Reply Memorandum

OCN-L-001513-17 08/04/2017 4:46:11 PM Pg 1 of 22 Trans ID: LCV2017100103

FOX ROTHSCHILD LLP

By: Matthew S. Adams, Esq. (00141-2008)
Marissa Koblitz Kingman, Esq. (11054-2014)
49 Market Street
Morristown, New Jersey 07960
Telephone: (973) 992-4800
Facsimile: (973) 992-9125
Attorneys for Plaintiffs, Linda Fennell,
Mary Anne Heino, Honora Fennell,
Kevin Fennell, and Theresa Ravalese.
madams@foxrothschild.com
mkingman@foxrothschild.com
LINDA FENNELL, MARY ANNE HEINO, SUPERIOR COURT OF NEW JERSEY

HONORA FENNELL, KEVIN FENNELL, LAW DIVISION: OCEAN COUNTY
AND THERESA RAVALESE
Docket No. OCN-L-1513-17
Plaintiffs,
v. CERTIFICATION OF MATTHEW S.
ADAMS, ESQ. IN SUPPORT OF
TOWNSHIP OF LITTLE EGG HARBOR, PLAINTIFFS' OPEN PUBLIC
DIANA McCRACKEN, in her professional RECORDS ACT APPLICATION
capacity as custodian of records for the
Township of Little Egg Harbor, THE STATE
OF NEW JERSEY ATTORNEY
GENERAL'S OFFICE, JENNIFER
STONEROD, in her professional capacity as
OPRA Counsel for the Office of the Attorney
General, OCEAN COUNTY
PROSECUTOR'S OFFICE, SHIRAZ I.
DEEN, in his professional capacity as assistant
prosecutor and custodian of records for the
Ocean County Prosecutor's Office,
Defendants.
Matthew S. Adams, Esq., of full age, hereby certified as follows:
FOX ROTHSCHILD LLP

49 MARKET STREET
MORRISTOWN, N.J. 07960
1. I am an Attorney of Law of the State of New Jersey licensed to practice before
this Court, and I am a partner with the law firm Fox Rothschild, LLP. We represent Plaintiffs
Linda Fennell, Mary Anne Heino, Honora Fennell, Kevin Fennell, and Theresa Ravalese
(collectively "Plaintiffs") in connection with this action. I make this certification in support of
Plaintiffs' Open Public Records Act application.
2. Annexed hereto as Exhibit A is a true and accurate copy of the email dated April
10, 2017, from Diana McCracken to Matthew S. Adams.
3. Annexed hereto as Exhibit B is a true and accurate copy of the email dated June
15, 2017, from Robin La Bue to Matthew S. Adams.
4. Annexed hereto as Exhibit C is a true and accurate copy of the letter dated June
22, 2017, from Robin La Bue to the Honorable Marlene Lynch Ford, A.J.S.C.
5. Annexed hereto as Exhibit D is a true and accurate copy of the letter dated April
6. Annexed hereto as Exhibit E is a true and accurate copy of the letter dated June
28, 2017, from Matthew S. Adams to Robin La Bue.
7. Annexed hereto as Exhibit F is a true and accurate copy of the letter dated July
8. Annexed hereto as Exhibit G is a true and accurate copy of the email dated July
27, 2017, from Matthew S. Adams to Robin La Bue.
9. Annexed hereto as Exhibit H is a true and accurate copy of the email dated July
31, 2017, from Robin La Bue to Matthew S. Adams
10. Annexed hereto as Exhibit Iis a true and accurate copy of the email dated July
24, 2017, from Suzanne Davies to Matthew S. Adams.
2
FOX ROTHSCHILD LLP
49 MARKET STREET
11. Annexed hereto as Exhibit J is a true and accurate copy of the email dated July
25, 2017, from Suzanne Davies to Matthew S. Adams.
12. Annexed hereto as Exhibit K is a true and accurate copy of the unpublished
decision in Paff v. Office of the Prosecutor, No. A-2426-13T3, 2015 N.J. Super. Unpub. LEXIS
2834 (App. Div. Dec. 9, 2015) cert. denied 224 N.J. 528 (2016).
13. Annexed hereto as Exhibit L is a true and accurate copy of the unpublished
decision in Rivera v. N.J. State Police, 2016 N.J. Super. Unpub. LEXIS 1558 (Law Div. June
30, 2016).
14. Annexed hereto as Exhibit M is a true and accurate copy of the unpublished
decision in North Jersey Media Group, Inc. v. City of Garfield, 2012 N.J. Super. Unpub. LEXIS
578 (Law Div. Mar. 16, 2012).
15. Annexed hereto as Exhibit N is a true and accurate copy of the unpublished
decision in Paff v. Borough of Gibbsboro, No. A-3300-11T2, 2013 N.J. Super. Unpub. LEXIS
1468 (App. Div. June 17, 2013) cert. denied 216 N.J. 430 (2013).
16. Annexed hereto as Exhibit O is a true and accurate copy of the unpublished
decision in R.O. v. Plainsboro Police Dep't, No. A-5906-07T2, 2009 N.J. Super. Unpub. LEXIS
1560 (App. Div. June 17, 2009).
17. Annexed hereto as Exhibit P is a true and accurate copy of the unpublished
decision in Hampton Farm, LLC v. Borough of Hampton, 2012 N.J. Super. Unpub. LEXIS 1756
(Law Div. July 17, 2012).
18. Annexed hereto as Exhibit Q is a true and accurate copy of the unpublished
decision in Stop & Shop Supermarket Co., LLC v. County of Bergen, 2014 N.J. Super. Unpub.
LEXIS 2723 (Law Div. Nov. 18, 2014).
3
FOX ROTHSCHILD LLP
49 MARKET STREET
I hereby certify that the foregoing statements made by me are true. I am aware that if
any of the foregoing statements made by me are willfully false,Iam subject to punishment.
Date: August 4, 2017

ATTH W S. ADAMS
4
FOX ROTHSCHILD LLP
49 MARKET STREET
EXHIBIT H
Adams, Matthew S.
From: Robin La Bue <rlb@gm-law.net>

Sent: Monday, July 31, 2017 11:34 AM
To: Adams, Matthew S.
Subject: brief
Attachments: Fennell letter brief.pdf
Robin La Bue, Esq.

Gilmore & Monahan, P.A.
10 Allen Street, 4th Floor
P.O. Box 1540
Toms River, NJ 08754-1540
732-240-6000 (telephone)
732-244-1840 (facsimile)
rlbgm-law.net
1
GILMORE & MONAHAN

GEORGE R. GILMORE A PROFESSIONAL CORPORATION JARED J. MONACO
THOMAS E. MONAHAN' COUNSELLORS AT LAW LAUREN R. STAIGER
JEAN L. CIPRIANI ALLEN STREET PROFESSIONAL CENTER ROBIN LA BUE
Certified Civil Trial Attorney TEN ALLEN STREET ANDREA E. WYATT
P.O. Box 1540 DENTS P. KELLY
TOMS RIVER, NEW JERSEY 08754 CHRISTEN E. MCCULLOUGH
(732) 240-6000 I FAX (732) 244-1840 MICHAEL S. NAGURKA
Please reply to: ANGELA M. KOUTSOURIS

P.O. Box 1540 Of Counsel
TOMS RIVER, NEW JERSEY 08754
July 26, 2017
VIA HAND DELIVERY

The Honorable Marlene Lynch Ford, A.J.S.C.
Courtroom One
Ocean County Courthouse
118 Washington Street
Toms River, NJ 08754
Re: Fennell v. Little Egg Harbor Township, et al.

Docket No: OCN-L-1513-17
Dear Judge Ford:
Please accept this letter brief in lieu of a more formal brief in opposition to the Complaint
alleging a denial of access under the Open Public Records Act filed against the Township of Little
Egg Harbor.
STATEMENT OF FACTS
On July 16, 2016, Linda Fennell called 9-1-1 and reported that her husband was drunk, that
she heard gunshots, and that she was afraid. This call resulted in responses by the Little Egg Harbor
Township Police Department and eventually the Ocean County Regional SWAT Team, when Mr.
Fennell fled to the woods, dressed in camouflage and armed with a revolver. After a confrontation
with police, Mr. Fennell, a retired New York City Police Officer was fatally shot.
On April 3, 2016, Matthew Adams, Esq. filed an OPRA request with the Township Clerk of
the Township of Little Egg Harbor seeking:

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(1) Any recorded 911 or other calls for service which resulted in the law enforcement
response at and around the Fennell home on July 16, 2016;
(2) Any records reflecting, memorializing, or relating to the determination to engage the
Ocean County Regional SWAT team in the response that evening;
(3) Any recorded dispatch and other radio communications pertaining to the law
enforcement response at and around the Fennell home on July 16, 2016;
(4) Any use of force and/or other reports generated by responding officers;
(5) Any recordings of any dash mounted or body mounted devices employed or work by
responding officers
(6) A complete description of all equipment on the scene from responding agencies,
including, but not limited to, weapons, vehicles, communications, lighting, and
audio/video equipment;
(7) A copy of the recorded police interview of Lina Fennell;
(8) A copy of all toxicology, blood-alcohol level, and other forensics testing reports relating
to all analyses undertaken on the deceased's Fennell's body;
(9) A complete listing of all officers and agencies that responded to the scene at and around
the Fennell home on July 16, 2016; and
(10) A complete copy of the policies and procedures manual for the Ocean County
Regional SWAT team.
The investigation surrounding the death of Mr. Fennell was handled by the Attorney General
Shooting Response Team. The Township Clerk responded to the OPRA request within the time
frame mandated by the statute on April 10, 2017, stating that all documentation pertaining to Patrick
Fennell must be obtained from the Attorney General's Office. Matthew Adams responded to the
Township Clerk, challenging the sufficiency of the Township's response to the OPRA request.
The Township sought the advice of the Office of the Attorney General concerning the
release of documents under OPRA and was informed that the name of the police officer involved in
the shooting should be redacted for the protection and security of the officer involved due to the risk
of potential threats against police officers, particularly those officers involved in publicized
incidents. (Exhibit B, Certification of James Hawkins)

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The Township produced the documentation in its possession by letter dated April 24, 2017,
attached hereto as Exhibit A. The Township produced an audio copy of the 9-1-1 call, the relevant
CAD records from July 16, 2016 and the Use of Force Report, redacted to remove the name of the
officer involved, pursuant to the direction of the Attorney General's Office.
The Township responded with regard to the requests for recordings of any dash mounted or
body mounted devices employed or worn by responding officers; a complete description of all
equipment on the scene from responding agencies, including but not limited to, weapons, vehicles,
communications, lighting and audio/video equipment; a copy of the recorded police interview of
Linda Fennell; a complete listing of all officers and agencies that responded to the scene at and
around the Fennell home on July 16, 2016; and a complete copy of the policies and procedures
manual for the Ocean County Regional SWAT Team that the Township of Little Egg Harbor does
not maintain any records responsive to these request.
LEGAL ARGUMENT
Pursuant to the legislative findings and declarations of the Open Public Records Act,
N.J.S.A. 47:1A-1:
A public agency has a responsibility and an obligation to safeguard from

public access a citizen's personal information with which it has been
entrusted when disclosure thereof would violate the citizen's reasonable
expectation of privacy...
Legislative intent is "the paramount goal when interpreting a statute and, generally, the best
indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477 (2005).
OPRA was enacted to "promote the public's right of access to government records, and to
enable the public to monitor activities of government." In re New Jersey Firemen's Ass'n
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Obligation to Provide Relief Applications under Open Public Records Act, 443 N.J. Super. 238
(App. Div. 2015), cert granted 224 N.J. 528 (2016). The purpose behind the statute is to "maximize
public knowledge about public affairs in order to ensure an informed citizenry and to minimize the
evils inherent in a secluded process;" Opderbeck v. Midland Park Bd. Of Educ., 442 N.J. Super. 40
(App. Div. 2016), cert. denied 223 N.J. 555 and to promote transparency in the operation of
government. Sussex Commons Assoc. LLC v. Rutgers, 210 N.J. 531 (2012).
Section 1 of OPRA is "neither a preface nor a preamble...the very language expressed in the
privacy clause reveals its substantive nature, it does not offer reasons why OPRA was adopted, as
preambles typically do; instead, it focuses on the law's implementation. Specifically, it imposes an
obligation on public agencies to protect against disclosure of personal information which would run
contrary to reasonable privacy interests." Burnett v. County of Bergen, 198 N.J. 408 (2009).
Burnett referred to the "twin aims" of OPRA, which are ready public access to government
records and the protection of citizen's personal information. These twin aims require a careful
balancing and a relation between the records sought and OPRA's "core concern of transparency in
government." Id. at 438.
Governor James McGreevey's Executive Order 21 was signed July 8, 2002, in the wake of
the passage of OPRA. It emphasized security concerns following 9/11 and concerns that OPRA
would broaden access to information that would facilitate terrorist activity and infringe upon the
reasonable expectation of privacy. In paragraph 3 it stated that governmental agencies had the
responsibility to safeguard from access an individual's home address and telephone number to any
person not duly authorized under the law. This was a blanket provision covering names and
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addresses located on all government records. Executive Order 26 rescinded only paragraphs 2 and
3. This rescission had no effect on N.J.S.A. 47:1A-1 or the safety and security concerns highlighted
in E021.
THE TOWNSHIP OF LITI'LE EGG HARBOR IS REQUIRED. TO

RELY ON THE DIRECTION OF THE ATTORNEY GENERAL'S
OFFICE PERTAINING TO THE REDACTION OF POLICE
RECORDS
New Jersey Attorney General Directive 2006-05, attached hereto as Exhibit C, establishes
the procedures for investigating fatal police shootings and provides that the Attorney General may
supersede a county prosecutor in any investigation, criminal action or proceeding when the interests
of the State will be furthered by doing so. Detectives of the State Police Major Crime Unit are
dispatched to the scene to handle investigations of shootings involving state troopers or officers
employed by county prosecutors as detectives/investigators or members of county SWAT teams and
task forces.
Attorney General guidelines and directives are mandatory for all law enforcement agencies
subject to the Attorney General's supervision and have been held to have "the force of law in
respect of the duties of law enforcement agencies to conform to the requirements regarding the use
of force and accountability for it." O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 384 (App.
Div. 2009). Therefore the Township was bound to redact records according to the criteria specified
by the Office of the Attorney General.

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Furthermore, producing un-redacted documents would abrogate the exemptions relied upon
by the Attorney General's Office. OPRA's broad grant of access is limited by several exemptions.
One such exemption is that the provisions of OPRA,
[s]hall not abrogate any exemption of a public record or government record

from public access heretofore made pursuant to P.L. 1963, c. 73 (C.47:1A-1
et seq.); any other statute; resolution of either or both Houses of the
Legislature; regulation promulgated under the authority of any statute or
Executive order of the Governor; Executive Order of the Governor; Rules
of Court; any federal law; federal regulation; or federal order.
N.J.S.A. 47:1A-9.
Pursuant to Executive Order No. 26 (McGreevey 2002), when records are deemed
confidential by a regulation of a specific department or agency, they are also considered
confidential by any other departments or agencies that have custody of those records:
4. The following records shall not be considered to be government records

subject to public access pursuant to N.J.S.A. 47:1A-1 et.seq., as amended
and supplemented:
(d) Records of a department of agency in the possession of another

department or agency when those records are made confidential by a
regulation of that department or agency adopted pursuant to N.J.S.A.
47:1A-1 et seq. and Executive Order No. 9 (Hughes 1963), or pursuant to
another law authorizing the department or agency to make records
confidential or exempt from disclosure.
The Open Public Records Act provides that its terms shall not be utilized to abrogate any
exemption contained in any regulation or executive order. Executive Order 26 provides that a
municipal police force shall rely on the New Jersey State Police's exemption as justification for
denying access to the requested record.

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Requiring the police department to release documents that the New Jersey State Police is
mandated to keep confidential would abrogate the exemption and is clearly contrary to Executive
Order 26, N.J.S.A. 47:1A-9 and the legislative intent of the Open Public Records Act.
THE REQUEST WAS NOT MADE UNDER THE COMMON LAW;

HOWEVER INFORMATION SOUGHT IS EXEMPT FROM
ACCESS UNDER THE COMMON LAW
The common law definition of a public record is more inclusive than the definition
contained in OPRA. Bergen County Improvement Auth. v. N. Jersey Media Group, Inc., 370 N.J.
Super. 504, 509-10, (App.Div.), certif. denied, 182 N.J. 143 (2004). 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." Nero v. Hyland, 76 N.J. 213, 222 (1978). To
access this broader class of documents, requestors must make a greater showing than required under
OPRA: (1) "the person seeking access must 'establish an interest in the subject matter of the
material'"; and (2) "the citizen's right to access 'must be balanced against the State's interest in
preventing disclosure.'" Keddie v. Rutgers, State University, 148 N.J. 36, 50 (1997).
The common law right can reach a wider array of documents than its statutory counterpart.
HiggARella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995). Under OPRA, the requestor's the
interest in a document is irrelevant, this is in contrast to the common law right of access which is
"balanced against the State's interest in preventing disclosure." Id. The common law right of access
involves a two-step inquiry; first, a litigant must establish an interest in the public record. N. Jersey
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Newspapers Co. v. Passaic County Bd. of Chosen Freeholders, 127 N.J. 9, 13 (1992). The interest
may be either a "wholesome public interest or a legitimate private interest." Loigman v.
Kimmelman, 102 N.J. 98, 112 (1986).
Second, a plaintiffs interest in disclosure of the relevant documents must outweigh the
State's interest in non-disclosure HiggARella, supra, 141 N.J. at 47-48. The balancing test is
flexible and adaptable, necessarily fact sensitive and requires an "exquisite weighing process" by
the court. Beck v. Blaustein, 194 N.J. Super. 247, 263 (App. Div. 1984). As the considerations
justifying confidentiality become less relevant, the party asserting a need for the materials will have
less of a burden demonstrating justification. McClain v. College Hosp. 99 N.J. 346 (1985). In
making that determination, courts are to consider the following factors:
(1) the extent to which disclosure will impede agency functions by

discouraging citizens from providing information to the government; (2) the
effect disclosure may have upon persons who have given such information,
and whether they did so in reliance that their identities would not be
disclosed; (3) the extent to which agency self-evaluation, program
improvement, or other decision-making will be chilled by disclosure; (4) the
degree to which the information sought includes factual data as opposed to
evaluative reports of policymakers; (5) whether any findings of public
misconduct have been insufficiently corrected by remedial measures
instituted by the investigative agency; and (6) whether any agency
disciplinary or investigatory proceedings have arisen that may circumscribe
the individual's asserted need for the materials.
Loigman v. Kimmelman, 102 N.J. 98 (1986).
Plaintiffs seek the name of the officer named in the Use of Force report who, in response to
the 9-1-1 call for help placed by Linda Fennell, fired his weapon in the line of duty. Plaintiffs have
failed to articulate why the name of the officer is of importance. In filing their Notice of Tort
Claim, the plaintiffs named the officers and representatives of the Ocean County Prosecutor's
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Office, the Ocean County SWAT Team, the Little Egg Harbor Police Department, the State of New
Jersey Department of Law and Public Safety and the Office of the Attorney General, Shooting
Response Team. The officer is covered under that Notice of Claim. The Office of the Attorney
General has provided a certification of the State Police explaining the danger to the individual
police officer in the release of his or her name. The interests of the plaintiffs in learning the name
do not outweigh the interests of the State and the Township in protecting the officer and their family
from harm.
THE PLAINTIFFS HAVE NOT REQUESTED PUBLIC

DOCUMENTS AND ARE NOT ENTITLED TO RELIEF UNDER
OPRA; THE INFORMATION SOUGHT SHOULD BE REQUESTED
THROUGH SEALED DISCOVERY IN THE CIVIL LITIGATION
OPRA confers the right to challenge a custodian's decision on the person who is denied
access. The OPRA request appealed in this action was not made by the plaintiffs, but by Matthew
Adams. In Maxam (dba The North Country Gazette) v. Bloomfield Twp. Dep't of Health & Human
Services (Essex), GRC Complaint No. 2013-302 (2013), the Council determined that because the
complainant was neither the requestor of the records relevant to the complaint nor the requestor's
legal representative, she had no standing to pursue an action under N.J.S.A. 47:1A-6. Similarly, in
Caldwell v. Township of East Brunswick, GRC Complaint No. 2015-76 (2015), the complainant
filed a Denial of Access Complaint although they did not file the OPRA request at issue. The GRC
determined that "OPRA clearly provides that only a requestor who was denied access to a
government record has standing to pursue an action for unlawful denial of access."
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In R.O. v. Plainsboro Police Dep't, an unreported decision cited by plaintiff, the standing
argument was rejected because the request "clearly stated that it was made in the capacity as an
attorney," which did not happen here. While in Stop & Shop Supermarket Co., LLC v. County of
Bergen, another unreported decision, the court noted the request was "clearly made during counsel's
representation of plaintiff and on its behalf," the decision concerning standing was left for another
day as the requested relief was denied on other grounds.
Although Mr. Adams is an attorney for the Fennell family, the requests were not made by
them, on their behalf, or in any way invoking their name.
While the defendants' obligations under OPRA are not affected by the pendency of the
collateral litigation, "it is not a fact to be ignored." MAG Entertainment, LLC v. Division of
Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005). In MAG, the appellate division
expressly disapproved of the use of OPRA "as an alternative to civil discovery, to obtain
information previously denied" in an administrative enforcement action. Id. at 550. MAG involved
an OPRA request by a retail liquor licensee for disclosure by the Division of Alcoholic Beverage
Control, during pendency of the Division's enforcement action against the licensee. In invalidating
the OPRA request as "a broad-based demand for research and analysis, decidedly outside the
statutory ambit," id. at 550, the court noted: "Although the purpose or motive for which information
is sought is generally immaterial to the disclosure determination under OPRA, here the manner in
which [the requestor] attempted to use OPRA as a vehicle to transfer management of the discovery
process in the administrative proceeding from the ALJ to the Law Division was patently improper."
Id. at 543.
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Misuse of OPRA as a calculated, tactical discovery weapon in pending litigation to obtain
the reward of "prevailing party" fees is the purpose of the statute and should not be permitted. There
are no documents sought in plaintiffs' request that would not be discoverable in a civil lawsuit, in
fact certain of the information that is withheld as confidential under OPRA is discoverable
information, can be sealed by the court and protected from further public disclosure.
CONCLUSION
For all of the foregoing reasons, the Township of Little Egg Harbor respectfully requests
that the Court find that the Custodian of Records' denial of access for the requested information was
proper and in accordance with both OPRA and the Common Law Right of Access, and the
complaint against the Township should be dismissed on that basis.
By Robin La Bue
ROBIN LA BUE
For the Firm
cc: Suzanne Davies, DAG

Shiraz Deen, Ocean County Prosecutor's Office
Matthew Adams, Esq.
EXHIBITI
Kingman, Marissa K.
From: Suzanne Davies <Suzanne.Davies@law.njoag.gov>

Sent: Monday, July 24, 2017 5:18 PM
To: Adams, Matthew S.; Kingman, Marissa K.
Subject: Fennell OTSC
Counsel
I will be sending out tomorrow (via overnight mail) additional documents I have obtained from DCJ. It will'include
the unredacted UFR, the unredacted 911 call and unredacted radio transmissions (from both Little Egg and Ocean
County). DCJ is also compiling a list of officers involved in the investigation that will be sent as soon as
completed.
Suzanne Davies
Deputy Attorney General
Division of Law, Corrections and State Police Section
Richard J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Tel: (609)-633-3985
Suzanne.Davies@dol.lps.state.nj.us
CONFIDENTIALITY NOTICE The information contained in this communication from the Office of the New Jersey Attorney
General is privileged and confidential and is intended for the sole use of the persons or entities who are the addressees. If you
are not an intended recipient of this e-mail, the dissemination, distribution, copying or use of the information it contains is
strictly prohibited. If you have received this communication in error, please immediately contact the Office of the Attorney
General at (609) 292-4925 to arrange for the return of this information.
CONFIDENTIALITY NOTICE The information contained in this communication from the Office of the New
Jersey Attorney General is privileged and confidential and is intended for the sole use of the persons or entities
who are the addressees. If you are not an intended recipient of this e-mail, the dissemination, distribution,
copying or use of the information it contains is strictly prohibited. If you have received this communication in
error, please immediately contact the Office of the Attorney General at (609) 292-4925 to arrange for the return
of this information.
1
EXHIBIT J
Adams, Matthew S.
From: Adams, Matthew S.

Sent: Tuesday, July 25, 2017 5:31 PM
To: Suzanne Davies
Cc: Kingman, Marissa K.
Subject: Re: Fennell OTSC
No- you will have a letter from me shortly outlining our position on the withheld records
Matthew Adams, Esq.

Partner
Fox Rothschild LLP
49 Market Street
Morristown, NJ 07960-5122
(973) 994-7573 direct
(732) 804-3974 mobile
(973) 992-9125- fax
MAdams@foxrothschild.com
Attorney Bio I Firm Website I Twitter I Linkedln
Please note that my business address has recently changed, while all of my contact telephone numbers are the
same. Kindly update your contacts as necessary.
On Jul 25, 2017, at 5:29 PM, Suzanne Davies <Suzanne.Davies@law.nioag.gov> wrote:
Matt
We have produced and/or are producing all documents minus the investigative reports and officer
statements. Does this resolve everything?
From: Adams, Matthew S. [nnailto:MAdamsOfoxrothschild.com]

To: Suzanne Davies; Kingman, Marissa K.
Subject: RE: Fennell OTSC
Thank you for your response, Suzanne. In the interests of attempting to moot the OTSC, and for
settlement purposes only, it would go a long way toward understanding if there are remaining issues to
be litigated if DCJ provides a response to our request for a listing of all records that remain withheld,
pursuant to OPRA and/or the Common Law. Do you expect that to be forthcoming from DCJ as
well? Obviously, we can seek a an order compelling that information. I am just trying to devise an
avenue to deal with that open issue short of going down that path.
Matthew Adams, Esq.

Partner
<image001.jpg>
1
49 Market Street
(973) 994-7573 direct
(732) 804-3974 mobile
(973) 992-9125- fax
MAdams@foxrothschild.com
Attorney Bio I Firm Website I Twitter I Linkedin
Please note that my business address has recently changed, while all of my contact numbers are the
same. Kindly update your contacts as necessary.
From: Suzanne Davies [nnailto:Suzanne.Davies@law.nioag.gov]

To: Adams, Matthew S. <MAdams@foxrothschild.com>; Kingman, Marissa K.
<mkingman@foxrothschild.com>
Subject: Fennell OTSC
Counsel -
I will be sending out tomorrow (via overnight mail) additional documents I have obtained from
DCJ. It will include the unredacted UFR, the unredacted 911 call and unredacted radio
transmissions (from both Little Egg and Ocean County). DCJ is also compiling a list of officers
involved in the investigation that will be sent as soon as completed.
Suzanne Davies
Deputy Attorney General
Division of Law, Corrections and State Police Section
Richard J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Tel: (609)-633-3985
Suzanne.Davies@dol.lps.state.nj.us
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CONFIDENTIALITY NOTICE The information contained in this communication from the

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sole use of the persons or entities who are the addressees. If you are not an intended recipient of
this e-mail, the dissemination, distribution, copying or use of the information it contains is
strictly prohibited. If you have received this communication in error, please immediately contact
the Office of the Attorney General at (609) 292-4925 to arrange for the return of this
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This email contains information that may be confidential and/or privileged. If you are not the
2
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CONFIDENTIALITY NOTICE The information contained in this communication from the
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sole use of the persons or entities who are the addressees. If you are not an intended recipient of
this e-mail, the dissemination, distribution, copying or use of the information it contains is
strictly prohibited. If you have received this communication in error, please immediately contact
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Fox Rothschild LLP

ATTORNEYS AT LAW
49 Market Street
T: 973.992.4800 F: 973.992.9125
www.foxrothschild.com
MATTHEW S. ADAMS
Direct No: 973.992.7573
Entail: Mad ams@FoxRotlischild.coni
July 25, 2017
VIA E-MAIL (SUZANNE.DAVIES@LAW.NJOAG.GOV)

AND U.S. MAIL
Deputy Attorney General Suzanne Davies

New Jersey Office of the Attorney General
Division of Law
Hughes Justice Complex
25 West Market Street
PO Box 112
Trenton, New Jersey 08625-0085
Re: OPRA Requests Pertaining to the Killing of Patrick Fennell
Dear Ms. Davies:
This office submitted a New Jersey Open Public Records Act ("OPRA") request, dated
July 11, 2017, to the New Jersey Department of Law and Public Safety, Office of the Attorney
General, Division of Criminal Justice ("DCJ"), which was related to the death of Patrick Fennell.
A copy of the referenced OPRA request to DCJ is annexed hereto as Exhibit A for your
convenience. On July 20, 2017, we received a deficient response from Jennifer Stonerod, the
Division of Criminal Justice's OPRA Counsel. That response is annexed hereto as Exhibit B.
Based upon your representation of DCJ in other related matters, we have addressed this
correspondence to your attention, with a copy to Jennifer Stonerod, DCJ OPRA Counsel, out of
an abundance of caution, to ensure proper communications protocols are followed.
Our OPRA request to DCJ included: (1) Recorded statements made by or on behalf of
any witness to the shooting of Patrick Fennell at or around his Little Egg Harbor Township home
on July 16, 2016; (2) recorded statements made by or on behalf of the person(s) responsible for
the shooting of Patrick Fennell at or around his Little Egg Harbor Township home on July 16,
2016; and (3) any and all police reports pertaining to the shooting of Patrick Fennell at or around
his Little Egg Harbor Township home on July 16, 2016. A113 requests were denied by DCJ. The
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50190127
a
Fox Rothschild UP
ATTORNEYS AT LAW

July 25, 2017
Page 2
denial by DCJ relied upon the Criminal Investigatory Records exception to OPRA, codified at
N.J.S.A. 47:1A-1.1.
Without taking a position in response to DCJ's assertion of the Criminal Investigatory

Records exception, and expressly reserving all rights related thereto, we hereby request the above
information pursuant to the common law Right to Know on behalf of the widow and surviving
siblings of Lieutenant Fennell. They have a significant interest in the subject matter, and their right
to access is greater than the State's interest in preventing disclosure. The New Jersey Supreme
Court recently held that "the public's powerful interest in disclosure [] in the case of a police
shooting eclipses the need for confidentiality once the available, principal witnesses to the shooting
have been interviewed." N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, Nos. A-35, 076184,
2017 N.J. LEXIS 745, at *12 (July 11, 2017). Accordingly, release of the requested material to
Lieutenant Fennell's family is appropriate pursuant to the common law Right to Know.
"Nothing contained in [OPRA] . . . shall be construed as limiting the common law right of
access to a government record, including criminal investigatory records of a law enforcement
agency." N.J.S.A. 47:1A-8. Lieutenant Fennell's family is not only seeking this information for
their own benefit, they wish access to this information to further a public good. The use of lethal
force by the police is undeniably an area of immense public interest. "The public's interest in
transparency is heightened when govertunental action leads to the death of a civilian." Lyndhurst,
supra, at *49. Further, the timing of a request pursuant to the common law Right to Know can
weigh in favor of disclosure. "The need for confidentiality in investigative materials may wane
after the investigation is concluded." Id. at n. 10. Here, the investigation into Lieutenant Fennell's
killing concluded in February when DCJ released the Grand Jury's findings on the subject. There
is simply no longer a legitimate State interest in secrecy in the aftermath of that revelation.
Accordingly, demand is hereby made that the requested records be produced by DCJ to the
undersigned by no later than the close of business on Monday, July 31, 2017. In the event that
we do not receive a response by that date and time, we will be left with no other option than to
seek further judicial intervention against DCJ.
50190127
Fox Rothschild LLP

ATTORNEYS AT LAW

July 25, 2017
Page 3
Please be guided accordingly.
Very truly yours,
Matthew S. Adams
cc: Jennifer Stonerod (via e-mail and U.S. mail)

OPRA Counsel for DCJ
New Jersey Office of the Attorney General
Division of Criminal Justice
Hughes Justice Complex
25 West Market Street
P.O. Box 112
Trenton, New Jersey 08625-0085
50190127
Fox Rothschild LLP

ATTORNEYS AT LAW

July 25, 2017
Page 4
bcc: Mary Anne Heino (via e-mail only)

Alain Leibman, Esq. (via e-mail only)
Marissa Koblitz Kingman, Esq. (via e-mail only)
Donald Lomurro, Esq. (via e-mail only)
Richard Lomurro, Esq. (via e-mail only)
50190127
EXHIBIT A
7/11/2017 OPRA Confirmation Page
Nkomo 1orn home 1OM%) topRA gentrall

1,4
blieRec
MICIPIGFIC! ri2c114/:.%t mini I; estate
The following Request for Information has been forwarded to the

Division of Criminal Justice in thenDepartment of Law and Public Safety.
Your confirmation number is W122787. Please write this number down or print this page as a reference.
Requestor Information Payment Information
First Name MI Last Name Maximum Authorized Cost:
Matthew S Adams $ 200.00
Company Payment Method:

Check
Fox Rothschild LIP
Fees: Letter Size @ $0.05/page
Mailing Address Legal Size @ $0.07/page
49 Market Street
Electronic shall be provided free of
Records: charge, but agency may
City State ZIP charge for cost of media,
07960 - 5122 programming, clerical,
Morristown New Jersey supervisory assistance and/or
substantial use of information
technology.
Email
Delivery: Delivery / postage fees
madamsfoxrothschild.com additional depending upon
delivery type.
Day Time Area Code Number Extension Additional may be charged if

Telephone: 973 994 - 7573 Charges: extraordinary time/effort
required, depending upon
request.
Preferred Delivery: E-Mail
Under penalty of N.J.S.A. 2C:28-3, I certify that I Have Not been convicted of
any indictable offense under the laws of New Jersey, or any other state, or in
United States.
Record Request Information:

(1) Complete copies of any and all recorded statements made by or on behalf of
any witness to the shooting of Patrick Fennell at or around his Little Egg Harbor
Township home on July 16, 2016, as required pursuant to the decision of the New
Jersey Supreme Court in North Jersey Media Group, Inc. v. Township of Lyndhurst
(A-35-15)(076184); (2) Complete copies of any and all recorded statements made
by or on behalf of the person or persons responsible for the shooting of Patrick
Fennell at or around his Little Egg Harbor Township home on July 16, 2016, as
required pursuant to the decision of the New Jersey Supreme Court in North
Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15)(076184); and (3)
Complete copies of any and all police reports pertaining to the shooting of Patrick
Fennell at or around his Little Egg Harbor Township home on July 16, 2016, as
required pursuant to the decision of New Jersey Supreme Court in North Jersey
Media Group, Inc. v. Township
, of Lyndhurst (A-35-15)(076184).
privacy notice I legal statement
https://wwwl 6.state.nj.us/NLOPRA/OpraLoad 1/1

