In enacting OPRA, the Legislature created two exemptions for police records. The first exemption is the “ongoing investigation exemption.” N.J.S.A. 47:1A-3(a). For that exemption to apply, an investigation must be ongoing and the police agency must prove that release of the records would be “inimical to the public interest.” Even if the police do prove that releasing the records while the investigation is ongoing would be harmful, ultimately the records must be released after the investigation concludes.
OPRA’s other exemption, the “criminal investigatory records” (CIR) exemption, is much more stringent. If a record constitutes a CIR, then it is forever exempt from access. The statute defines a CIR as one that is 1) “not required by law to be made, maintained, or kept on file” and 2) which “pertains to any criminal investigation or related civil enforcement proceeding.” N.J.S.A. 47:1A-1.1. Both elements must be met in order to shield the record from the public.
Because the very first line of OPRA instructs that “any limitations on the right of access . . . shall be construed in favor of the public’s right of access,” courts have always applied the CIR exemption narrowly. Accordingly, since 2009, the courts have held that the Attorney General’s Guidelines are “laws” that negate the “not required by law to be made, maintained, or kept on file” element of the CIR exemption. Thus, records such as Use of Force Reports (UFRs) have been publicly accessible since the AG’s Use of Force Policy requires every officer in the state to complete a UFR after he uses any level of force against a citizen. See O’Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009).
That all changed in 2015, when another panel of the Appellate Division disagreed with O’Shea and held that only duly promulgated regulations, executive orders, statutes, or judicial decisions constitute “laws” for purposes of the CIR exemption. 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). Thus, the court held that even if an AG Guideline requires every officer in the state to make a certain record, that record still is not accessible to the public because it was not required to be made by a “law.” It also applied the second element of the CIR exemption so broadly that if a record even tangentially relates to a criminal defendant, the court held that it “pertained to any criminal investigation.” The Appellate Division’s decision in NJMG v. Lyndhurst has been detrimental to transparency because it has rendered nearly every police record off limits!
Since NJMG v. Lyndhurst was decided, agencies have had justification to deny access to UFRs and other police records. Technically, though, trial courts are not bound by NJMG v. Lyndhurst and could instead apply O’Shea. This is because when there are conflicting Appellate Division opinions, a trial court is free to choose which decision to apply. Last week, a third published Appellate Division decision involving the CIR was issued, giving the trial courts another decision to choose from. See Paff v. Ocean County Prosecutor’s Office, __ N.J. __ (2016).
The Paff court expressly disagreed with NJMG v. Lyndhurst. It instead held that not only are AG Guidelines “laws” that satisfy the “required by law to be made, maintained or kept on file” standard, but so are local policies and directives from a Chief of Police. The Paff court also disagreed with NJMG v. Lyndhurst’s holding that “an officer’s decision to activate a [dash cam] to document a traffic stop or pursuit of a suspected criminal violation of the law may make the recording ‘pertain to a criminal investigation, albeit in its earliest stages.’” Thus, per Paff, dash cam footage is accessible and UFRs would be accessible.
Because there was a dissent in Paff, the case automatically goes to the Supreme Court. The Supreme Court also accepted the plaintiff’s appeal in NJMG v. Lyndhurst. While trial courts are free to apply either O’Shea/Paff or NJMG v. Lyndhurst at the present moment, ultimately the Supreme Court will issue decisions which will be binding upon every court in the state. Those landmark decisions will define the scope of access to police records and determine how transparent the police must be.