legal support, [a] decision of the [Government

Records Council] shall not have value as a precedent for any case initiated in Superior

Court, N.J.S.A. 47:1A-7, though such decisions are normally accorded deference unless

arbitrary, capricious or unreasonable or violative of legislative policies expressed or

implied in the act governing the agency. Serrano v. S. Brunswick Twp., 358 N.J. Super.

352, 363 (App. Div. 2003) (citing Campbell v. Dept of Civil Serv., 39 N.J. 556, 562

(1963)). Lastly, a court must be guided by the overarching public policy in favor of a

citizens right of access. Courier News, supra, 358 N.J. Super. at 383.

If it is determined access was improperly denied, such access shall be granted,

and a successful requestor shall be entitled to reasonable attorneys fees. N.J.S.A. 47:1A-

6.

3 It should be noted when a claim of confidentiality or privilege is made by the public custodian of therecord the court must inspect the challenged document in-camera to determine the viability of theclaim. MAG Entmt v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 551 (App. Div. 2005).


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2. Exceptions to Access Under OPRA

Excluded from the definition of government record, i.e., records accessible

under OPRA, are twenty-one categories of information which are deemed confidential

and are not to be disclosed. See N.J.S.A. 47:1A-1.1. Additionally, the Act provides an

exception to access even when the document sought qualifies as a government record.4

See id. 3(a). For purposes of the matter before the court, two exceptions may be

applicable to prevent access under OPRA. Lastly, the statute qualifies the ability of a

government body to shield access to information by requiring certain information to be

disclosed, even if an exception applies to prevent disclosure of a record. Id. 3(b).

The first possibly applicable exception is for a criminal investigatory record,

which is defined as a record which is not required by law to be made, maintained or kept

on file that is held by a law enforcement agency which pertains to any criminal

investigation or related civil enforcement proceeding. Id. 1.1. As the burden rests on

the government agency seeking to deny access, id. 6, in order to prevent disclosure,

defendant must show both 1) the record in question is not required by law to be made;

and 2) the record sought pertains to a criminal investigation or related civil

enforcement proceeding. Id. 1.1.

The other relevant exception to public access of a government record is found in

N.J.S.A. 47:1A-3, which states, where it shall appear that the record or records which

are sought to be inspected, copied, or examined shall pertain to an investigation in

progress by any public agency, the right of access . . . may be denied if the inspection,

copying or examination of such record or records shall be inimical to the public interest.

4 For ease of reference, and as the analysis does not materially differ, the court will hereinafter also refer tothe pertinent exclusion from categorization as a government record as an exception to access underOPRA.


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Id. 3(a). However, the provision then goes on to state, this provision shall not be

construed to allow any public agency to prohibit access to a record of that agency that

was open for public inspection, examination, or copying before the investigation

commenced. Ibid. There are thus three elements defendant must meet in order to deny

access under 3(a): 1) the record pertains to an investigation in progress by a public

agency; 2) disclosure would be inimical to the public interest; and 3) the record was not

already open for disclosure before the investigation commenced. Ibid.

Finally, section 3(b) qualifies the governments freedom to deny access and

provides, notwithstanding any applicable OPRA exceptions, certain information

concerning a criminal investigation shall be available to the public within 24 hours or as

soon as practicable, of a request for such information. Id. 3(b). Two categories of

information which must be disclosed are information as to the identity of the

investigating and arresting personnel and information of the circumstances

immediately surrounding the arrest, including but not limited to the time and place of the

arrest, resistance, if any, pursuit, possession and nature and use of weapons and

ammunition by the suspect and by the police. Ibid. The statute includes a caveat on the

release of this information, though, providing:

[W]here it shall appear that the information requested . . .will jeopardize the safety of any person or jeopardize anyinvestigation in progress or may be otherwise inappropriateto release, such information may be withheld. Thisexception shall be narrowly construed to prevent disclosureof information that would be harmful to a bona fide lawenforcement purpose or the public safety.

[Ibid.]


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Thus, in sum, under 3(b), certain information must be disclosed, even if an

exception to OPRA applies, unless, in limited circumstances, such disclosure would

either jeopardize someones safety or an investigation or otherwise be inappropriate.

Ibid.

B. New Jersey Common Law

In addition to OPRA, disclosure of public records can be sought under the

common law. Thus, even if the UFRs or police surveillance videos fall within one of the

exceptions to access under the statutory construct of OPRA, plaintiff may still prevail by

resort to the common-law right to access government records, a thorough background of

which is provided by Mason, supra, 196 N.J. at 67-68:

The common law definition of a public record is broaderthan the definition contained in OPRA.

. . .

To access this broader class of documents, requestors mustmake a greater showing than required under OPRA: (1) theperson seeking access must establish an interest in thesubject matter of the material; and (2) the citizens right toaccess must be balanced against the States interest inpreventing disclosure.

[Ibid. (internal citations and quotations omitted).]

Thus, to prevail under the common law, plaintiffs must show the record sought

constitutes a public record and establish a right in the record sought, which outweighs

the States interest in preventing disclosure. While, traditionally, records sought under

the common law are written, they need not be so. For example, in holding computer

tapes to be public records accessible under the common law, the Supreme Court held:

[The computer tapes] are indisputably made by (or at thebehest of) public officers in the exercise of public


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functions. They are produced by public officials. That ourprevious definition of a common-law record was drawnfrom sources that spoke in terms of traces of ink on paperdoes not limit its scope. The essence of the common-law isits adaptability to changing circumstances. [Atl. City

Convention Ctr. Auth. v. S. Jersey Publg Co., 135 N.J. 53,64 (1994)] (holding that audio tapes, although not Right-to-Know public records, are common-law public records).Likewise, we find that in view of rapidly advancingtechnological changes in storing information electronically,computer tapes also can be common-law public records.

[Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 47(1995).]

Compare Mason, supra, 196 N.J. at 67 (quoting Nero v. Hyland, 76 N.J. 213, 222 (1978)

(To constitute a public record under the common law, the item must be a written

memorial[ ] . . . made by a public officer, and . . . the officer [must] be authorized by law

to make it.).

Once it is shown the record is a public record and is therefore subject to

disclosure, and the plaintiffs interest in the record is established, the court must weigh

the plaintiffs interest against the governments interest in non-disclosure. The Supreme

Court has set forth the following factors for use in conducting this balance:

(1) the extent to which disclosure will impede agencyfunctions by discouraging citizens from providinginformation to the government; (2) the effect disclosuremay have upon persons who have given such information,and whether they did so in reliance that their identitieswould not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmakingwill be chilled by disclosure; (4) the degree to which theinformation sought includes factual data as opposed toevaluative reports of policymakers; (5) whether anyfindings of public misconduct have been insufficientlycorrected by remedial measures instituted by theinvestigative agency; and (6) whether any agencydisciplinary or investigatory proceedings have arisen that


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may circumscribe the individuals asserted need for thematerials.

[Loigman v. Kimmelman, 102 N.J. 98, 113 (1986).]

Analysis

A. OPRA

1. The UFR and Video are Government Records.In order to be subject to OPRAs disclosure requirements, the records sought must

qualify as government records. It is clear both records sought here the UFR and video

are government records for purposes of OPRA, as the statute defines a government

record as, in short, any document or recording made, maintained, or kept by any

government entity, or officer or official thereof, in the course of its or his official

business. See N.J.S.A. 47:1A-1.1; see also Serrano, supra, 358 N.J. Super. at 365

(holding audiotape of a 911 phone call was a government record). It is uncontroverted

both UFRs and surveillance videos are made and maintained by officers of the GPD, and

they are thus government records regardless of whether they are required by law to be

made. Cf. K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 350 (App. Div.

2011) (Whether a school record is mandated by State regulation, however, does not

determine whether it fits the definition of a government record under OPRA.).

The next step, though, is whether, despite the initial finding the requested records

are government records under OPRA, they are nevertheless inaccessible as a result of

satisfying the requirements for one of the exceptions to access under OPRA. The court

will treat in turn each requested record as it relates to the possibly applicable exceptions.


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2. No Exception Applies to Shield UFRs from Public Access.On January 18, 2012, Lueddeke submitted a request for [a]ny use of force

reports filed by Garfield police officers for incidents occurring on Dec. 10, 2011. The

request was denied on January 19, 2012. The court finds UFRs do not qualify as either a

criminal investigatory record, under 1.1 of OPRA, or as a record of an investigation in

progress under 3(a). As such, the UFR, once created, must be disclosed.

a. Delay in creation of a UFR is contrary to OPRA policy; assuch, the UFR shall be disclosed to plaintiffs counsel onpreparation.

As a preliminary matter, the court notes it is disconcerting, both when Lueddeke

submitted her request for the UFR and when Rotolo corresponded with plaintiffs

counsel, defendants position was the UFR was not accessible as it pertained to an

ongoing investigation of the incident not it was not in existence. Rotolos letter brief,

submitted on March 5, 2012, for the first time informs the court, and plaintiff, the UFR

has not yet been created as the officer involved in the shooting was placed on leave. To

properly place the timing of this revelation in perspective, it must be noted the incident

occurred on December 9, 2011; Lueddeke submitted the request for the UFR on January

18, 2012; the court executed the order to show cause on February 14, 2012, and

defendant was served shortly thereafter. Accordingly, for defendants to now come before

the court and urge nondisclosure for the sole reason the UFR has not even yet been

created, more than three months after Williams shooting, is not acceptable and not

consistent with OPRAs overarching policy of governmental transparency.5

5Further, the court notes, this sort of apparent evasion of responsibility results in, or, unfortunately, perhapsis indicative of, distrust between the government and the public at large, while OPRAs aim is to promoteopenness. See, e.g., Fair Share Hous. Ctr. v. N.J. State League of Municipalities, 207 N.J. 489, 502 (2011)(quoting Asbury Park Press v. Ocean Cnty. Prosecutors Office, 374 N.J. Super. 312, 329 (Law Div. 2004))


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While the court was unable to locate any directive or guideline from the Office of

the Attorney General regarding the timeline for the completion of a UFR specifically,

both Law Enforcement Directive No. 2006-5 and the Attorney Generals Use of Force

Policy contemplate immediate reporting of use of force resulting in death or serious

bodily injury. See Law Enforcement Directive No. 2006-5 (Dec. 13, 2006),

http://www.state.nj.us/lps/dcj/agguide/directives/dir2006_5.pdf [hereinafter Law

Enforcement Directive] (The Director of the Division of Criminal Justice or his designee

must be notified immediately . . . of any use of force by a law enforcement officer

involving death or serious bodily injury to a person . . . . For purposes of this Directive,

immediate notification . . . shall mean notification to the Director or his designee before

any investigation of the incident is undertaken other than to secure the scene and to

render medical assistance as required in the circumstances.); Attorney Generals Use of

Force Policy (June 2000), http://www.nj.gov/oag/dcj/agguide/useofforce2001.pdf

(County and municipal law enforcement agencies shall immediately notify the county

prosecutor when the use of physical, mechanical or deadly force results in death or

serious bodily injury, or when injury of any degree results from the use of a firearm by a

law enforcement officer. . . . County prosecutors shall within 24 hours report to the

Division of Criminal Justice all situations where the use of deadly force by a law

enforcement officer results in death or serious bodily injury, or in situations where any

injury results from the use of a firearm by a law enforcement officer.). Importantly, the

(An underlying premise of OPRA is that society as a whole suffers when governmental bodies arepermitted to operate in secrecy.).