EXHIBIT B
July 20, 2017 04:56 PM State of New Jersey Page: 1 of 2

Government Records Request
Receipt
Requestor Information Request Number: W122787

kequest Status: Penied Closed
Matthew S Adams Ready. Date: July 20, 2017
Fox Rothschild LLP Custedian Contact Information
49 Market Street DiviSion of Criminal' Justice
Morristown, NJ 07960-5122 Records Custodian
PO Box 085
madams@foxrothschild.com 25 Market. Street - .5th
. Floor West
973-994-7573
Trenton, NJ 08625-0085
dbi.records@lps.stale.nj.us
Request Date: July 11, 2017 .609-984-6500
Maximum Authorized Cost: $200.00 By
Email
Status of Your Request 'Cost InformatiOn

Your request for government records (# W122787) from the Total Cost:
Division of Criminal Justice has been reviewed and has been
Denied Closed. Detailed information as to the availability of
the documents you requested appear below and on following Deposit:
pages as necessary.
Total Amount Paid:
The cost and any balance due for this request is shown to the
right. Any balance due must be paid in full prior to the release
/ mailing of the documents. Balance Due:
If you have any questions related to the disposition of this

request please contact the Custodian of Records for the
Division of Criminal Justice. The contact information is in the
column to the right. Please reference your request number in
any contact or correspondence.
Document Detail
Div !Doc # !Doc Name I Redaction Legal Electronic Other
Req I Pages a Size ;Media Cost
CJ 11 Recorded statements made by or on behalf iN IA IN
!of any witness to the shooting of Patrick
iFennell at or around his Little Egg Harbor
!Township home on July 16, 2016, as
required pursuant to the decision of the
!New Jersey Supreme Court in North Jersey 1
Media Group, Inc. v. Township of
!Lyndhurst.
!Denial: 17.Criminal Investigatory Record ---
I
July 20, 2017 04:56 PM State of New Jersey Page: 2 of 2

Government Records Request
Receipt
Recorded statements made by or on behalf N
of the person(s) responsible for the
shooting of Patrick Fennell at or around his
Little Egg Harbor Township home on July
16, 2016, pursuant to the decision of the
New Jersey Supreme Court in North Jersey
Media Group, Inc. v. Township of
Lyndhurst.
Denial: 17.Criminal Investigatory Record ---
Any and all police reports pertaining to the
'shooting of Patrick Fennell at or around his
Little Egg Harbor Township home on July
16, 2016, as required pursuant to the
;decision of New Jersey Supreme Court in
:North Jersey Media Group, Inc. v.
Township of Lyndhurst (A-35-15)(076184).
Denial: 17.Criminal Investigatory Record ---
Dear Mr. Adams,
The Division of Criminal Justice is in receipt of your OPRA request for statements and police reports related to
the death of Patrick Fennell on July 16, 2016. Your request is denied as it is an OPRA request for criminal
investigatory records exempt from disclosure under N.J.S.A. 47:1A-1.1.
Sincerely,
Jennifer Stonerod
OPRA Counsel
Robert McGrath
OPRA Custodian
Your request for government records (# W122787) is as follows:
(1) Complete copies of any and all recorded statements made by or on behalf of any witness to the shooting of
Patrick Fennell at or around his Little Egg Harbor Township home on July 16, 2016, as required pursuant to the
decision of the New Jersey Supreme Court in North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-
15)(076184); (2) Complete copies of any and all recorded statements made by or on behalf of the person or
persons responsible for the shooting of Patrick Fennell at or around his Little Egg Harbor Township home on
July 16, 2016, as required pursuant to the decision of the New Jersey Supreme Court in North Jersey Media
Group, Inc. v. Township of Lyndhurst (A-35-15)(076184); and(3) Complete copies of any and all police reports
pertaining to the shooting of Patrick Fennell at or around his Little Egg Harbor Township home on July 16,
2016, as required pursuant to the decision of New Jersey Supreme Court in North Jersey Media Group, Inc. v.
Township of Lyndhurst (A-35-15)(076184).
EXHIBIT K
Paff v. Office of the Prosecutor
Superior Court of New Jersey, Appellate DiVision

November 10, 2015, Argued; December 9, 2015, Decided
DOCKET NO. A-2426-13T3
Reporter
2015 N.J. Super. Unpub. LEXIS 2834 *; 2015 WL 8213256
JOHN PAFF, Plaintiff-Respondent, v. OFFICE
Opinion
OF THE PROSECUTOR OF THE COUNTY
OF WARREN, and TARA J. KIRKENDALL,
in her capacity as an Assistant Prosecutor, PER CURIAM
Defendants-Appellants.
Defendant Warren County Prosecutor's Office
Notice: NOT FOR PUBLICATION (WCPO) appeals from Law Division orders
WITHOUT THE APPROVAL OF THE entered on December 18 and 30, 2013, granting
APPELLATE DIVISION. plaintiff John Paff access to thirteen requested
documents under the common law right of
PLEASE CONSULT NEW JERSEY RULE access to public records. We affirm.
1:36-3 FOR CITATION OF UNPUBLISHED
OPINIONS. I.
On November 14, 2012, the Warren County

Prior History: [*1] On appeal from Superior
Sheriffs Office contacted the WCPO
Court of New Jersey, Law Division, Warren
concerning an internal affairs investigation it
County, Docket No. L-0034-13.
had commenced in connection with the use of a
Counsel: Joseph J. Bell, IV, Warren County county-owned generator by an employee of the
Counsel, argued the cause for appellants (Bell, Warren County Correctional Center. The
Shivas & Fasolo, P.C., attorneys; Mr. Bell, of following day, the WCPO directed the Sheriffs
counsel and on the brief). Office to suspend its internal affairs
investigation pending a criminal investigation
Walter M. Luers, argued the cause for
by the [*2] WCPO. On November 19, 2012, Lt.
respondent.
Sherafin of the WCPO commenced an
Carol M. Henderson, Assistant Attorney investigation. On December 7, 2012, the
General, argued the cause for amicus curiae investigation concluded, with no criminal
Attorney General of New Jersey (John J. charges filed. Thereafter, the WCPO sent a
Hoffman, Acting Attorney General, attorney; confirming letter to the Sheriff, returning "the
Ms. Henderson, of counsel and on the brief). matter to you for any administrative action you
deem appropriate."
Judges: Before Judges Hoffman and Leone.
On December 27, 2012, a local newspaper
Page 2 of 7
reported that several unidentified "Warren itemized in an accompanying "Vaughn Index."'

County jail officers used county-owned
generators for personal use in the aftermath of Plaintiff subsequently filed a complaint
Superstorm Sandy." The article indicated that alleging a violation of OPRA and the common
the officers were disciplined, but not law right of access. On June 14, 2013, the judge
terminated. The article further stated that the heard oral argument, and rendered an oral
WCPO "concluded earlier this month that no decision that the records in dispute were
criminal activity took place." confidential criminal investigatory records
under OPRA and dismissed that count of the
On January 3, 2013, plaintiff submitted a complaint. She entered a confirming order on
request for records to the WCPO under the June 28, 2013.2
Open Public Records Act (OPRA), However, the judge reserved decision on
47:1A-1 to -13, and the common law right of whether plaintiff could obtain the requested
access to public records, requesting various documents under the common law right of
records from the investigation into the potential access, and indicated that she would review the
misuse of county-owned generators by jail requested documents in camera.
officers during Hurricane Sandy. Plaintiff
On December 18, 2013, the judge issued an
explained his common law interest by stating
order and seven-page written decision ruling
that he worked as the Chairman of the New
that, subject to specific personal information
Jersey Libertarian Party's Open Government
redactions, the WCPO must release the thirteen
Advocacy Project and sought to "unearth and
requested documents under the common law
publish covered-up [*3] information in all
right of access. A December 30, 2013 amended
corners of this state." He further indicated that:
order clarified the required document
If I learn these officers' names, I will post
redactions:
them on all available Internet blogs and call
media and public attention to the posting. Before serving plaintiff with such
Also, I think that having the facts and the documents, defendants shall redact from the
officers' names (and, in turn their possible documents all references to witnesses or to
relationships to other government officials) any person who provided a statement to
will help citizens determine whether the defendants, as well as his or her position of
prosecutor's election to not follow through employment, birth date, home and cellular
on this matter was a reasonable exercise of telephone numbers, [*5] home address, and
that discretion. any personal identifier. The identities and
Assistant prosecutor Tara J. Kirkendall
responded to this request in a letter dated 1 A "Vaughn Index" typically consists of "a detailed affidavit, the
January 4, 2013, releasing two partially purpose of which is to permit the court system effectively and
efficiently to evaluate the factual nature of disputed information."
redacted records, and explaining that the
John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n.2, 110 S.
remaining records were confidential criminal Ct. 471, 107 L. Ed. 2d 462 (1989) (internal quotation marks omitted)
investigatory and internal affairs documents (citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 346, 484 F.2d
820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct.
and not subject to disclosure under OPRA or 1564, 39 L. Ed. 2d 873 (1974)). See also Paff v. Div. of Law, 412
the common law. The thirteen records deemed N.J. Super. 140, 161 n.9, 988 A.2d 1239 (App. Div.), certif.
confidential and not subject to disclosure were denied [*4] , 202 N.J. 45, 994 A.2d 1040 (2010).
2 Neither party has appealed the court's OPRA ruling.

Page 3 of 7
positions of employment of public Persons Investigated But Who Have

employees who conducted the investigation Never Been Arrested Nor Charged With
shall not be redacted. A Crime.
After the entry of this order, the parties agreed 4. The Lower Court's Common Law
to a consent order staying the trial court's order Analysis Does Not Consider The
compelling disclosure of the WCPO's criminal Importance Of Privacy And
investigation file pending this appeal. Confidentiality Under The Attorney
General's Internal Affairs Guidelines.
The WCPO presents the following arguments
for consideration: 5. The Court Failed To Adequately
Consider The [Loigmanl Factors And
I. THE LOWER COURT COMMITTED A Other Justifications
Important
CLEAR LEGAL ERROR IN TTS
Weighing In Favor Of Confidentiality.
APPLICATION OF THE COMMON LAW
On July 25, 2014, the Attorney General of New
BALANCING TEST AND IN HOLDING Jersey filed an amicus brief supporting the
THAT THE NEED FOR CONFIDENTIALITY position of the WCPO, and presenting the
DOES NOT SURVIVE CLOSURE OF A following argument for consideration:
CRIMINAL INVESTIGATION. THE TRIAL COURT ERRED IN
A. The Trial Court Erred By Failing To ORDERING THE RELEASE OF
Determine The Strength Of The Plaintiffs CONFIDENTIAL CRIMINAL
Interest Under The Common Law And The INVESTIGATIVE AND INTERNAL
Effect Of That Interest In The Balancing AFFAIRS FILES UNDER THE
Test. COMMON LAW RIGHT OF ACCESS.
B. The Court's Flawed Application Of
Factor Three (3) Of The Common Law
Balancing Test And Erroneous Conclusion On appeal, we engage in de novo review of the
That The Need To Maintain The trial judge's legal decisions concerning access
Confidentiality Of Criminal Investigatory to public records under either OPRA or the
Records Expires Upon Closure Of The common law right of access. Drinker Biddle &
Investigation Constitute Clear Legal Error Reath LLP v. N.J. Dept of Law and Pub.
And Mandate Reversal. Safety, 421 N.J. Super. 489, 497, 24 A.3d 829
1. Because The Lower Court Held That (App. Div. 2011). "We apply a different and
The Records In Dispute Were Criminal deferential standard of review when a court
Investigatory Records Under OPRA, It conducts an in camera review of [*7]
Erred By Not Assessing Whether documents and balances competing interests in
Plaintiff [*6] Could Demonstrate A disclosure and confidentiality in connection
Heightened And More Particularized with a common-law-based request to inspect
Need. public records." North Jersey Media Grp., Inc.
2. The Need For Confidentiality Does v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89,
NOT Necessarily Expire Upon Closure 116 A.3d 570 (App. Div. 2015) (citing
Of A Criminal Investigation. Shuttleworth v. City of Camden, 258 N.J.
3. The Prosecutor's Office Has An Super. 573, 588, 610 A.2d 903 (App. Div.),
Interest In Protecting The Privacy Of certif. denied, 133 N.J. 429, 627 A.2d 1135
Page 4 of 7
(1992)). Because in this matter the judge made A.2d 958 (1986) (citation omitted). In the case
her determinations after reviewing the of public records, once a plaintiff proves an
documents in camera, we must generally defer interest in the material, "the State must then
to the judge's determinations "[i]f there is a demonstrate that its need for nondisclosure
basis in the record to do so." Shuttleworth, outweighs the plaintiffs need for disclosure."
supra, 258 N.J. Super. at 588. O'Boyle v. Borough of Longport, 426 N.J.
Super. 1, 13, 42 A.3d 910 (App. Div. 2012),
The common law right of access reaches a affd, 218 N.J. 168, 94 A.3d 299 (2014)
broader class of documents than its statutory (citation omitted). If the trial court believes that
counterpart. Higg-A-Rella, Inc. v. Cnty. of an in camera inspection of the records is
Essex, 141 N.J. 35, 46, 660 A.2d 1163 (1995). warranted, "it will thereafter make a final
Nonetheless, that right must be balanced determination as to whether, by further excision
against the State's interest. Ibid. This common or deletion of privileged and confidential
law right to access public records depends on materials, it can appropriately order the
three requirements: "(1) the records must be materials released." Loigman, supra, 102 N.J.
common-law public documents; (2) the person at 113. Our Court has provided a list of some of
seeking access must establish an interest in the the factors that the trial court should consider in
subject matter of the material; and (3) the balancing the requester's needs against the
citizen's right to access must be balanced public agency's [*9] interest in confidentiality:
against the State's interest in preventing (1) the extent to which disclosure will
disclosure." Keddie v. Rutgers State Univ., 148 impede agency functions by discouraging
N.J. 36, 50, 689 A.2d 702 (1997) (citations and citizens from providing information to the
internal quotation marks omitted). Furthermore, government; (2) the effect disclosure may
because the common law right of access to have upon persons who have given such
documents is qualified, "one seeking access to information, and whether they did so in
such records must establish that the balance of reliance that their identities would [967] not
its interest in disclosure against the public be disclosed; (3) the extent to which agency
interest in maintaining confidentiality weighs in self-evaluation, program improvement, or
favor of [*8] disclosure." Ibid. (citation and other decisionmaking will be chilled by
internal quotation marks omitted). In this disclosure; (4) the degree to which the
matter, defendants have conceded that the information sought includes factual data as
documents are public records and that plaintiff opposed to evaluative reports of
has the requisite standing to obtain a copy of policymakers; (5) whether any findings of
the subject matter. Accordingly, we need only public misconduct have been insufficiently
review the third factor: whether plaintiffs right corrected by remedial measures instituted
to the documents outweighs the WCPO's by the investigative agency; and (6)
interest in preventing disclosure. whether [25] any agency disciplinary or
A. investigatory proceedings have arisen that
may circumscribe the individual's asserted
The balancing of the competing interests in need for the materials.
disclosure and confidentiality often involves an
"exquisite weighing process by the trial judge." [Ibid.]
Loigman v. Kimmelman, 102 N.J. 98, 108, 505
As noted in Loigman, this list represents some
Page 5 of 7
factors to consider, and is not exhaustive. Ibid. We further find no merit in the WCPO's
Additionally, this court has noted that "[t]he contention that the trial court should have
motivation of the requester is a relevant applied a "heightened standard" to plaintiffs
consideration in the balancing process under common law request. In particular, the WCPO
the common law." North Jersey Media Grp., asserts that the trial court should have taken
Inc., supra, 441 N.J. Super. at 115. into consideration that the records at issue were
Furthermore, we have emphasized that "the found to be confidential criminal investigatory
need for confidentiality in investigative [*10] records under OPRA, N.J.S.A. 47:1A-1.1.
materials may wane after the investigation is
concluded." Ibid.; see also Shuttleworth, supra, OPRA expressly exempts from unfettered
public access "criminal investigatory records."
258 N.J. Super. at 585 ("While there is a real
The statute defines a "criminal investigatory
need to deny access where there is an ongoing
record [as] a record which is not required by
law enforcement investigation, or where the
law to be made, maintained or kept on file that
protection of witness information or a witness's
is held by a law enforcement agency which
identity is at stake, the same values do not
pertains to any criminal investigation or related
survive a balancing after the investigation is
civil enforcement proceeding." Ibid.; North
closed.").
Jersey Media Grp., Inc., supra, 441 N.J. Super.
Applying these standards, we find no basis to at 90. However, OPRA also provides that
disturb any aspect of the orders under review. "[n]othing contained in [OPRA] shall be
The judge's written decision addressed and construed as limiting the common law right of
weighed each Loigman factor and carefully access to a government record, including
explained her findings and conclusions. The criminal investigatory records of a law [*12]
judge stated that the fact that the WCPO's enforcement agency." 1V.J.S.A. 47:1A-8. We
criminal investigation has concluded is "[a]
have held that the common law right of access
factor of significance." She noted the ability of
remains an independent means to obtain
redactions to address situations where
government records. See Bergen Cnty.
"confidentiality of a particular witness or
specific information must be maintained." The Improvement Auth. v. North Jersey Media Grp.,
judge further found no "reasonable basis to 370 N.J. Super. 504, 516, 851 A.2d 731 (App.
conclude that the disclosure of the records Div.), certif. denied, 182 N.J. 143, 861 A.2d
would chill any agency functions, including 847 (2004) ("[The suggestion] that the adoption
self-improvement programs." The judge of OPRA signaled a legislative policy shift
appropriately ordered redactions of all personal away from the common law and in favor of a
identifier information of all witnesses and statutory means for accessing public
persons who provided statements, which information, palpably lacks textual support.").
adequately addressed the WCPO's As such, we find no merit to the argument that
confidentiality and privacy concerns. r 111 3 the exemption of the records from OPRA
B. requires a plaintiff to meet a heightened
standard.
3 The State on appeal argues that disclosing these documents might We do not suggest that the fact that these are
enable certain persons to figure out the identity of the persons criminal investigative records is irrelevant. A
investigated, and that a closed case like this might be reopened.
court may consider OPRA's exemptions in
However, the State made no such showings before the trial judge, so
we do not consider these assertions on appeal. balancing under the common law "as
Page 6 of 7
expressions of legislative policy on the subject process privilege cases:

of confidentiality," as long as they do not Documents #2, #3, #4, #6, #7, and #9 are
"heavily influence the outcome of the analysis." witness statements, which provide factual
Id. at 520-21. Similarly, outside the OPRA information only, and document #1 is a
context, courts have recognized that the summary of factual information provided
confidentiality of criminal investigatory records by the witnesses.
is at times crucial to effective law enforcement
Documents #5, #8, and #11 are
and that confidentiality may extend even if the
administrative records [*14] that are
investigation is closed. River Edge Say. & Loan
routinely executed during an investigation
Ass'n v. Hyland, 165 N.J. Super. 540, 543, 545,
and contain only factual information.
398 A.2d 912 (App. Div.), certif. denied, 81
N.J. 58, 404 A.2d 1157 (1979). Thus, a court Document #10 contains factual information
may consider OPRA's exclusion of criminal received by the Sheriffs Office, although
investigative records, and the similar common the third and fourth "bullet" points on page
law principles on the right [*13] to access two contain deliberative information, see In
public documents, for guidance when weighing re Liquidation of Integrity Ins. Co., 165
the respective interests of the parties. Here, we N.J. 75, 83, 754 A.2d 1177 (2000), and
are confident the judge considered the fact that shall not be disclosed. (For clarification, the
OPRA excludes criminal investigative records, third bullet point begins with "11/14/12"
as the judge had earlier ruled. and the fourth bullet point begins with
C. "11/15/12.")
Document #12 sets forth handwritten notes
The WCPO further argues that the records are that were being jotted down while
protected from disclosure by the deliberative witnesses were giving their respective
process privilege, N.J.S.A. 47:1A-1.1. We statements of facts to the author of
disagree. document #12; none of the information in
document #12 contains deliberative
For this privilege to apply, "the governmental
material.
entity claiming the privilege bears the burden
Document #13 is an anonymous letter
of establishing that the document in question
written by a "concerned citizen."
was in fact pre-decisional and that it is
deliberative in nature, containing opinions, Accordingly, the record indicates that the trial
recommendations, or advice about agency court carefully reviewed the documents in
policies." In re Readoption with Amendments of camera and determined which material was
Death Penalty Regulations N.J.A.C. 10A:23, clearly factual, and which material was subject
367 N.J. Super. 61, 73, 842 A.2d 207 (App. to the deliberative process privilege.
Div.), certif. denied, 182 N.J. 149, 862 A.2d 57
(2004) (citation and internal quotation marks Defendant's remaining arguments are "without
omitted). Moreover, "[p]urely factual material sufficient merit to warrant discussion in a
that does not reflect deliberative processes is written opinion." R. 2:11-3(e)(1)(E). We vacate
not protected." Ibid. (citation omitted). the stay previously granted, effective thirty
However, the judge's analysis ensured that her days from the date of this opinion.
ruling was consistent with our deliberative
Affirmed.
Page 7 of 7
End of Document
EXHIBIT L
Rivera v. N.J. State Police
Superior Court of New Jersey, Law Division, Mercer County

June 30, 2016, Decided
CIVIL ACTIONS CONSOLIDATED FOR DECISION DOCKET NO. MER-L-1517-15,
DOCKET NO. MER-L-2026-15, DOCKET NO. MER-L-2400-15
Reporter
2016 N.J. Super. Unpub. LEXIS 1558 * -
RICHARD RIVERA, Plaintiff, v. NEW Assistant Attorney General, and Nicole E.
JERSEY STATE POLICE, THOMAS Adams, Deputy Attorney General, for
PRESTON, in his capacity as Records defendants New Jersey State Police and the
Custodian for the New Jersey State Police, Office of the Attorney General.
DAVID ROBBINS, in his capacity as Records Arthur R. Sypek, County Counsel, John
Custodian for the New Jersey State Police, Maloney, Assistant County Counsel, and Paul
Defendants, and JOHN PAFF, Plaintiff, v. Adezio, Deputy County Counsel, for defendant
OFFICE OF THE ATTORNEY GENERAL, Mercer County Sheriffs Department.
NEW JERSEY STATE POLICE, BRUCE
SOLOMON, in his capacity as Records Judges: Jacobson, A.J.S.C.
Custodian for the Office of the Attorney
Opinion by: Jacobson
General and New Jersey State Police,
MERCER COUNTY SHERIFF'S Opinion
DEPARTMENT, and JOHN DOE, in his
capacity as Records Custodian for Mercer
County Sheriffs Department, Defendants. Jacobson, A.J.S.C.
Notice: NOT FOR PUBLICATION INTRODUCTION

WITHOUT THE APPROVAL OF THE
Before the court are three complaints brought
COMMITTEE ON OPINIONS.
by Plaintiffs John Paff and Richard Rivera
PLEASE CONSULT NEW JERSEY RULE seeking primarily to compel the Office of the
1:36-3 FOR CITATION OF UNPUBLISHED Attorney General and State of New Jersey to
OPINIONS. disclose the names of law enforcement officers
involved in uses of force pursuant to the Open
Counsel: [*11 Samuel Samaro and CJ Griffin Public Records Act ("OPRA") and the common
(PASIIMAN STEIN) for plaintiffs Richard law right to access: Richard Rivera v. NJ State
Rivera and John Paff. Police, et al., MER-L-1517-15 ("Rivera I"),
Christopher S. Porrino, Acting Attorney Richard Rivera v. NJ State Police, et al., MER-
General, Jeffrey Jacobson, Chief Counsel to the L-2026-15 ("Rivera II"), Paff v. Office of the
Attorney General, Raymond R. Chance, III, Attorney General, et al., MER-L-2400-15
Page 2 of 33
("Paff'). Each cause of action was prompted by oversight over that conduct. Plaintiffs seek the
a high-profile incident [*2] involving the use of officers' names to increase transparency and
physical, and sometimes deadly, force by police public oversight. On the other hand, the State
officers against civilians--the fatal shooting of raises the critically important issue of officer
Daniel Wolfe on April 21, 2015, the use of safety and urges confidentiality in order to
crowd control techniques at the Hot 97 Summer shield officers from potential dangers.
Jam on June 7, 2015, and the shooting of a
juvenile in Trenton on August 7, 2015, OPRA itself drives the analysis here. But the
proper balance between transparency and
respectively.
disclosure is difficult to decipher from the
Despite what may at first blush appear to be statutory language and the competing concerns
straightforward requests, the court has spent addressed by the Legislature and argued by the
significant time grappling with the complexities parties. In the end, the court can only be guided
presented by these three cases, which have been by the language itself, principles of statutory
consolidated only for the purpose of decision construction, and various case law precedents
given the similarity of the legal issues raised in in New Jersey and elsewhere that address the
each case. The requests implicate somewhat delicate balance [*4] that must be struck in
intricate statutory provisions of OPRA, order to adjudicate the claims before the court.
including one that can accurately be
characterized as an exception to an exception to STATEMENT OF FACTS
an exemption. Some of these provisions and the
RIVERA I:
interplay among them have received little
appellate treatment, presenting some issues of On April 21, 2015, at least one State trooper
first impression. shot and killed Daniel Wolfe after pursuing a
carjacked vehicle in Union, New Jersey.
Further adding to the difficulty is the nature of
Compl. 9. Thereafter, on May 6, 2015,
the parties' applications. Plaintiffs' demands
Plaintiff Richard Rivera filed the first of two
were themselves quite varied, requesting both
OPRA requests regarding uses of force with the
event-specific records as well as broad swaths
State Police's Records Custodian. Id. at 11.
of reports generated over the course of years.
He requested Use of Force Reports ("UFRs") as
The Office of the Attorney General has added
well as all information "relating to the police
to the complexity [*3] of the required analysis
shooting of Daniel Wolfe on or about April 21,
by raising numerous arguments, some of which
2015 in Union" required to be released by
stretch the statutory language in incongruous
N.J.S.A. 47:1A-3(b) ("Section 3(b)"). Ibid. On
ways, in order to block the release of the
May 6, 2015, Plaintiff made a second OPRA
information. Notably, many of the State's
request, which asked for all UFRs completed
arguments were not raised in its initial denials
by State troopers in 2015. Id. at 18.
of Plaintiffs' requests.
On May 15, 2015, Thomas Preston (Records
Finally, these requests for the release of public
Custodian for New Jersey State Police)
records touch upon topics of great national
responded to Plaintiffs first OPRA request. Id.
importance and public debate: the extent of
at 12. He provided UFRs to Mr. Rivera, but
appropriate transparency of police operations
redacted all names, badge numbers, and
when force is used, and the role of public
Page 3 of 33
signatures of the responding officers and the been redacted. Compl. ITT 31(b)-(c), (e). Rivera
reviewing officers, claiming that the redactions also asserted that he had a right to the redacted
complied with N.J.A.C. 13:1E-3.2(a)(7), a information under the common law. Id. at
regulation that prevents the release of trooper 36, 38. As the case progressed, the parties
duty assignments. Id. at 13(1). As for the focused on the substance of the request and the
requested Section 3(b) information, Mr. Preston redactions and not on the alleged procedural
provided [*5] the information that had been and technical irregularities.
disclosed previously in a press release. Id. at
13(9). On May 21, 2015, David Robbins On September 11, 2015, Defendants released
(Records Custodian for New Jersey State more information regarding the incident. Def.'s
Police) responded to Plaintiffs second OPRA Opp'n Ex. A. Notably, the release included a
request by providing similarly redacted UFRs, more specific identification of the gun and
totaling 107 documents. Id. at 19. While those ammunition used. Ibid. (stating that the police
documents were allegedly not provided within officer "discharged two rounds from a nine
seven business days as required by N.JS.A. millimeter Sig Sauer P229 semi-automatic
47:1A-5(i), id. at 20, Mr. Robbins later service weapon striking Wolfe in the shoulder
explained that technical difficulties related to and chest").
the size of the production had prevented a In his Reply Brief, Plaintiff effectively
timely electronic response. Robbins Certif. 7. conceded that his request for Section 3(b)
Hard copies of the redacted documents were information regarding the weapon and
sent by mail, but no explanation for the ammunition used in the shooting has been
redactions was provided. Compl. 21. satisfied. See Pl.'s Repl. Br. 30-31. It appears
that Plaintiff [*7] now only seeks the release of
Plaintiff Rivera filed a verified complaint and
officer names and counsel fees.
order to show cause on July 2, 2015. Rivera
claimed that Defendants violated OPRA by RIVERA II:
failing to make the requested records "readily
accessible for inspection, copying or On June 7, 2015, the radio station Hot 97 held
examination" pursuant to 1V.J.S.A. 47:1A-1. its annual Summer Jam concert at Metlife
Compl. 31(a). In particular, Plaintiff Rivera Stadium in East Rutherford, New Jersey.
asserted a right to the identifying information Compl. 24. At around 7 P.M., a fight broke
of officers involved in the Wolfe incident and out near one of the entrances to the stadium. Id.
listed on all UFRs pursuant to N.JS.A. 47:1A- at 24(1). In addition, there were several
3(b). Pl.'s Br. 4-5. Plaintiff also argued he was people who were trying to get into the concert
entitled to specific information regarding the without having purchased tickets. Ibid. As a
type of gun and [*6] ammunition used by the result of these disturbances, the State Police
police under the same provision. Ibid. closed down the entrance to the stadium. Ibid.
Additionally, Plaintiff alleged a violation of Unfortunately, this action meant that many
N.J.S.A. 47:1A-5(i) for taking longer than seven people who had bought tickets, but had not yet
business days to provide the documents, and a gained entry, could no longer enter the concert.
violation of N.JS.A. 47:1A-5(f) for failure to Id. at 25. In their frustration, several people
state a specific lawful basis for the denial and began rushing the entrance and throwing bottles
for failure to identify the information that had and other objects at police officers. Ibid. In
Page 4 of 33
response, the police allegedly used pepper On June 17, 2015, Defendants informed
spray, tear gas, and loud noise emitters from anPlaintiff that they were now willing to release
armored police vehicle to disperse the crowd. the UFRs themselves, albeit in redacted form,
Id. at 26. In the end, over sixty people were responsive to Plaintiffs original June 9 OPRA
arrested and at least one State trooper was request. Id. at 33. Defendants clarified that
injured. Id. at 26(2). the UFRs would be redacted "for
safety/security reasons." Id. at Ex. E. On July
On June 9, 2015, counsel for Plaintiff
21, 2015, Defendants emailed to Plaintiffs
submitted an OPRA request seeking records
counsel seven UFRs with the names and badge
related to the Summer Jam incident. Id. at 28.
numbers of State troopers redacted. Id. at 35.
Mr. Rivera [*8] asked for all UFRs and arrest
forms/reports without any redactions of Section On June 30, 2015, Plaintiffs counsel submitted
3(b) information. Ibid. On June 17, 2015, another OPRA request asking for all UFRs
Defendants denied access to both requests due completed by State troopers from March 31,
to the criminal investigatory records ("CIR") 2013 to December 31, 2014, as well as the
exemption under OPRA. Id. at 29. State Police's Use of Force policy/Standard
Operating Procedure and any instructions on
Refining its request in response to the State's completing a UFR. Id. at 37. After an
denial, on June 29, 2015, Plaintiffs counsel extension was granted, Defendants responded
asked for Section 3(b) information from "all on July 22, 2015, attaching the State Police
records relating to" the Hot 97 Summer Jam Operating procedure and noting that the UFRs
Concert incident. Id. at 30. The second would be provided separately. Id. at 38; Ex.
request also sought all complaints and H. The UFRs were provided on CD-ROM on
summonses that had been issued as a result of July 27, 2015, with redactions of names and
the event. Ibid. badge numbers in reliance on 1V.J.A.C. 13:1E-
Documents and information were provided by 3.2(a)(7). Id. at Ex. H.
the State over the following month. On July 16, Plaintiff filed a verified complaint and order to
2015, Defendants provided a list of sixty show cause on September 8, 2015. [*10]
individuals who had been arrested at the Plaintiff sought "full access" to all requested
Summer Jam event, along with related Section records. Id. at 48(a). Additionally, Plaintiff
3(b) information. Id. at TT 31-32. This list did sought a "complete list of N.J.S.A. 47:1A-3(b)
not include information about weapons or information pertaining to the Summer Jam
ammunition used by the suspects and by the Incident." Plaintiff also sought relief under the
police and did not address whether there had common law.
been any resistance to arrest by any suspect.
Ibid. The State also provided no explanation as PAFF.
to why such information was not included. Ibid.
On July 27, 2015, Defendants provided all On August 7, 2015, two State troopers and a
complaints and summonses produced in Mercer County Sheriffs officer responded to a
connection with the event, with certain report of gunshots fired near 500 Prospect
redactions [*9] made "to protect personal Village, Trenton, New Jersey. Compl. 9. The
identifiable information." Id. at Ex. D. three officers were assigned to the Targeted
Integrated Deployment Effort ("TIDE"), which
Page 5 of 33
is a "multi-agency initiative to address violence evidence that the police initially believed the
in Trenton." Ibid. While en route to the scene, juvenile tossed his weapon onto the roof and
the officers stopped three teenage males who thus knew that he did not have it in his hand
were walking within a half mile radius of the when he was shot." Id. at 13; Ex. C. The
location noted in the reports. Ibid. As the youth's attorney stated that the suspect ran
officers approached the teenagers, one fled. away purely because "he sensed trouble" and
Ibid. One of the State troopers and the Sheriffs that eyewitnesses have noted they "never saw
officer ran after the youth, firing between 15-18 [him] with a gun." Id. at 16; Ex. F. Plaintiff
shots and striking him in his legs and buttocks has also alleged that the "defendants and other
seven times. Id. at 10. Subsequent to these law enforcement agencies" have attempted to
events, the Division of Criminal Justice of the cast the youth in a negative light by leaking
Attorney General's Office filed three charges mug shots of the juvenile and information
against the juvenile: unlawful possession of a regarding his criminal history to media outlets.
handgun, aggravated assault, and possession of Id. at illdll 23-24.
a defaced firearm. Id. at 18; Ex. E. [*11] The
Office of the Attorney General ("OAG") also On August 29, 2015, Plaintiff submitted a
announced that it was "conducting an ongoing request for public records pursuant to OPRA
investigation into whether the shooting was and the common law right of access. Id. at 29.
Plaintiff made four requests, seeking: (1)
legally justified." Id. at 19.
identifying information of the law enforcement
Shortly after the incident, the OAG on August officers who shot the youth pursuant to N.J.S.A.
10, 2015, issued a press release, stating that 47:1A-3(b) ("Section 3(b)"), (2) Use of Force
"witnesses reported that as the . . . state trooper reports filed by the two officers, (3) police
and the sheriffs officer ran after the 14-year- incident or other reports containing the names
old, the youth was reaching into his waistband." of the two officers, and (4) "the name, title
Id. at 9. A .22-caliber automatic handgun position, salary, payroll record, length of
containing three rounds of ammunition was service, date of separation and the reason
later recovered underneath a vehicle at the therefor" pursuant to 1V.J.S.A. 47:1A-10 of the
scene on Calhoun Street." Id. at 14; Ex. A. two officers. Ibid. All four requests for [*13]
The Complaint filed against the juvenile information clarified that the Plaintiffs primary
apparently alleges that he was in possession of interest was learning the identities of the
the handgun at the time of the shooting. Id. at officers involved in the shooting. See Ibid.
17; Ex. E. It further alleges that he had pointed
In response to the first request, Assistant
the gun at the officers. Ibid.
Attorney General Raymond Chance sent a letter
Plaintiffs complaint raises concerns regarding to Plaintiff on August 31, 2015. Id. at Till 30-31;
the substance of the OAG's reports. Some news Ex. M. The letter refused to provide identifying
articles published shortly after the incident information, noting in response to Plaintiffs
reported that the gun was found after a twelve- first request that Section 3(b) does not apply
hour search about 151 feet from the place because "no arrest has been made." Id. at Ex.
where the youth collapsed. Id. at 14-15; Ex. M. Further, the letter asserted that even if
C, D, and E. There were also reports of Section 3(b) did apply, that the release of
searches on a nearby rooftop, "which caused information would be exempted based on safety
experts to speculate that there was [*12] some concerns for the officers. Ibid.
Page 6 of 33
On September 1, 2015, the Mercer County confirm that report. Ibid. Plaintiff sent a [*15]
Counsel responded, relying largely on the OAG letter to Mr. Solomon seeking confirmation
Letter. Id. at 32; Ex. N. The Office of County from OAG regarding the identities and
Counsel contacted Plaintiff on September 10, reissuing his first four requests on October 16,
2015, noting that OAG was the "primary 2015. Id. at 39. Deputy Attorney General
agency on the investigation," and that the Ryan Atkinson responded on the State's behalf
Office might need extra time to respond. Id. at on the same day, reaffirming OAG's refusal to
III 33-35; Ex. 0. Plaintiff consented, and provide the identities of the two law
received denials of the remainder of his enforcement officials under N.J.S.A. 47:1A-
requests from Mercer County Counsel in a 3(b). Id. at 40; Ex. U. No further information
September 18, 2015 letter. Id. at 34; Ex. P. or records have been released to Mr. Paff to
date.
On September 11, 2015, OAG Records
Custodian Bruce Solomon requested by Mr. Paff filed a verified complaint and order to
voicemail additional time to respond [*14] to show cause on October 20, 2015. Plaintiff
the remaining requests, to which Mr. Paff also sought full access to all requested records. Id. at
consented. Ibid. 35. On September 11 and 53. Additionally, Plaintiff sought relief under
September 16, OAG provided its response. Id. the common law.
at TIT 36-37(a)-(d); Ex. Q, R. Specifically, as to
Due to the similarity of the issues presented in
the second request, OAG indicated that no Use
these cases, the court has considered them
of Force reports had been generated. Ibid. In
together. All three matters will be addressed in
response to the third request, OAG stated that
this decision.
the "matter is subject to an ongoing criminal
investigation and the release of these records LEGAL ANALYSIS
would jeopardize the safety of the officers
involved," citing N.J.S.A. 47:1A-1.1 and I. Overview of OPRA
N.J.S.A. 47:1A-3. Ibid. Regarding request four, Plaintiffs in these actions seek, pursuant to
the response noted that there was an ongoing OPRA, the names of the police officers who
investigation by the Attorney General's have used varying degrees of force in the
Shooting Response Team as to whether the course of carrying out their duties. The wide
shooting was legal. Ibid. Accordingly, the swath of requested records can be organized
names and actions of the officers would be into two types of requests: first, there were
presented to a grand jury to determine whether requests for records pertaining to specific
probable cause existed to issue an indictment events. In Rivera I, Plaintiff requested UFRs
against the officers. Ibid. The response further and other information [*16] relating to the
noted that disclosure of the information was shooting of Daniel Wolfe. In Rivera II, Plaintiff
exempted under N.J.S.A. 47:1A-1.1, 47:1A-3, requested UFRs, and arrest forms and reports,
and 47:1A-9. Ibid. pertaining to the Hot 97 summer event at the
On October 15, 2015, NJ Advanced Media Meadowlands where a disturbance led to
reported that "unnamed law enforcement numerous arrests. Lastly, in the Paff matter,
sources had leaked the names of the two Plaintiff requested UFRs and other reports
officers who shot" the youth. Id. at 38. In that pertaining to the shooting incident involving a
article, an OAG spokesperson refused to juvenile in Trenton in August of 2015. Second,
Page 7 of 33
there were general requests for UFRs generated records that prompted the adoption of OPRA.
within specific timeframes but not tied to any
specific event. In Rivera I, Plaintiff requested Moreover, the burden placed on the public
all UFRs that had been submitted by State agency is a heavy one. It is not met by
troopers in 2015 through the date of the providing mere "conclusory and generalized
request. In Rivera II, Plaintiff also requested allegations," Gilleran v. Twp. of Bloomfield,
UFRs completed by State troopers between 440 N.J. Super. 490, 497, 114 A.3d 780 (App.
March 31, 2013 and December 31, 2014. Div.), certif granted, 223 N.J. 402, 125 A.3d
390 (2015) (quoting Newark Morning Ledger
These requests implicate two interrelated Co. v. N.J. Sports & Exposition Auth., 423 N.J.
exemptions to OPRA's general statutory Super. 140, 162, 31 A.3d 623 (App. Div.
requirement that public records be disclosed: 2011)), but instead necessitates a "clear[
the "criminal investigatory record" exemption demonstrat[ion of] a claim of privacy in all
under N.J.S.A. 47:1A-1.1 and the "investigation redacted information." Livecchia v. Borough of
in progress" exemption under N.J.S.A. 47:1A-3. Mount Arlington, 421 N.J. Super. 24, 29, 22
The court will begin its analysis with an A.3d 140 (App. Div. 2011). The State must
examination of the statute. "produce specific reliable evidence sufficient to
meet a statutorily recognized basis for
OPRA provides that for all "public agencies," confidentiality." Gilleran, supra, 440 N.J.
"government records shall be readily accessible Super. at 497 (quoting Courier News v.
for inspection, copying, or examination by the Hunterdon County Prosecutor's Office, 358
citizens of this State, [*171 with certain N.J. Super. 373, 382-83, 817 A.2d 1017 (App.
exceptions . . . ." N.J.S.A. 47:1A-1. The purpose Div. 2003)). This [*181 explanation is required
of OPRA is "to maximize public knowledge for redactions as well as for refusals to produce
about public affairs in order to ensure an documents. See, e.g., Newark Morning Ledger
informed citizenry and to minimize the evils Co., supra, 423 N.J. Super. at 148.
inherent in a secluded process." O'Boyle v.
Borough of Longport, 218 N.J. 168, 184, 94 Consistent with the policy of maximizing
A.3d 299 (2014) (quoting Mason v. City of public knowledge about public affairs and
Hoboken, 196 N.J. 51, 64, 951 A.2d 1017 promoting an informed citizenry, OPRA
(2008)). OPRA itself requires courts to defines a "government record" very broadly.
narrowly construe OPRA's limitations on the Accordingly, a government record includes:
right to access government records. N.J.S.A. any paper, written or printed book,
47:1A-1 ("[A]ny limitations on the right of document, drawing, map, plan, photograph,
access . . . shall be construed in favor of the microfilm, data processed or image
public's right of access."). processed document, information stored or
maintained electronically or by sound-
When a plaintiff challenges an agency's denial recording or in a similar device, or any
of access to records, the public entity defendant copy thereof, that has been made,
has the burden to show that the denial was maintained or kept on file . . . or that has
"authorized by law." 1V.J.S.A. 47:1A-6. This been received in the course of . . . official
shifting of the burden to defendants is at odds business.
with most civil claims and underscores the
strong preference for disclosure of public [N.J.S.A. 47:1A-1.1.]
Page 8 of 33
However, OPRA constricts this general formally adopted regulations. Id. at 97-103.
definition by naming twenty-one classes of Thus, the scope of documents to which the
records that are deemed "confidential" and exemption applies (i.e., those not required by
exempt from the definition of "government law to be made) is quite broad. [*20]
records." Ibid.; Mason, supra, 196 N.J. at 65. In The "investigation in progress" exemption
addition, OPRA authorizes non-disclosure codified at N.J.S.A. 47:1A-3 applies
when mandated by "any other statute;
paradoxically to, at once, a narrower and a
resolution of either or both Houses of the
broader scope of documents than the "criminal
Legislature; regulation promulgated under the investigatory record" exemption. The
authority of any statute or Executive Order of exemption applies to any "record or records . . .
the Governor; Executive Order of the [that] pertain to an investigation in progress by
Governor; Rules of Court; any federal law; any public agency." N.J.S.A. 47:1A-3(a). This
federal regulation; or federal order." N.J.S.A definition is broader in scope than the "criminal
47:1A-9(a). investigatory record" exemption because it
Criminal [X19] investigatory records are applies to any agency investigation, not only
explicitly exempt from the definition of criminal ones. Conversely, it is narrower than
"government record" under OPRA and are thus the criminal investigatory records exemption
not subject to disclosure. OPRA defines because it applies solely to investigations that
criminal investigatory records as follows: are ongoing. Accordingly, N.J.S.A 47:1A-3
"Criminal investigatory record" means a applies to criminal investigatory records while
record which is not required by law to be the investigation is still in progress. It provides
made, maintained or kept on file that is held no further guidance regarding the possible
by a law enforcement agency which release of criminal investigatory records after
pertains to any criminal investigation or the investigation has ended.
related civil enforcement proceeding. The "investigation in progress" exemption
[N.J.S.A. 47:1A-1.1.] consists of two seemingly straightforward but
ultimately difficult to apply subsections,
The language used in this statutory definition N.J.S.A. 47:1A-3(a) and N.JS.A. 47:1A-3(b).
was derived in part from the Right to Know N.J.S.A. 47:1A-3(a) states that any record that
Law, L. 1963, c. 73 (repealed 2002), which pertains to an ongoing investigation "may be
OPRA replaced. See generally North Jersey denied [disclosure] if the inspection, copying or
Media Group, Inc. v. Twp. of Lyndhurst, 441
examination of such record or records shall be
N.J. Super. 70, 93-97, 116 A.3d 570 (App. Div.
inimical to the public interest." N.J.S.A. 47:1A-
2015). Under the Right to Know Law, access
3(a). This protection [*21] is quite extensive,
was required to documents required by law to
be made. L. 1963, c. 73, 1. Thus, there are and courts have repeatedly emphasized the
two salient components to determining whether public interest in maintaining the
a document constitutes a criminal investigatory confidentiality of all ongoing agency
record: the document must (1) not be required investigations. See, e.g., Gannett N.J. Partners,
by law to be produced and retained, and (2) it LP v. County of Middlesex, 379 N.J. Super.
must pertain to a criminal investigation. As the 205, 214, 877 A.2d 330 (App. Div. 2005)
Appellate Division noted, the phrase "required (observing that the ongoing investigation
by law" refers primarily to statutes and exemption reflects a longstanding, "general
Page 9 of 33
legislative recognition of the public interest in becomes part of an agency's investigation, no

