A3626 Will Hinder Transparency Over Police Shootings

OPRA permits agencies to withhold most criminal investigatory records, but requires them to disclose certain enumerated information to the public:

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

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; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

[N.J.S.A. 47:1A-3(b).]

This disclosure requirement permits the public to know information about crimes that have occurred in their communities.

Currently pending in the Legislature is A3626, which amends N.J.S.A. 47:1A-3(b) to provide that “personal identifying information of violent crime victims and witnesses are confidential.”  “Personal identifying information” is defined as including, but not limited to the following information about the victim of a violent crime (“a crime involving force or the threat of force”):  “identity, name, home and work addresses, home and work telephone numbers, home and work fax numbers, social security number, driver's license number, email address, or social media address of a violent crime victim or witness.”

Unfortunately, A3626 will significantly decrease transparency in the State, specifically with regard to police-involved shootings. It is not implausible to think that agencies will argue that officers who witness another officer shoot a suspect are now “witness[es] to a violent crime” (or potential violent crime, as all police-involved shootings are investigated for criminality).  Even under the current statutory scheme, agencies already deny access to the names of officers involved in shootings and other uses of force. See North Jersey Media Group Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015) (agency argues that public has no right to use of force reports or names of officers involved in shooting a suspect).

Moreover, given that A3626 exempts the identity of a victim, it also plausible that agencies will begin refusing to release information about a specific crime because their response would confirm that a specific person was a victim to the crime. For example, if the media is aware that John Doe was brutally shot and makes a request for Section 3(b) information about John Doe’s shooting, agencies might “neither confirm nor deny” that such shooting occurred because responding to the request would confirm that John Doe was a victim and such information would be exempt under A3626. See North Jersey Media Group Inc. v. Bergen County Prosecutor’s Office, 447 N.J. Super. 182 (App. Div. 2016) (permitting agencies to “neither confirm nor deny” the existence of complaints against a specific person where such information is exempt).

While it’s clear that the Sponsors of the bill simply want to protect victims of crime, A3626 is not needed. Most of the actual personal information that A3626 exempts is already exempt, such as social security numbers, telephone numbers, and driver’s license numbers.  See N.J.S.A. 47:1A-5(a).  Moreover, as it is currently written, N.J.S.A. 47:1A-3(b) already permits an agency to withhold the identity of the victim it the agency determines releasing the information “will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release.”

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.