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Appellate Division has held Attorney General guidelines and the Use of Force Policy

carry the force of law. OShea, supra, 410 N.J. Super. at 382-84.

Moreover, OPRA makes clear its goal of ensuring timely production of records as

a means of ensuring governmental transparency. N.J.S.A. 47:1A-1 ([G]overnment

records shall be readily accessible . . . and any limitations on the right of access . . . shall

be construed in favor of the publics right of access.) (emphasis added); id. 3(b)

(requiring certain information to be disclosed within 24 hours or as soon as practicable

after a request); id. 5(e) (Immediate access ordinarily shall be granted to budgets, bills,

vouchers, contracts, including collective negotiations agreements and individual

employment contracts, and public employee salary and overtime information.)

(emphasis added); id. 5(i) (requiring response to record request to be made with seven

business days); id. 6 (requiring proceeding challenging the denial of a request to

proceed in a summary or expedited manner). See also Mason, supra, 196 N.J. at 69

([C]itizens are entitled to swift access to public records . . . .); Kuehne Chem. Co. v. N.

Jersey Dist. Water Supply Commn, 300 N.J. Super. 433, 438 (App. Div.), certif. denied,

151 N.J. 466 (1997) (New Jersey has a tradition of openness and hostility to secrecy in

government. Our public policy favors access to sufficient information to enable the

public to understand and evaluate the reasonableness of the public bodys action.)

(internal quotations and citations omitted); Law Enforcement Directive ([I]t is

appropriate to ensure and enhance public confidence in the manner in which the use of

deadly force by law enforcement is reviewed to assure adequate justification for the use

of such force and to ensure that all investigations of the use of force are conducted in a

thorough, fair and impartial manner[.]).


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It is clear, then, throughout the Act and the jurisprudence stemming from it,

emphasis is placed on the aim of preventing the government from withholding records

concerning matters of public interest. This is not to question the motives of defendants or

the GPD in not ensuring the UFR was created in a timely fashion, or disclosing in a

timely fashion no UFR has been created, as there are no proofs before the court on which

to do so. Still, bearing in mind the unquestionable purpose of OPRA is to ensure

disclosure, governmental bodies cannot inhibit disclosure simply by failing to create a

record, particularly one which, as discussed below, is required by law to be made.

A full three months have passed since the shooting of Williams, and still there has

been no disclosure. Further delay would be the only foreseeable result of this courts

acceptance of defendants request to deny access to the UFR solely based on the fact it

has not yet been created. That is, plaintiff would have to make a request, wait seven days

for a response, and file a new order to show cause; the court would then have to set a

return date, normally in or about thirty days from the date of filing, in order to give

defendants adequate time to brief what one would think would be a more substantive

opposition to the request to access the UFR. All this, of course, assumes the UFR would

be created by then. Coupled with the fact, discussed below, it is clear the UFR, if it

existed, would be accessible, the further delay which would be occasioned by the

acceptance of defendants argument cannot be allowed. Therefore, while the court

cannot order the creation of the UFR, it can and does order once it is created it be turned

over to plaintiffs counsel forthwith.

In addition to the above, there is yet an additional consideration mandating the

disclosure of the UFR. The Amos. Cert. sets forth there are four investigations which


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either have been or will be commenced: three on the part of the GPD (one into the

aggravated assault constituting the basis of Williams arrest and processing and two

internal affairs investigations concerning Williams escape and shooting) and one on the

part of the BCPO (concerning the shooting). One purpose of the UFR is to aid these

investigations. It is incongruous, then, for the UFR still not to have been prepared while

these investigations are three months old. Moreover, it would be incongruous for it later

to be argued the UFR should not be disclosed, due to its involvement in on-going

investigations, when the UFR has not been part of any investigation to date.

Accordingly, once the UFR is created, it should immediately be provided to plaintiffs

counsel.6

b. OShea is unequivocal UFRs are not criminal investigatoryrecords.

Applying the elements of each exception, it is clear UFRs, once created, cannot be

shielded properly from public access under OPRA. The Appellate Division has already

decided UFRs are not criminal investigatory records, as they fail to meet either of that

exceptions predicates. See OShea, supra, 410 N.J. Super. at 381. First, the court held,

UFRs are required by law to be made as they are mandated under the Attorney Generals

Use of Force Policy, which carries the force of law. Id. at 382-83. Secondly, though

that court need not have reached the question, while finding the UFRs in question did not

pertain to an investigation, it held more broadly there is no basis to consider all such

reports, generically, to pertain to criminal investigations. Id. at 386. It is clear, then,

UFRs do not qualify as criminal investigatory records, and, as government records, they

6 At oral argument, Rotolo informed the court the UFR has still not been completed, though, apparently inconjunction with the unidentified officers retained counsel, it is in the process of being prepared.