law enforcement and other investigatory matter how high the confidentiality interest of
agencies maintaining the confidentiality of the document subsequently becomes. The
documents relevant to ongoing investigations"). exception applies even when the investigation
The Supreme Court has noted that this interest begins within hours of the document's initial
is "especially important in the context of a production. Lyndhurst, supra, 441 N.J. Super.
pending criminal proceeding." State v. at 104 (citing Serrano v. S. Brunswick Twp.,
Marshall, 148 N.J. 89, 273, 690 A.2d 1 (1997). 358 N.J. Super. 352, 366-67, 817 A.2d 1004
(App. Div. 2003)).
But this protection of the public interest has
never been considered absolute. See Lyndhurst, The second subsection of the investigation in
supra, 441 N.J. Super. at 109 (noting that the progress exemption applies only to ongoing
confidentiality interest diminishes after the criminal investigations. N.J.S.A. 47:1A-3 (b).
investigation ends); River Edge Say. & Loan Section 3(b) requires agencies to disclose an
Ass'n v. Hyland, 165 N.J. Super. 540, 544, 398 enumerated list of details relating to the
A.2d 912 (App. Div.), certif. denied, 81 N.J. criminal investigation. Ibid. Notably, while
58, 404 A.2d 1157 (1979) (noting that the OPRA generally provides for access to public
investigatory process privilege "is not absolute . records and not to information, see N.J.S.A.
. . . where there are present considerations of 47:1A-1, this subprovision addresses a right to
fundamental fairness or other considerations of information, not to documents
a compelling nature such as outweigh the themselves. [*23] The information that must be
imperative of the interests of the State in disclosed depends on whether an arrest has
protecting and maintaining the confidentiality been made. N.J.S.A. 47:1A-3(b). If no arrest
of the information" (citing Roviaro v. United has been made, only "information as to the type
States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d of crime, time, location and type of weapon" is
639 (1957))). Since all criminal investigative required. Ibid. If an arrest has been made,
records have already been exempted from however, a far greater amount of information
disclosure under N.J.S.A. 47:1A-1.1, this must be made available upon request.
protection for "ongoing investigations" [*22] Specifically, the statute requires the following
appears to be redundant as applied to those disclosures:
records. This redundancy does not render the information as to the defendant's name, age,
text superfluous, however, since N.J.S.A. residence, occupation, marital status and
47:1A-3(a) also protects ongoing agency similar background information and, the
investigations that are not criminal in nature. identity of the complaining party unless the
release of such information is contrary to
N.J.S.A. 47:1A-3(a) also provides that the existing law or Court Rule;
provision "shall not be construed to allow any information as to the text of any charges
public agency to prohibit access to a record of such as the complaint, accusation and
that agency that was open for public inspection, indictment unless sealed by the court or
examination, or copying before the unless the release of such information is
investigation commenced." N.J.S.A. 47:1A- contrary to existing law or court rule;
3(a). In other words, if the document or information as to the identity of the
information was publicly available initially, it investigating and arresting personnel and
may not be shielded from disclosure if it later
Page 10 of 33
agency and the length of the investigation; the agency must "issue a brief statement
explaining the decision." Ibid. This limitation is
information of the circumstances
consistent with the general principles
immediately surrounding the arrest,
underlying OPRA that foster disclosure of
including but not limited to the time and
place of the arrest, resistance, if any, public records and require narrow construction
pursuit, possession and nature and use of of the exceptions to disclosure. N.J.S.A. 47:1A-
weapons and ammunition by the suspect 1 ("[A]ny limitations on the right of access . . .
and by the police; and [*24] shall be construed in favor of the public's right
information as to circumstances of access.").
surrounding bail, whether it was posted and
Taking these provisions together, the
the amount thereof.
Legislature intended to create a broad
47:1A-3(b).] protection for criminal investigatory records.
This protection tempers the expansion of the
Particularly relevant for the present cases is the right of access that was the motivating force for
required disclosure of "information as to the the enactment of OPRA. But the Legislature
identity of the investigating and arresting also saw fit not to make that protection
personnel and agency," even where the incident absolute. Instead, it directed disclosure of
involves "use of weapons and ammunition by specific information about ongoing criminal
the . . . police." Ibid. Notably, no other investigations that it deemed of significant
identities of law enforcement personnel must be public interest. Among the informational rights
released under this Section. The subprovision that the Legislature decided to protect is the one
also provides a time limit on the agency's at the heart of these cases: the right to know the
disclosure of this information. Specifically, it identity of any officer who has made an arrest
requires the disclosure "within 24 hours or as pursuant to a criminal investigation.
soon as practicable" following a request for the
information. Ibid. Having opened a narrow [*26] corridor of
access, the Legislature also created and placed
Further complicating the matter, the provision a protective filter over it, preventing the
contains an exception to this directive to disclosure of such names if their release would
disclose information. N.J.S.A 47:1A-3(b) "jeopardize the safety of any person or
notably permits an agency to deny the jeopardize any investigation in progress or may
disclosure of these enumerated details if the be otherwise inappropriate to release." N.J.S.A.
disclosure "will jeopardize the safety of any 47:1A-3(b). But the Legislature also explicitly
person or jeopardize any investigation in noted that this filter should remain porous,
progress or may be otherwise inappropriate to requiring it to be "narrowly construed," lest the
release." Ibid. While this language appears far- exception swallow the access otherwise
reaching on its face, the Legislature has provided. The extra burden this requirement
explicitly limited the breadth of this exception places on the public agency is significant since,
by providing that it should be "narrowly as noted above, an agency must always
construed to prevent [*25] disclosure of demonstrate "a 'clear showing' that one of
information that would be harmful to a bona OPRA's exclusions applies," Gilleran, supra,
fide law enforcement purpose or public safety." 440 N.J. Super. at 497 (quoting Tractenberg v.
Ibid. When this narrow exception is invoked, Twp. Of W. Orange, 416 N.J. Super. 354, 378-
Page 11 of 33
79, 4 A.3d 585 (App. Div. 2010)), using which mandate such reports to be filled out
"specific reliable evidence." Gilleran, supra, whenever "physical, mechanical or deadly
440 N.J. Super. at 497. force is used." Office of the Att'y Gen.,
II. A11 of Plaintiffs' requests for names shall be Attorney General's Use of Force Policy 7
granted. (2000). They must be completed by "each
officer who has employed such force." Ibid.
Plaintiffs have attempted to gain access to the
names of the officers through two means. First, Plaintiffs argue that the AG Guidelines have
they have claimed that the State has the [*28] force and effect of law. Accordingly,
inadequately demonstrated that the Use of since the Guidelines require police officers to
Force Reports, on which most of the names are create UFRs, UFRs are "required by law" to be
found, fall under the criminal records made and thus fall outside the statutory
exemption as defined by N.J.S.A. 47:1A-1.1. exemption for criminal investigatory records
Second, they have claimed that the State has under OPRA. The court is constrained by the
Appellate Division's recent decision in
inadequately demonstrated that the names of
arresting officers should be withheld under Lyndhurst, supra, 441 N.J. Super. at 97-103
N.J.S.A. 47:1A-3(b). The court will ("Lyndhurst"), to disagree with Plaintiffs'
position. Nevertheless, the court wishes to raise
consider [*27] each in turn.
certain concerns that appear not to have been
A. UFRs are "criminal investigatory records" fully considered by the Lyndhurst court in the
under 1V.J.S.A. 47:1A-1.1. event that appellate review of any of these
cases is pursued.
Plaintiffs argue that the State has failed to meet
its burden under N.J.S.A. 47:1A-6 and N.J.S.A. Plaintiffs' argument has been raised and
47:1A-1.1 to demonstrate that the UFRs qualify addressed previously in two published
as "criminal investigatory records" and Appellate Division decisions, producing
therefore should be exempt from disclosure. disparate results. In O'Shea v. Township of
Plaintiffs argue that UFRs meet neither West Milford, 410 N.J. Super. 371, 385, 982
condition of OPRA's two-part definition. They A.2d 459 (App. Div. 2009), the Appellate
argue that the State has failed to show that Division concluded that the "Attorney General's
UFRs are "not required by law" to be made and requirements regarding UFRs . . . satisfy
that they "pertain to an investigation." OPRA's 'required by law' standard." Id. at 385.
But a separate panel of the Appellate Division
i. Under Lyndhurst, UFRs are not required by
more recently came to the opposite conclusion
law to be made.
in Lyndhurst, supra, 441 N.J. Super. at 97-103,
UFRs constitute the great majority of stating that AG Guidelines were "internal
documents requested by Plaintiffs. The reports agency directives" that did not rise to the level
require the officer who used force to state his or of "law" under the OPRA exemption.
her name, the reason for the use of force, the
Plaintiffs argue that this divergence of opinion
degree of force used, and the impact of the use
has created a split between Appellate Division
of force on the victim. See Rivera I, Compl. Ex.
panels and that neither is consequently
E. They are required to be made by Attorney
binding [*29] on this court. See Pressler &
General ("AG") Guidelines and Directives,
Verniero, Current N.J. Court Rules, comment
Page 12 of 33
3.3 on R. 1:36-3 (2014) ("If . . . separate panels documents. First of all, the "law" was
of the Appellate Division reach different results interpreted to apply only to "statute[s],
on a given issue, a trial court or agency is free regulation[s], executive order[s] or judicial
to choose which panel to follow until the matter decision[s]." Nero v. Hyland, 76 N.J. 213, 220,
is resolved by the Supreme Court."); Sabella v. 386 A.2d 846 (1978); see also State v.
Lacey Twp., 204 N.J. Super. 55, 61, 497 A.2d Marshall, 148 N.J. 89, 272, 690 A.2d 1 (1997).
896 (App. Div. 1985) (noting that when two Moreover, within this narrow definition, courts
Appellate Division panels diverge, "the proper interpreted "regulation" as applying only to
course is for [the trial judge] to choose the formal promulgations, as opposed to "mere[ ] . .
alternative which to him or her seems better . administrative directives." See In re Request
reasoned"). for Solid Waste Util. Customer Lists, 106 N.J.
508, 525, 524 A.2d 386 (1987) (denying
The court agrees that the Appellate Division disclosure under RTKL of certain customer and
opinions do offer a stark contrast, not only in pricing lists required to be made by utility
the conclusions reached but also in their
companies pursuant to an order--not regulation-
approach. While the O'Shea court offered a -from the Board of Public Utilities); Nero,
highly pragmatic interpretation of the "required supra, 76 N.J. at 220-21 (denying disclosures
by law" phrase, the Lyndhurst opinion of certain records produced pursuant to a
demonstrated a more formalistic approach. character investigation required by the
After reviewing both decisions, the court Governor under the RTKL). Accordingly,
concludes that it is constrained to follow courts historically permitted only a small j*31]
Lyndhurst. The Lyndhurst opinion is the more amount of documents in the possession of a
recently decided case and provides a more public body to be disclosed under the RTKL.
thorough analysis of the issue. See Petition of
Gardiner, 67 N.J. Super. 435, 446, 170 A.2d The passage of OPRA marked a sea change in
820 (App. Div. 1961) (noting, in the face of the law by greatly expanding the public's right
two conflicting Supreme Court opinions, that it of access. This expansion was accomplished in
was "perforce required to follow the more great part by the removal of the phrase
recent, and clearly the more soundly "required by law" from the definition of "public
conceived" of the two). records." See N.J.S.A. 47:1A-1. But the
Lyndhurst court found the re-insertion of the
Lyndhurst's approach focused on the [*30] phrase in the definition of the "criminal
legislative history behind the phrase, "required investigatory records" exemption to be
by law." The court noted that the phrase was significant. Just as the removal of "required by
directly borrowed from OPRA's prior iteration, law" communicated the Legislature's desire to
the Right to Know Law ("RTKL"). Under the increase access to public records as a general
RTKL, a person seeking disclosure of public matter, so the inclusion of the phrase revealed
records only had a right to those documents that the Legislature's desire to create a broad
were "required by law to be made, maintained protection for criminal investigatory records.
or kept on file." L. 1963, c. 73, 1. As noted by Thus, while OPRA led to the great expansion
the Appellate Division in Lyndhurst, New of the right of access to public records when
Jersey courts had narrowly circumscribed their not attached to a criminal investigation, the law
interpretation of the phrase under the RTKL, maintained the prior, restrictive standard for
resulting in the non-disclosure of many
Page 13 of 33
criminal records. "Administrative rule" . . . means each

agency statement of general applicability
On the basis of this interpretation of OPRA, the
and continuing effect that implements or
Lyndhurst court concluded that the AG
interprets law or policy, or describes the
Guidelines on the creation of UFRs could not
organization, procedure or practice
be considered "law" under the criminal records
requirements of any agency. The term . . .
exemption of OPRA, but instead were simply does not include: (1) statements concerning
agency directives. UFRs, accordingly, [*32] are
the internal management or discipline of
"not required by law to be made, maintained or
any agency; (2) intraagency and
kept on file" in accordance with OPRA's interagency statements; and (3) agency
definition of criminal records.
decisions and findings in contested cases.
As noted above, this court has determined that [N.J.S.A. 52:14B-2(e).]
it is constrained to abide by this application ofOne thrust of this definition is to require formal
the exemption to the AG Guidelines. The court rulemaking proceedings except for internal
therefore finds, based on Lyndhurst, that the policies that apply to agency personnel and not
AG Guidelines are not "law" under OPRA and the public. The definition does not erode
that UFRs are "not required by law to be made, agency authority over internal procedures or
maintained or kept on file." personnel who are bound by those policies,
The court understands the Appellate Division's however.
decision in Lyndhurst to follow the long- The court in O'Shea, supra, 410 N.J. Super. at
established distinction between informal 383, concurred with Lyndhurst's conclusion
publications and "rules and regulations of a that the AG Guidelines and Directives do not
state administrative agency, duly promulgated meet the APA's definition of "rule." Instead,
under properly delegated powers." State v. since they regulate the policing procedures of
Atlantic City Electric Co., 23 N.J. 259, 270, law enforcement agencies, the Directives and
128 A.2d 861 (1957). Nevertheless, this court is Guidelines constitute "statements concerning
concerned that the Appellate Division's the internal management or discipline of an[ ]
decision in Lyndhurst did not fully address agency." Ibid. (citing In re Carroll 339 N.J.
some important factors that possibly could have Super. 429, 442-43, 772 A.2d 45 (App. Div.)
altered the analysis. Since the issue may soon certif. [1:34] denied 170 N.J. 85, 784 A.2d 718
be viewed by other Appellate Division panels (2001)). As such, they are binding on the
and the Supreme Court, this court wishes to agency, and therefore on law enforcement,
offer some additional factors for consideration. without formal rulemaking. But the fact that
The court agrees with Lyndhurst's conclusion AG Guidelines and Directives lack the
that AG Directives and Guidelines concerning imprimatur of a formal regulation passed
officer conduct are not promulgated in according to notice and comment procedures
conformance with formal rulemaking should not necessarily disqualify them from
requirements. [*33] The definition of a formal having legal effect under OPRA. The court is
"rule" is found in the New Jersey particularly concerned that Lyndhurst's
Administrative Procedure Act ("APA"), reasoning failed to recognize the authoritative
/V.J.S.A. 52:14B-1, et seq., which states that: stature of the AG Guidelines and Directives
under New Jersey law.
Page 14 of 33
In New Jersey, the Attorney General enjoys a N.J.S.A. 52:17B-98 provides a broad statement
unique position within the executive branch as that promotes this power:
the chief law enforcement officer in the State.
As the Supreme Court has explained, that The Legislature recognizes that the
special status and authority derived from the existence of organized crime presents a
role of Attorney General as it existed in serious threat to our political, social and
England: economic institutions and helps bring about
a loss of popular confidence in the agencies
Under the common law of England, the of government. Accordingly, it is hereby
Attorney-General was the chief law officer declared to be the public policy of this State
and adviser of the Crown upon whom to encourage cooperation among law
devolved the management of its legal enforcement officers and to provide for the
affairs and the prosecution of all suits, civil general supervision of criminal justice by
and criminal, in which the crown had an the Attorney General as chief law
interest; and these functions and enforcement officer of the State, in order to
responsibilities, in the absence of secure the benefits of a uniform [*36] and
constitutional limitations, appertain to the efficient enforcement of the criminal law
office of Attorney-General in New Jersey, and the administration of criminal justice
as a part of our common-law throughout the State. All the provisions of
inheritance, [*35] subject to enlargement or this act shall be liberally construed to
abridgement by the legislative authority. achieve these ends and administered and
enforced with a view to carrying out the
[Alexander v. N.J. Power & Light Co., 21 above declaration of policy.
N.J. 373, 380, 122 A.2d 339 (1956) (citing
Wilentz v. Hendrickson, 133 NJ. Eq. 447,
454, 33 A.2d 366 (Ch. 1943) (Jayne, V.C.),
Additionally, 1V.J.S.A. 40A:14-181 provides a
affd, 135 N.J. Eq. 244, 38 A.2d 199 (E. &
particular application of that authority through
A. 1944)).]
the publication of common standards:
Among the responsibilities of the Attorney Every law enforcement agency shall adopt
General is the authority to regulate the conduct and implement guidelines which shall be
of all law enforcement personnel throughout consistent with the guidelines governing the
the State. Accordingly, the Attorney General's "Internal Affairs Policy and Procedures" of
pronouncements operate with a level of binding the Police Management Manual
force that is perhaps second only to the promulgated by the Police Bureau of the
Governor, whose Executive Orders were Division of Criminal Justice in the
considered "law" under the RTKL. Nero, supra, Department of Law and Public Safety, and
76 N.J. at 220. shall be consistent with any tenure or civil
service laws, and shall not supersede any
Notably, the broad authority of the Attorney existing contractual agreements.
General over the conduct of all law
enforcement officials in the State has been [Ibid.]
statutorily affirmed by the Legislature at
As the Appellate Division has noted, the
1V.J.S.A. 52:17B-98 and N.J.S.A. 40A:14-181.
statute requires every law enforcement agency
Page 15 of 33
to adopt and implement guidelines consistent The AG Guidelines and [*38] Directives have
with the Attorney General's internal affairs this authoritative impact on law enforcement
policies and procedures." McElwee v. Borough officers throughout the State despite the fact
of Fieldsboro, 400 N.J. Super. 388, 395, 947 that they are created solely at the Attorney
A.2d 681 (App. Div. 2008). General's discretion and not through notice and
comment procedures. The absence of such
The Guidelines and Directives at issue in this
procedures does not automatically disqualify an
case are plainly encompassed by these statutory
executive declaration from having legally
authorizations. They establish common
binding status under OPRA. Notably, OPRA
standards for local [*37] law enforcement
already recognizes the legally binding force of
agencies to review the conduct of their officers Executive Orders of the Governor without
when they engage in the use of force in the requiring pre-adoption publication and public
course of their duties. Notably, the OAG's
comment. See, e.g., Kenny v. Byrne, 144 N.J.
Internal Affairs Policy and Procedures, to Super. 243, 365 A.2d 211 (App. Div. 1976),
which N.J.S.A. 40A:14-181 explicitly refers, affd, 75 N.J. 458, 383 A.2d 428 (1978).
explains that Attorney General promulgations
regarding the use of force must be followed by Finally, the court has been struck by the irony
local law enforcement agencies. Office of the and inconsistency of the OAG's repeated
Att'y Gen., Internal Affairs Policy & disavowal of the legal effect of its Guidelines
Procedures 7 (2014). and Directives under OPRA. The State's result-
oriented arguments in this case appear at odds
The judiciary has also confirmed the Attorney with the Attorney General's own statements in
General's unique position of power, having those very publications. For example, the initial
long enforced the legally binding authority of Attorney General Directive on Use of Force
these promulgations by the Attorney General. Reports states:
See, e.g., State v. Henderson, 397 N.J. Super. [The Directive] shall be binding upon all
398, 411-12, 937 A.2d 988 (App. Div. 2008), affected law enforcement agencies, and
affd in part and modified in part, 208 N.J. 208, shall automatically supersede and take
27 A.3d 872 (2011) (stating that, because AG precedence over any rules and regulations,
Guidelines regarding photographic standing operating procedures, guidelines
identification protocol had been breached "in a or protocols issued or employed by the
material way," "the disposition of [the] appeal affected law enforcement agencies.
turns on the remedy warranted by that improper
conduct"); see also McElwee, supra, 400 N.J. [Office [*39] of the Att'y Gen., Attorney
Super. at 395-96 (evaluating a former police General Law Enforcement Directive No.
officer's challenge to his termination by 2006-05 at 8 (2006).]
reference to the decision's compliance with AG The Directives themselves thus assert an
Guidelines). The authority attributed to AG authoritative force not only over the behavior
promulgations remains the same, whether they of law enforcement officials, but over rules and
are issued as Guidelines or Directives. See State regulations.
v. Brimage, 153 N.J. 1, 4, 706 A.2d 1096
Consequently, it appears to this court that the
(1998) (discussing Directives and Guidelines
Legislature, the courts, and the Attorney
interchangeably).
General himself clearly intended for the
Page 16 of 33
Guidelines to be the law of the land, binding on investigation." For the foregoing reasons, the
all law enforcement officers across the State. court is satisfied that the UFRs in question meet
Moreover, the Guidelines at issue here establish this definition as well.
a strict code of conduct and a required
procedure that touches an essential component When considering whether a document
of law enforcement action the use of force to "pertains to a criminal investigation," New
subdue ordinary citizens. The Guidelines are Jersey courts must resolve two questions. First,
not, in other words, the sort of pronouncements the court must determine whether the particular
that are ordinarily categorized as an "informal document is relevant to a criminal
action" without the force of law. Compare In re investigation. This task is [*41] complicated by
Request for Solid Waste Util. Customer Lists, the fact that many documents, including UFRs,
supra, 106 N.J. at 518-20 (concerning an are used for multiple purposes--some relating to
agency directive requiring solid waste utilities criminal investigations, some to "community
to publish customer lists and related financial caretaking functions." Lyndhurst, supra, 441
information). N.J. Super. at 105. As the court in Lyndhurst
noted, there is an important difference between
Notably, a recognition of the legal status of AG UFRs prepared "after a police officer shoots a
Guidelines and Directives would not risk dangerous dog" and those "documenting the
unduly expanding the application of the phrase use of force in the course of arresting a criminal
"required by law" to other administrative orders suspect." Ibid.; see also O'Shea, supra, 410 N.J.
issued by other agencies or government Super. at 385-86 (denying that UFRs
officials. As the foregoing [*40] analysis automatically pertain to criminal investigations
demonstrates, the Attorney General's scope of because "it cannot be assumed that a UFR
authority appears to be unique among cabinet might become part of a criminal
officials. investigation"). Thus, courts must engage in a
case-by-case analysis to determine whether a
The Appellate Division in Lyndhurst was document should be considered exempt from
ultimately persuaded by the Attorney General's disclosure under the OPRA definition.
arguments regarding the status of AG
Guidelines and Directives under OPRA. This Second, the court must determine the timing of
court, however, finds itself with persistent the document's creation. When a document has
doubts about the diminution in authority of the been created prior to the start of an
Attorney General that underlies the Lyndhurst investigation, that document cannot be
analysis. While constrained to follow considered as "pertaining to" that investigation.
Lyndhurst, this court has offered the above See Lyndhurst, supra, 441 N.J. Super. at 104-
analysis to raise concerns that it thinks should 05; Serrano, supra, 358 N.J. Super. at 366-67
be considered by any other appellate court that (concluding that 911 tapes recorded only hours
confronts the issue in the future. before initiation of a police investigation did
not pertain to an investigation on the theory that
ii. The UFRs Pertain to Criminal Investigations.
"[a]ssuming [the document] was a public
As noted above, the definition of criminal record when created, it did not become
investigatory records is conjunctive. retroactively confidential [*42] simply because
Accordingly, the court must also consider the prosecutor obtained the tape"). However, it
whether the UFRs "pertain to a criminal is not always entirely clear when an
Page 17 of 33
investigation begins. See Lyndhurst, 441 N.J. for confidentiality." Gilleran, supra, 440 N.J.
Super. at 104-05 (noting that "when an officer Super. at 497.
turns on a mobile video recorder to document a
traffic stop or pursuit of a suspected criminal But the court finds that the State has met its
violation of law, that recording may pertain to a burden, despite its summary explanations. The
'criminal investigation,' albeit in its earliest UFRs were all generated pursuant to actions
stages"). taken by police officers engaging in criminal
law enforcement activities: either conducting
Here, there is ample evidence to conclude that an arrest, responding to violent outbursts
the UFR requests tailored to specific incidents occurring during the initial processing of
were made pursuant to criminal investigations arrestees, responding to threats to police
already in progress. The UFRs detail incidents officers, or responding to insubordinate
that occurred during the course of police resistance to police officer commands. In other
responses to suspected criminal activity. Mr. words, they all involved [*44] actions that
Wolfe was shot after a car chase and suspected implicate violations or potential violations of
carjacking, and the Hot 97 Summer Festival criminal law. The State's summary explanations
involved a crowd's violent interaction with are buttressed by the redacted UFRs
police that led to over 60 arrests. Curiously, the themselves, supplied by Plaintiff Rivera, which
State has confirmed that no UFRs were filed for provide accounts of the contexts in which each
the incident involving the shooting of a UFR was created.
juvenile. That omission appears to be a
Thus, despite the State's summary explanation
deviation from official policy, but may be
to justify redactions to well over 100
explained (albeit not clarified in the record
documents, which may not suffice when a
here) by the suspension of the officers
record for a particular incident is requested and
following the shooting to review their conduct.
reviewed, the court concludes that the State has
The analysis is more complicated with respect satisfied its burden here under N.J.S.A. 47:1A-
to the additional, broad requests [*43] for 6. In none of the aforementioned cases were
UFRs in Rivera I and Rivera II. In Rivera I, police officers merely engaging in a
Plaintiff Rivera requested all UFRs created by "community caretaking function," as described
the New Jersey State Police from January 1, in Lyndhurst. Instead, the UFRs documented
2015, until the time of Plaintiffs OPRA events that transpired at the very start of
request. In Rivera II, Plaintiff Rivera requested criminal law enforcement activity or at some
all UFRs completed by State Troopers from point thereafter. The UFRs themselves are part
March 31, 2013 to December 31, 2014. The of a systematic compilation of information that
State has not provided an individualized reflects such activity. In other words, the
justification for each UFR. Instead, the State reports all appear to be related to separate
relies on a broad summary of the records in criminal investigations that begin with criminal
order to demonstrate that they fall within the conduct or potentially criminal conduct and
criminal investigatory records exemption. may lead to a criminal charge and prosecution.
Plaintiff, in response, has argued that the State
Consequently, the court concludes that the
failed to meet its burden under N.J.S.A. 47:1A-
State has demonstrated that the UFRs requested
6 to provide "specific reliable evidence
under OPRA "pertain [*45] to a criminal
sufficient to meet a statutorily recognized basis
Page 18 of 33
investigation." Furthermore, since the court countervailing interests strong enough to

