The New Jersey Appellate Division today affirmed our Civil Right for transparency in our taxpayer funded government.

The matter concerns the Open Public Records Act, which is a major factor in how citizens across the state, including the members of the media, learn how governmental decisions are made and how tax dollars are spent.

Our knowledge of what's going on in Town Hall is what keeps government transparent in their decision making and taxpayer dollar spending.

In April 2022, Attorney Douglas F. Ciolek, a partner at the law firm of Rosenberg Jacobs Heller & Fleming, PC submitted an OPRA request to the Township of Roxbury seeking information pertaining to a field inquiry or investigatory stop done by their police department. The need for this information was to assist in the law firms defense of their clients involved in litigation.

The Township responded by providing a police report but refused to produce two related criminal
investigatory reports, saying that those reports are exempt from the OPRA.

N.J.S.A. 47:1A-1.1 exempts from public disclosure "criminal investigatory records," which are defined as records "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."

In contrast to criminal investigatory records, N.J.S.A. 47:1A-3 does allow access to "records of investigations in progress." That Statue provides that where it appears that the records which are sought pertain to an investigation in progress, the right of access provided for in OPRA may be denied if the release of such records shall be inimical to the public interest.

N.J.S.A. 47:1A-3(b) also allows that notwithstanding OPRA, certain information concerning a criminal investigation shall be available to the public as soon as practicable, with differences in what must be disclosed depending on whether an arrest was yet made or not. For instance, where a crime has been reported but no arrest yet made, OPRA mandates disclosing the type of crime, time, location and type of weapon, if any, whereas if an arrest has been made, then the police department must disclose the defendant's name, age, residence, occupation, marital status and similar background information.

The law firm filed a lawsuit in New Jersey Superior Court in Morris County, alleging the Township's
denial of the firm's request for the investigation reports violated N.J.S.A. 47:1A- 3(a) because the denial did not indicate the reports related to an investigation in progress.

The law firm also alleged the Township's denial "did not indicate that turning over the investigative report would be inimical to the public interest" or whether the withheld documents existed before an investigation, or if the investigative reports related to a criminal investigation, under N.J.S.A. 47:1A- 3(a). The law firm further alleged that even if the Township's investigative reports related to a criminal investigation, the Township was "still obligated" to turn over at least part of the investigative reports pursuant to N.J.S.A. 47:1A-3(b).

The law firm sought production of all investigative reports and counsel fees in its prayer for relief.

The Township argued back that access to the records was not denied pursuant to N.J.S.A. 47:1A-3(a) based on an investigation in progress but because the records constitute criminal investigatory records, which are not "government
records" subject to OPRA access under N.J.S.A. 47:1A-1.1.

On August 1, 2022, the trial court entered an order granting judgment in favor of the Township, noting that "'government records' under OPRA are broadly defined and accessible" and "records must be covered by a specific exclusion to prevent disclosure." In the trial court's analysis, the law firm sought "only reports and notes," thereby implicating N.J.S.A. 47:1A-1.1, which exempts "criminal investigatory records" from OPRA disclosure because such records are "deemed to be confidential."

The trial court also rejected the law firms claim that pursuant to N.J.S.A. 47:1A-3(b), the Township was required to disclose at least "certain investigatory
information," because the underlying conduct is no longer under investigation.

The trial court emphasized the investigatory reports and notes "may include disclosable information," but the law firm "did not seek that information, only records." The trial court added that "OPRA does not countenance open-ended searches of an agency's files," concluding that the request was "overly broad" in seeking otherwise accessible information in the reports.

The law firm appealed to the Appellate Division, arguing that the trial court erred in refusing to order disclosure of non-exempt portions of the Township's two criminal investigation reports.

In a written ruling released today, Judges Accurso, Firko, and Natali agreed with the law firm.

The judges cited the Court's 2004 ruling in Hartz Mountain Indus., Inc. v. N.J. Sports & Exposition Auth., which held that "the court is obliged when a claim of confidentiality or privilege is made by the public custodian of the record, to inspect the challenged document in camera to determine the viability of the claim. The purpose of an in camera inspection is to allow both parties the opportunity to address principles related to the claim of confidentiality and privilege; in camera review
also allows the government custodian to argue specifically why the document should be deemed privileged or confidential or otherwise exempt from the access obligation."

The Appellate Division agreed with the law firm that the Superior Court judge erred in not ordering an in camera review of the two criminal investigatory reports to ascertain whether the documents include information that is exempted under OPRA.

"Absent this review, the trial court cannot perform its function of assessing the Township's exemption claim, nor can we perform our de novo review of the court's legal conclusion that an exemption applies," the judges wrote.

As the trial court judge did not do an in camera review, the Appellate judges remanded the matter back to the trial court to "undertake the necessary in camera inspection to enable the trial court to exercise its role in assuring that documents and information are not improperly withheld under
OPRA," the judges concluded.

This ruling highlights how important it is for the OPRA laws to remain in place. As previously reported here on FAA News, some Trenton Democrats want to quietly make some drastic changes to OPRA, including eliminating the ability to challenge an OPRA denial in Superior Court, as well as the existing law which requires agencies found to have broken the law to pay the requestor’s attorney fees.

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