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are subject to disclosure under OPRA absent the applicability of another exception to

access.

c. The elements for 3(a) are not met, as there is no evidencedisclosure would be inimical to the public interest.

The UFRs also do not qualify under the 3(a) exception for records of

investigations in progress. N.J.S.A. 47:1A-3(a) permits the denial of access of a

government record if defendant can show 1) the record pertains to an investigation in

progress by a public agency; 2) disclosure would be inimical to the public interest; and 3)

the record was not already open for disclosure before the investigation commenced.

Even without regard to the first element, which will be discussed more fully as it relates

to the video, there is no competent evidence to show disclosure of the UFR would be

inimical to the public interest. Rather, the public has a significant interest in being

informed of the circumstances of police-involved shootings of citizens. It is important to

note, moreover, it is defendants burden to show in what way disclosure of the records

would be inimical. Such showing need be stated strongly to overcome OPRAs well-

known and oft-stated aims to maximize public knowledge about public affairs . . . and

to minimize the evils inherent in a secluded process. Fair Share Hous. Ctr., supra, 207

N.J. at 501-02 (quoting Times of Trenton Publg Corp. v. Lafayette Yard Comty. Dev.

Corp., 183 N.J. 519, 535 (2005)). Defendants must produce specific reliable evidence

in support of their denial of access. Courier News, supra, 358 N.J. Super. at 383. Simply

put, defendants are unable to carry this burden, not only as their counsel chose not to

argue 3(a) applied to shield the UFRs, but, more broadly, defendants provided nothing

regarding the inimical character of disclosure other than general statements in the

Amos Cert. concerning officer safety and the integrity of the on-going investigations,


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with no proofs to substantiate such claims. As such, defendants arguments disclosure of

the UFR would be inimical to the public interest are rejected. Consequently, the UFR

must be released.7

3. While the Video Qualifies as a Criminal Investigatory Record,Disclosure of Information It May Contain is Still Required Under 3(b).

As defendants sole argument with respect to the video is grounded in 3(a), the

court will first address the applicability of that exception before addressing the

applicability of the criminal investigatory records exception.

a.

The elements for 3(a) are not met, as the video wasunquestionably created before any investigation, and there isno evidence disclosure would be inimical to the public interest

Glaringly, and fatally, defendants argument regarding the applicability of 3(a)

fails to address the third element of the exception, i.e., access cannot be denied if the

record was already subject to disclosure before the investigation began. As mentioned

above, to qualify under 3(a), a record must not have been open to the public prior to the

7 Furthermore and for purposes of completeness, even if disclosure of the UFR was shown to somehow beinimical to the public interest, and again without regard to whether the UFR pertains to an investigation inprogress, defendants still would have to show the record was not already open for disclosure before theinvestigation commenced. As discussed in relation to criminal investigatory records, UFRs are required bylaw to be made and are government records subject to disclosure under OPRA. Records open to publicaccess prior to commencement of investigation remain open despite the existence of subsequentinvestigation. See Serrano, supra, 358 N.J. Super. at 356 (If it was public record when created, then itwould remain accessible to the public under N.J.S.A. 47:1A-3(a) even if its release would be inimical to thepublic interest.). Here, strangely, the UFR has not yet been created. It seems, then, were the courtrequired to reach this issue, an inquiry into intent, i.e., the reason the UFR has not yet been created, wouldbe necessary, as it is inconsistent with the overarching policy of OPRA to allow a governmental entity to

purposely provide grounds for the denial of access to a record by foregoing its creation until after aninvestigation commenced. Therefore, when dealing with records which are required by law to be made and in a timely fashion the court could not simply accept, at face value, the proposition the records werenot made prior to an investigation and should therefore be shielded. However, as defendants did notaddress the applicability of 3(a) but chose only to argue for the denial of access on the grounds the UFRhas not yet been created, the court need not broach the subject of intent. Suffice it to say, UFRs, asgovernment records required to be made, are generally expected to be made prior to any investigation, and,as such, will generally not be able to be withheld under 3(a).

Lastly, as the court finds no exception applies to prevent disclosure of the UFR under OPRA, noanalysis with respect to the application of 3(b) in this context is necessary.


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start of an investigation. As the video is open to the public as a government record under

OPRA, and was in existence before any investigation commenced, defendants cannot

meet the third element of 3(a), preventing them from shielding the video under that

exception.

Defendants do, though, argue disclosure of the video would be inimical to the

public interest, apparently adopting the arguments set forth by Puccio in a letter to

Lueddeke, dated December 29, 2011, and attached to the Rotolo Cert. In the letter,

Puccio argues the release of the video would be inimical to the public interest because it

would allow witnesses to alter the information they provide to police to conform to the

contents of the record. Defendants also adopt the arguments contained in the Amos

Cert. to the effect release of the video would possibly jeopardize the ongoing

investigations and officer safety.

Categorical and encompassing assertions of safety concerns or jeopardy to

existing investigations, without support, are insufficient. Here, suffice it to say,

defendants attempt to show the release of the video would be inimical to the public

interest fails to satisfy the exception to access under 3(a), even assuming the record was

not already open to disclosure prior to the investigation. The argument in Puccios letter,

i.e., citizens may try to conform their version of events with what is seen in the video,

were the court to consider it, is wholly unsupported and unconvincing.8 In somewhat like

manner, Amos opinion the release of the video would jeopardize the safety of the GPD

officer involved in the shooting is based on nothing more than the conjecture those

8 Even if Puccios argument had support generally, it may be questionable in this case as any investigationsinto the incident have purportedly been on-going for approximately three months. It may appear, then, thegreater concern for reliability of any witnesses not yet interviewed would stem from the passage of timesince the incident rather than the possibility of witnesses viewing a video and tailoring their versions to itscontents.