already has concluded, albeit somewhat prevent disclosure.
reluctantly, that none of the documents are
i. The police interactions constitute "arrests."
"required by law" to be made under Lyndhurst,
this court finds that the UFRs meet the The State has argued that the names of the
"criminal investigatory records" exemption as officers involved in the two shootings should
defined at 1V.J.S.A. 47:1A-1.1. not be released because they did not effectuate
B. Although the UFRs are "criminal an "arrest" under Section 3(b). Instead, the
investigatory records," the requested names of State has alleged that, as a matter of statutory
officers must be released pursuant to N.J.S.A. interpretation, "arrest" under the text of Section
47:1A-3(b). 3(b) applies only to official arrests that are
made pursuant to formal charges. The State
Although the documents themselves are not contrasts this narrowed interpretation of
subject to disclosure, a separate section of "arrest" with the common law definition, which
OPRA requires the publication of certain is more expansive and can include such minor
information relating to ongoing criminal engagements as traffic stops. Since the police
investigations that may be found within those shootings of the juvenile and Mr. Wolfe did not
documents. 1V.J.S.A. 47:1A-3(b); see Lyndhurst, include formal arrests at the time of the
supra, 441 N.J. Super. at 91. Most critical for incidents, the State contends that no [*47]
this case, the list of mandatory disclosures "arrests" under Section 3(b) were made and that
includes release of "information as to the Section 3(b) does not require OAG to release
identity of the investigating and arresting the names of the officers involved.
personnel." NJ.S.A. 47:1A-3(b). This,
information is only available, however, if an In making this argument, the State does not
mention the plethora of other "arrests"
arrest has been made, and its disclosure may be
barred by law enforcement officials upon a potentially at issue--i.e., the events surrounding
the Hot 97 summer event and various
showing that such disclosure "will jeopardize
circumstances that led to the creation of UFRs
the safety of any person or jeopardize any
requested from 2013-2015. The court will,
investigation in progress or may be otherwise
inappropriate to release." Ibid. Notably, the however, assume the State raises a similar
challenge with respect to these UFRs.
statute provides guidance on the interpretation
of this exception, requiring [*46] that it "be The State argues that the statutory text supports
narrowly construed to prevent disclosure of a technical interpretation of "arrest." It notes
information that would be harmful to a bona that Section 3(b) also requires the publication
fide law enforcement purpose or the public of "information as to the text of any charges
safety." Ibid. such as the complaint, accusation and
indictment" as well as "information as to
Accordingly, in order for the court to review
circumstances surrounding bail." N.J.S.A.
the requests for release of the names of police
47:1A-3(b) On this basis, the State concludes
officers, the court must determine (1) whether
that "arrest" in Section 3(b) must mean an act
an arrest was made, (2) whether the release of
that occurs only in conjunction with formal
officer identities requires the disclosure of
charges and could lead to the imposition of
officer names, and (3) whether there are any
bail.
Page 19 of 33
First, it is important to note that, as a general the term "arrest" provides the more plausible
matter of interpretation: interpretation of Section 3(b). When the law
enforcement agency has only received a report
It is a well settled principle, that if a statute of a
crime, or where suspects elude the police,
makes use of a word the meaning of which its
disclosure to the public is necessarily limited
is well known, and which has a definite
by those circumstances. Once the police have
sense at common law, it shall be received in
apprehended a suspect, however, the public is
that sense, unless from some reason it
entitled to the information specified in Section
clearly [*48] appears that it was intended to
3(b). This interpretation is also more consistent
use the word in a different signification. with OPRA's fundamental purpose: to protect
[State v. Engle, 21 N.J.L. 347, 360 (1848).] the public's interest in transparency.
The State has argued that because Section 3(b) Using the common law definition is not without
mentions information that ordinarily attends a challenges, however, due to the significant
formal arrest, only such arrests were overlap of the term "arrest" with the term of
contemplated. But the court is unpersuaded by "seizure." Both parties agree that a police
this interpretation and will not depart from the shooting of suspects constitutes a "seizure."
broader definition of arrest under the common Both have cited Tennessee v. Garner, 471 U.S.
law. 1, 7, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1, 7
Contrary to the States assertions, the (1985), for the proposition that "the use of
Legislature intended to require law deadly force amounts to a seizure." Pl. Br. 15;
enforcement agencies to provide information to Opp. 6.
the public whenever police actions involve But whether a particular "seizure" constitutes
resistance by suspects and use of weapons by an "arrest" appears to be a gray area in the law.
either suspects or police. Section 3(b) requires For example, Black's Law Dictionary includes
law enforcement agencies to publish specific "arrest" in its definition of "seizure" and
details about these interactions, including the "seizure" in its definition of "arrest." Black's
"possession and nature and use of weapons and Law [*501 Dictionary 124, 1480-81 (9th ed.
ammunition . . . by the police." 1V.J.S.A. 47:1A- 2009) Moreover, as an oft-cited scholar in
3(b). By contrast, when a crime has merely criminal law has noted, determining a precise
been reported and no arrest made, only definition of an "arrest" has historically been a
"information as to the type of crime, time, challenge for the courts:
location and type of weapon" is required. Ibid. The question of what constitutes an arrest is
Under the State's interpretation of "arrest," the a difficult one. On one end of the spectrum
public would be entitled to information about it seems apparent that detention
violent interactions between officers and accompanied by handcuffing, drawn guns,
civilians, including shootings, only when they or words to the effect that one is under
immediately resulted in the issuances of formal arrest qualifies as an "arrest" and thus
charges and not, for example, when they [*49] requires probable cause. At the other end, a
resulted in death. But the court cannot agree simple question on the street will often not
with an interpretation that would lead to such rise to the level of an arrest. Somewhere in
an untenable result. A broader understanding of between lie investigative detentions at the
stationhouse."
Page 20 of 33
[Charles H. Whitebread, Criminal reasoned that, since no physical touching or

Procedure.. An Analysis of Constitutional submission occurred prior to the police officer's
Cases and Concepts 3.02, at 61 (1980).] tackle, there was no arrest prior to that point.
Accordingly, courts have long wrestled with The application of this test to Section 3(b)
identifying the features of arrests that appears to be a matter of first impression. That
distinguish them from seizures. See Terry v. application, however, leads to the conclusion
Ohio, 392 U.S. 1, 16-17, 88 S. Ct. 1868, 1877- that all of the UFRs [*52] implicated by
79, 20 L. Ed. 2d 889, 903-05 (1968) (discussing Plaintiffs' requests reflect arrests. The AG
whether "stop and frisk" police procedures Guidelines require UFRs to be filled out
were "arrests" or mere "seizures"). whenever an officer uses at least some
"physical force" on a civilian. Office of Att'y
Perhaps the clearest definition of an arrest is Gen., Attorney General's Use of Force Policy 8
found in California v. Hodari D., 499 U.S. 621, (2000). "Physical force" is defined as follows:
111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). In Physical force involves contact with a
Hodari D., a group of youths started fleeing subject beyond that which is generally
two police officers who were simply on patrol. utilized to effect an arrest or other law
The police officers became suspicious and enforcement objective. Physical force is
chased the youths. During the police officers' employed when necessary to overcome a
pursuit, [*51] an officer saw one of the youths subject's physical resistance to the exertion
throw away an item--later identified as crack of the law enforcement officer's authority,
cocaine--immediately before he was tackled. or to protect persons or property.
The Court was then asked to determine whether Examples include wrestling a resisting
this item was the fruit of a seizure. In order to subject to the ground, using wrist locks or
answer this question, the Court was required to arm locks, striking with hands or feet, or
determine precisely when the youth had been other similar methods of hand-to-hand
seized. confrontation.
In determining that a seizure did not occur prior [Id. at 3.]
to the tackle, the Court promoted a rather broad
definition of an "arrest." As the Court noted, an In other words, each UFR details a particularly
"arrest" included "the mere grasping or forceful interaction between a police officer
application of physical force with lawful and a citizen. That use of force was used by the
authority, whether or not it succeeded in police officer in order to subdue a citizen's
subduing the arrestee." Id. at 624. Applying allegedly unlawful or unruly behavior.
case law defining "seizures" as a "single act," Applying the Supreme Court's guidance in
the Court also clarified that the arrest would Hodari D., such encounters entail more than an
occur only during that contact. Id. at 625 (citing ordinary application of physical force against a
Thompson v. Whitman, 85 U.S. 457, 18 Wall. person. Despite the gray line that exists
457, 471, 21 L. Ed. 897 (1874)). The Court between [*53] arrests and seizures, the
concluded that "an arrest requires either encounters detailed by the UFRs qualify as the
physical force or, where that is absent, former.
submission to the assertion of authority."
Additionally, the specific instances surrounding
Hodari D., supra, 499 U.S. at 626. The Court
Page 21 of 33
the juvenile and Mr. Wolfe are undoubtedly require the "name" of the person to be divulged.
"arrests" under the common law definition. See Ibid. (requiring "information as to the
Both shootings applied physical force that name, address and age of any victims").
caused both the youth and Mr. Wolfe to submit Accordingly, the State argues that it is not
to the officers' authority. They clearly statutorily required to provide the names of any
constitute common law arrests and do not police officers to Plaintiffs.
require the court to determine fine analytical
distinctions between arrests and seizures. The court will quickly dismiss this misguided
Moreover, as the State has conceded, in both argument. First, it is obvious from the text of
instances the officers in pursuit were intending Section 3(b) that "name" and "identity" are
to arrest the person prior to opening fire. In the used interchangeably. For example, when
juvenile's case formal charges were in fact discussing information regarding the defendant
issued after the incident. In the case of Mr. and the complaining party, the statute requires
Wolfe, charges would have been brought had the following disclosures:
he not been fatally wounded. Thus, the [I]f an arrest [*55] has been made,
shootings occurred at a time when criminal information as to the defendant's name, age,
charges were imminent. Moreover, in releasing residence, occupation, marital status and
some 3(b) information shortly after the similar background information and, the
shooting of the youth, the State acted as if an identity of the complaining party unless the
arrest had been made, listing the charges filed release of such information is contrary to
against him. The incidents thus are clearly of existing law or Court Rule.
the type envisioned by the Legislature to fall
under Section 3(b). 47:1A-3(b) (emphasis added).]
Under the State's interpretation, the sentence
In short, the court concludes that all of the establishes an unpersuasive distinction in the
officers whose names are sought by [*54] information required about a defendant and
Plaintiffs in these actions conducted "arrests" about the complaining party. The State would
pursuant to Section 3(b). require the court to read as separate and distinct
ii. Section 3(b) does not create a distinction the requirements that defendant's "name" and
between an "identity" and a "name." the complainant's "identity" be provided.
Instead, the court will eschew this illogical
Somewhat surprisingly to the court, the State reading for the common sense (and obvious)
has argued that, even if the police officers did one: "identity" and "name" are synonymous.
engage in arrests, the State need not divulge the The disclosure requirement is the same for both
names of the arresting officers, but only more parties.
general information about their status. The
State points out that OPRA only requires Even without this explicit textual support, the
"information as to the identity of the court's conclusion would not change. The
investigating and arresting personnel" to be alleged distinction between "identity" and
disclosed, but does not mention names. N.IS.A. "name" that the State has offered is one without
47:1A-3(b) (emphasis added). The State further a difference. It makes no sense to require the
notes that this requirement contrasts with other "identity" of an arresting officer to be released
provisions in Section 3(b), which explicitly but not his or her "name." When a person is
Page 22 of 33
asked for identification, the common sense withhold information, the official shall
response is to provide a document with the issue a brief statement explaining the
person's [*56] name on it. Notably, the State's decision.
brief in opposition in the juvenile shooting case
uses this common sense understanding. [N.J.S.A. 47:1A-3(b).]
Specifically, one of the briefs subheadings Thus, Section 3(b) requires the court to weigh
states, "That Other Law Enforcement Agencies the public's interest and right to the disclosure
Have Identified Officers Involved In Shooting of information against interests in public safety
Incidents Is Not Relevant." Paff, Def.'s Opp. or a bona fide law enforcement purpose.
Br. 15 (emphasis added). The State, of course, Notably, this exemption from disclosure must
is referring to the fact that other agencies, be "narrowly construed." Ibid.
including some municipal police departments
in New Jersey, have published the names of The State has supported its position by relying
police officers involved in shooting incidents. primarily on three arguments. First, it claims
Consequently, adopting the State's argument that the release of officer names will pose a
would result in a bizarre interpretation of safety risk to those officers. Second, it claims
Section 3(b)'s plain language that is completely that the release of the officer names would
unwarranted. violate the confidentiality interests of the
shooters who were subject to a State Grand
iii. The States broad assertions do not establish
Jury investigation. Third, the State argues it has
a particularized countervailing public interest in
full discretionary authority to decide when to
withholding names.
withhold the officials' names under Section
Having established that Section 3(b) requires 3(b). Thus, regardless [*58] of the court's
the publication of the names of the officers that evaluation of the validity of the State's
have engaged in uses of force, the court must concerns, the Attorney General contends that
now determine whether the State has the court must defer to the State's explanation
enunciated a countervailing law enforcement and deny disclosure of the names.
interest sufficient to block disclosure under
As will be clarified below, the court concludes
Section 3(b), which states that:
that all three arguments suffer from the same
Notwithstanding any other provision of this underlying problem: accepting the State's
subsection, where it shall appear that the position would create what amounts to a
information requested or to be examined blanket exemption from disclosure out of a
will jeopardize [*57] the safety of any statutory provision that was intended to create a
person or jeopardize any investigation in narrow exception. Should the Attorney General
progress or may be otherwise inappropriate determine that an absolute denial of disclosure
to release, such information may be is warranted for all police shootings, the
withheld. This exception shall be narrowly Attorney General may seek a statutory
construed to prevent disclosure of amendment from the Legislature or consider
information that would be harmful to a adoption of a rule through formal rulemaking.1
bona fide law enforcement purpose or the
public safety. Whenever a law enforcement I Although the Attorney General is the chief law enforcement officer
official determines that it is necessary to in the State and can bind all police officers in their law enforcement
conduct, see infra at pp. 29 to 41, any limitation [*591 on access that
Page 23 of 33
Absent such action, the court is left with the With respect [*60] to the particular camera
existing statutory language and must in this case and information contained on its
accommodate the competing concerns recordings, Administrator Ehrenburg's
addressed by the Legislature. Since the State's certification was not sufficiently specific to
arguments are inconsistent with the limits on establish a risk to the safety of any person
discretion of the Attorney General adopted by or property or jeopardy to the security
the Legislature, the court is constrained to measures taken for the building. Bloomfield
reject them. provided no specific information from
police officials stating that the identity of
a. Generalized concerns for officer safety
informants, crime victims, or confidential
provide an insufficient basis for withholding
witnesses would in fact be revealed and
names under Section 3(b)
specifying what kinds of activities occurred
It is beyond dispute that the State has outside the police station during the period
enunciated a legitimate interest in of recordings that Gilleran requested. It
nondisclosure of officer names: the safety of provided no information by the persons
law enforcement officials. But the court simply responsible for installing or operating the
cannot reconcile the State's inability to provide security camera to indicate that important
more than an abstract concern for officer safety security strategies or techniques would be
with the requirements of OPRA based on the disclosed. For example, there was no
record produced by the parties in these cases. indication that the security camera might
The State, in other words, has failed to provide have blind spots in its apparent surveillance
"a 'clear showing' that one of OPRA's area, or that the clarity and sharpness of the
exclusions applies," Gilleran, supra, 440 N.J. imagery recorded would be revealed in a
Super. at 497 (quoting Tractenberg v. Twp. Of way that might compromise the strategic
W. Orange, 416 N.J. Super. 354, 378-79, 4 deterrent effect of the security camera or
A.3d 585 (App. Div. 2010)), using "specific overall security system of the building.
reliable evidence." Gilleran, supra, 440 N.J.
[Gilleran, supra, 440 N.J. Super. at 497-
Super. at 497.
981
The insufficiency of asserting generalized
The court concluded that the Township's
safety concerns in order to deny access to
certification was too general and thus
public records has repeatedly been affirmed by
"insufficient to justify withholding [*61] the
courts in New Jersey and elsewhere. Recently,
recordings from disclosure." Id. at 498.
the Appellate Division rejected a Township's
protest invoking security risks and affirmed the The Township sought protection under a
trial court's decision to disclose video different provision in OPRA exempting
surveillance recordings. Gilleran, supra, 440 "security information or procedures . . . which,
N.J. Super. at 497. Although a certification if disclosed, would jeopardize security of the
raising generalized safety concerns was building . . . or persons therein." N.J.S.A.
provided there, the Appellate Division 47:1A-1.1. Notably, the provision lacks any
concluded that the description was inadequate: reference to "narrow construction," yet the
court noted that the provision's "if disclosed"
goes beyond OPRA must be accomplished by formal rulemaking phrase "would be superfluous if the statute was
procedures.
Page 24 of 33
intended to provide a blanket exemption." to.'" (quoting U.S. Dept of Justice v. Reporters
Gilleran, supra, 440 N.J. Super. at 497. The Comm. for Freedom of Press, 489 U.S. 749,
approach taken by the Gilleran court is 772-73, 109 S. Ct. 1468, 1481, 103 L. Ed. 2d
persuasive in interpreting Section 3(b)'s 774, 795 (1988))).
language to prevent the narrow construction
terminology from being superfluous. Both in Much like Section 3(b) of OPRA, one of
Gilleran and here, the defendants who invoked FOIA's provisions exempts from disclosure
public safety failed to provide sufficient information that "could reasonably be expected
specificity of harm to justify nondisclosure. to endanger the life or physical safety of any
individual." 5 U.S.C. 552(b)(1)(7)(F). Though
Judicial concern about arguments supporting the federal provision does not require a narrow
nondisclosure has also been evident in the law construction, the federal courts have still
enforcement context. In Courier News, supra, required something more than mere speculation
358 N.J. Super. at 382-83, the Appellate of harm to justify nondisclosure. Compare
Division rejected the public agency's assertion Garcia v. U.S. Dept of Justice, 181 F. Supp. 2d
that the release of a 911 tape would lead to jury 356 (S.D.N.Y. 2002) (confirming the
confusion and thus threaten the public interest. Department's denial under Section 7(F) on the
The court noted that the agency failed to basis of the requestor's [*63] violent criminal
provide "specific evidence supporting this history and a specifically demonstrated
assertion" when pressed at oral argument. Ibid. propensity for retaliation); Blanton v. U.S.
The court then concluded that "a [*62] public Dept of Justice, 182 F. Supp. 2d 81 (D.D.C.
agency seeking to restrict the public's right of 2002), affd, 64 Fed. App'x 787 (D.C. Cir.
access to government records must produce 2003) (concluding that the exemption should
specific reliable evidence sufficient to meet a apply when the requestor was a member of the
statutorily recognized basis for confidentiality." Ku Klux Klan and had a violent past); with
Ibid. ACLU v. Dept of Defense, supra, 543 F.3d at
67 (rejecting as too speculative the
Similar conclusions have been reached in other Department's argument that the release of
jurisdictions with similar public records laws. specific photographs allegedly portraying acts
For example, the Freedom of Information Act of brutality by members of the U.S. military
("FOIA") similarly requires the disclosure of should not be released because they "could
public records except in narrow circumstances. reasonably be expected to incite violence
See, e.g., John Doe Agency v. John Doe Corp., against U.S. troops, other coalition forces, and
493 U.S. 146, 152, 110 S. Ct. 471, 475, 107 L. civilians in Iraq and Afghanistan"); see also
Ed. 2d 462, 471 (1989) (noting that all
Maydak v. U.S. Dept of Justice, 362 F. Supp.
exceptions to FOIA's disclosure requirement 2d 316, 321 (D.D.C. 2005) (noting that, while
"must be narrowly construed"); ACLU v. Dept the concerns might have merit, the
of Defense, 543 F.3d 59, 66 (D.C. Cir. 2008), Department's decision to withhold psychiatric
vacated and remanded on other grounds, 558 evaluations conducted by the Bureau of Prisons
U.S. 1042, 130 S. Ct. 777, 175 L. Ed. 2d 508 from inmates because of the potential harm of
(2009) (noting that "FOIA's purpose is to allowing inmates to learn how to "manipulate
encourage public disclosure of information in the test" and avoid receiving needed treatment,
the possession of federal agencies so that the "was too speculative and not based upon
people may 'know what their government is up
Page 25 of 33
competent evidence" such as expert reports). In short, when courts [*65] have weighed the
public's statutorily protected right of disclosure
Perhaps most persuasively to this court, the
against concerns for safety, they have required
Supreme Court of California recently found
public entities to show a particularized
that a generalized concern for officer safety
connection between the release of documents
was an inadequate justification for withholding
and harm to specific individuals. Courts have
the names of officers engaged in a shooting
concluded that disclosure without such a
under the California Public Records [*64] Act.
connection would frustrate the underlying
Long Beach Police Officers Ass'n v. City of purpose of public records statutes. That concern
Long Beach, 59 Cal. 4th 59, 172 Cal. Rptr. 3d is all the more important here, when the statute
56, 325 P.3d 460 (Cal. 2014). The Court was itself explicitly notes that the safety exception
unpersuaded by a general certification noting must be narrowly construed.
that, when an officer is involved in a gang
member shooting, retaliation against the officer But mere speculation is all that the State has
is "not uncommon." Id. at 463. The California presented in these cases. In response to the
Supreme Court acknowledged that this concern numerous names requested by Plaintiffs, the
was legitimate but concluded that a State has enunciated the same, generalized
"particularized showing" of harm to specific concern for safety. In its briefing and at oral
officers that could be attributed to the release of argument, the State has repeated the same
names was required in order to prevent explanation: a concern that the release of an
disclosure. Id. at 468-70. officer's name might endanger him or her.
When pushed at oral argument, the lack of
In In re Physicians Comm. for Responsible empirical or statistical support was
Medicine v. Hogan, 29 Misc. 3d 1220(A), 918 acknowledged by counsel, who simply stated
N.Y.S.2d 400 (Sup. Ct. 2010), a New York that the State wanted to err on the side of
appellate court opinion regarding the state's safety.
Freedom of Information Law ("FOIL"), the
court rejected the public agency's attempt to The only evidence beyond this concern that the
withhold the names of researchers who had State has provided is a single certification from
published a study on animal research. Despite Major Mark Wondrack of the State Police. But
the fact that the agency cited a frequency of this certification--like [*66] the State's
threats and violence against such researchers by assertions at oral argument--fails to provide
militant animal rights activists, the court anything more than speculation unrelated to the
concluded that the explanation failed to specific incidents related to the requested
establish a specific nexus between the release documents. Major Wondrack argues that
of information under FOIL and an act of releasing names would lead to a general
violence and was therefore too speculative. increase in the negative stigma towards law
Ibid. Similarly, in Hechler v. Casey, 175 W. enforcement. Major Wondrack also notes that
Va. 434, 333 S.E.2d 799, 810-12 (W. Va. the release of names could lead to practices
1985), the West Virginia Supreme Court known as "doxxing" and "swatting." "Doxxing"
required a particularized showing of a risk of is the publication of names or other information
injury from disclosure in order to withhold without consent. "Swatting" occurs when a
information under West Virginia's Freedom of false report of highly dangerous crimes is given
Information Act. to law enforcement personnel, leading to a
Page 26 of 33
highly intrusive search of an innocent person's following the incidents at issue here, the
property. Lastly, Major Wondrack argues that court [*68] may very well have been satisfied
the release of an officer's name could reveal with the States explanation for withholding
information about his or her duty assignment. officer names. As the State is no doubt aware,
That revelation could lead to the harm if, for such a showing could have been made in a way
example, the officer was involved in that did not compromise the officer's
undercover operations. confidentiality interest, such as through the use
of in camera submissions. See, e.g. Lyndhurst,
Notably, none of the concerns articulated by supra, 441 N.J. Super. at 111; Hartz Mountain
Major Wondrak demonstrates a nexus between Industries, Inc. v. N.J. Sports & Exposition
the release of officer names and an increase in Auth., 369 N.J. Super. 175, 183, 848 A.2d 793
the likelihood that harm will befall those (App. Div.), certif. denied, 182 N.J. 147, 862
specific officers. For example, the State has not A.2d 56 (2004) (noting the importance of
shown that one or more of the officers involved conducting in camera review in OPRA matters
in Plaintiffs' request for documents in order to determine whether confidentiality
participate [*67] in undercover activity that interests are truly implicated). Indeed, this court
would be exposed by the release of their names. has authorized the State to submit in camera
Nor has the State demonstrated that there is a certifications several times to prevent
heightened likelihood that even one of the compromising legitimate interests in
officers is likely to be "doxxed" and/or confidentiality.
"swatted" by the release of their names. Had
such concrete concerns been provided, the b. Similarly, the State's concern for the
State's argument for nondisclosure would have confidentiality interests of police officers
been much stronger and more likely to have whose actions were subject to State Grand Jury
prompted agreement from this court. investigations is insufficient.
In essence, the State's arguments reflect a The only other specific harm that the State has
policy position of the Attorney General that alleged relates to the confidentiality interests of
goes beyond OPRA's provisions and would the officers who were involved in the
render the narrow construction language of the shootings. Notably, for these officers, a State
statute meaningless. Instead, as noted above, Grand Jury investigation into their conduct had
the State's claims amount to an assertion of a already begun by the time Plaintiffs made their
blanket exemption that has not yet been OPRA requests. The State points out that, in
endorsed by the Legislature or adopted by ordinary circumstances, the targets of such
formal rulemaking. Notably, nothing prevents investigations have protected interests in [*69]
the Attorney General from taking these avoiding the public shame or stigma associated
concerns to the Legislature itself to seek relief with a criminal investigation unless and until
the court cannot grant without eroding the that target has been indicted. See, e.g., State v.
statutory limits on non-disclosure. Doliner, 96 N.J. 236, 247, 475 A.2d 552 (1984)
(discussing the confidentiality interests of a
This conclusion is limited to the inadequacy of target to "protect [an] innocent accused who is
the State's showing in these cases. If, for exonerated from disclosure of the fact that he
example, the State had shown that threats to has been under investigation" (quoting United
unnamed police officers had been made States v. Proctor & Gamble Co., 356 U.S. 677,
Page 27 of 33
681 n.6, 78 S. Ct. 983, 986 n.6, 2 L. Ed. 2d youth shooting has returned a "no bill." With
1077, 1081 n. 6 (1958))). As the State argues, respect to these officers, at least, any stigma
these police officers are "[no] less entitled to from this investigation is more than erased. If
protections than other citizens who are anything, their actions have been vindicated.
criminally investigated but not charged." Paff,
Pl.'s Br. 13. Once again, the State has articulated policy
concerns that are insufficient to overcome
But there is a significant difference between the OPRA's strong interest in disclosure, but which
ordinary circumstances surrounding the State can be directed [*71] to the Legislature. Absent
Grand Jury investigations into civilian conduct a statutory change, the court must apply the
and those surrounding investigations into police statute in its present form, which language
shootings. In the ordinary case, the State is justifies nondisclosure only in narrow
developing evidence to demonstrate probable circumstances where law enforcement has
cause that a crime has been committed, provided a particularized showing of harm. The
typically based on strong suspicions of criminal State has simply not made such a showing on
activity. By contrast, investigations into police the record in this case.
officers' uses of deadly force are automatic as a c. The State's various attempts to establish the
matter of policy, and are not prompted by a binding authority of its conclusions regarding
likelihood of criminal activity. The AG whether the Section 3(b) exemptions should
Guidelines and Directives clarify that apply must be rejected.
investigations begin immediately after the
shooting. See Office of Att'y Gen., Attorney Finally, the State has attempted to demonstrate
General Law Enforcement Directive [*701 No. that its decision to deny release of officer
2006-5 at 1-6 (2006). The Attorney General names is owed what is tantamount to absolute
is only permitted to block such investigations deference on the basis of Section 3(b) itself. It
from being turned over to a State Grand Jury has raised three specific arguments to support
when "the undisputed facts indicate the use of this point, none of which is persuasive.
force was justifiable under the law." Office of
First, the State argues that the last sentence in
Att'y Gen., Supplemental Law Enforcement
Directive Amending Attorney General Law this subprovision gives law enforcement
Enforcement Directive No. 2006-5 7 (2015). absolute discretion to make the determination
of whether it is necessary to withhold
These procedures were developed to assure the
information. The sentence states:
public that an independent review process
Whenever a law enforcement official
would be initiated into police conduct when
determines that it is necessary to withhold
police shootings occur. Since State Grand Jury
information, the official shall issue a brief
investigations of officers are initiated as a
statement explaining the decision.
matter of policy, not in response to any
suspicion of wrongdoing, the concern about [N.J.S.A. 47:1A-3(b).]
stigma attached to alleged criminal wrongdoing
is misplaced. Contrary to the State's assertion, the sentence
simply states that when a State official decides
Moreover, the court has learned through the not to disclose p721 specific information, he or
parties' submissions that the State Grand Jury she "shall issue a brief statement explaining the
investigating the officers implicated in the
Page 28 of 33
decision." N.J.S.A. 47:1A-3(b). On its face, 1985). By transplanting those Orders into
then, this sentence places a procedural Section 3(b), the State asserts that the
requirement on the public official. It does not Legislature intended to grant law enforcement
bestow ultimate authority on law enforcement officials a similar discretion. The State
officials to determine whether the concludes that this court must therefore show
countervailing interest exists. deference to the Attorney General's exercise of
discretion in this area.
The paragraph's structure clarifies that a public
official's decision to withhold information is But the mere fact that the statute derived its
subject to judicial review. Notably, the sentence wording from Executive Orders does not permit
in question comes at the very end of Section the court to disregard the plain meaning of the
3(b) and marks the first point at which text in its new statutory context. As has been
decision-making by a public official is repeatedly noted, Section 3(b) requires courts
mentioned. Prior to this point, the provision to mandate the release of the names of arresting
discusses the countervailing interest in officers in all but exceptional
disclosure as an ordinary legal rule subject to circumstances. [*74] This plain reading of the
judicial interpretation and review--including the text is in full accord with the underlying policy
requirement that the countervailing interest be of OPRA, which was explicitly designed to
"narrowly construed." improve government transparency and ensure
greater public access to government records
If the Legislature had intended to bestow public and specific information except in narrow
officials with sole authority to decide when to circumstances. Accordingly, it is fundamentally
withhold otherwise public information, it would contrary to the Legislature's purposes to leave
have stated that intent much earlier in the the disclosure of officers' names to the absolute
provision where it actually defined the standard discretion of State officials, who would then be
for withholding information. The Legislature empowered to return blanket denials of Section
certainly did not express that intent through this 3(b) requests on the basis of general policy
concluding sentence, whose main purpose is to concerns, as occurred here.
require [*73] a public official to justify his or
her decision. Indeed, this publication Moreover, the court's interpretation of the
requirement itself suggests that the public Legislature's intent is only confirmed by a
official's decision be subject to review as part closer examination of these Executive Orders.
of a determination of whether it passes muster In both Orders, absolute authority was
under the narrow construction required by the explicitly granted to the Attorney General, who
Legislature. was required to "resolve all disputes as to
whether or not the release of records would be
Second, the State has argued that the Section otherwise inappropriate." Exec. Order No. 69
3(b) exceptions--including the admonition that 6 (Whitman) (May 15, 1997) (internal
they be "narrowly construed"--were lifted quotation marks omitted); Exec Order No. 123,
directly from Executive Orders that granted to 2 (Kean) (Nov. 12, 1985) The absence of
law enforcement officials the authority to such language in Section 3(b) strongly suggests
decide whether to release names. See Exec. that no such discretion was granted to the
Order No. 69 3 (Whitman) (May 15, 1997); Attorney General in OPRA and that the
Exec Order No. 123, 2 (Kean) (Nov. 12, Legislature intended for the courts to replace
Page 29 of 33
the [*75] Attorney General as the final arbiter officer safety.

