Appellate Victory in OPRA Case at the Superior Court of New Jersey
Today, a PSWH team led by partner CJ Griffin secured an appellate victory for long-term firm client, Richard Rivera, in a case involving Open Public Records Act (OPRA) requests to the Township of Bloomfield and the Essex County Prosecutor's Office (ECPO).
On August 18, 2017, police officers responding to a 9-1-1 call shot and killed a knife-wielding man in Bloomfield. Rivera, who provides expert witness services regarding police practices and serves as a consultant on police matters, sought OPRA information, including body-worn camera (BWC) footage, about the incident from Bloomfield and the ECPO.
Bloomfield and ECPO provided some of the requested information -- including use of force reports, dash camera footage, recordings of 9-1-1 calls related to the event and use of force training certificates for the officers involved in the incident -- but denied the request for the BWC footage as it was "subject to an active investigation and therefore exempt from disclosure under OPRA."
In a lawsuit filed by Rivera in 2017 seeking the denied BWC footage, a judge ruled it was exempt from OPRA disclosure and determined Rivera was not entitled to attorney's fees. Rivera appealed, arguing the judge erred in determining the BWC footage was exempt because the videos were criminal investigatory records.
On January 9, 2020, the Superior Court of New Jersey, Appellate Division -- after hearing argument by Griffin -- agreed with Rivera, reversing the previous judge's denial of the OPRA request and stating that the ECPO failed to meet its burden of proof supporting denial of Rivera's request for the BWC footage. Because access to the BWC video was improperly denied, the appellate court ruled that the footage shall be released to Rivera and, as the prevailing party, Rivera is entitled to attorney's fees.
Notably, the court cited North Jersey Media Group v. Twp. of Lyndhurst – a landmark victory in 2017 by Griffin and PSWH that had a significant impact on transparency about the use of force by police in the state of New Jersey – multiple times throughout the decision. Specifically, the court referred to Lyndhurst when it noted “Because BWC footage is required by law to be made, maintained, and kept, it does not qualify as a ‘criminal investigatory record’ exempt from disclosure under OPRA. Therefore, the ECPO failed to satisfy the first prong of the criminal investigatory record exception for the BWC footage to be exempt from disclosure under OPRA.”
A copy of the decision can be found here.