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protesting Williams shooting and the lack of information forthcoming from authorities

would seek justice or revenge by means of violence. Amos attempts to support this

inference by arguing the protesters, who he characterizes as non-violent and generally

controlled, have stated Williams was murdered and was shot in the back. The

court rejects this speculation as wholly unsubstantiated and, in fact, possibly illogical, as

it is unknown like many of the facts surrounding the incident whether one of the

officers shown in the video, which was taken in the police station, was involved in the

actual shooting of Williams, which occurred several blocks away. If the officer involved

in the shooting, who is the apparent subject of concern, is not shown in the video, there

can be no argument the video jeopardizes a GPD officer, unless Amos would then wish to

take the position any police officer shown in a video having any connection to the

shooting of a citizen is a possible target for violence.

Though defendants did not raise the issue, in the hope of providing a decision

which discourages additional delay in this matter, the court addresses whether the

criminal investigatory records exception applies to the video.

b. As surveillance videos are not required by law to be made, thequestion of their qualification as criminal investigatory recordsturns on whether they pertain to a criminal investigation.

Unlike the UFR in question, the court finds the video qualifies as a criminal

investigatory record. In order to understand why the video qualifies, it is helpful to

compare the elements of the criminal investigatory records exclusion, 1.1 of OPRA,

with the elements of the investigation in progress exception, 3(a) of OPRA. As

stated above, there are two elements which must be met for a record to qualify as a

criminal investigatory record: 1) the record in question is not required by law to be made;


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and 2) the record sought pertains to a criminal investigation or related civil

enforcement proceeding. N.J.S.A. 47:1A-1.1.

Here, there is no competent evidence demonstrating police surveillance videos are

required by law to be made. It thus appears, and the court finds, the first element of 1.1

is met. Whether the video qualifies as a criminal investigatory record therefore turns on

whether it pertains to a criminal investigation. Counsel for plaintiff urges the court to

understand pertain as being created as part of the investigation, and not existing

beforehand. In her brief in support of the order to show cause, counsel writes the second

element of the criminal investigatory record definition requires that the record be created

as part of the investigatory process not that the record subsequently becomes part of the

investigation.

Counsels definition has appeal at first blush and, moreover, even seems to be

consistent with OPRAs overarching goal of encouraging disclosure of government

records as a means of promoting transparency in governmental affairs. The problem with

counsels definition of pertain, though, is one of statutory interpretation. It is black-

letter law the court must interpret a statute so as to give each word meaning; no word or

phrase is to be deemed mere surplussage. Fundamental rules of statutory construction

militate against an interpretation of a statute that requires a court to assume a provision is

suplusage; the presumption is that every word in a statute has meaning. Fletcher v.

Cessna Aircraft Co., 412 N.J. Super. 530. 536 (App. Div. 2010) (quoting In re Atty

Gen.s Directive on Exit Polling: Media & Non-Partisan Pub. Interest Grps., 200 N.J.

283, 298 (2009)). And this is exactly what occurs when the meaning of pertain

plaintiff urges for purposes of the criminal investigatory records exception is applied to


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3(a)s requirements: 1) the record pertains to an investigation in progress by a public

agency; 2) disclosure would be inimical to the public interest; and 3) the record was not

already open for disclosure before the investigation commenced. That is, plaintiffs

definition of pertain requires the record be made as part of the investigation, i.e., that it

not already be made beforehand. However, the same requirement is imposed by the third

element of 3(a). Logically, if the record was open for public inspection before the

investigation commenced, it had to exist before the investigation commenced. Plaintiffs

definition of pertain, therefore, would render redundant the third element of 3(a). As

the same is an impermissible result, the court cannot accept plaintiffs suggested

meaning.

As support for its definition of pertain, plaintiff relies on the OShea courts

language discussed above, namely, UFRs cannot, generically, be said to pertain to

criminal investigations. OShea, supra, 410 N.J. Super. at 385-86. Plaintiff argues police

surveillance videos are made on a daily basis, without regard to any purpose . . . . They

are simply not made to investigate crimes. Plaintiff then draws a favorable comparison

of the video to UFRs, which, as they are required by law, are also made independently of

any criminal investigation. Finally, plaintiff quotes OShea and argues, just as it cannot

be assumed that a UFR might become part of a criminal investigation, it equally cannot

be assumed a surveillance video will later become part of an investigation. Id. at 386.

The court agrees. The fact records made prior to an investigation cannot be

assumed to later become part of an investigation does not mean they necessarily by

definition cannot become part of, or pertain to one, however. To make such a leap is

flawed logic, and it is fatal to plaintiffs argument. In other words, a careful reading of


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OShea reveals the court rejected the defendants argument UFRs, by definition,

pertained to criminal investigations; the court did not take the step plaintiff urges and

hold UFRs could not pertain to a criminal investigation. Like the OShea court, this court

also declines to take that step.

The court understands OShea to mean records such as UFRs and police

surveillance videos may or may not pertain to an investigation; the question is one of fact

for the fact-finder in OPRA matters. For purposes of evaluating the accessibility of

UFRs, the question is almost academic, as even if UFRs pertain to an investigation, they

are required to be made and therefore cannot qualify as criminal investigatory records.