of proper disclosure.
In sum, the court, which is charged with
Finally, the State has also raised a legitimate interpreting the statute and applying it to the
concern regarding the practical implication of present circumstances, has found that the
the court's interpretation of Section 3(b). As the State's decision to withhold the names of
State points out, Section 3(b) requires agencies arresting officers without demonstrating
to provide the names of arresting or particularized harm to public safety or bona
investigating officers "within 24 hours [of a fide law enforcement interests is incompatible
request] or as soon as practicable." N.J.S.A. with OPRA. The court will not reach an
47:1A-3(b). The State argues that it is difficult alternative result that would be inimical to the
for any agency to discern whether the safety of statute's text on the basis of a strained reading
an officer is at issue within that timeframe, as of the provision and reliance on extra-textual
relevant details may come to light later on. sources that suggest, but do not mirror, the
language ultimately adopted by the Legislature.
Here again, the court understands the State's
concerns, but finds them inconsistent with the Again, the court reiterates that the State may
statute. The Legislature imposed this deadline have legitimate reasons [*77] for a policy that
to require the publication of basic information prevents the release of the names of arresting
about a likely crime within a short timeframe officers in shooting incidents. But, notably,
after its occurrence. The insertion of the phrase, while having rule-making authority pursuant to
"as soon as practicable," delays release for N.J.S.A. 52:17B-122, the Attorney General has
uncertainties such as identification of the offered no formal guidance in interpreting this
shooting officers, which may not be statute. The matter was pressed by the court at
ascertainable absent ballistics testing, or other oral argument. When the court asked counsel
information that may only come to light as the for the State whether the OAG had proposed
investigation continues. In other words, the any rules, guidelines, or other formal directives
language of the section permits a certain regarding Section 3(b), counsel answered in the
amount of flexibility within a public agency negative, although there was a suggestion that
when responding to requests for [*76] perhaps such measures had been considered.
information. The length of time that is
Absent such rulemaking, the State's policy
"practicable" will require a case-by-case
concerns must be addressed to the Legislature,
analysis and should be able to accommodate
where their persuasive force may be considered
legitimate law enforcement concerns in specific
and debated. The court, however, is left with
cases.
the task of interpreting the text of the statute. It
Conversely, the State's interpretation would finds the State's policy concerns to be
again expand the "narrow" exemption incompatible with that text as currently written,
envisioned by the Legislature into a broad however compelling they may be.
protection. As is clear from the discussion iv. N.J.A.C. 13:1E-3.2(a) is inapplicable.
above, since the inherent risks to police officers
are often speculative in nature, an agency could As a final note, the State has also cited a
always credibly claim it had insufficient regulation as a separate basis for its decision to
information to ensure the absence of a threat to withhold officer names, N.J.A.C. 13:1E-
Page 30 of 33
3.2(a)(7). Pursuant to this regulation, "Wile law enforcement officer.

duty assignment of an individual law
enforcement officer or any personally [N.J.A. C. 13:1E-3.2(a)(7).]
identifiable information that may reveal or lead The primary intention of the regulation is to
to [*78] information that may reveal such duty protect the release of duty assignments of
assignment" are exempt from the definition of police officers. It precludes the release of other
public records and thus may be withheld. Id. information, including officer names, only
Notably, the history of this regulation insofar as there is some reason to believe that
demonstrates that its reach was intended to be such release will lead to the identification of
significantly narrower than what the State urges duty assignments, thereby hindering law
here. It was adopted in response to the enforcement operations.
Appellate Division's decision in Slaughter v. The State now relies on this regulation to
Government Records Council, 413 N.J. Super. preclude the publication of all police officer
544, 997 A.2d 235 (App. Div. 2010), certif. names when uses of force have been employed.
denied, 208 N.J. 372, 29 A.3d 744 (2011), Such an interpretation runs contrary to the
which granted plaintiff access to records narrower focus of the regulation. As
concerning various New Jersey State Police expansively interpreted by the State in this
Forensic Science Laboratory's policies and case, the regulation is plainly irreconcilable
procedures. The Appellate Division explicitly with the explicit statutory directive under
delayed the effectiveness of its decision to Section 3(b) requiring the disclosure of the
afford the State the opportunity to adopt this identities of arresting officers. N.J.S.A. 47:1A-
regulation as a means of exempting such 3(b). Accordingly, the State's interpretation
documents from OPRA's definition of must be rejected. See New Jersey Soc. for
"government records." Id. at 555. Prevention of Cruelty to Animals v. New Jersey
Dept of Agric., 196 N.J. 366, 385, 955 A.2d
The regulation itself provides seven exemptions
886 (2008) (noting that, insofar as a regulation
to the definition of "government records" that
clearly seek to protect the integrity of all is incompatible [*80] with the statute it is
designed to interpret, it must be invalidated).
aspects of law enforcement operationsfrom
Invalidation is unnecessary here, however,
employee training to each phase of a criminal
because the rule can simply be interpreted
investigation, including the forensic analysis
consistently with OPRA. Moreover, when the
procedures at issue in Slaughter. See 1V.J.A.C.
Attorney General releases officer names under
13:1E-3.2(a)(2). The wording of the regulation
Section 3(b), there is no requirement that the
cited by the State confirms that it is concerned
duty assignment be included.
with the release of officer names only insofar as
that release may impede law enforcement [*79] III. The court rejects Plaintiff Rivera's requests
operations. Specifically, it notes that: for further details surrounding the Hot 97
The duty assignment of an individual law Summer Jam
enforcement officer or any personally
As regards the Hot 97 Summer Jam incident,
identifiable information that may reveal or
Mr. Rivera has argued that the State was also
lead to information that may reveal such
not forthcoming enough with respect to other
duty assignment, including, but not limited
information, aside from officer names.
to, overtime data pertaining to an individual
Specifically, Plaintiff Rivera has alleged that
Page 31 of 33
the State failed to provide information provide a brief description of the suspect's
"describing the circumstances behind any actions.
suspect resisting arrest, or as to any weapons or
ammunition used by the suspect or by police" In short, the court finds that the State has
in connection with the Summer Jam incident. satisfied its statutory requirement regarding
Pl. Br. (L-2026-15) at 14. As noted above, the these details. Plaintiff Rivera's requests for
parties have agreed to confine this request to further elaboration is denied.
the information to which Plaintiff would be IV. Plaintiff is entitled to the payroll
entitled under Section 3(b). Compl. at In 31-32. information of the officers involved in the
youth shooting.
These informational requirements are among
those listed under N.JS.A. 47:1A-3(b) but only Finally, the court will grant Plaintiff Paffs
when incident to arrest. Plaintiffs request request for the "title, position, salary, payroll
makes no such distinction. Instead, Plaintiff record, length of service, date of separation and
requests [*81] information about every the reason therefor" of the officers involved in
encounter between police and civilians at the the youth shooting. Paff, Compl. Ex. L. This
event, whether or not it led to an arrest. To the information is required to be disclosed as an
extent the information Plaintiff seeks does not exception to OPRA's general exemption of
pertain to an actual arrest, it falls under the personnel records from disclosure. The
general criminal investigatory records personnel record exemption states:
exemption pursuant /V.J.S.A. 47:1A-1.1, and [T]he personnel or pension records of any
was properly withheld. Thus, the State has individual in the possession of a public
properly denied releasing that information agency, including but not limited to records
regarding those police actions involving crowd relating to any grievance filed by or against
control that were not part of an arrest. See an individual, shall not be considered a
Rivera II, Def.'s Opp. Br. 17. government record and shall not be made
available for public access.
Additionally, the State has provided all UFRs
created that day. The court finds that these [N.J.S.A. 47:1A-10]
UFRs provide sufficient detail to satisfy the
information requirements of Section 3(b)-- The statute lists three exceptions to this
which, notably, places no particular burden on exemption, such that certain documents
ordinarily falling under the protection of the
the specificity of the description. The UFRs all
provision [*83] would still remain available to
provide at least some indication of the kinds of
the public:
force used by the police officer. Specifically,
(1) [A]n individual's name, title, position,
they distinguish between purely physical force,
"mechanical" force, "enhanced mechanical" salary, payroll record, length of service,
date of separation and the reason therefor,
force, and "deadly" force. In addition, the UFRs
and the amount and type of any pension
provide several details about the circumstances
received shall be a government record.
of the altercation, including the date, time, and
general location of the incident. The reports (2) [P]ersonnel or pension records of any
individual shall be accessible when required
also provide the officer's intended purpose and
the reason for the force [*82] used in order to to be disclosed by another law, when
disclosure is essential to the performance of
achieve that purpose. Finally, the UFRs also
Page 32 of 33
official duties of a person duly authorized involved in particular incidents, whose

by this State or the United States, or when identities OPRA does not require Defendants to
authorized by an individual in interest; and disclose." Paff, Def.'s Opp. 22. Clearly, the
(3) [D]ata contained in information which State's objection is grounded on the
disclose conformity with specific presumption that Plaintiff is not entitled to
experiential, educational or medical learn the names of the officers involved in the
qualifications required for government youth shooting. Since the court has decided that
employment or for receipt of a public Plaintiff is so entitled, the State's protests
pension, but not including any detailed against the release of this personnel information
medical or psychological information, shall are without foundation.
be a government record.
V. As Plaintiffs have received vindication of
[N.J.S.A. 47:1A-10] their claims under OPRA, there is no need for
the court to consider [*85] the common law.
As the Supreme Court has noted, a personnel
record can be disclosed "if, and only if, [it] fits In light of the foregoing analysis, there is no
within one of the three exceptions to the need for the court to address the common law
general exemption for personnel records." claims raised by Plaintiffs. Although nothing
Kovalcik v. Somerset County Prosecutor's contained in OPRA is to be construed as
Office, 206 N.J. 581, 592, 21 A.3d 1142 (2011). limiting the common law right of access to a
The exemption has been consistently government record, N.J.S.A. 47:1A-8, the court
interpreted as providing a broad protection need not review common law claims if
against disclosure with only minor exceptions. disclosure is authorized under OPRA. See
See Id. at 594 (noting that the exemption O'Shea, supra, 410 N.J. Super. at 387 ("If
"begins with a presumption [*84] of non- disclosure is allowed under OPRA, the court
disclosure and proceeds with a few narrow should not reach the issue regarding the
exceptions"). Accordingly, when interpreting common law right.").
this exception, "courts have tended to favor the The vast majority of Plaintiffs' claims sought
protection of employee confidentiality." McGee the release of the various police officer names
v. Township of East Amwell, 416 N.J. Super. redacted by the State. The court has concluded
602, 615, 7 A.3d 785 (App. Div. 2010). that Plaintiffs are entitled to those names under
Despite the general presumption of protection OPRA. The court has also concluded that
afforded to personnel records, Plaintiffs request Plaintiff Paff is entitled to the release of the
clearly fits within one of the three exceptions to personnel information he seeks under OPRA.
the exemption. Indeed, it directly quotes the Additionally, although Plaintiff Rivera sought
first. Accordingly, Plaintiff has a statutorily other information surrounding the Hot 97
protected right to this information under Summer Jam event, he asserted this claim as
OPRA. part of his seeking information under Section
3(b). He asserted no right to this information
In attempting to defeat Plaintiffs right to this under the common law. By denying this
information, the State has argued that Plaintiff request, the court merely concluded that
should not be permitted to "use Section 10 as a Plaintiff had already received the full extent of
back-door means to identify officers who were his statutory entitlement under OPRA. Thus,
Page 33 of 33
there is no further relief sought [*86] by the

Plaintiffs to be vindicated under the common
law.
CONCLUSION
For the aforementioned reasons, the State must

reveal to Plaintiffs the names of police officers
that were redacted from documents sought
pursuant to N.J.S.A. 47:1A-3(b). In addition,
the State must release the information requested
by Plaintiff Paff under N.J.S.A. 47:1A-10.
Disclosure of this information must be made by
July 20, 2016, to afford the State the
opportunity to review the court's decision and
decide on any appellate relief it may decide to
pursue. Since Plaintiffs are the prevailing
parties in this matter, they are entitled to
counsel fees pursuant to 1V.J.S.A. 47:1A-6.
Plaintiffs' counsel shall attempt to negotiate the
counsel fee issue with the Attorney General's
Office and file an application for fees by
August 5, 2016, unless agreement on fees is
reached. The court will issue an order
consistent with the relief afforded in this
decision.
t'Aul or Document
EXHIBIT M
North Jersey Media Group, Inc. v. City of Garfield
Superior Court of New Jersey, Law Division, Bergen County

March 16, 2012, Argued; March 16, 2012, Decided
DOCKET No. BER-L-1274-12
Reporter
2012 N.J. Super. Unpub. LEXIS 578 *
NORTH JERSEY MEDIA GROUP, INC., "NJMG") filed a verified complaint and an
d/b/a THE RECORD, Plaintiff v. CITY OF order to show cause. NJMG sought a judgment
GARFIELD and ANDREW PAVLICA, declaring defendants, the City of Garfield and
Custodian of Records for the City of Garfield, Andrew Pavlica, Custodian of Records for the
City of Garfield ("Garfield" and "Pavlica"
Defendants.
when addressed individually, "defendants"
Notice: NOT FOR PUBLICATION when referenced collectively), in violation of
WITHOUT THE APPROVAL OF THE the Open Public Records Act, N.J.S.A. 47:1A-1
COMMITTEE ON OPINIONS. to -13 ("OPRA" or the "Act"), directing
defendants to release the requested records to
PLEASE CONSULT NEW JERSEY RULE plaintiff, and imposing a civil penalty of $1,000
1:36-3 FOR CITATION OF UNPUBLISHED upon the appropriate party for knowingly and
OPINIONS. willfully denying access to the requested
records, and requested counsel fees and costs
Counsel: [*1] Dina L. Sforza, Esq. appearing
pursuant to the Act. NJMG also sought similar
on behalf of the plaintiff, North Jersey Media
relief by way of the common-law right of
Group, Inc. (North Jersey Media Group, Inc.).
access to public records.
Joseph J. Rotolo, Esq. appearing on behalf of
Facts/ Procedural History
the defendants, City of Garfield and Andrew
Pavlica, Custodian of Records for City of NJMG [*2] is a New Jersey corporation. It
Garfield (Joseph J. Rotolo, Esq.). publishes a daily newspaper called The Record
which is circulated throughout northern New
Judges: Honorable Peter E. Doyne, A.J.S.C. Jersey and more specifically, Bergen, Passaic,
and Hunterdon Counties. Plaintiff is currently
Opinion by: Peter E. Doyne
engaged in the gathering, editing and reporting
Opinion of information for the publication of news
stories. It devotes significant time and
resources to covering the State of New Jersey
Introduction and its political subdivisions, including
Garfield, and the conduct of its public
On February 10, 2012, the North Jersey Media employees and officials. Garfield is a
Group, Inc., d/b/a The Record ("plaintiff' or municipality organized pursuant to the laws of
Page 2 of 19
the State of New Jersey. Pavlica is the police officers for incidents occurring on Dec.
custodian of records for Garfield. 10, 2011." This request was denied on January
19, [*4] 2012, with the words "under
According to the press release issued by the
investigation" written on the form.
Bergen County Prosecutor's Office ("BCPO"),
attached to plaintiffs verified complaint as Written correspondence between various
Exhibit A, on December 10, 2011, at counsel for plaintiff and Joseph J. Rotolo, Esq.,
approximately 1:20 p.m., Malik Williams ("Rotolo"), counsel for Garfield, then followed.
("Williams"), of Garfield, turned himself in to In short, counsel for the parties disagreed
the Garfield Police Department ("GPD") after concerning the applicability of O'Shea v. Twp.
the GPD issued an Aggravated Assault warrant of W. Milford, 410 N.J.Super. 371, 982 A.2d
on December 9, 2011. What next transpired is 459 (App. Div. 2009), which held the use of
presently unclear, but the following is alleged: force report ("UFR") then at issue did not
at approximately 3:25 p.m. Williams ran from constitute a criminal investigatory record and
the processing room and out of a rear door of therefore was accessible under OPRA. On
the police department. He was [*3] then January 23, 2012, Jennifer A. Borg, Esq.
followed by members of the GPD and Bergen ("Borg") wrote on plaintiffs behalf to Pavlica,
County Canine Police, who tracked him to a citing O'Shea and restating plaintiffs request.
private residential garage. Williams was then Rotolo, who was copied on Borg's letter to
shot and killed by two police officers, one each Pavlica, responded on January 24, 2012. Rotolo
from the GPD and Bergen County Police recognized the holding of O'Shea but argued
Department, when, after opening one of the the UFRs in that case were accessible as they
garage doors, the officers encountered did not pertain to a particular criminal
Williams, who is alleged to have been armed investigation, unlike the UFR relating to the
with tools thought to be taken from the garage. incident involving Williams.'
The matter before the court arises from Lastly, Dina L. Sforza, Esq., ("Sforza") as
Garfield's denial of two OPRA requests counsel for plaintiff, responded to Rotolo's
submitted by NJMG for certain records letter on February 8, 2012, arguing O'Shea is
pertaining to the shooting. On December 27, clear with respect to the accessibility of UFRs
2011, Kimberly A. Lueddeke ("Lueddeke"), a and, while it did not address the video
reporter for The Record, submitted a GPD form specifically, the O'Shea court's rationale, by
setting forth a request for public records [*5] analogy, would render it accessible under
seeking "[a]ny video recording taken Dec. 10, OPRA as well.
2011 showing Malik A. Williams, of Garfield."
On February 10, 2012, plaintiff filed a verified
Later that day the request was denied, and it
complaint, an order to show cause, and a brief
was indicated on the form the video ("the
in support of the order to show cause. With
video") sought was a "criminal investigatory
record," and there existed an "on going
investigation." 'Rotolo, like Borg, did not directly address the video which was the
subject of plaintiffs first request. Importantly, though, on the
On January 18, 2012, Lueddeke made another correspondence he authored, Rotolo copied Frank Puccio, Esq.
request, in the same manner, this time seeking ("Puccio"), Executive Assistant Prosecutor for the BCPO, thereby
providing his office with notice of plaintiffs request and the dispute
"Ialny use of force reports filed by Garfield
it engendered.
Page 3 of 19
respect to the alleged violation of OPRA, in any [*7] aspect of the investigation and has .
plaintiff requests: 1) a declaration defendants' . . been excluded from participation of any
actions were in violation of OPRA; 2) aspect of the investigation." The GPD, though,
defendants be directed to release the requested the Amos Cert. provides, is conducting two
records to plaintiff forthwith; 3) the imposition internal affairs investigations, one with respect
of a civil penalty of $1,000 upon the to Williams' ability escape from GPD
appropriate party for knowingly and willfully headquarters and the other with respect to the
denying access to the requested records; 4) shooting itself, though the latter is suspended
counsel fees and costs pursuant to N.J.S.A. pending the completion of the BCPO's
47:1A-6; and 5) such other relief as the court investigation. Further, the Amos. Cert. states
may deem just and equitable. With respect to the GPD officer involved in the shooting,
the alleged violation of New Jersey common whose identity has not been publicly disclosed,
law, plaintiff requests: 1) a declaration has been on leave since the day of the incident
defendants' actions were "illegal" and invalid; and was scheduled to return to duty March 1,
2) defendants be directed "permanently" [*6] to 2012.2
release the requested records to plaintiff In addition, the officer has been afforded
forthwith; 3) counsel fees and costs pursuant to "twenty four hour protection," while "local
OPRA; and 4) such other relief as the court activists . . . have engaged in numerous
may deem just and equitable. marches and protests," which have been "non-
violent and generally controlled . . . but
On March 2, 2012, defendants filed an answer increasingly pointed and accusatory."
demanding judgment dismissing plaintiffs
complaint and payment of costs of suit and With respect to the requested documents, the
attorneys fees. Defendants state the requested Amos Cert. provides no UFR concerning the
records were not accessible as the records were incident of December 10, 2011, has [*8] yet
within OPRA's "recognized exceptions," and, been prepared even though a UFR "is generally
even if they were and therefore should be prepared by the involved officer and is made
released, no award of counsel fees or sanctions part of his investigative report." As to the
was justified. On March 5, 2012, defendants video, the Amos Cert. provides it is the GPD's
filed a certification by Garfield Police Chief "policy and practice" to maintain a videotape
Kevin Amos ("Amos" and "the Amos Cert."), a record of certain areas within headquarters,
certification by Rotolo ("the Rotolo Cert."), and including "the arrest room where individuals
a letter brief in response to the order to show are processed, fingerprinted and interviewed,"
cause filed by plaintiff. The latter two and one such videotape record was made while
submissions will be discussed as needed below, Williams was present at headquarters. The
but the Amos Cert. is sufficiently important to Amos Cert. then sets forth the video "is and
warrant a fuller explication. will become part of the investigations
mentioned above. Lastly, the Amos Cert.
In pertinent part, the Amos Cert. states opines "it would be inappropriate to release the
immediately after the incident, the BCPO "took requested information at this time because the
complete control of the matter" and announced
it would conduct a complete investigation in
2 The Amos Cert. later provides the officer's anticipated return to
order to determine what action, if any, should duty "will be during the first week of March." At oral argument,
be taken, and the GPD "has not been involved Rotolo confirmed the officer returned on March 1 or March 2, 2012.
Page 4 of 19
release of the information may jeopardize the that has been received in the course of his
investigation or the safety of Garfield Police or its official business by any such officer,
Officers." commission, agency, or authority of the
State or of any political subdivision thereof,
Plaintiffs counsel filed a reply on March 8,
including subordinate boards thereof. The
2012. The court entertained oral argument on
terms [*10] shall not include inter-agency
March 16, 2012.
or intra-agency advisory, consultative, or
Legal Standards deliberative material.
A. OPRA [Id. 1.1.]
1. Generally
Records are typically available during the
The Act, IV.J.S.A. 47:1A-1 to -13, "plainly public agency's regular business hours with an
identifies its purpose at the outset: to ensure exception for smaller towns, agencies, and
that government records, unless exempted, are school districts. Id. 5. The records may be
readily accessible to citizens of New Jersey for redacted to protect personal information, and
the protection of the public interest. To the records custodian may charge a fee for
accomplish that aim, OPRA sets forth a copying and related services. Ibid. Typically,
comprehensive [*9] framework for access to any request for a record must be made using the
public records." Mason v. City ofHoboken, 196 agency's official request form. Ibid. The
N.J. 51, 57, 951 A.2d 1017 (2008) (internal custodian must respond to all requests within
citation omitted). seven business days, unless the applicant fails
to provide necessary contact information. Ibid.
OPRA provides "government records shall be
readily accessible for inspection, copying, or If access to a government record is denied, the
examination by the citizens of this State, with person denied access, and only that person,
certain exceptions, for the protection of the may challenge the decision by filing a
public interest, and any limitations on the right complaint in Superior Court or with the
of access [under the Act] shall be construed in Government Records Counsel. Id. 6. The
favor of the public's right of access." N.JS.A. application must be brought within forty-five
47:1A-1. A government record is defined as: days of the denial. Mason, supra, 196 N.J. at 68
("[A] 45-day statute of limitations should apply
any paper, written or printed book, to OPRA actions, consistent with the
document, drawing, map, plan, photograph, limitations period in actions in lieu of
microfilm, data processed or image prerogative writs.").
processed document, information stored or
maintained electronically or by sound- The proceeding will go forward in a summary
recording or in a similar device, or any or expedited manner. N.J.S.A. 47:1A-6; see
copy thereof, that has been made, Courier News v. Hunterdon Cnty. Prosecutor's
maintained or kept on file in the course of Office, 358 N.J. Super. 373, 378, 817 A.2d
his or its official business by any officer, 1017 (App. Div. 2003). pill As such, "the
commission, agency or authority of the action is commenced by order to show cause
State or of any political subdivision thereof, supported by a verified complaint." Ibid. In
including subordinate boards thereof, or Courier News, the Appellate Division held the
Page 5 of 19
trial court had failed to follow proper procedure successful requestor shall be entitled to
when it denied a newspaper its right to reasonable attorney's fees. N.IS.A. 47:1A-6.
summary adjudication on an OPRA action. The
2. Exceptions to Access Under OPRA
trial judge had erroneously applied the standard
for preliminary relief to the summary action Excluded from the definition of "goverment
and dismissed plaintiffs action without record," i.e., records accessible under OPRA,
prejudice. Id. at 377. As a result, the Appellate are twenty-one categories of information which
Division, recognizing the Act's policy of are deemed confidential and are not to be
expediency, invoked original jurisdiction over disclosed. See N.J.S.A. 47:1A-1.1. Additionally,
the matter. Id. at 379. the Act provides an exception to access even
when the document [*13] sought qualifies as a
In OPRA actions, the public agency has the government record.4
burden of proving the denial is authorized by
law. 1V.J.S.A. 47:1A-6. As such, the agency See id. 3(a). For purposes of the matter
"must produce specific reliable evidence before the court, two exceptions may be
sufficient to meet a statutorily recognized basis applicable to prevent access under OPRA.
for confidentiality. Absent such a showing, a Lastly, the statute qualifies the ability of a
citizen's right of access is unfettered." Courier government body to shield access to
News, supra, 358 N.J. Super. at 383.3 information by requiring certain information to
be disclosed, even if an exception applies to
In establishing legal support, "[a] decision of prevent disclosure of a record. Id. 3(b).
the [Government Records Council] shall not
have value as a precedent for any case initiated The first possibly applicable exception is for a
in Superior Court," N.J.S.A. 47:1A-7, though "criminal investigatory record," which is
such decisions are normally accorded deference defined as "a record which is not required by
unless "arbitrary, capricious or law to be made, maintained or kept on file that
r1.21 unreasonable" or violative of "legislative is held by a law enforcement agency which
policies expressed or implied in the act pertains to any criminal investigation or related
governing the agency." Serrano v. South civil enforcement proceeding." Id. 1.1. As the
Brunswick Tp.., 358 N.J. Super. 352, 363, 817 burden rests on the government agency seeking
A.2d 1004 (App. Div. 2003) (citing Campbell to deny access, id. 6, in order to prevent
v. Dept of Civil Serv., 39 N.J. 556, 562, 189 disclosure, defendant must show both 1) the
A.2d 712 (1963)). Lastly, "a court must be record in question is not required by law to be
guided by the overarching public policy in made; and 2) the record sought "pertains" to a
favor of a citizen's right of access." Courier criminal investigation or related civil
News, supra, 358 N.J. Super. at 383. [*IA] enforcement proceeding. Id. 1.1.
If it is determined access was improperly The other relevant exception to public access of
denied, such access shall be granted, and a a government record is found in N.J.S.A.
3 It should be noted "when a claim of confidentiality or privilege is
made by the public custodian of the record" the court must "inspect 4 For ease of reference, and as the analysis does not materially differ,
the challenged document in-camera to determine the viability of the the court will hereinafter also refer to the pertinent "exclusion" from
claim." MAG Entm't v. Div. of Alcoholic Beverage Control, 375 N.J. categorization as a government record as an "exception" to access
Super. 534, 551, 868 A.2d 1067 (App. Div. 2005). under OPRA.
Page 6 of 19
47:1A-3, which states, "where it shall appear in progress or may be otherwise

that the record or records which are sought to inappropriate to release, such information
be inspected, copied, or examined shall pertain may be withheld. This exception shall be
to an investigation in progress by any public narrowly construed to prevent disclosure of
agency, the right of access . . . may be denied if information that would be harmful to a
the inspection, copying or examination of such bona fide law enforcement purpose or the
record or records shall be inimical to the public public safety.
interest." Id. 3(a). However, the provision
then goes on to state, "this provision shall not [Ibid.]
be construed to allow any public agency- to Thus, in sum, under 3(b), certain information
prohibit access to a record of that agency that, must be disclosed, even if an exception to
was open for public inspection, examination, or OPRA applies, unless, in limited
copying before the investigation commenced." circumstances, such disclosure would either
Ibid. There are thus three elements defendant [*16] jeopardize someone's safety or an
must meet in order to deny access under 3(a): investigation or otherwise be inappropriate.
1) the record pertains to an investigation in Ibid.
progress by a public agency; 2) disclosure
would be inimical to the public interest; and 3) B. New Jersey Common Law
the record was not already open for disclosure In addition to OPRA, disclosure of public
before the investigation commenced. Ibid. records can be sought under the common law.
Finally, section 3(b) qualifies the government's Thus, even if the UFRs or police surveillance
freedom to deny access and provides, videos fall within one of the exceptions to
any applicable OPRA access under the statutory construct of OPRA,
notwithstanding
certain "information plaintiff may still prevail by resort to the
exceptions,
[*15] concerning a criminal investigation shall common-law right to access government
be available to the public within 24 hours or as records, a thorough background of which is
provided by Mason, supra, 196 N.J. at 67-68:
soon as practicable, of a request for such
information." Id. 3(b). Two categories of The common law definition of a public
information which must be disclosed are record is broader than the definition
"information as to the identity of the contained in OPRA.
investigating and arresting personnel" and
"information of the circumstances immediately
surrounding the arrest, including but not limited
To access this broader class of documents,
to the time and place of the arrest, resistance, if
requestors must make a greater showing
any, pursuit, possession and nature and use of
than required under OPRA: (1) the person
weapons and ammunition by the suspect and by
seeking access must establish an interest in
the police." Ibid. The statute includes a caveat
the subject matter of the material; and (2)
on the release of this information, though,
the citizen's right to access must be
providing:
balanced against the State's interest in
[W]here it shall appear that the information
preventing disclosure.
requested . . . will jeopardize the safety of
any person or jeopardize any investigation [Ibid. (internal citations and quotations
Page 7 of 19
omitted)] plaintiffs interest in the record is established,

the court must weigh the plaintiffs interest
Thus, to prevail under the common law, against the government's interest in non-
plaintiffs must show the record sought disclosure. The Supreme Court has set forth the
constitutes a "public record" and establish a following factors for use in conducting this
right in the record sought, which outweighs the
balance:
State's interest in preventing disclosure. While,
traditionally, [*17] records sought under the (1) the extent to which disclosure will
common law are written, they need not be so. impede agency functions by discouraging
For example, in holding computer tapes to be citizens from providing information to the
public records accessible under the common government; (2) the effect disclosure may
law, the Supreme Court held: have upon persons who have given such
information, and whether they did so in
[The computer tapes] are indisputably made reliance that their identities would not be
by (or at the behest o) public officers in the disclosed; (3) the extent to which agency
exercise of public functions. They are self-evaluation, program improvement, or
produced by public officials. "That our other decision making will be chilled by
previous definition of a common-law record disclosure; (4) the degree to which the
was drawn from sources that spoke in terms information sought includes factual data as
of traces of ink on paper does not limit its opposed to evaluative reports of
scope. The essence of the common-law is policymakers; (5) whether any findings of
its adaptability to changing circumstances." public misconduct have been insufficiently
[Atl. City Convention Ctr. Auth. v. S. Jersey corrected by remedial measures instituted
Publ'g Co., 135 N.J. 53, 64, 637 A.2d 1261 by the investigative agency; and (6)
(1994)] (holding that audio tapes, although whether any agency disciplinary or
not Right-to-Know public records, are investigatory proceedings have arisen that
common-law public records). Likewise, we may circumscribe the individual's
find that in view of rapidly advancing [*19] asserted need for the materials.
technological changes in storing
information electronically, computer tapes [Loigman v. Kimmelman, 102 N.J. 98, 113,
also can be common-law public records. 505 A.2d 958 (1986).]
[Higg-A-Rella, Inc. v. County of Essex, 141 Analysis

N.J. 35, 47, 660 A.2d 1163 (1995).]
A. OPRA
Compare Mason, supra, 196 N.J. at 67 (quoting 1. The UFR and Video are Government
Nero v. Hyland, 76 N.J. 213, 222, 386 A.2d 846 Records.
(1978) ("To constitute a public record under the
common law, the item must be 'a written In order to be subject to OPRA's disclosure
memorial[ ] . . . made by a public officer, and requirements, the records sought must qualify
[*18] . . . the officer [must] be authorized by as government records. It is clear both records
law to make it.'"). sought here the UFR and video are
government records for purposes of OPRA, as
Once it is shown the record is a "public record" the statute defines a government record as, in
and is therefore subject to disclosure, and the
Page 8 of 19
short, any document or recording made, disconcerting, both when Lueddeke submitted
maintained, or kept by any government entity, her request for the UFR and when Rotolo
or officer or official thereof, in the course of its corresponded with plaintiffs counsel,
or his official business. See N.J.S.A. 47:1A-1.1; defendants' position was the UFR was not
see also Serrano, supra, 358 N.J. Super. at 365 accessible as it pertained to an ongoing
(holding audiotape of a 911 phone call was a investigation of the incident not it was not in
government record). It is uncontroverted both existence. [*21] Rotolo's letter brief, submitted
UFRs and surveillance videos are made and on March 5, 2012, for the first time informs the
maintained by officers of the GPD, and they are court, and plaintiff, the UFR has not yet been
thus government records regardless of whether created as the officer involved in the shooting
they are required by law to be made. cf. K.L. v. was placed on leave. To properly place the
Evesham Twp. Bd. of Educ., 423 N.J. Super. timing of this revelation in perspective, it must
337, 350, 32 A.3d 1136 (App. Div. 2011) be noted the incident occurred on December 9,
("Whether a school record is mandated by State 2011; Lueddeke submitted the request for the
regulation, however, does not determine UFR on January 18, 2012; the court executed
whether it fits the definition of a government the order to show cause on February 14, 2012,
record under OPRA."). and defendant was served shortly thereafter.
Accordingly, for defendants to now come
The next step, though, is whether, despite the before the court and urge nondisclosure for the
initial finding [*at] the requested records are sole reason the UFR has not even yet been
government records under OPRA, they are created, more than three months after Williams'
nevertheless inaccessible as a result of shooting, is not acceptable and not consistent
satisfying the requirements for one of the with OPRA's overarching policy of
exceptions to access under OPRA. The court governmental transparency.'
will treat in turn each requested record as it
relates to the possibly applicable exceptions. While the court was unable to locate any
directive or guideline from the Office of the
2. No Exception Applies to Shield UFRs from
Attorney General regarding the timeline for the
Public Access.
completion of a UFR specifically, both Law
On January 18, 2012, Lueddeke submitted a Enforcement Directive No. 2006-5 and the
request for "[a]ny use of force reports filed by Attorney General's Use of Force Policy
Garfield police officers for incidents occurring contemplate immediate reporting of use of
on Dec. 10, 2011." The request was denied on force resulting in death or serious bodily injury.
January 19, 2012. The court finds UFRs do not See Law Enforcement Directive No. 2006-5
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 5 Further, the court notes, this sort of apparent evasion of
such, the UFR, once created, must be disclosed. responsibility results in, or, unfortunately, perhaps is indicative of,
distrust between the government and the public at large, while
a. Delay in creation of a UFR is contrary to OPRA's aim is to promote openness. See, e.g., Fair Share Hous. Ctr.
v. N.J. State League of Municipalities, 207 N.J. 489, 502, 25 A.3d
OPRA policy; as such, the UFR shall be 1063 (2011) (quoting Asbury Park Press v. Ocean Cnty.
disclosed to plaintiffs counsel on preparation. Prosecutor's Office, 374 N.J. Super. 312, 329, 864 A.2d 446 (Law
Div. 2004))("An [*221 underlying premise of OPRA is that society
As a preliminary matter, the court notes it is as a whole suffers when 'governmental bodies are permitted to
operate in secrecy.'").
Page 9 of 19
(Dec. 13, 2006), (emphasis added); id. 3(b) (requiring certain

http://www.state.nj.us/lps/dcj/agguide/directive information to be disclosed "within 24 hours or
s/dir2006_5.pdf [hereinafter Law Enforcement as soon as practicable" after a request);
Directive] ("The Director of the Division of [*24] id. 5(e) ("Immediate access ordinarily
Criminal Justice or his designee must be shall be granted to budgets, bills, vouchers,
notified immediately . . . of any use of force by contracts, including collective negotiations
a law enforcement officer involving death or agreements and individual employment
serious bodily injury to a person . . . . For contracts, and public employee salary and
purposes of this Directive, 'immediate' overtime information.") (emphasis added); id.
notification . . . shall mean notification to the 5(i) (requiring response to record request to be
Director or his designee before any made with seven business days); id. 6
investigation of the incident is undertaken other (requiring proceeding challenging the denial of
than to secure the scene and to render medical a request to "proceed in a summary or
assistance as required in the circumstances."); expedited manner"). See also Mason, supra,
Attorney General's Use of Force Policy (June 196 N.J. at 69 ("[C]itizens are entitled to swift
2000), access to public records . . . ."); Kuehne Chem.
http://www.nj.gov/oag/dcj/agguide/useofforce2 Co. v. N. Jersey Dist. Water Supply Comen,
001.pdf [*23] ("County and municipal law 300 N.J. Super. 433, 438, 693 A.2d 168 (App.
enforcement agencies shall immediately notify Div.), certif. denied, 151 N.J. 466, 700 A.2d
the county prosecutor when the use of physical, 878 (1997) ("New Jersey has a tradition of
mechanical or deadly force results in death or openness and hostility to secrecy in
serious bodily injury, or when injury of any government. Our public policy favors access to
degree results from the use of a firearm by a sufficient information to enable the public to
law enforcement officer. . . . County understand and evaluate the reasonableness of
prosecutors shall within 24 hours report to the the public body's action.") (internal quotations
Division of Criminal Justice all situations and citations omitted); Law Enforcement
where the use of deadly force by a law Directive ("[I]t is appropriate to ensure and
enforcement officer results in death or serious enhance public confidence in the manner in
bodily injury, or in situations where any injury which the use of deadly force by law
results from the use of a firearm by a law enforcement is reviewed to assure adequate
enforcement officer."). Importantly, the justification for the use of such force [*25] and
Appellate Division has held Attorney General to ensure that all investigations of the use of
guidelines and the Use of Force Policy carry force are conducted in a thorough, fair and
the force of law. O'Shea, supra, 410 N.J. Super. impartial manner[.]").
at 382-84.
It is clear, then, throughout the Act and the
Moreover, OPRA makes clear its goal of jurisprudence stemming from it, emphasis is
ensuring timely production of records as a placed on the aim of preventing the government
means of ensuring governmental transparency. from withholding records concerning matters of
N.J.S.A. 47:1A-1 ("[G] overnment records shall public interest. This is not to question the
be readily accessible . . . and any limitations on motives of defendants or the GPD in not
the right of access . . . shall be construed in ensuring the UFR was created in a timely
favor of the public's right of access.") fashion, or disclosing in a timely fashion no
Page 10 of 19
UFR has been created, as there are no proofs (concerning the shooting). One purpose of the
before the court on which to do so. Still, UFR is to aid these investigations. It is
bearing in mind the unquestionable purpose of incongruous, [*27] then, for the UFR still not
OPRA is to ensure disclosure, governmental to have been prepared while these
bodies cannot inhibit disclosure simply by investigations are three months old. Moreover,
failing to create a record, particularly one it would be incongruous for it later to be argued
which, as discussed below, is required by law the UFR should not be disclosed, due to its
to be made. involvement in on-going investigations, when
the UFR has not been part of any investigation
A full three months have passed since the to date. Accordingly,
once the UFR is created,
shooting of Williams, and still there has been it should immediately be provided to plaintiffs
no disclosure. Further delay would be the only counse1.6
foreseeable result of this court's acceptance of
defendants' request to deny access to the UFR b. O'Shea is unequivocal UFRs are not criminal
solely based on the fact it has not yet been investigatory records.
created. That is, plaintiff would have to make a Applying the elements of each exception, it is
request, wait seven days for a response, and file clear UFRs, once created, cannot be shielded
a new order to show cause; the [*26] court properly from public access under OPRA. The
would then have to set a return date, normally Appellate Division has already decided UFRs
in or about thirty days from the date of filing, in are not criminal investigatory records, as they
order to give defendants adequate time to brief fail to meet either of that exception's predicates.
what one would think would be a more See O'Shea, supra, 410 N.J. Super. at 381.
substantive opposition to the request to access First, the court held, UFRs are required by law
the UFR. All this, of course, assumes the UFR to be made as they are mandated under the
would be created by then. Coupled with the Attorney General's "Use of Force Policy,"
fact, discussed below, it is clear the UFR, if it which carries the force of law. Id. at 382-83.
existed, would be accessible, the further delay Secondly, though that court [*28] need not
which would be occasioned by the acceptance have reached the question, while finding the
of defendants' argument cannot be allowed. UFRs in question did not pertain to an
Therefore, while the court cannot order the investigation, it held more broadly "there is no
creation of the UFR, it can and does order once basis to consider all such reports, generically,
it is created it be turned over to plaintiffs to pertain to criminal investigations." Id. at 386.
counsel forthwith. It is clear, then, UFRs do not qualify as
In addition to the above, there is yet an criminal investigatory records, and, as
additional consideration mandating the government records, they are subject to
disclosure of the UFR. The Amos. Cert. sets disclosure under OPRA absent the applicability
forth there are four investigations which either of another exception to access.
have been or will be commenced: three on the c. The elements for 3(a) are not met, as there
part of the GPD (one into the aggravated
assault constituting the basis of Williams' arrest
and processing and two internal affairs 'At oral argument, Rotolo informed the court the UFR has still not
been completed, though, apparently in conjunction with the
investigations concerning Williams' escape and unidentified officer's retained counsel, it is in the process of being
shooting) and one on the part of the BCPO prepared.
Page 11 of 19
is no evidence disclosure would be inimical to disclosure of the UFR would be inimical to

the public interest. [*30] the public interest are rejected.
Consequently, the UFR must be released.'
The UFRs also do not qualify under the 3(a)
exception for records of investigations in 3. While the Video Qualifies as a Criminal
progress. N.J.S.A. 47:1A-3(a) permits the denial Investigatory Record, Disclosure of
of access of a government record if defendant Information It May Contain is Still Required
can show 1) the record pertains to an Under 3(b).
investigation in progress by a public agency; 2) As defendants' sole argument with respect to
disclosure would be inimical to the public the video is grounded in 3(a), the [*32] court
interest; and 3) the record was not already open will first address the applicability of that
for disclosure before the investigation exception before addressing the applicability of
commenced. Even without regard to the first the criminal investigatory records exception.
element, which will be discussed more fully as
it relates to the video, there is no competent a. The elements for 3 (a) are not met, as the
evidence to show disclosure of the UFR would video was unquestionably created before any
be inimical to the public interest. Rather, the investigation, and there is no evidence
public [*29] has a significant interest in being
informed of the circumstances of police- 7 Furthermore and for purposes of completeness, even if disclosure of
involved shootings of citizens. It is important to the UFR was shown to somehow be inimical to the public interest,
and again without regard to whether the UFR pertains to an
note, moreover, it is defendant's burden to show investigation in progress, defendants still would have to show the
in what way disclosure of the records would be record was not already open for disclosure before the investigation
inimical. Such showing need be stated strongly commenced. As discussed in relation to criminal investigatory
records, UFRs are required by law to be made and are government
to overcome OPRA's well-known and oft-stated records subject to disclosure under OPRA. Records open to public
aims "'to maximize public knowledge about access prior to commencement of investigation remain open despite
public affairs . . . and to minimize the evils the existence of subsequent investigation. See Serrano, supra, 358
N.J. Super. at 356 ("If it was public record when created, then it
inherent in a secluded process.'" Fair Share would remain accessible to the public under N.J.S.A. 47:1A-3(a)
Hous. Ctr., supra, 207 N.J. at 501-02 (quoting even if its release would be inimical to the public interest."). Here,
Times of Trenton Publ'g Corp. v. Lafayette strangely, the UFR has not yet been created. It seems, then, were the
court required to reach this issue, an inquiry into intent, i.e., the
Yard Comty. Dev. Corp., 183 N.J. 519, 535, reason the UFR has not yet been created, would be necessary, as it is
874 A.2d 1064 (2005)). Defendants "must inconsistent with the overarching policy of OPRA to allow a
produce specific reliable evidence" in support governmental [*311 entity to purposely provide grounds for the
denial of access to a record by foregoing its creation until after an
of their denial of access. Courier News, supra, investigation commenced. Therefore, when dealing with records
358 N.J. Super. at 383. Simply put, defendants which are required by law to be made and in a timely fashion
are unable to carry this burden, not only as their the court could not simply accept, at face value, the proposition the
records were not made prior to an investigation and should therefore
counsel chose not to argue 3(a) applied to be shielded. However, as defendants did not address the applicability
shield the UFRs, but, more broadly, defendants of 3(a) but chose only to argue for the denial of access on the
provided nothing regarding the "inimical" grounds the UFR has not yet been created, the court need not broach
the subject of intent. Suffice it to say, UFRs, as government records
character of disclosure other than general required to be made, are generally expected to be made prior to any
statements in the Amos Cert. concerning officer investigation, and, as such, will generally not be able to be withheld
safety and the integrity of the on-going under 3(a).
investigations, with no proofs to substantiate Lastly, as the court finds no exception applies to prevent disclosure
such claims. As such, defendants' arguments of the UFR under OPRA, no analysis with respect to the application
of 3(b) in this context is necessary.
Page 12 of 19
disclosure would be inimical to the public is seen in the video, were the court to consider
interest it, is wholly unsupported and unconvincing.8
Glaringly, and fatally, defendants' argument In somewhat like manner, Amos' opinion the
regarding the applicability of 3(a) fails to release of the video would jeopardize the safety
address the third element of the exception, i.e., of the GPD officer involved in the shooting is
access cannot be denied if the record was based on nothing more than the conjecture
already subject to disclosure before the those protesting Williams' shooting and the
investigation began. As mentioned above, to lack of information [*34] forthcoming from
qualify under 3(a), a record must not have authorities would seek justice or revenge by
been open to the public prior to the start of an means of violence. Amos attempts to support
investigation. As the video is open to the public this inference by arguing the protesters, who he
as a government record under OPRA, and was characterizes as "non-violent and generally
in existence before any investigation controlled," have stated "Williams was
commenced, defendants cannot meet the third 'murdered' and was 'shot in the back.'" The
element of 3(a), preventing them from court rejects this speculation as wholly
shielding the video under that exception. unsubstantiated and, in fact, possibly illogical,
as it is unknown like many of the facts
Defendants do, though, argue disclosure of the surrounding the incident whether one of the
video would be inimical to the public interest, officers shown in the video, which was taken in
apparently adopting the arguments set forth by the police station, was involved in the actual
Puccio in a letter to Lueddeke, dated December shooting of Williams, which occurred several
29, 2011, and attached to the Rotolo Cert. In blocks away. If the officer involved in the
the letter, Puccio [*33] argues the release of the shooting, who is the apparent subject of
video "would be inimical to the public interest concern, is not shown in the video, there can be
because it would allow witnesses to alter the no argument the video jeopardizes a GPD
information they provide to police to conform officer, unless Amos would then wish to take
to the contents" of the record. Defendants also the position any police officer shown in a video
adopt the arguments contained in the Amos having any connection to the shooting of a
Cert. to the effect release of the video would citizen is a possible target for violence.
possibly jeopardize the ongoing investigations
and officer safety. Though defendants did not raise the issue, in
the hope of providing a decision which
Categorical and encompassing assertions of discourages additional delay in this matter, the
safety concerns or jeopardy to existing court addresses whether the criminal
investigations, without support, are insufficient. investigatory records exception applies to the
Here, suffice it to say, defendants' attempt to video.
show the release of the video would be inimical
to the public interest fails to satisfy the
exception to access under 3(a), even 8 Even if Puccio's argument had support generally, it may be
assuming the record was not already open to questionable in this case as any investigations into the incident have
purportedly been on-going for approximately three months. It may
disclosure prior to the investigation. The appear, then, the greater concern for reliability [*351 of any
argument in Puccio's letter, i.e., citizens may witnesses not yet interviewed would stem from the passage of time
try to conform their version of events with what since the incident rather than the possibility of witnesses viewing a
video and tailoring their versions to its contents.
Page 13 of 19
b. As surveillance videos are not required by affairs. The problem with counsel's definition
law to be made, the question of their of "pertain," though, is one of statutory
qualification as criminal investigatory records interpretation. It is black-letter law the court
turns on whether they "pertain" to a criminal must interpret a statute so as to give each word
investigation. meaning; no word or j*37] phrase is to be
deemed mere surplussage. "Fundamental rules
Unlike the UFR in question, the court finds the of statutory construction militate against an
video qualifies as a criminal investigatory interpretation of a statute that requires a court
record. In order to understand why the video to assume a provision is suplusage; the
qualifies, it is helpful to compare the elements
presumption is 'that every word in a statute has
of the criminal investigatory records exclusion, meaning.'" Fletcher v. Cessna Aircraft Co., 412
1.1 of OPRA, with the elements of the N.J. Super. 530. 536, 991 A.2d 859 (App. Div.
"investigation in progress" exception, 3(a) of 2010) (quoting In re Att'y Gen.'s "Directive on
OPRA. As stated above, there are two elements Exit Polling: Media & Non-Partisan Pub.
which must be met for a record to qualify as a Interest Gaps.," 200 N.J. 283, 298, 981 A.2d 64
criminal investigatory record: 1) the record in (2009)). And this is exactly what occurs when
question is not required by law to be made; and the meaning of "pertain" plaintiff urges for
2) the record sought "pertains" to a criminal purposes of the criminal investigatory records
investigation or related civil [*36] enforcement exception is applied to 3(a)'s requirements: 1)
proceeding. N.J.S.A. 47:1A-1.1. the record pertains to an investigation in
Here, there is no competent evidence progress by a public agency; 2) disclosure
demonstrating police surveillance videos are would be inimical to the public interest; and 3)
required by law to be made. It thus appears, and the record was not already open for disclosure
the court finds, the first element of 1.1 is met. before the investigation commenced. That is,
Whether the video qualifies as a criminal plaintiffs definition of "pertain" requires the
investigatory record therefore turns on whether record be made as part of the investigation, i.e.,
it "pertains" to a criminal investigation. that it not already be made beforehand.
Counsel for plaintiff urges the court to However, the same requirement is imposed by
understand "pertain" as being created as part of the third element of 3(a). Logically, if the
the investigation, and not existing beforehand. record was open for public inspection before
In her brief in support of the order to show the investigation commenced, it had to exist
cause, counsel writes the second element of before the investigation [*38] commenced.
"the criminal investigatory record definition Plaintiffs definition of "pertain," therefore,
requires that the record be created as part of the would render redundant the third element of
investigatory process not that the record 3(a). As the same is an impermissible result, the
subsequently becomes part of the court cannot accept plaintiffs suggested
investigation." meaning.
Counsel's definition has appeal at first blush As support for its definition of "pertain,"
and, moreover, even seems to be consistent plaintiff relies on the O'Shea court's language
with OPRA's overarching goal of encouraging discussed above, namely, UFRs cannot,
disclosure of government records as a means of "generically," be said to pertain to criminal
promoting transparency in governmental investigations. O'Shea, supra, 410 N.J. Super.
Page 14 of 19
at 385-86. Plaintiff argues police surveillance matter, the court need not specify the exact
videos "are made on a daily basis, without contours of its meaning. It is undisputed there
regard to any purpose . . . . They are simply not is a pending investigation into the police-
made to investigate crimes." Plaintiff then involved shooting of Williams [*40] being
draws a favorable comparison of the video to undertaken by the BCPO. The video may well
UFRs, which, as they are required by law, are provide information as to the specific events
also made independently of any criminal which occurred when Williams fled the police
investigation. Finally, plaintiff quotes O'Shea station prior to the chase which resulted in his
and argues, just as "it cannot be assumed that a shooting and death. The video therefore clearly
UFR might become part of a criminal pertains to this investigation. As such, the video
investigation," it equally cannot be assumed a meets the second element of the criminal
surveillance video will later become part of an investigatory records exception and thus public
investigation. Id. at 386. access, under OPRA, may properly be denied.
The question still remains, though, whether the
The court agrees. The fact records made prior video is nevertheless accessible under the
to an investigation cannot be assumed to later common law.
become part of an investigation does not mean
they necessarily by definition cannot c. Despite constituting a criminal investigatory
become part of, or "pertain" [*39] to one, record, the video contains information which
however. To make such a leap is flawed logic, must be released under 3(b).
and it is fatal to plaintiffs argument. In other The inquiry into the video's accessibility under
words, a careful reading of O'Shea reveals the OPRA is not ended with the finding it qualifies
court rejected the defendant's argument UFRs, as a criminal investigatory record. The Amos
by definition, pertained to criminal Cert. informs the court individuals are placed in
investigations; the court did not take the step an arrest room to be processed, fingerprinted,
plaintiff urges and hold UFRs could not pertain and interviewed, and there is a video camera
to a criminal investigation. Like the O'Shea inside the room. The parties also agree
court, this court also declines to take that step. Williams turned himself into the police at the
The court understands O'Shea to mean records police station and was taken into custody to be
such as UFRs and police surveillance videos processed. Any video taken in the arrest room,
may or may not pertain to an investigation; the then, would likely provide the information
question is one of fact for the fact-finder in which 3(b) requires be released,
OPRA matters. For purposes of evaluating the notwithstanding [*41] the applicability of other
accessibility of UFRs, the question is almost exceptions to disclosure under OPRA, namely
academic, as even if UFRs pertain to an "information as to the identity of the
investigation, they are required to be made and investigating and arresting personnel" and
therefore cannot qualify as criminal "information of the circumstances immediately
investigatory records. The same cannot be said surrounding the arrest, including but not limited
for the video at issue here, however, which is to the time and place of the arrest, resistance, if
not required to be made. any, pursuit, possession and nature and use of
weapons and ammunition by the suspect and by
Though the meaning of "pertain" must be the police." N.J.S.A. 47:1A-3(b). In short, it
broader than plaintiff urges, for purposes of this appears the video might provide information
Page 15 of 19
concerning questions, such as: Why did disclosure which, evaluated under the Loigman
Williams flee? Was he provoked into flight, or factors, is greater than defendants' interest in
did he harbor last-second designs on escape? non-disclosure.'
What kind of altercation, if any, occurred, and
Taking each [*43] step in turn, the video
who instigated it? Did Williams say or do
clearly constitutes a public record under the
anything which raised in the officers a
common law, which "makes a much broader
justifiable concern? Were any of the parties
class of documents available, but on a qualified
armed? How many officers were in the room
basis." Higg-A-Rella, supra, 141 N.J. at 46.
with Williams?
While courts often speak of public records as
Section 3(b) requires the release of such written, "[c]ommon-law records are any
information within twenty-four hours of a records made by public officers in the exercise
request or as soon as is practicable thereafter. of public functions. These materials include
Ibid. Clearly, the deadline has passed, with almost every document recorded, generated, or
neither the information nor the video being produced by public officials whether or not
released. Accordingly, under OPRA, required by law to be made, maintained or kept
defendants must release, if not the video, at on file . . . ." Ibid. (internal citations and
least a fuller account of what occurred in the quotations omitted); see also O'Shea, supra,
police [*42] station as revealed by the video 410 N.J. Super. at 386-87; Daily Journal v.
and required by 3(b). Of course, if the video Police Dept of Vineland, 351 N.J. Super. 110,
is accessible under the common law, merely 122, 797 A.2d 186 (App. Div. 2002). As police
providing information as required under 3(b), surveillance videos appear to fit safely within
without producing the video, would be this broad definition, they constitute public
inadequate. records under the common law. See Serrano,
supra, 358 N.J. Super. at 373 ("Although 911
Lastly, 3(b) provides a caveat the information calls are protected by OPRA, they may be
it requires to be released may still be withheld, subject to examination under the common law,
in limited circumstances, if disclosure would provided of course that the applicant can meet
jeopardize the safety of an individual or of an the common law burden of showing some
investigation. The court need not fully address personal or particular interest in the material
this limitation as the same analysis applies sought"); Asbury Park Press v. Lakewood Twp.
which was undertaken with respect to 3(a)'s Police Deprt., 354 N.J. Super. 146, 163, 804
requirement disclosure not be inimical to the A.2d 1178 (Law Div. 2002) [*44] (ordering
public interest and defendants' general disclosure of 911 tapes under both the Right to
arguments regarding office safety. Know Law and the common law right to
B. The Video is Accessible under New Jersey access).
Common Law.
Next, plaintiff, as the "eyes and ears of the
While the video may be shielded under OPRA, public," clearly has an interest in accessing
New Jersey's common law right of access information relating to an as-yet-unexplained
provides another avenue for plaintiff to obtain police-involved shooting of a local citizen. As
access. In order to be accessible under the
common law, the video must qualify as a public 9 Counsel for defendants did not address plaintiffs common-law
record and plaintiff must establish an interest in right of access.
Page 16 of 19
plaintiff correctly cites: disclosed; (3) the extent to which agency

self-evaluation, program improvement, or
The press's role as "the eyes and ears of the other decisionmaking will be chilled by
public" generally is sufficient to confer disclosure; (4) the degree to which the
standing on a newspaper that seeks access information sought includes factual data as
to public documents. Indeed, a legitimate, opposed to evaluative reports of
private profit motive is also sufficient. As a policymakers; (5) whether any findings of
commercial entity, newspapers regularly public misconduct have been insufficiently
pursue and print stories based on their corrected by remedial measures instituted
potential public interest and appeal, as by the investigative agency; and (6)
contrasted with news stories that inherently whether any agency disciplinary or
serve the public interest; the investigatory proceedings have arisen that
newsworthiness and commercial value of may circumscribe the individual's asserted
such stories clearly suffice to confer need for the materials.
standing on a newspaper under the
common-law right of access. [Supra, 102 N.J. at 113.]
[Home News v. Dept of Health, 144 N.J. Applying the factors to the videos P461 at
446, 454, 677 A.2d 195 (1996) (internal issue: 1) as no information was provided in the
citations omitted).] first place, release of the video would not
discourage citizens from providing information
See also Red Bank Register v. Bd. ofEduc., 206 to the government; 2) again, there are no proofs
N.J. Super. 1, 9, 501 A.2d 985 (App. Div. anyone came forward to give information,
1985) (quoting Nixon v. Warner therefore the disclosure would have no effect
Communications, Inc., 435 U.S. 589, 598, 98 S. on people coming forward in the future; 3)
Ct. 1306, 1312, 55 L. Ed. 2d 570, 579-580 while premature release of the video could
(1978)) ("We are satisfied, however, that a possibly hamper police in performing a neutral,
newspaper's interest [*45] '. . . to keep a reasoned evaluation and, again, there is no
watchful eye on the workings of public evidence to support such an assertion the
agencies' is sufficient to accord plaintiff investigation has been on-going for three
standing."). months, and so disclosure would be unlikely to
video contains
Lastly, having established plaintiff has an have any dramatic impact; 4) the
been
interest in a public record, to determine whether solely factual data; 5) there have not yet
again,
plaintiff is entitled to access the court must any findings of police misconduct, and,
engage in a balancing of factors as set forth in as the BCPO investigation has been on-going
Loigman: for three months, disclosure at this time should
have little effect on any punishment imposed;1
(1) the extent to which disclosure will
impede agency functions by discouraging
10 The court recognizes the GPD investigation into the shooting is
citizens from providing information to the currently suspended pending the conclusion of the BCPO
government; (2) the effect disclosure may investigation, and so any [*47] punishment the GPD might wish to
have upon persons who have given such impose has not yet been contemplated and, if the videos are released,
may be impacted by the public reaction to the contents of the videos.
information, and whether they did so in In light of the balance of the other factors, however, this
reliance that their identities would not lie consideration is not enough to prevent disclosure.
Page 17 of 19
and 6) no proceedings have yet arisen, and it "catalyst approach," which the Supreme Court
would be difficult to circumscribe plaintiffs reaffirmed "'allows an award [even] where
need for the video as it is the "eyes and ears" there is no judicially sanctioned change in the
for many people in northern New Jersey. legal relationship of the parties,'" i.e., where the
defendant produces the record before the entry
In sum, while defendants' interest in preventing of a judgment against it. Mason, supra, 196
disclosure may be more than de minimus, on N.J. at 72 (quoting Buckhannon Bd. & Care
balance, and in light of the circumstances of Home v. West Virginia Dept of Health &
this case, plaintiffs interest, and the interest of Human Resources, 532 U.S. 598, 605, 121 S.
the public at-large, is greater. The video must Ct. 1835, 1840, 149 L. Ed. 2d 855, 863 (2001))
therefore be produced. (emphasis added). Therefore, with respect to
4. The Imposition on Defendants ofPlaintiffs attorney's fees under OPRA, the Court held,
Attorney's Fees With Respect to the UFR is "absent a judgment or an enforceable consent
Appropriate. decree," plaintiffs prevail "when they can
demonstrate: (1) 'a [*49] factual causal nexus
Plaintiff seeks an award of counsel fees and between plaintiffs litigation and the relief
costs pursuant to 1V.J.S.A. 47:1A-6, which ultimately achieved'; and (2) 'that the relief
provides a prevailing party shall be entitled to ultimately secured by plaintiffs had a basis in
attorney's fees: law.'" Id. at 76 (quoting Singer v. State, 95 N.J.
A person who is denied access to a 487, 494, 472 A.2d 138, cert. denied, New
government record by the custodian of the Jersey v. Singer, 469 U.S. 832, 105 S. Ct. 121,
record, at the option of the requestor, may . 83 L. Ed. 2d 64 (1984)) (emphasis added). The
. . institute a proceeding to challenge the Court envisioned "[t]rial courts would conduct
custodian's decision by filing an action in that fact-sensitive inquiry on a case-by-case
Superior Court . . . If it is determined that basis, evaluating the reasonableness of, and
access has been improperly denied, the motivations for, n agency's decisions, and
court . . . shall order that access be allowed. viewing each matter on its merits." Id. at 79.
A requestor who prevails . . . shall be Here, the court is ordering defendants to
entitled to a reasonable [*48] attorney's fee. produce the UFR upon preparation; it is
[N.J.S.A. 47:1A-6.] therefore unclear whether resort to the catalyst

approach is necessary to determine the
The court recognizes, in one sense, plaintiff has propriety of a fee award. Even analyzing the
not "prevailed" with respect to the disclosure of request under the catalyst approach, though, in
the UFR under OPRA, as no UFR has yet been light of O'Shea, there is no reasonable basis for
prepared. Still, plaintiffs position clearly defendant to have refused access to the UFR;
prevails under OPRA, and a higher degree of the relief plaintiff seeks therefore clearly has a
either candor or due diligence on defendants' basis in the law. It is also apparent from
part would have led them to disclose to plaintiff defendant's conduct the UFR would not have
much earlier, and before plaintiff had to incur been released, if created, without the filing of
the costs of this suit, the UFR had not yet been this suit. In addition, defendants' silence with
created. Moreover, the court is satisfied respect to the UFR's non-existence until after
plaintiff is entitled to attorney's fees under the [*50] a lawsuit was filed flies in the face of the
Page 18 of 19
"cooperation among requestors and agencies" particularly with regard to the second prong of
OPRA seeks to facilitate. Id. at 66; see also id. the catalyst approach requiring the relief sought
at 78 (finding the catalyst approach better have a "basis in law." See id. at 76.
maintains "the cooperative balance OPRA
strives to attain"). As such, an award of On the other hand, several factors weigh
attorney's fees with respect to the UFR is against the award of attorney's fees, in this case,
under the common-law right of access. First,
appropriate."
the only [*52] published appellate authority
Lastly, plaintiff also seeks an award of since Mason the court was able to locate on this
attorney's fees for prevailing on its claim for the question is a footnote, in dicta, in a case in
video. This fee request presents some difficulty which the plaintiff prevailed under OPRA
as plaintiff prevailed on the claim for the video anyway:
under the common law only, and a plaintiffs
We do not address in this decision whether
right to obtain legal fees under the common-
a court may order reimbursement of
law right of access is unsettled. On the one
attorney's fees when records are disclosed
hand, the Mason court suggested [*51] there
pursuant to the common law as opposed to
appears to be no basis for distinguishing
OPRA. See [Mason, supra, 196 N.J. at 79]
between the applicability of the catalyst
(appearing to accept, in the absence of
approach under OPRA's statutory scheme as
briefing and argument to the contrary, that
opposed to the common law. See id. at 79 ("[As
attorney's fees may be awarded in an action
to] whether the question of attorney's fees
based on common law right to disclosure of
merits different treatment in an action brought
public records); Shuttleworth v. City of
under the common law[:] [a]bsent an apparent,
Camden, 258 N.J. Super. 573, 598, 610
theoretical basis for such a distinction, we
A.2d 903 (App. Div.) (reaching no
conclude that the catalyst theory applies to
conclusion as to whether attorney's fees
common law suits as well."). This, though, was
may be recovered under common law right
the Court's only discussion of the issue of
of access to public records), certif. denied,
attorney's fees under the common law, and it
133 N.J. 429, 627 A.2d 1135; 133 N.J. 429,
was provided in a factual construct in which the
627 A.2d 1135 (1992).
plaintiff did not even qualify as a prevailing
party under OPRA. Id. at 79-81. Thus, even [K.L., supra, 423 N.J. Super. at 357.]
assuming the catalyst approach unqualifiedly
applies to the common-law right of access, i.e., This treatment is hardly an endorsement of
there is no "apparent, theoretical basis" for a awarding attorney's fees under the common
distinction from OPRA, the court is left with law, as the court need not have even reached
little guidance as to the appropriate analysis, the issue.12
11 Plaintiff also seeks the imposition of a $1,000 fine pursuant to 12 The subject of attorney's fees under the common-law right of
N.J.S.A. 47:1A-11. While a greater degree of candor would have access has also been the subject of a recent unpublished Appellate
been preferred, the court is not satisfied defendants' denial of access Division decision denying the plaintiffs request. Due to the apparent
to the UFR rises to the level of a "knowing and willfull" violation of scarcity of treatment of the topic, the court cites the decision, Kahler
OPRA as required by 11. That said, O'Shea is unequivocal: UFRs v. N.J. State Police, No. A-3790-09T3, 2011 N.J. Super. Unpub.
cannot properly be withheld from access under OPRA, and, LEXIS 163 (App. Div. Jan. 25, 2011) (slip op.), for the reader's
therefore, as long as O'Shea remains controlling case law, similar reference, even though the practice is disfavored. R. 1:36-3; R. 1:1-
future denials of UFRs may not be viewed in the same manner. 2(a).
Page 19 of 19
In addition, "New Jersey generally follows the and minimize the evils inherent in a secluded
'American Rule,' under which a prevailing party process." Ibid. While "[e]xposure of records to
cannot recover attorney's fees from the loser." the light of public scrutiny may perhaps cause
Mason, supra, 196 N.J. at 70 (citing Rendine v. discomfort to some . . . OPRA is founded on
Pantzer, 141 N.J. 292, 322, 661 A.2d 1202 the premise that society as a whole suffers far
(1995)). [*53] Taking, then, the American Rule more if governmental bodies are permitted to
as the starting point, it is unclear whether operate in secrecy." Ibid.
attorney's fees are appropriate in this instance,
Against this strong policy in favor of access,
as plaintiffs right of access to the video was not
defendants have put forth the unsupported,
as apparent as its right to the UFR, and,
general defense disclosure would jeopardize
consequently, defendants' denial of access to
officer safety and [*55] on-going
the video was not patently unreasonable.
investigations. While cognizant of the
Particularly in light of the absence of
government's interest in conducting a fair and
meaningful review of the issue since Mason,
impartial review of the circumstances of the
and taking into account any fee award would
incident, unfettered by influence or pressure
work essentially as the punishment of a public,
that might be brought by the media, as well as
taxpayer-funded entity, the court prefers to
the concern for officer safety where a threat to
await appellate clarification before further
same is actually shown to exist, OPRA and the
enshrining an exception to the general rule
common law impose a presumption of
plaintiff is not entitled to attorney's fees under
accessibility defendants are ultimately unable
the common law. As such, plaintiffs request for
to overcome.
attorney's fees with respect to the video is
denied. In this case, there exists a significant public
interest in ensuring the open, transparent, and
Counsel [*54] should confer on an agreeable
public review of a matter receiving
amount and memorialize the award of the same
considerable public attention. UFRs are clearly
via a consent order, if possible. If the parties
accessible under O'Shea, and, though an
cannot agree in the first instance, plaintiff may
exception to OPRA applies to the video, it is
petition this court.
still accessible under the common law.
Conclusion Accordingly, the requested records must be
disclosed.
The OPRA statute is intended to be construed
in favor of the public's right of access. It is then Plaintiffs attorney shall submit the appropriate
the burden of the public agency to demonstrate order under the five-day rule.
the law permits a withholding of such access.
"[The court must always maintain a sharp
End of Document-
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
EXHIBIT N
Paff v. Borough of Gibbsboro
Superior Court of New Jersey, Appellate Division

December 4, 2012, Argued; June 17, 2013, Decided
Reporter
JOHN PAFF, Plaintiff-Appellant, v. briefs).
BOROUGH OF GIBBSBORO, ANNE D. John P. Jehl argued the cause for respondents
LEVY in her official capacity as Gibbsboro Borough of Gibbsboro and Anne D. Levy (Jehl
Borough Clerk and Records Custodian, & Fabian, attorneys; Mr. Jehl, on the brief).
TOWNSHIP OF VOORHEES, JEANETTE
Audra A. Pondish argued the cause for
SCHELBERG in her official capacity as respondents Township of Voorhees and
Voorhees Township Clerk and Records Jeanette Schelberg (Wade, Long, Wood &
Custodian, RICHARD TAYLOR and A.B.,' Kennedy, LLC, attorneys; Ms. Pondish, on the
Defendants-Respondents, and CHERYL brief).
COHEN in her official capacity as a Camden
County Assistant Prosecutor, and LAURIE Daniel E. Rybeck argued the cause for
CORSON in her official capacity as a Camden respondents Richard Taylor and A.B. (Weir &
County Assistant Prosecutor, Defendants. Partners LLP, attorneys; Mr. Rybeck, on the
brief).
Notice: NOT FOR PUBLICATION
WITHOUT THE APPROVAL OF THE Judges: Before Judges Messano, Lihotz and
APPELLATE DIVISION. Ostrer.
PLEASE CONSULT NEW JERSEY RULE Opinion