The same cannot be said for the video at issue here, however, which is not required to be

made.

Though the meaning of pertain must be broader than plaintiff urges, for

purposes of this matter, the court need not specify the exact contours of its meaning. It is

undisputed there is a pending investigation into the police-involved shooting of Williams

being undertaken by the BCPO. The video may well provide information as to the

specific events which occurred when Williams fled the police station prior to the chase

which resulted in his shooting and death. The video therefore clearly pertains to this

investigation. As such, the video meets the second element of the criminal investigatory

records exception and thus public access, under OPRA, may properly be denied. The

question still remains, though, whether the video is nevertheless accessible under the

common law.


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c. Despite constituting a criminal investigatory record, the videocontains information which must be released under 3(b).

The inquiry into the videos accessibility under OPRA is not ended with the

finding it qualifies as a criminal investigatory record. The Amos Cert. informs the court

individuals are placed in an arrest room to be processed, fingerprinted, and interviewed,

and there is a video camera inside the room. The parties also agree Williams turned

himself into the police at the police station and was taken into custody to be processed.

Any video taken in the arrest room, then, would likely provide the information which

3(b) requires be released, notwithstanding the applicability of other exceptions to

disclosure under OPRA, namely information as to the identity of the investigating and

arresting personnel and information of the circumstances immediately surrounding the

arrest, including but not limited to the time and place of the arrest, resistance, if any,

pursuit, possession and nature and use of weapons and ammunition by the suspect and by

the police. N.J.S.A. 47:1A-3(b). In short, it appears the video might provide

information concerning questions, such as: Why did Williams flee? Was he provoked

into flight, or did he harbor last-second designs on escape? What kind of altercation, if

any, occurred, and who instigated it? Did Williams say or do anything which raised in

the officers a justifiable concern? Were any of the parties armed? How many officers

were in the room with Williams?

Section 3(b) requires the release of such information within twenty-four hours of

a request or as soon as is practicable thereafter. Ibid. Clearly, the deadline has passed,

with neither the information nor the video being released. Accordingly, under OPRA,

defendants must release, if not the video, at least a fuller account of what occurred in the

police station as revealed by the video and required by 3(b). Of course, if the video is


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accessible under the common law, merely providing information as required under 3(b),

without producing the video, would be inadequate.

Lastly, 3(b) provides a caveat the information it requires to be released may

still be withheld, in limited circumstances, if disclosure would jeopardize the safety of an

individual or of an investigation. The court need not fully address this limitation as the

same analysis applies which was undertaken with respect to 3(a)s requirement

disclosure not be inimical to the public interest and defendants general arguments

regarding office safety.

B.

The Video is Accessible under New Jersey Common Law.

While the video may be shielded under OPRA, New Jerseys common law right

of access provides another avenue for plaintiff to obtain access. In order to be accessible

under the common law, the video must qualify as a public record and plaintiff must

establish an interest in disclosure which, evaluated under the Loigman factors, is greater

than defendants interest in non-disclosure.9

Taking each step in turn, the video clearly constitutes a public record under the

common law, which makes a much broader class of documents available, but on a

qualified basis. Higg-A-Rella, supra, 141 N.J. at 46. While courts often speak of public

records as written, [c]ommon-law records are any records made by public officers in the

exercise of public functions. These materials include almost every document recorded,

generated, or produced by public officials whether or not required by law to be made,

maintained or kept on file . . . . Ibid. (internal citations and quotations omitted); see also

OShea, supra, 410 N.J. Super. at 386-87; Daily Journal v. Police Dept. of Vineland, 351

N.J. Super. 110, 122 (App. Div. 2002). As police surveillance videos appear to fit safely

9 Counsel for defendants did not address plaintiffs common-law right of access.


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within this broad definition, they constitute public records under the common law. See

Serrano, supra, 358 N.J. Super. at 373 (Although 911 calls are protected by OPRA, they

may be subject to examination under the common law, provided of course that the

applicant can meet the common law burden of showing some personal or particular

interest in the material sought.); Asbury Park Press v. Lakewood Twp. Police Dept., 354

N.J. Super. 146, 163 (Law Div. 2002) (ordering disclosure of 911 tapes under both the

Right to Know Law and the common law right to access).

Next, plaintiff, as the eyes and ears of the public, clearly has an interest in

accessing information relating to an as-yet-unexplained police-involved shooting of a

local citizen. As plaintiff correctly cites:

The presss role as the eyes and ears of the publicgenerally is sufficient to confer standing on a newspaperthat seeks access to public documents. Indeed, a legitimate,private profit motive is also sufficient. As a commercialentity, newspapers regularly pursue and print stories basedon their potential public interest and appeal, as contrastedwith news stories that inherently serve the public interest;the newsworthiness and commercial value of such storiesclearly suffice to confer standing on a newspaper under thecommon-law right of access.

[Home News v. Dept of Health, 144 N.J. 446, 454 (1996)(internal citations omitted).]

See also Red Bank Register v. Bd. of Educ., 206 N.J. Super. 1, 9 (App. Div. 1985)

(quoting Nixon v. Warner Commcns, 435 U.S. 589, 598, 98 S. Ct. 1306, 1312, 55 L. Ed.

2d 570, 579-580 (1978)) (We are satisfied, however, that a newspapers interest . . . to

keep a watchful eye on the workings of public agencies is sufficient to accord plaintiff

standing.).