OPINIONS.
PER CURIAM
Prior History: [*1] On appeal from the
This appeal requires us to address the interplay
Superior Court of New Jersey, Law Division,
between the Open Public Records Act (OPRA),
Camden County, Docket No. L-4044-11.
NJ.S.A. 47:1A-1 to -13, and the expungement
Counsel: Richard Gutman argued the cause for statute, 1V.J.S.A. 2C:52-1 to -32. Pursuant to
appellant (Richard Gutman, P.C., and Law OPRA, plaintiff sought release of various
Offices of Walter M. Luers, LLC, attorneys; documents that were the subject of a pending
Mr. Gutman and Walter M. Luers, on the expungement petition. Record custodians in
two municipalities denied the OPRA requests,
We use pseudonymous initials to shield the name of a person whose
albeit for reasons unrelated to the expungement
records were expunged. request. Plaintiff filed suit. Before the
Page 2 of 9
[*2] Civil Part decided the OPRA complaint, because of a pattern of favoritism in the
the Criminal Part granted the expungement department.
order. The Civil Part then concluded that the
expungement order barred release of the On June 27, 2011, plaintiff asked the
requested documents. Gibbsboro record custodian to provide him
with copies of arrest reports related to the
Plaintiff argues that the custodians' denials of complaint-summons; "Daily Activity/Tally
his document requests were wrongful when Sheets/Vehicle Logs" of the Gibbsboro officer
rendered, and the court should have granted who signed the complaint-summons; the "Event
him retroactive relief, notwithstanding the Card/Complaint Card" issued in connection
intervening expungement order. We disagree, with the complaint-summons; incident reports;
and affirm the trial court's order. and use of force reports. Three days later,
I. plaintiff asked the Voorhees record custodian to
provide radio transmissions Taylor made from
In December 2009, A.B. was arrested for the his patrol car through Voorhees Police
alleged simple assault, N.J.S.A. 2C:12-1(a), of communications relating to the incident with
Richard Taylor in Gibbsboro Borough. The A.B., and any responses; mobile data
complaint against A.B. was dismissed the transmissions regarding the incident; and
following month. Over a year later, on May 12, Taylor's daily activities [*4] log.
2011, A.B. filed a petition in the Criminal Part
produced the daily activity sheet.
to expunge all records and information Gibbsboro
pertaining to the arrest, pursuant to N.J.S.A. But, the township clerk asserted that any other
disclosures were prohibited because the case
2C:52-6.
involved domestic violence.
After the expungement petition was pending,
Voorhees refused to disclose any requested
unheard, for over six weeks, plaintiff requested
documents. The township clerk asserted that all
various documents pertaining to the incident.
documents, to the extent they existed, were
Plaintiff already possessed a copy of the
shielded because they were the subject of an
complaint-summons charging A.B. with
ongoing investigation, citing N.J.S.A. 47:1A-
assault. The record does not reflect how
plaintiff obtained the complaint. Plaintiffs 3(a) and (b), and were also inter/intra agency
material under N.J.S.A. 47:1A-1.1. The police
focus of attention was not the arrestee, but the
alleged victim. Taylor was a Voorhees chief later asserted that Taylor's duty shift logs
[*3] Township police officer. Plaintiff believed which were equivalent to the daily activity
logs plaintiff sought were not subject to
Taylor had violated police department rules.
release because they would "divulge[] the
Plaintiff alleged that although Taylor was on
amount of time an officer spends on a call,
duty in a Voorhees patrol car, he violated
surveillance techniques, and staffing levels."
departmental rules because he was not
performing official business while in Plaintiff filed his verified complaint on or about
Gibbsboro. Plaintiff also alleged that Taylor August 10, 2011, seeking a declaration that the
may have violated departmental rules by two municipalities violated his rights under
permitting A.B., a civilian, to be in his patrol OPRA and the common law right of access. He
car. Plaintiff believed the Voorhees Police named the municipalities' record custodians,
Chief ignored Taylor's alleged rule violations
Page 3 of 9
and two assistant prosecutors who, he alleged, police department, including the 2009 incident
advised the Gibbsboro record custodian.' involving Taylor. However, the investigation
was suspended indefinitely in July 2011.
He also named Taylor and A.B. as defendants,
to enable them to assert any privacy or other Judge Orlando also questioned defendants'
interest in the dispute. Plaintiff [*5] sought an assertion that the Prevention of Domestic
order compelling the disclosure of the Violence Act (PDVA), N.J.S.A. 2C:25-17 to -
documents, as well as costs and fees. Plaintiff 35, barred disclosure of the police department
also filed an order to show cause, which the records, particularly inasmuch as no domestic
court signed on August 18, 2011, setting a violence restraining order was sought. In
return date of October 14, 2011. response to Voorhees's assertions that shift logs
would compromise officers' safety, plaintiffs
"[I]n approximately August," the expungement counsel explained his client only sought records
petition was heard in the Criminal Part. reflecting Taylor's whereabouts related to the
Reportedly, the court orally granted the Gibbsboro incident, and not any other officers'
petition. But, the judge did not enter the order activities.
before his transfer to another part. Instead,
Judge Michele Fox entered the expungement The hearing concluded without decision. The
order on September 9, 2011. The order court requested additional briefing on the
compelled the New Jersey State Police impact of the expungement order, and it
Superintendent, the Attorney General, the ordered the municipalities to produce the
Camden County Prosecutor, the Municipal contested records to the court for its in camera
Court, the Gibbsboro Police Chief, and "all review.
other relevant parties" to "expunge, pursuant to
[*7] the second hearing in November 2011,
N.IS.A. 2C:52-5 et seq., the records of the At
Judge Orlando expressed his tentative view that
petitioner . . . [r]elating to [A.B.'s] arrest . . . in
the expungement order precluded release of
Gibbsboro . . . which was dismissed[.]"
some documents to which plaintiff was
On October 14, 2011, Assignment Judge otherwise entitled under OPRA. In the
Francis J. Orlando, Jr. held the first of three meantime, Voorhees re-evaluated its position,
hearings on plaintiffs OPRA complaint. Judge and volunteered to produce the mobile data
Orlando for the first time was presented with transmissions and a redacted copy of the daily
the expungement order by A.B.'s counsel. activities log plaintiff had requested. The
However, before [*6] the judge learned of the documents pertained to Taylor's activities and
expungement order, he expressed skepticism whereabouts, and did not address the incident
about Voorhees's argument that the documents leading to A.B.'s arrest. Nonetheless, the court
could be the subject of an ongoing afforded A.B.'s attorney an opportunity to
investigation, long after the complaint's review those documents before release, and to
dismissal. The record reflects that Voorhees interpose an objection if he believed they were
had retained outside counsel to conduct an subject to the expungement order. Apparently,
administrative investigation into activities in its no objection was made. The court again
postponed its decision in order to ascertain the
status of a reported motion by the county
2 Plaintiff later voluntarily dismissed his claims against the County
prosecutor, pending in the Criminal Part, to
Prosecutor's Office employees.
Page 4 of 9
vacate the expungement order. It had been filed transmissions.3

in connection with defending the claims against He also seeks enhancement of his attorney's
the assistant prosecutors, which were fee award, predicated on securing broader
subsequently dismissed. release of documents.'
In his January 13, 2012 decision, Judge II.

Orlando addressed the only documents still at We review de novo the trial court's
issue - the Gibbsboro arrest records, and the determination regarding the applicability of
Voorhees radio transmissions. [*8] The judge OPRA. K.L. v. Evesham Twp. Bd. ofEduc., 423
had reviewed the radio transmissions in camera N.J. Super. 337, 349, 32 A.3d 1136 (App. Div.
and determined that they constituted records 2011) (citation and quotation omitted), certif.
covered by the expungement order. Regarding denied, 210 N.J. 108, 40 A.3d 732 (2012); see
the radio transmissions, plaintiffs counsel also Newark Morning Ledger Co. v. N.J. Sports
agreed, stating, "Your Honor . . . in light of the
& Exposition Auth., 423 N.J. Super. 140, 159,
expungement order, you properly excluded the 31 A.3d 623 (App. Div. 2011). We apply the
radio transmissions." No one claimed that same standard of review to the court's
either document could be redacted in some way interpretation of the expungement statute. See
to permit partial release of some information In re Kollman, 210 N.J. 557, 577-78, 46 A.3d
outside the expungement order's reach. 1247 (2012); In re Expungement of the
Judge Orlando decided that he was precluded Criminal Records of R.Z., 429 N.J. Super. 295,
from releasing the requested documents. 300, 58 A.3d 1178 (App. Div. 2013).
Although plaintiff argued the record custodians We consider first the issue whether an
violated OPRA when they withheld the expungement order precludes [*10] the release
documents, Judge Orlando held that the of documents that were subject to inspection
intervening expungement order governed and under OPRA, but withheld, before the
precluded relief. "I find that the salutary expungement order was entered. We also
purpose[s] . . . that the legislature meant to consider plaintiffs argument that even if the
advance by promulgating the Expungement Act expungement statute applies, release is
override . . . the Open Public Records Act. And, authorized by NJ:S.A. 2C:52-19 because the
therefore, any records that would be otherwise documents pertain to his pending OPRA
encompassed under the expungement statute litigation. Finally, we comment briefly on the
cannot be released[.]" municipalities' assertion that the custodians
The judge ordered Voorhees to reimburse properly withheld the contested documents on
plaintiff for part of his attorney's fees, based on alternative grounds.
his partial success in securing the release of the A.
daily shift log and mobile-to-mobile
transmissions. We begin with a review of the two statutes.
This [*9] appeal followed. Plaintiff argues that

3 Although plaintiff initially asserted a common law right of access,
he was entitled to an order under OPRA to he does not pursue that claim on appeal.
compel Gibbsboro to release the arrest records, 4 Although Voorhees contests the trial court's award of fees in its
and Voorhees to release the radio opposition brief, we decline to reach the issue, since the township
did not cross-appeal.
Page 5 of 9
Both plaintiffs right to inspect, and A.B.'s right any statute or Executive Order of the Governor;
to prevent disclosure, are creatures of statute. Executive Order of the Governor; Rules of
As OPRA provides a general right to which an Court; any federal law, federal regulation, or
expungement order is an exception, we begin federal order[.]" 1V.J.S.A. 47:1A-1. OPRA
with OPRA. expressly provides [7'12] that it does not
override any existing barriers to access.
OPRA provides a broad right of access to
government records. The statute "shall be (a) The provisions of this act, [N.J.S.A.
construed in favor of the public's right of 47:1A-1 to -13], shall not abrogate any
access." N.J.S.A. 47:1A-1. " OPRA's clear exemption of a public record or government
purpose . . . is 'to maximize public knowledge record from public access heretofore made
about public affairs in order to ensure an pursuant to [NJ:S.A. 47:1A-1 to -13]; any
informed citizenry and to minimize the evils other statute . . . .
inherent in a secluded process.'" Educ. Law Ctr.
(b) The provisions of this act, [N.J.S.A.
v. New Jersey Dept of Educ., 198 N.J. 274,
284, 966 A.2d 1054 (2009) (quoting Mason v. 47:1A-1 to -13], shall not abrogate or erode
any executive or legislative privilege or any
City of Hoboken, 196 N.J. 51, 64, 951 A.2d
grant of confidentiality heretofore
1017 (2008)). The statute generally provides
established or recognized by the
that [*H] all government records shall be
Constitution of this State, [or] statute . . .
subject to public access unless exempt. N.J.S.A.
which privilege or grant of confidentiality
47:1A-1.
may duly be claimed to restrict public
However, the definition of "government access to a public record or government
record" excludes numerous forms of record.
information. 1V.J.S.A. 47:1A-1.1. "OPRA
[N.J.S.A. 47:1A-91
excludes twenty-one categories of information,
making the public right of access not absolute." The "anti-abrogation" provision was also added
Educ. Law Ctr., supra, 198 N.J. at 284 (citation by amendment. Assembly No. 1309 (3rd
omitted). Twenty categories of information reprint) (June 26, 2000).
excluded from the definition of "government
record" were added, by amendment, during The statute also preserves a citizen's right to
legislative consideration. See Assembly No. privacy of personal information. "[A] public
1309 (4th reprint) (May 3, 2001) (adding agency has a responsibility and an obligation to
thirteen exclusions); Assembly No. 1309 (5th safeguard from public access a citizen's
reprint) (Jan. 3, 2002) (adding seven more personal information with which it has been
exclusions). Among the exclusions added by entrusted when disclosure thereof would violate
amendment was "information which is to be the citizen's reasonable expectation of
kept confidential pursuant to court order[.]" privacy[.]" N.J.S.A. 47:1A-1. When an OPRA
provision mandating disclosure conflicts with
In addition to statutory exclusions, a record [*13] OPRA's privacy provision, a court must
may be exempt pursuant to other provisions of engage in a balancing of the interests. Burnett
OPRA itself, or "any other statute; resolution of v. Cnty. of Bergen, 198 N.J. 408, 425-26, 968
either or both houses of the Legislature; A.2d 1151 (2009). The court must apply a
regulation promulgated under the authority of seven-part test:
Page 6 of 9
(1) the type of record requested; (2) the specified in said order shall be removed
information it does or might contain; (3) the from the files of the agencies which have
potential for harm in any subsequent been noticed of the pendency of petitioner's
nonconsensual disclosure; (4) the injury from motion and which are, by the provisions of
disclosure to the relationship in which the this chapter, entitled to notice, and shall be
record was generated; (5) the adequacy of placed in the control of a person who has
safeguards to prevent unauthorized disclosure; been designated by the head of each such
(6) the degree of need for access; and (7) agency which, at the time of the hearing,
whether there is an express statutory mandate, possesses said records. That designated
articulated public policy, or other recognized person shall, except as otherwise provided
public interest militating toward access. in this chapter, insure that such records or
the information contained therein are not
[Id. at 427 (quoting Doe v. Poritz, 142 N.J. 1, released for any reason and are not
88, 662 A.2d 367 (1995)).] [*15] utilized or referred to for any
The statute generally requires a custodian of purpose. In response to requests for
records to respond to a request within seven information or records of the person who
business days after receiving the request, was arrested or convicted, all noticed
provided the record is available and not in officers, departments and agencies shall
storage or archived. N.IS.A. 47:1A-5(i). A reply, with respect to the arrest, conviction
person who is denied access to a government or related proceedings which are the subject
record may seek administrative relief from the of the order, that there is no record
Government Records Council, or file an action information.
in Superior Court. N.J.S.A. 47:1A-6. The public [1V.J.S.A. 2C:52-15.]
agency bears the burden to prove denial of
access was authorized by law. Ibid. "Expunged records shall include complaints,
warrants, arrests, commitments, processing
The [*14] statute expressly provides that the records, fingerprints, photographs, index cards,
remedy for a violation is compelled access and 'rap sheets,' and judicial docket records."
attorney's fees. "If it is determined that access N.J.S.A. 2C:52-1. The statute also provides that,
has been improperly denied, the court or "[u]nless otherwise provided by law, if an order
agency head shall order that access be allowed. of expungement is granted, the arrest,
A requestor who prevails in any proceedings conviction and any proceedings related thereto
shall be entitled to a reasonable attorney's fee." shall be deemed not to have occurred[.]"
Ibid. N.J.S.A. 2C:52-27.
Turning to expungement, contrary to the The statute provides relief to persons convicted
general right to inspect government records, an
of crimes, IV.J.S.A. 2C:52-2, disorderly persons,
order of expungement requires the removal and petty disorderly persons offenses, N.JS.A.
segregation of covered records, and bars their2C:52-3, and ordinance violations, IV.J.S.A.
release except as provided: 2C:52-4, and persons who were arrested but not
If an order of expungement of records of convicted. IV.IS.A. 2C:52-6. The court must
arrest or conviction under this chapter is hold a hearing on an expungement petition
granted by the court, all the records within thirty-five to sixty days after filing.
Page 7 of 9
1V.J.S.A. 2C:52-9. A person who satisfies the exceptions for the use of documents
statutory prerequisites [*16] for expungement notwithstanding an expungement order, no
of an arrest is presumptively entitled to an order provision is made for releasing documents
of expungement. Cf. In re Kollman, supra, 210 sought pursuant to OPRA. Specific exceptions
N.J. at 570 (referring to presumptive permit use of documents in connection with
entitlement to expungement of conviction applications for diversionary treatment, bail,
records after ten years). The State or other parole, incarceration, subsequent expungement
objector bears the burden to establish grounds efforts, and employment with the judiciary and
for denying the petition, including that "Nile law enforcement. N.J.S.A. 2C:52-17, -20 to -23,
need for the availability of the records -27(c); see G.D. v. Kenny, 205 N.J. 275, 296,
outweighs the desirability of having a person 15 A.3d 300 (2011) (discussing exceptions).
freed from any disabilities as otherwise B.
provided[.]" N.J.S.A. 2C:52-14(b); see also
State v. XYZ Corp., 119 N.J. 416, 423, 575 Applying the two statutes, we conclude that the
A.2d 423 (1990) (stating that State must prove expungement order's prohibition of disclosure
need under N.J.S.A. 2C:52-14(b) by under N.JS.A. 2C:52-15 overrides the power of
preponderance of the evidence). the court to order the remedy of access under
N./S.A. 47:1A-6.5
The statute is not designed to provide relief to
repetitive offenders. IV.J.S.A. 2C:52-32. It We [*18] recognize that when plaintiff
assists convicted persons in their efforts at requested the arrest record and radio
rehabilitation and reentry. In re Kollman, transmissions from Gibbsboro and Voorhees,
supra, 210 N.J. at 580. As for persons not the expungement order was not in place,
convicted, it shields them from stigma and although A.B.'s petition had been pending for
potential discrimination. Cf. Ulinsky v. six weeks. Thus, neither the expungement
Avignone, 148 N.J. Super. 250, 254-55, 372 statute, nor an exemption under OPRA,
A.2d 620 (App. Div. 1977) (construing purpose excused the custodians' failure to disclose.6
of predecessor provision on expungement of
However, by the time plaintiffs complaint to
arrest records to "provide the means of
insulating one acquitted of a charge of criminal
conduct from the disabilities or adverse 'Plaintiff presented to us a recent unpublished decision of another
[*17] effects which could be foreseen as panel of our court, which he asserts held that an expungement order
does not preclude release under OPRA of documents requested
resulting from dissemination of the fact of his before entry of the expungement order. The decision is not
mere involvement with law enforcement"). precedential. R. 1:36-3. We therefore need not address the decision.
However, by assuring that expunged records However, we note the case is distinguishable in that the former
offender who obtained the expungement order did not claim that the
are segregated but not destroyed, the statute is expungement order barred release.
designed not to impede law enforcement. See
We do not address whether a records custodian, aware an
XYZ Corp., supra, 119 N.J. at 423 (observing
6
expungement petition is pending when an OPRA request is filed,

that current statute replaced a law "that did not may obtain relief from the court. We also do not address whether and
adequately protect law-enforcement agencies' under what circumstances the court may stay a response under
OPRA pending an expungement petition; nor whether an OPRA
interests in maintaining reliable information requester may intervene in the expungement matter and assert a
concerning criminal activity"). "need for the availability [*19] of the records [that] outweighs the
desirability of having a person freed from any disabilities as
Although the expungement statute outlines otherwise provided." N.JS.A. 2C:52-14(b).
Page 8 of 9
compel disclosure was heard, the Criminal Part arrestees and convicted persons. However, we
had entered the expungement order. OPRA find some support for our conclusion in
expressly excludes from the definition of OPRA's recognition of a general privacy right,
government records "information which is to be which must- be balanced against the right of
kept confidential pursuant to court order." access. Here, we are presented with more than a
N.J.S.A. 47:1A-1.1. OPRA does not preclude general right to privacy in personal
such an order from becoming effective information. A.B. enforced an express statutory
immediately. OPRA also provides that it shall right to non-disclosure based on an
not "abrogate" any exemption from disclosure expungement order.
made pursuant to any statute, and shall not
"abrogate or erode" any "grant of Our conclusion is also supported by OPRA's
confidentiality heretofore established by . . . legislative history. During consideration of the
statute[.]" N.J.S.A. 47:1A-9. By its plain legislation, the Legislature amended [*21] the
language, that exception encompasses the non- proposed law to assure that the expanded right
disclosure of arrest records pursuant to the of access did not "abrogate or erode" existing
expungement statute. laws that made records confidential. The
Legislature included among its numerous
Also, the expungement statute does not exclusions an express provision covering
authorize disclosure except by specific information rendered confidential by court
exemption. There is no provision for release order. These amendments reflect an intent to
based on a request for documents that preceded subordinate OPRA to pre-existing statutory
entry of the order. The expungement statute regimes, pursuant to which documents are
accommodates the general interest in access shielded from public inspection.
upon a showing that the "need for the
availability of the records outweighs the We also find support in a general principle of
desirability of having a person [*20] freed from statutory construction. "It is a well established
precept of statutory construction that when two
any disabilities as otherwise provided[.]"
N.J.S.A. 2C:52-14(b). However, once a court statutes conflict, the more specific controls over
enters an expungement order, absent such a the more general." New Jersey Transit Corp. v.
showing, there is no exception based on a Borough of Somerville, 139 N.J. 582, 591, 661
A.2d 778 (1995) (citations omitted); Green v.
general public interest in the expunged records.
Auerbach Chevrolet Corp., 248 N.J. Super.
Thus, notwithstanding the express command in 128, 133, 590 A.2d 678 (App. Div. 1991), affd,
N.J.S.A. 47:1A-6 that the court order access in 127 N.J. 591, 606 A.2d 1093 (1992). In this
the event of improper denial, we conclude that case, the expungement statute is more specific
the expungement order bars that relief. The than OPRA. OPRA governs access to a broad
expungement order removes the record from universe of government records. The
OPRA's ambit, thereby avoiding conflict with a expungement statute addresses the narrow
statutory right to confidentiality. subset of documents pertaining to a person's
arrest or conviction. Therefore, non-disclosure
We recognize that the purpose of the two under the expungement statute should prevail.
statutes are in conflict. OPRA furthers the goal
of open records. The expungement statute Having concluded that the expungement statute
protects the privacy interests of individual overrides [7'22] the right to access under
Page 9 of 9
OPRA, we consider plaintiffs argument that he non-disclosure of the records. We agree with
was entitled to access pursuant to the Judge Orlando that the ongoing investigation
expungement statute. The expungement statute exception in OPRA, 47:1A-3(a), did
"permits the inspection of expunged records if not shield the Voorhees documents, as the only
the Superior Court finds 'good cause shown and alleged investigation into certain practices in
compelling need based on specific facts,' and the township's police department was
'only in those instances where the subject suspended indefinitely before plaintiff filed his
matter of the records of arrest or conviction is complaint.
the object of litigation or judicial proceedings.'"
G.D., supra, 205 N.J. at 296 (quoting 1V.J.S.A. The municipalities' reliance on the PDVA was
2C:52-19). We are unpersuaded. also misplaced. 1V.J.S.A. 2C:25-33 states "Mlle
Administrative Office of the Courts shall . . .
We need not reach the issue whether plaintiff maintain a uniform record of all applications
has established "good cause" and "compelling for relief pursuant to [N.J.S.A. 2C:25-25 to -
need," although we question whether his 29]", [*24] and "[a]ll records maintained
general invocation of OPRA's goal of open pursuant to this act shall be confidential and
government is sufficient, particularly in view of shall not be made available to any individual or
the other disclosures already made. Plaintiff institution except as otherwise provided by
misconstrues 1V.J.S.A. 2C:52-19. The section law." The PDVA does not mandate the
allows disclosure only if "the subject matter of maintenance of arrest records or radio
the records" is the object of the litigation. In transmissions by police departments. Therefore,
plaintiffs OPRA litigation, the records 1V.J.S.A. 2C:25-33 is inapplicable. Pepe v.
themselves are the object of the litigation. Pepe, 258 N.J. Super. 157, 609 A.2d 127 (Ch.
Div. 1992), upon which defendant's rely, is not
The apparent purpose of the provision is to to the contrary. That decision applied NJ:S.A.
allow the disclosure of expunged records, for 2C:25-33 to the Superior Court Clerk's Office,
good cause and compelling need, where the another arm of the judiciary.
documents are evidential of facts or issues in
dispute [*23] in litigation. See, e.g., G.D., In sum, we conclude that the expungement
supra, 205 N.J. at 296 (applying the exception order in this case overrides the plaintiffs right
to a defamation defendant's ability to establish to access under OPRA.
the truthfulness of statements about a former
offender's criminal record). The section Affirmed.
conceivably may permit disclosure in a civil
action against an arrestee or convicted person End Of Document
for damages arising out of the incident

addressed in the expunged records. However,
we do not perceive the provision to permit
disclosure when the subject matter of the
litigation is disclosure itself.
Given our disposition of plaintiffs argument,

we need only briefly address defendants'
argument that alternative grounds supported the
EXHIBIT 0
R.O. v. Plainsboro Police Dep't
Superior Court of New Jersey, Appellate Division

April 20, 2009, Argued; June 17, 2009, Decided
Reporter
R.O. (A Minor), Plaintiff-Appellant, v. from middle school for ten days and
PLAINSBORO POLICE DEPARTMENT, adjudicated in the Family Part for weapons
CUSTODIAN OF RECORDS, Defendant- possession, made a request for investigatory
records, narrative reports and complaints
Respondent.
related to weapons possessions on school
Notice: NOT FOR PUBLICATION grounds under the Open Public Records Act,
WITHOUT THE APPROVAL OF THE N.J.S.A. 47:1A-1 to -13 (OPRA). Defendant
APPELLATE DIVISION. Plainsboro Police Department, Custodian of
Records,
PLEASE CONSULT NEW JERSEY RULE denied the request, and plaintiff instituted an
1:36-3 FOR CITATION OF UNPUBLISHED action to secure the production of the records
OPINIONS. sought. On defendant's motion for summary
judgment, the Law Division judge dismissed
Prior History: On appeal from the
the complaint. Plaintiff appeals, and we affirm.
Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-5901-07. These are [*21 the relevant facts adduced from
the record before the motion judge. On March
Counsel: Rotimi A. Owoh argued the cause for 3, 2004, R.O., then thirteen years-old, was
appellant. found to be in possession of a knife while
Joseph C. Tauriello argued the cause for attending the West Windsor-Plainsboro
respondent (Mason, Griffin & Pierson, Community Middle School (the school). He
attorneys; Mr. Tauriello, of counsel and on the was suspended from the school for ten days.
brief; Victoria D. Britton, on the brief). The incident was referred to the Plainsboro
Police Department (the Police) pursuant to
Judges: Before Judges Carchman and N.JA.C. 6A:16-6.3. Within a week, the Police
Simonelli. filed a juvenile complaint against plaintiff
alleging delinquency, which would have
Opinion
constituted fourth-degree possession of a
PER CURIAM I Although plaintiff filed the underlying action against the Plainsboro
Police Department, the Custodian of Records under OPRA was the
Plaintiff R.O., a student who was suspended Township Clerk. The improper party does not alter the result in this
case.
Page 3 of 6
R.O. v. Plainsboro Police Dept
Sr. v. West Windsor Plainsboro Regional As a result of the denial, plaintiff filed an action
School District, Docket No. L-5901-07, against defendant, alleging that the documents
alleging violations of both State and Federal sought were "public records" and the denial
anti-discrimination laws arising out of the violated plaintiffs right to access under OPRA
March 2004 incident and subsequent and the common law. The complaint also
suspension. According to defendant, the sought: 1) a declaration that defendant's actions
litigation in that case is ongoing. were "illegal and invalid;" 2) an interlocutory
and permanent order that defendant furnish the
On June 18, 2007, plaintiffs attorney submitted information sought; and 3) damages and
a request under OPRA and the common law counsel fees
and costs.
right of access to records for the following:
Copies of "Investigative Reports" prepared Following defendant's motion for summary
by [defendant's] department relating to all judgment, the motion judge found that the
incidents of weapon (knife, pallet [sic] information sought by plaintiff constituted
guns, etc.) possession reported by the "criminal investigatory records," which were
school district of [defendant's] department exempt from production under N.J.S.A. 47:1A-
from 2000 through 2006. 1.1. He rejected plaintiffs argument that he was
entitled to redacted juvenile records, because
Copies of "Narrative Reports" prepared by said redaction protected juvenile privacy
[defendant's] department relating to all concerns, commenting Nythat it was a
incidents of weapon possession reported by "specious argument at best." He also found that
the school district to [defendant's] N.JA.C. 13:94-1.5, specifically noted that
department from 2000 to 2006. juvenile records were confidential, not subject
to public inspection under OPRA, and plaintiff
Copies of "Complaints" prepared by did not fall within "any of the statutorily
[defendant's] department and or filed exempted classes of persons that may inspect or
against all students reported to [defendant's] have access to third party juvenile criminal
department by the school district for incidents, [pursuant to N.J.S.A.
possession of knife and/or any other 2A:4A:60(a)(1)-(12)]." Finally, he found that
weapon on school property from 2000 to "the overwhelming state interest in maintaining
2006. a minor's expectation of privacy" outweighed
the needs plaintiff had for discovery on his
The [*6] Clerk replied by letter dated June 26, related discrimination matter.
2007, that plaintiffs OPRA request was denied
for the following reasons: Plaintiff argued that the information sought was
[OPRA] does not require a government a public record, since the Police and the District
agency to conduct research or to collate had entered into a "Uniform State
information in the agency's possession. Memorandum of Agreement Between
[Plaintiffs] request does not ask for Education and Law Enforcement Officials" in
specification [sic] description of the order to comply with juvenile crime reporting
documents sought. requirements set forth by N.J.S.A. 18A:17-46
Investigative and narrative reports do not and N.J.A.C. 6A:16-6.3, which imposed a legal
have to be disclosed. duty to keep investigative and narrative reports
of incidents involving juvenile crimes in
Page 4 of 6
school. The judge rejected plaintiffs argument We have carefully reviewed the arguments of
and found that while 1V.J.S.A. 18A:17-46 counsel as well as the record, and we concur in
imposed a legal duty on the District to "produce the June 27, 2008 written opinion of Judge
criminal investigative reports regarding Rodriguez. We add the following additional
knowledge [*8] of juvenile delinquency comments.
incidents," there was no similar duty imposed
on the Police to produce said information. The policy of OPRA is that "government
Further, even if the Police had a statutory duty records shall be readily accessible for
to keep records, the information was still inspection, copying, or examination by the
exempt from public disclosure under 0-PRA, citizens of this State, with certain exceptions,
since it was a criminal investigatory record. for the protection of the public interest . . . and
any limitations on the right of access accorded
As to plaintiffs common law right to access [by OPRA] as amended and supplemented,
claim, the judge found that the information shall be construed in favor of the public's right
sought was not a public document, since "[n]o of access." N.J.S.A. 47:1A-1. "OPRA's clear
New Jersey statute, regulation or administrative purpose . . . is to maximize public knowledge
code requires [the Police] create or maintain about public affairs in order to ensure an
records of weapon possession incidents informed citizenry and to minimize the evils
reported to them by school districts, as part of inherent in a secluded process." Renna v.
their official job duties, nor are they responsible County of Union, 407 N.J. Super. 230, 238, 970
for filing such records." However, he noted that A.2d 414, 2009 N.J. Super. LEXIS 119, *13
juvenile complaints fit within the definition of (App. Div. 2009) [*10] (quoting Educ. Law
public documents. They are required by law to Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 966
be made and filed in a public office, but the A.2d 1054 (2009)) (internal quotations
"overwhelming" policy in keeping these omitted). See also Burnett v. County of Bergen,
records confidential outweighed any interest 402 N.J. Super. 319, 326, 954 A.2d 483 (2008)
plaintiff had in obtaining the information for (noting that "New Jersey's public policy favors
purposes of maintaining his related access to sufficient information to enable the
discrimination proceeding. The judge denied public to understand and evaluate the
plaintiffs request, and this appeal followed. reasonableness of the public body's action")
(internal quotations omitted); Paff v. City of
On appeal, plaintiff asserts that the judge erred East Orange, 407 N.J. Super. 221, 225, 970
by dismissing the complaint as the records A.2d 409, 2009 N.J. Super. LEXIS 117, *4
[*9] are public records subject to disclosure (App. Div. 2009) (noting that "OPRA is
under OPRA and the common law right to predicated upon a legislative finding that
access. He further claims that the issues of 'government records shall be readily accessible
privacy and confidentiality could be addressed for inspection, copying or examination by the
by redaction or a protective order. citizens of this State') (quoting N.J.S.A. 47:1A-
1).
OPRA defines a "government record" in

'Defendant raised the issue of standing, asserting that counsel made pertinent part as
the OPRA request rather than R.O. We reject that claim, as the
request clearly stated that it was made in the capacity as an attorney any paper, written or printed book,
for R.O.
Page 5 of 6
document, drawing, map, plan, photograph, related civil enforcement proceeding, including
microfilm, data processed or image those exempt by OPRA, are created "in the
processed document, information stored or exercise" of the police's function as law
maintained electronically or by sound- enforcement. The fact that all records are
recording or in a similar device, or any prepared in order to aid the police in furthering
copy thereof, that has been made, its law enforcement function does not convert
maintained or kept on file in the course of them into ones required to be made, maintained
his or its official business by any officer, or filed by law. Following plaintiffs reasoning,
commission, agency or authority of the there would not be any criminal investigatory
State or of any political subdivision records that are exempt from production under
[*11] thereof, including subordinate boards OPRA, which would render that portion of the
thereof, or that has been received in the statute moot. This is an untenable result.
course of his or its official business by any
such officer, commission, agency, or Plaintiffs second argument rests on similarly
authority of the State or of any political flawed reasoning. Plaintiff premises his
subdivision thereof, including subordinate argument on the requirement that 1) all school
boards thereof. districts file annual reports of all juvenile
delinquent incidents that occurred within the
[N.J.S.A. 47:1A-1.1.] district, and 2) the Commissioner of Education
file with the Senate and General Assembly an
Although OPRA "defines 'government record'
Annual Report on Violence, Vandalism and
broadly [, it] also excludes twenty-one Substance Abuse in New Jersey Public Schools
categories of information from the definition." based on the district reports. These reports
Mason v. City ofHoboken, 196 N.J. 51, 65, 951 include the number of incidents in which
A.2d 1017 (2008). These categories are complaints were or were not filed. Plaintiff
considered "confidential" and are exempt from argues that in order to "accurately"
the definition of "government record." N.J.S.A. [*13] comply with the report, "the school
47:1A-1.1. One of the protected categories is district must find out from local police the
criminal investigatory records. Ibid. OPRA specific incidents in which complaints were and
defines a "criminal investigatory record" as "a were not filed against student offenders." This
record which is not required by law to be made, is incorrect. The school district needs only
maintained or kept on file that is held by a law statistical information, i.e., the number of
enforcement agency which pertains to any complaints filed versus the number of incidents
criminal investigation or related civil reported by the school districts. Furthermore,
enforcement proceeding." Ibid. these reporting requirements have no bearing
Plaintiff argues that the information sought is on "investigative" and "narrative" reports
not a criminal investigatory record. First, plaintiff sought in its OPRA request.
plaintiff claims that the documents requested Third, plaintiff argues that since the police and
"are normally created by police officers in the the District entered into an agreement "for the
exercise of their public functions as law primary purpose of implementing the
enforcement officers." Plaintiffs argument is requirements of N.JA.C. 6A:16-6.3," which
1*121 without merit. All records created by the requires school officials to report any incidents
police pertaining to a criminal investigation or of violence, weapons or drugs possession to the
Page 6 of 6
prosecutor or designated law enforcement We have carefully reviewed plaintiffs

officers, they created a legal duty for the police additional arguments, including his common
to maintain the records sought. As the judge law claim of access, and we conclude that they
correctly noted, this legal duty is imposed on are without merit. R. 2:11-3 (e)(1)(E).
the District to report incidents not for the police
to create or maintain investigative or narrative Affirmed.
reports.
URI of Document
Finally, similar to his first argument, plaintiff
argues that in order for the police to "accurately
comply" with N.J.S.A. 52:17B-5.5, which
requires 1*14] the police to file an Annual
Crime Report, including statistical data
involving the race and number of juveniles
charged with weapons possessions, the police
are legally required to maintain records relating
to juvenile weapons possessions on school
grounds. Again, the fact that the police create
and maintain certain records that aid the police
in its legally mandated duties do not convert
such records into ones available to the public.
The only duty imposed on the Police by
N.J.S.A. 52:17B-5.5 is to report statistics. If,
therefore, plaintiff, by way of example, sought
the number and racial composition of juveniles
charged with weapons within the District,
defendant would be required to produce that
information under OPRA. By contrast, what
plaintiff instead seeks here is properly
classified as a "criminal investigatory record,"
which is exempt from production under OPRA.
Further, even if the documents sought were not

classified as "criminal investigatory records," it
is clear that the records sought by plaintiff
predominately contain juvenile records, since
plaintiff requested incidents of possession of
weapons that occurred on school grounds.
Under N.J.A. C. 13:94-1.5(3), "[1]aw
enforcement 1*15] records pertaining to
juveniles charged as a delinquent or found to be
part of a juvenile-family crisis are confidential
[and] . . . [s]hall not be subject to public
inspection or copying pursuant to [OPRA]."
EXHIBIT P
Hampton Farm, LLC v. Borough of Hampton
Superior Court of New Jersey, Law Division, Hunterdon County