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Lastly, having established plaintiff has an interest in a public record, to determine

whether plaintiff is entitled to access the court must engage in a balancing of factors as

set forth in Loigman:

(1) the extent to which disclosure will impede agencyfunctions by discouraging citizens from providinginformation to the government; (2) the effect disclosuremay have upon persons who have given such information,and whether they did so in reliance that their identitieswould not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmakingwill be chilled by disclosure; (4) the degree to which theinformation sought includes factual data as opposed toevaluative reports of policymakers; (5) whether any

findings of public misconduct have been insufficientlycorrected by remedial measures instituted by theinvestigative agency; and (6) whether any agencydisciplinary or investigatory proceedings have arisen thatmay circumscribe the individuals asserted need for thematerials.

[Supra, 102 N.J. at 113.]

Applying the factors to the videos at issue: 1) as no information was provided in

the first place, release of the video would not discourage citizens from providing

information to the government; 2) again, there are no proofs anyone came forward to give

information, therefore the disclosure would have no effect on people coming forward in

the future; 3) while premature release of the video could possibly hamper police in

performing a neutral, reasoned evaluation and, again, there is no evidence to support

such an assertion the investigation has been on-going for three months, and so

disclosure would be unlikely to have any dramatic impact; 4) the video contains solely

factual data; 5) there have not yet been any findings of police misconduct, and, again, as

the BCPO investigation has been on-going for three months, disclosure at this time


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should have little effect on any punishment imposed;10 and 6) no proceedings have yet

arisen, and it would be difficult to circumscribe plaintiffs need for the video as it is the

eyes and ears for many people in northern New Jersey.

In sum, while defendants interest in preventing disclosure may be more than de

minimus, on balance, and in light of the circumstances of this case, plaintiffs interest,

and the interest of the public at-large, is greater. The video must therefore be produced.

4. The Imposition on Defendants of Plaintiffs Attorneys Fees WithRespect to the UFR is Appropriate.

Plaintiff seeks an award of counsel fees and costs pursuant to N.J.S.A. 47:1A-6,

which provides a prevailing party shall be entitled to attorneys fees:

A person who is denied access to a government record bythe custodian of the record, at the option of the requestor,may . . . institute a proceeding to challenge the custodiansdecision by filing an action in Superior Court . . . If it isdetermined that access has been improperly denied, thecourt . . . shall order that access be allowed. A requestorwho prevails . . . shall be entitled to a reasonable attorney'sfee.

[N.J.S.A. 47:1A-6.]

The court recognizes, in one sense, plaintiff has not prevailed with respect to

the disclosure of the UFR under OPRA, as no UFR has yet been prepared. Still,

plaintiffs position clearly prevails under OPRA, and a higher degree of either candor or

due diligence on defendants part would have led them to disclose to plaintiff much

earlier, and before plaintiff had to incur the costs of this suit, the UFR had not yet been

created. Moreover, the court is satisfied plaintiff is entitled to attorneys fees under the

10 The court recognizes the GPD investigation into the shooting is currently suspended pending theconclusion of the BCPO investigation, and so any punishment the GPD might wish to impose has not yetbeen contemplated and, if the videos are released, may be impacted by the public reaction to the contents ofthe videos. In light of the balance of the other factors, however, this consideration is not enough to preventdisclosure.


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catalyst approach, which the Supreme Court reaffirmed allows an award [even]

where there is no judicially sanctioned change in the legal relationship of the parties,

i.e., where the defendant produces the record before the entry of a judgment against it.

Mason, supra, 196 N.J. at 72 (quoting Buckhannon Bd. & Care Home v. West Virginia

Dept of Health & Human Resources, 532 U.S. 598, 605, 121 S. Ct. 1835, 1840, 149 L.

Ed. 2d 855, 863 (2001)) (emphasis added). Therefore, with respect to attorneys fees

under OPRA, the Court held, absent a judgment or an enforceable consent decree,

plaintiffs prevail when they can demonstrate: (1) a factual causal nexus between

plaintiff's litigation and the relief ultimately achieved; and (2) that the relief ultimately

secured by plaintiffs had a basis in law. Id. at 76 (quoting Singer v. State, 95 N.J. 487,

494, cert. denied, New Jersey v. Singer, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64

(1984)) (emphasis added). The Court envisioned [t]rial courts would conduct that fact-

sensitive inquiry on a case-by-case basis, evaluating the reasonableness of, and

motivations for, an agencys decisions, and viewing each matter on its merits. Id. at 79.

Here, the court is ordering defendants to produce the UFR upon preparation; it is

therefore unclear whether resort to the catalyst approach is necessary to determine the

propriety of a fee award. Even analyzing the request under the catalyst approach, though,

in light of OShea, there is no reasonable basis for defendant to have refused access to the

UFR; the relief plaintiff seeks therefore clearly has a basis in the law. It is also apparent

from defendants conduct the UFR would not have been released, if created, without the

filing of this suit. In addition, defendants silence with respect to the UFRs non-

existence until after a lawsuit was filed flies in the face of the cooperation among

requestors and agencies OPRA seeks to facilitate. Id. at 66; see also id. at 78 (finding


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the catalyst approach better maintains the cooperative balance OPRA strives to attain).

As such, an award of attorneys fees with respect to the UFR is appropriate. 11

Lastly, plaintiff also seeks an award of attorneys fees for prevailing on its claim

for the video. This fee request presents some difficulty as plaintiff prevailed on the claim

for the video under the common law only, and a plaintiffs right to obtain legal fees under

the common-law right of access is unsettled. On the one hand, the Mason court

suggested there appears to be no basis for distinguishing between the applicability of the

catalyst approach under OPRAs statutory scheme as opposed to the common law. See

id. at 79 ([As to] whether the question of attorneys fees merits different treatment in an

action brought under the common law[:] [a]bsent an apparent, theoretical basis for such a

distinction, we conclude that the catalyst theory applies to common law suits as well.).

This, though, was the Courts only discussion of the issue of attorneys fees under the

common law, and it was provided in a factual construct in which the plaintiff did not

even qualify as a prevailing party under OPRA. Id. at 79-81. Thus, even assuming the

catalyst approach unqualifiedly applies to the common-law right of access, i.e., there is

no apparent, theoretical basis for a distinction from OPRA, the court is left with little

guidance as to the appropriate analysis, particularly with regard to the second prong of

the catalyst approach requiring the relief sought have a basis in law. See id. at 76.

On the other hand, several factors weigh against the award of attorneys fees, in

this case, under the common-law right of access. First, the only published appellate

11 Plaintiff also seeks the imposition of a $1,000 fine pursuant to N.J.S.A. 47:1A-11. While a greaterdegree of candor would have been preferred, the court is not satisfied defendants denial of access to theUFR rises to the level of a knowing and willfull violation of OPRA as required by 11. That said,OShea is unequivocal: UFRs cannot properly be withheld from access under OPRA, and, therefore, aslong as OShea remains controlling case law, similar future denials of UFRs may not be viewed in the samemanner.


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authority since Mason the court was able to locate on this question is a footnote, in dicta,

in a case in which the plaintiff prevailed under OPRA anyway:

We do not address in this decision whether a court may

order reimbursement of attorneys fees when records aredisclosed pursuant to the common law as opposed toOPRA. See [Mason, supra, 196 N.J. at 79] (appearing toaccept, in the absence of briefing and argument to thecontrary, that attorneys fees may be awarded in an actionbased on common law right to disclosure of publicrecords); Shuttleworth v. City of Camden, 258 N.J. Super.573, 598 (App. Div.) (reaching no conclusion as to whetherattorneys fees may be recovered under common law rightof access to public records), certif. denied, 133 N.J. 429(1992).

[K.L., supra, 423 N.J. Super. at 357.]

This treatment is hardly an endorsement of awarding attorneys fees under the

common law, as the court need not have even reached the issue. 12 In addition, New

Jersey generally follows the American Rule, under which a prevailing party cannot

recover attorneys fees from the loser. Mason, supra, 196 N.J. at 70 (citing Rendine v.

Pantzer, 141 N.J. 292, 322 (1995)). Taking, then, the American Rule as the starting

point, it is unclear whether attorneys fees are appropriate in this instance, as plaintiffs

right of access to the video was not as apparent as its right to the UFR, and, consequently,

defendants denial of access to the video was not patently unreasonable. Particularly in

light of the absence of meaningful review of the issue since Mason, and taking into

account any fee award would work essentially as the punishment of a public, taxpayer-

funded entity, the court prefers to await appellate clarification before further enshrining

12 The subject of attorneys fees under the common-law right of access has also been the subject of a recentunpublished Appellate Division decision denying the plaintiffs request. Due to the apparent scarcity oftreatment of the topic, the court cites the decision, Kahler v. N.J. State Police, No. A-3790-09T3 (App. Div.Jan. 25, 2011) (slip op.), for the readers reference, even though the practice is disfavored. R. 1:36-3; R.1:1-2(a).


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an exception to the general rule plaintiff is not entitled to attorneys fees under the

common law. As such, plaintiffs request for attorneys fees with respect to the video is

denied.

Counsel should confer on an agreeable amount and memorialize the award of the

same via a consent order, if possible. If the parties cannot agree in the first instance,

plaintiff may petition this court.

Conclusion

The OPRA statute is intended to be construed in favor of the publics right of

access. It is then the burden of the public agency to demonstrate the law permits a

withholding of such access. [T]he court must always maintain a sharp focus on the

purpose of OPRA and resist attempts to limit its scope, absent a clear showing one of its

exceptions is applicable. Asbury Park Press, supra, 374 N.J. Super. at 329. The

salutary goal, simply put, is to maximize public knowledge about public affairs in order

to ensure an informed citizenry and minimize the evils inherent in a secluded process.

Ibid. While [e]xposure of records to the light of public scrutiny may perhaps cause

discomfort to some . . . OPRA is founded on the premise that society as a whole suffers

far more if governmental bodies are permitted to operate in secrecy. Ibid.

Against this strong policy in favor of access, defendants have put forth the

unsupported, general defense disclosure would jeopardize officer safety and on-going

investigations. While cognizant of the governments interest in conducting a fair and

impartial review of the circumstances of the incident, unfettered by influence or pressure

that might be brought by the media, as well as the concern for officer safety where a


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threat to same is actually shown to exist, OPRA and the common law impose a

presumption of accessibility defendants are ultimately unable to overcome.

In this case, there exists a significant public interest in ensuring the open,

transparent, and public review of a matter receiving considerable public attention. UFRs

are clearly accessible under OShea, and, though an exception to OPRA applies to the

video, it is still accessible under the common law. Accordingly, the requested records

must be disclosed.

Plaintiffs attorney shall submit the appropriate order under the five-day rule.

njmg v. garfield_opinion

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