June 15, 2012, Submitted; July 17, 2012, Decided
Docket No. HNT-L-588-1I
Reporter
Hampton Farm, LLC v. The Borough of (the Borough) and the Highlands Water
Hampton and The Highlands Water Protection Protection and Planning Council (the Council),
and Planning Council in an effort to compel the disclosure of certain
documents.
Plaintiff made a request for documents from the
WITHOUT THE APPROVAL OF THE
Council under the Open Public Records Act
APPELLATE DIVISION.
(OPRA). The Council responded to plaintiffs
PLEASE CONSULT NEW JERSEY RULE request for documents, in part, with a privilege
1:36-3 FOR CITATION OF UNPUBLISHED log containing 35 emails that the Council
OPINIONS. claimed were exempt from disclosure. Plaintiff
thereafter filed this action under OPRA and the
Judges: [*1] The Honorable Peter A. common law to compel production of the 35
Buchsbaum, J.S.C. emails.1
Opinion by: Peter A. Buchsbaum In support of their refusal to produce the

requested documents, defendants assert that the
Opinion emails are exempt from public disclosure under
OPRA because the emails constitute [*2] intra
and inter-agency, pre-decisional, deliberative
Memorandum of Decision on Application for
communications between the Council and the
Order to Show Cause
Borough. Moreover, defendants contend that
Application for Order to Show Cause: Access plaintiff does not possess a common law right
to Documents under the Open Public Records of access to the emails because plaintiffs
Act interest in public disclosure of the emails does
not outweigh the governmental interest in non-
Opposed disclosure. See Council's Opposition Brief at
41. Defendant Hampton also asserts that the
Facts and Procedural Posture:
Court lacks jurisdiction to hear this Application
Plaintiff, Hampton Farm, LLC, pursues the
present Application for Order to Show Cause 1 The Highlands Council claims that 4 emails are clearly internal and
against defendants, the Borough of Hampton interagency. Brief at 22, N.4. Plaintiff does not challenge this
assertion.
Page 2 of 7
for Order to Show Cause due to deficiencies in Among those "certain exceptions" to general
Jacob Haberman's verification. Hampton disclosure of government records via the
further submits that plaintiff lacks standing here definition of public record and hence exempt
because plaintiff was not the records requester. from disclosure as "inter-agency or intra-
Next, Hampton maintains that summary action agency advisory, consultative, or deliberative
is not appropriate here. A11 the defendants material." [*4] 47:1A-1.1. This
ultimately conclude that plaintiffs Complaint privilege/exemption "permits the government
should be dismissed because defendants to withhold documents that reflect interagency
provided all documents to plaintiff that they are advisory opinions, recommendations, and
legally obliged to provide. deliberations comprising part of a process by
which governmental decisions and policies are
In response to defendants' contentions and in formulated."
Education Law Center v. New
support of plaintiffs Application for Order to Jersey Dept of
Educ., 198 N.J. 274, 285, 966
Show Cause, plaintiff insists that defendants A.2d 1054 (2009) (internal citation
omitted).
are required to disclose the 35 emails under
OPRA. Plaintiff contends that the verification In order to invoke the deliberative process
of Jacob Haberman meets all legal privilege, a government agency must show that
requirements for such a verification. the documents were pre-decisional (i.e., created
[*3] Plaintiff next asserts that it has standing to before the decision occurred) and deliberative
pursue this action because its attorney, in (i.e., contain opinions, recommendations, or
requesting the subject documents, acted on advice on agency policies). Id. at 286 (internal
behalf of plaintiff in doing so. Summary action, citations omitted). Even if these criteria are
plaintiff continues, is appropriate in this type of met, however, and the deliberative process
action. Plaintiff further claims that defendants privilege is invoked, a litigant can still obtain
are not exempt from disclosing the emails access to the documents if the litigant shows
under OPRA because the emails do not that "the need for the materials overrides the
represent inter-agency, pre-decisional, government's interest in confidentiality." Id. at
deliberative communications. Plaintiff also 287.
contends that it is entitled to access these
As an initial matter, claims under OPRA may
documents under the common law, as the
interests in disclosure outweigh the interests in be heard in a summary fashion by a court, like
non-disclosure. See Pl.'s Reply Brief at 13. here, as authorized by the OPRA statute itself.
Plaintiff concludes that defendants must be See N.J.S.A. 47:1A-6 ("Any such proceeding
compelled to disclose the 35 emails at issue shall proceed in a summary or expedited
manner."). The person who was denied access
here.
to [*5] the government records, termed "the
Analysis: requestor," has standing to pursue this action.
Id.
The purpose of OPRA is to ensure that
"government records shall be readily accessible Here, plaintiffs attorney requested the
for inspection, copying, or examination by the documents while representing plaintiff Surely
citizens of this State, with certain exceptions, that representation is sufficient to grant plaintiff
for the protection of the public interest." standing to pursue this action. Id. Further,
N.JS.A. 47:1A-1. contrary to defendants' assertion, the
Page 3 of 7
verification provided by Jacob Haberman is deliberation but about obtaining money from
sufficient to support the current application, as another branch of government. To give the term
Mr. Haberman is the managing member of "interagency" such breadth in this context
Hampton Farm, LLC and thus clearly has would make a "fortress of the dictionary" in a
personal knowledge of the OPRA document way that impedes the manifest statutory
request (which was submitted at his direction) objective of open government. Lance v.
in order to satisfy the requirements of the McGreevey, 180 N.J. 590, 853 A.2d 856 (2004)
relevant Rules of Court. See, e.g., R. 1:6-6. citing Judge Learned Hand in Cabell v.
Therefore, plaintiffs Application for Order to Markham, 148 F.2d 737, 739 (2d Cir. 1945) "It
Show Cause, seeking disclosure of the subject is one of the [*7] surest indexes of a mature
documents under OPRA, is properly heard by and developed jurisprudence not to make a
this Court. fortress out of the dictionary." As our courts
have also stated "[i]t is a commonplace that
Further, none of the facts in the verified often the surest way to misconstrue a statute is
complaint are seriously in contention. They all to read it literally." New Jersey State Bd. of
relate to documents and decisions that all Architects v. Armstrong, 89 N.J. Super. 358,
parties agree occurred. Moreover, it would be 360, 215 A.2d 51 (App. Div. 1965). To subject
nonsensical at this juncture some 10 months all communications about funding of state
after the verified complaint was filed to deny grants to localities to privilege would be
relief on this point on such grounds. precisely such perversion of the statute, whose
aim is transparcncy. To call such items
Inter-agency Communication
interagency communications would expand the
The request for the emails at issue here arose scope of the statutory exemptions beyond their
out of the [*6] Borough's request for financial obvious purpose, that is to protect collaborative
assistance from the Council, and approved in decision making by coordinated government
Highlands Council Resolution #2011-19 based agencies. Surely the Legislature never
upon the Borough's proposed plans which anticipated such a limitation on the scope of
detailed the scope of work to be performed. documents subject to OPRA in 2001, when it
The information sought centers solely around was amended and strengthened.
the grants approved in this resolution. The
Further, as the Court noted in oral argument,
requests are set forth in full in the moving
there are numerous interactions between
papers. See Exh. K to certification of Guliet D.
localities and the state involving grants,
Hirsch. In this capacity, the Council (as a state
highway plans, fiscal affairs, and the like. For
agency) reviewed the plans of the Borough in
instance, the state grants highway funds for the
order to determine if the Borough was entitled
purpose of improving roadways. It provides
to a monetary grant.
various forms of educational assistance. It
This type of relationship -- application for determines exemptions from the local bonding
public funds from a different level of [*8] limits upon local application. These
government -- is surely not one the Legislature examples of local requests for state approval or
contemplated in creating the deliberative state funds demonstrate the absurdity of a
process privilege exception to OPRA's general literal use of the statutory term in reference to
disclosure requirements. This is not about interagency communications. The Legislature,
Page 4 of 7
in expanding the right to know in 2001, clearly documents to see, if they are indeed privileged
did not expect wholesale secrecy as to such or should be released. After such review and
interactions. analysis, it is satisfied it can determine the
matter without further proceedings such as it
Further, the Court observes that the Highlands
had originally contemplated.
Act specifically provides for the kind of
collaborative inter-agency relationship that In order to be "deliberative," the emails must
OPRA envisions. Under N.J.S.A. 13:20-20, the have contained opinions, recommendations, or
Council shall accord legal representation to a advice on agency policies. Education Law
local government which requests it under Center, 198 N.J. at 286. Here, the Borough, in
certain circumstances. Discussions of such its application to the Council for financial
representation, or provision of same, would assistance, was not giving advice to the Council
arguably be interagency communications of the on agency policies, but was seeking
kind the Legislature sought to protect. Here, the [*10] money. The Council was telling the
emails at issue reflect that no such Board how to get it. The alleged "deliberation"
representation was requested or offered. thus relates to dollars.
Deliberative Process Exemption "[T]he purpose of the [deliberative process]

privilege is to permit open and frank
The above observations could end the debate discussions of administrative action before
for 31 of the 35 documents since it is only policy is set[,]"; the fulfillment of that purpose
interagency deliberative and pre-decision is absent here. See Correctional Med. Servs. v.
comments that are protected. N.J.S.A. 47:1A- State, 426 N.J. Super. 106, 117, 43 A.3d 1174
1.1. However, the contentions that these (App. Div. 2012). The processes involved in
documents are deliberative and predecisional the Council's review of the Borough's
will be examined as to these documents as well application for financial assistance or
as the [*9] four that are clearly intra-agency revocation thereof, or plan review, are "not the
communications. sort of actual policymaking that the deliberative
The Court finds that defendants have not shown process privilege was designed to protect." Id.
that the email communications between the at 123. Accordingly, the deliberative process
Borough and the Council .were "deliberative" in privilege does not apply to the present action so
order to invoke the protection of OPRA's as to warrant non-disclosure of the 35 emails.
deliberative process privilege exception and Further, since the records are neither
thus warrant non-disclosure. interagency or deliberative, they cannot be
exempt as pre-decisional, a term not contained
As noted at oral argument, the precise nature of
the documents in question was not revealed in in the statute, but arising from case law
governing the deliberative process. The parties'
the moving papers. The state's summary
over whether there were one or six
privilege log, labeling all 35 as Advisory, debate
Consultative, Deliberative (ACD) is decisions is interesting in the regard, but not
Communication between levels of
unenlightening. To ensure accuracy, the Court conclusive.
government over grants -- the sole subject of
ordered the defendants to produce all withheld
requests -- should [*11] be disclosed
documents which it has now reviewed in the
whether or not they precede grant decisions,
camera, including the 4 intra-agency
Page 5 of 7
where they do not meet the criteria for being leading up to the state's determination is
interagency or deliberative is being ministerial. directly relevant to understanding whether
When money is concerned, the public should the state's action was justified in light of
know under OPRA. CMS's claim that it had an agreement with
the DOC, memorialized in August 2005,
This conclusion is supported by the that liquidated damages would be assessed
construction of "pre-decisional" in Correctional only if its performance fell significantly
Medical Services v. State of New Jersey, supra. below the standards set by the contract and
That case involved a discovery issue, namely to its challenge to the computation of
whether the deliberative process privilege liquidated damages.
applied to shield communication concerning
the ultimate decision by the Department of Id. at 124. Much the same is as applicable to an
Corrections to impose liquidated damages on award or reconsideration of grant as to
plaintiff Correctional Medical Services. revocation of plaintiffs service contract in
However, its decision cited In re Liquidation of Correctional Services.
Integrity Insurance Company, 165 N.J. 75, 754
A.2d 1177 (2000), which in turn cited The Correctional Services Court noted and
Education Law Center, supra, an OPRA case, further rejected the state's argument, identical
which was also authority governing the to the one made here, [*13] that pre-decisional
deliberative process privilege in other records. communications would be jeopardized. The
Tt is clear from Education Law Center's court sharply distinguished discussions
reliance on In re Liquidation of Integrity regarding administrative issues as to contract
administration, from actual policy-making. In
Insurance Company that case law regarding the
deliberative process privilege applies both to other words, calling a record "pre-decisional"
did not magically engender privileged status
discovery issues as well as in the OPRA
context here. unless actual policy making are involved.
As here, the Correctional Services case Thus, the court held that discussion of
involved a very straight forward issue of enforcement of the contract was not pre-
decisional since it would not involve olicy
monies, albeit under a contract rather
[*12] than a grant. As here also, the agency making:
attempted to avoid disclosure of decision on While the OIG's determination that the
matters by reference to subsidiary steps in its contract should be enforced and that the
review procedure. The Court rejected this DOC was derelict in failing to do so
approach stating that there was a right to review certainly constituted a "decision", the
documents relating to the decision to impose determination to require the fulfillment of
contract penalties: contractually specified audit procedures and
to mandate the imposition of contractually
What CMS seeks are communications that
authorized penalties is hardly the type of
reveal the circumstances surrounding the
decision that courts have deemed to be
state's investigation of its conduct, the
protected by the deliberative privilege. The
state's determination to enforce its right to
resulting contract compliance efforts by the
liquidated damages and its calculation of
DOC, the DPP and the CCAU, while
those damages. The background history
Page 6 of 7
requiring various decisions in order to even discuss policy. Even the draft pleadings
effect their goal, were essentially included in the documents reflect no policy
ministerial in nature, and not of a sort statements.2
warranting protection from disclosure.
Thus, there is no meaningful distinction
Id. at 126. between this effort to award or reconsider a
grant and plan approval and the potential
The Court finds this language applicable here. contract termination in Correctional Services.
The Highlands Council had existing In either case, the public should be able to
[*14] standards for grants and plan review. follow the money in full.
None of the documents implicate any change in
regulations, regulatory policy, or any other Common Law Right of Access
broad reaching policy, even if the documents
required are discussion of how to respond to the Not only is plaintiff entitled to access the
specific application for money as it might be requested documents under OPRA, but plaintiff
affected by a specific application for plan also has a common law right to access such
approval. As in Correctional Medical Services, materials. This common law right is articulated
the legal framework was cast by existing as follows:
statutes and regulations; the pending issue was The common law right can reach a wider
implementation not deliberation in making array of documents than its statutory
policy. counterpart. The trade-off is that, Thilnlike
A review of the documents in question a citizen's absolute statutory right of access,
explicitly demonstrates the truth of these a plaintiffs common-law right of access
observations. Privilege Log Entry #8, although must be balanced [*16] against the State's
entitled "Privileged and Confidential" contains interest in preventing disclosure." The
the following under its Recommendations: common law right of access involves a two-
"The approval of a feasibility grant is a step inquiry. First, a litigant must establish
straight forward issue that has been used by an interest in the public record. "The
other Highlands municipalities to examine requisite interest necessary to accord a
the potential for building infrastructure". plaintiff standing to obtain copies of public
records may be either "a wholesome public
These very records thus explicitly acknowledge interest or a legitimate private interest."
there are no policy issues involved. Further, the Once the first step has been satisfied, then,
balance of Item 8 contains an obviously non- to gain access, a plaintiffs interest in
privileged chronology of public events -- the disclosure of the relevant documents must
filing dates of documents. outweigh the State's interest in non-
disclosure.
The balance of the documents are like Item 8.
The documents identify the scope of the grant, Education Law Center, 198 N.J. at 302
the identity [*15] of potential consultants and (internal citations omitted). In making the
the size of the grant amount. They also include
dates of phone conferences, history of filings,
2 The Court notes that one document specifically refers to Council's
brief comments on Appellate rulings, and not representing the Borough pursuant to NJ:S.A. 13:20-20, and that
chronologies. None of these items make or the defendants have made no claim of attorney-client privilege.
Page 7 of 7
Hampton Fartn, LLC v. Borough of Hampton
determination of whether a plaintiffs interest in Council's Opposition Brief at 41. Plaintiff, on

disclosure outweighs the State's interest in non- the other hand, has a very personal interest
disclosure, courts must consider the following [*18] in disclosure here, as plaintiffs interests
factors: in the subject property are directly affected by
these discussions. Disclosure of funding
(1) the extent to which disclosure will discussions, moreover, cannot, on any rational
impede agency functions by discouraging basis, have a chilling effect on government
citizens from providing information to the decision-making. Education Law
Center, 198
government; (2) the effect disclosure may N.J. at 302. Rather, it would be beneficial to
have upon persons who have given such taxpayers like plaintiff with a personal interest
information, and whether they did so in in the deliberations for such funding
reliance that their identities would not be determinations to be publicly revealed.
disclosed; (3) the extent to which agency
self-evaluation, program improvement, or Accordingly, under both OPRA and the
other decisionmaking will be chilled by common law, plaintiff is entitled to access the
disclosure; (4) [*171 the degree to which 35 emails that defendants have refused to
the information sought includes factual data produce here.
as opposed to evaluative reports of
policymakers; (5) whether any findings of Lastly, plaintiff is entitled to attorney's fees
wholly or in part under the OPRA statute. See
public misconduct have been insufficiently
47:1A-6 ("A requestor who prevails
corrected by remedial measures instituted
in any proceeding shall be entitled to a
by the investigative agency; and (6)
reasonable attorney's fee."). Plaintiff may
whether any agency disciplinary or
submit an appropriate application with an order
investigatory proceedings have arisen that
within ten days; any objection to same shall be
may circumscribe the individual's asserted
submitted ten days thereafter.
need for the materials.
Id. (internal citations omitted). Conclusion:
Here, as defendants admit, plaintiff, as a For the foregoing reasons, the relief requested
taxpayer and a litigant whose property is the in plaintiffs Application for Order to Show
subject of the proposed planning grant, has a Cause is GRANTED. Counsel for the plaintiff
sufficient interest in disclosure of emails shall prepare an appropriate order to be
discussing the Borough's application for circulated at the case management conference
financial assistance to the Council. Id.; see scheduled for July 20, 2012 at 10:30 [*19] a.m.
Council's Opposition Brief at 37. Next, then, PETER A. BUCHSBAUM, J.S.C.
this Court must determine whether or not
plaintiffs interest in disclosure outweighs
defendants' interest in non-disclosure. End of Document
Education Law Center, 198 N.J. at 302.

Defendants' claimed interest in non-disclosure
is the threat of the disclosure's disruption of the
collaborative process between municipalities
and state agencies in land use planning. See
EXHIBIT Q
Stop & Shop Supermarket Co., LLC v. County of Bergen
Superior Court of New Jersey, Law Division, Bergen County

November 17, 2014, Argued; November 18, 2014, Decided
DOCKET No. BER-L-7943-14 CIVIL ACTION
Reporter
THE STOP & SHOP SUPERMARKET Frank Kapusinski, Esq. appearing on behalf of
COMPANY, LLC, Plaintiff, v. THE COUNTY the defendants, Bergen County; Bergen County
OF BERGEN; THE BERGEN COUNTY Planning Board; and Bergen County
PLANNING BOARD; and THE COUNTY OF Department of Planning and Economic
BERGEN DEPARTMENT OF PLANNING Development (Office of the Bergen County
AND ECONOMIC DEVELOPMENT, Counsel).
Defendants.
Judges: Honorable Peter E. Doyne, A.J.S.C.
WITHOUT THE APPROVAL OF THE Opinion by: Peter E. Doyne
APPELLATE DIVISION.
Opinion
PLEASE CONSULT NEW JERSEY RULE
OPINIONS. Introduction
Subsequent History: Related proceeding at Before the court is another chapter in a recent
Munico Assocs., L.P. v. Inserra Supermarkets, history of OPRA and other related litigations
Inc., 2016 N.J. Super. Unpub. LEXIS 1589 involving plaintiff, The Stop & Shop
(App.Div., July 8, 2016) Supermarket Company, LLC ("plaintiff' or
"Stop & Shop") and Inserra Supermarkets, Inc.
Related proceeding at Inserra Supermarkets,
("Inserra") in the Township of Wyckoff, New
Inc. v. Stop & Shop Supermarket Co., LLC,
Jersey.1
2017 U.S. Dist. LEXIS 28870 (D.N.J., Feb. 28,
2017)
'The following are related actions involving the same and/or similar
Affirmed by Stop & Shop Supermarket Co., parties:
LLC v. Cnty. of Bergen, 2017 N.J. Super. Munico Associates, LP v. Inserra Supermarkets, Inc. (BER-L-2459-
Unpub. LEXIS 861 (App.Div., Apr. 6, 2017) 13);
The Stop & Shop Supermarket Company, LLC v. Township of

Counsel: [*11 Gail L. Price, Esq. appearing on Wyckoff Planning Board (BER-L-2463-13); and
behalf of the plaintiff, The Stop & Shop The Stop & Shop Supermarket Company, LLC v. Bergen County
Supermarket Company, LLC (Price, Meese, Board of Chosen Freeholders (BER-L-9333-14).
Shulman & D'Arminio, P.C.). No information regarding these various litigations has been
Page 2 of 11
Stop & Shop Supermarket Co LLC v. County of Bergen
As the dispute in these matters is alleged, however, it was not provided with "any
fundamentally the same, a truncated history is reports prepared by the County or County
set forth herein. Plaintiff is the long-term lessee professionals relative to Inserra's proposal."
of a supermarket situated at 327 Franklin Plaintiff has also alleged "[c]ertain relevant
Avenue in Wyckoff, which is part of the correspondence" was excluded.
"Boulder Run" shopping center. Inserra is the
holder of a ground lease on an adjacent parcel, By letter dated October 6, 2011, counsel for
430 Greenwood Avenue, which has remained plaintiff, Gail L. Price, Esq. ("Price"), renewed
vacant for more than ten years. The dispute the 2011 request with the Department.
concerns the construction of a proposed Thereafter, plaintiff had filed several additional
62,042-square-foot supermarket on Inserra's OPRA requests.'
Greenwood Avenue property (the
On February 14, 2012, Price informed
"property"). [*2]
defendants in writing she still had not been
On June 10, 2011, Inserra submitted a site plan provided with certain responsive documents
application (the "application") with the Bergen and again renewed the 2011 request.
County Planning Board (the "Board") seeking
On April 8, 2014, the Board approved Inserra's
its approval to develop the property.2
application.'
Plaintiff assertedly sought and was denied
By letter dated April 17, 2014, counsel for
access to the application proceedings.
plaintiff appealed the Board's decision to the
Subsequently, on July 7, 2011, plaintiff had
Bergen County Board of Chosen Freeholders
filed an OPRA request encompassing the
(the "Freeholders"). The impetus for the appeal
following documents: "Site Plan Submission
was based on plaintiffs alleged inability to
Package submitted on behalf of Inserra
adequately prepare for the April 8 hearing due
ShopRite Wyckoff, including all reports
to defendants' failure to properly respond to the
submitted and including any and all reports
2011 request. The hearing before the
prepared by [the] County on review. Also,
Freeholders was originally scheduled for June
including all correspondence submitted by the
25, 2014, but it was moved to a later date after
Applicant, Applicant's attorney and
plaintiff requested an adjournment.
professionals."'
On June 26, 2014, plaintiff had filed another
The Bergen County Department of Planning
OPRA request seeking "[a]ll documents
and Economic Development (the
provided by Inserra or any of its representatives
"Department") responded to the 2011 request
or to Inserra or any of its representatives,
by producing "the filing made by Inserra's
including but not limited to any expert reports
counsel, including plans, application documents
and drainage calculations." Plaintiff has
4 Counsel for defendants, Frank P. Kapusinski, Esq. ("Kapusinski"),
provided, nor has the court engaged in an exhaustive review of the asserts between July 7, 2011 and April 2014, plaintiff had submitted
multiple filings in connection with the same. "no less than five [OPRA] requests." See Varner Certification at
6 NI and Ex. B. Exhibit B, however, only attaches two such
'Pursuant to N.J.S.A. 40:27-1, et seq., the Board [*3] is vested with requests dated November 15, 2013 and February 21, 2014,
the authority to review and approve applications for subdivision and respectively.
site plan developments affecting county roads and/or drainage
5 Hereafter, the "April 8 hearing." The Board's approval followed the
facilities.
unanimous decision of the Wyckoff Planning Board on November
3 Hereafter, the "2011 request." 26, 2012.
Page 3 of 11
or studies, correspondence or plans, relating to filed a motion to dismiss the complaint in lieu
the project denominated as SP 8025 or of an answer pursuant to R. 4:6-2(e).
[Greenwood Avenue/Wyckoff Avenue, Defendants assert the complaint should be
Wyckoff, New Jersey.]"6 dismissed for various reasons, including
plaintiff lacked standing under OPRA and the
The Department responded [*5] to that request
action was filed outside the 45-day statute of
on July 3, 2014 by producing several
limitations that governs OPRA actions lodged
documents, including a traffic impact report
in Superior Court.
prepared by an outside consultant, which,
according to plaintiff, should have been Given the unusual posture of plaintiffs action,
provided earlier as they were created before the court decided to treat defendants' motion to
and were responsive to the 2011 request.? dismiss as a cross-motion pursuant to R. 1:6-
3(b). Accordingly, plaintiff had filed a response
By resolution dated August 20, 2014, the
on November 7, 2014.8
Freeholders, after having received and
Defendants did not seek leave of court to make
considered all of the evidence submitted by any further submissions.
both parties, affirmed the Board's decision and
ordered Inserra to deposit $175,000 into escrow Oral argument was entertained on November
to cover the cost of any off-tract improvements 17, 2014.
implemented by the Board for the project,
namely, the installation of a traffic signal at the Legal Standards
intersection of Wyckoff and Greenwood A. OPRA
Avenues.
1. Generally
On August 18, 2014, plaintiff had filed this
The purpose of OPRA, /V.J.S.A. 47:1A-1 to -13,
action against defendants, Bergen County, the
is plainly set forth in the statute: "to insure that
Board and the Department (collectively,
government records, unless exempted, are
"defendants"). Plaintiff sought a judgment
readily accessible to citizens of New Jersey for
pursuant to the Declaratory Judgment Act,
the protection of the public interest." Mason v.
1V.J.S.A. 2A:16-50, et seq. (the "DJ Act"),
City of Hoboken, 196 N.J. 51, 57, 951 A.2d
finding defendants in violation of the Open
1017(2008) (citing N.J.S.A. 47:1A-1). The Act
Public Records Act, N.IS.A. 47:1A-1 to -13
replaced the former Right to Know Law,
("OPRA" or the "Act"), awarding attorney's
NJ.S.A. 47:1A-1 to -4 (repealed 2002),
fees and costs, and granting any other relief
and [*7] perpetuates "the State's long-standing
the [*6] court may deem just and equitable.
public policy favoring ready access to most
Plaintiff also sought similar relief by way of the
public records." Bent v. Twp. of Stafford Police
common law right of access to government
Dept, 381 N.J. Super. 30, 36, 884 A.2d 240
records.
(App. Div. 2005) (quoting Serrano v. S.
On October 7, 2014, counsel for defendants Brunswick Twp., 358 N.J. Super. 352, 363, 817
A.2d 1004 (App. Div. 2003)). To accomplish
that objective, OPRA establishes a
6 Hereafter, the "2014 request."
7 Hereafter, the "January 27, 2011 traffic report" or the "2011 traffic
report." 'Hereafter, the "response."

Page 4 of 11
comprehensive framework for access to public business days after receiving the request."
records. Mason, supra, 196 N.J. at 57. 1V.J.S.A. 47:1A-5(i). Failure to respond within
Specifically, the statute requires, among other seven business days "shall be deemed a denial
things, prompt disclosure of records and of the request." Ibid. If the record is in storage
provides different procedures to challenge a or archived, the custodian must report that
custodian's decision denying access. Ibid. information within seven business days and
advise when the record will be made available.
OPRA mandates "all government records shall Ibid.
be subject to public access unless exempt."
N.J.S.A. 47:1A-1. Therefore, records must be If access to a government record is denied by
covered by a specific exclusion to prevent the custodian, the requestor may challenge that
disclosure. Ibid. The Act defines "government decision by filing an action in Superior Court or
record" as follows: a complaint with the Government Records
Council ("GRC"). 1V.J.S.A. 47:1A-6. The right
[A]ny paper, written or printed book, to institute any proceeding under this section,
document, drawing, map, plan, photograph, however, belongs solely to the requestor. Ibid.
microfilm, data processed or image If the requestor elects to file an action in
processed document, information stored or Superior [*9] Court, the application must be
maintained electronically or by sound- brought within forty-five days of the denial. See
recording or in a similar device, or any Mason, supra, 196 N.J. at 70 (holding,
copy thereof, that has been made, explicitly, a 45-day statute of limitations
maintained or kept on file in the course of applies to OPRA actions). The Act, however,
his or its official business by any officer, specifically provides "a decision of the [GRC]
commission, agency or authority of the shall not have value as precedent for any case
State or of any political subdivision thereof, initiated in Superior Court," N.J.S.A. 47:1A-7,
including subordinate boards thereof, or though such decisions are normally considered
that has been received in the course of his unless "arbitrary, capricious or unreasonable, or
or its official business by any such officer, [violative of] legislative policies expressed or
commission, [*8] agency, or authority of implied in the act governing the agency."
the State or of any political subdivision Serrano, supra, 358 N.J. Super. at 362 (citing
thereof, including subordinate boards Campbell v. Dept of Civil Service, 39 N.J. 556,
thereof. The terms shall not include inter- 562, 189 A.2d 712 (1963)).
agency or intra-agency advisory,
consultative, or deliberative material. In OPRA actions, the public agency bears the
burden of proving the denial of access is
[N.J.S.A. 47:1A-1.1.] authorized by law. 1V.J.S.A. 47:1A-6. As such,
The OPRA framework contemplates a swift an agency "seeking to restrict the public's right
timeline for disclosure of government records. of access to government records must produce
Mason, supra, 196 N.J. at 57. Unless a shorter specific reliable evidence sufficient to meet a
time period is prescribed by statute, regulation statutorily recognized basis for confidentiality."
or executive order, a records custodian must Courier News v. Hunterdon Cnty. Prosecutor's
grant or deny access to a government record "as Office, 358 N.J. Super. 373, 382-83, 817 A.2d
soon as possible, but not later than seven 1017 (App. Div. 2003). Absent the necessary
proofs, "a citizen's right of access is
Page 5 of 11
unfettered." Ibid. In assessing the sufficiency of 3. OPRA Fees

the proofs submitted by the agency in support
of its claim for nondisclosure, "a court must beGenerally, in New Jersey, a prevailing party is
guided by the overarching public policy in not entitled to attorney's fees from the losing
party. Id. at 70 (citation omitted). Fees may be
favor of a citizen's right of access." Ibid. If it is
determined access has been improperly denied, awarded, however, when a statute, court rule or
such access shall [*10] be granted, and a contractual agreement so provides. Ibid. Under
OPRA, "[a] requestor who prevails in any
prevailing party shall be entitled to a reasonable
attorney's fee. N.J.S.A. 47:1A-6. proceeding shall be entitled to a reasonable
attorney's fee." N.J.S.A. 47:1A-6. The Supreme
2. OPRA Exemptions Court, interpreting legislative revisions to the
Although OPRA defines "government record" Act, has held OPRA "mandate[s] rather than
broadly, the public's right of access is not permit[s], an award of attorney's fees to a
absolute. Educ. Law Ctr. v. N.J. Dept of Educ., prevailing party." Mason, supra, 196 N.J. at 75.
198 N.J. 274, 284, 966 A.2d 1054 (2009) As the mandatory fee-shifting provision of
(citing Mason, supra, 196 N.J. at 65). The OPRA is triggered only when a requesting
statute excludes twenty-one categories of party prevails, there must be a determination
information, which are exempt from disclosure. what constitutes a "prevailing party." The
Mason, supra, 196 N.J. at 65. Specifically, Supreme Court has adopted a two-part test (the
N.J.S.A. 47:1A-1 provides: "catalyst theory") to ascertain whether a
[A111 government records shall be subject to requesting party has prevailed under OPRA. Id.
public access unless exempt from such at 76. Under this test, requestors are entitled to
access by: [other provisions of OPRA]; any fees, absent a judgment or an enforceable
consent decree, when they can show: "(1) a
other statute; resolution of either or both
houses of the Legislature; regulation factual causal nexus between plaintiffs
litigation and the relief ultimately achieved; and
promulgated under the authority of any
(2) the relief ultimately secured by plaintiffs
statute or Executive Order of the Governor;
Executive Order of the Governor; Rules of had a basis in law." Ibid. (quoting Singer v.
State, 95 N.J. 487, 495, 472 A.2d 138 (1984))
Court; any federal law, federal regulation,
or federal order. (internal quotation marks omitted). The Court
has held requestors [*12] seeking fees are
The Supreme Court noted these protected required to make this showing. Ibid.
categories include "criminal investigatory B. New Jersey Common Law
records, victims' records, trade secrets, various
materials received or prepared by the In addition to OPRA, disclosure can be sought
Legislature, certain records relating to higher under the common law. The Act provides
education, and other items." Mason, supra, 196 "[n]othing contained in [OPRA] shall be
N.J. at 65. The Court also noted "records within construed as limiting the common law right of
the attorney-client privilege or any executive or access to a government record." N.J.S.A.
legislative privilege, as well as items exempted 47:1A-8. Thus, even if the information
from disclosure by any statute, legislative requested falls within one of the exceptions to
resolution, executive order, or court rule" [*11] access under the statutory construct of OPRA,
are excluded. Ibid. requestors may still prevail by resorting to the
Page 6 of 11
common law right to access public records. To disclosed; (3) the extent to which agency
constitute a government record under the self-evaluation, program improvement, or
common law, the item must be: other decisionmaking will be chilled by
disclosure; (4) the degree to which the
[O]ne required by law to be kept, or information sought includes factual data as
necessary to be kept in the discharge of a
opposed to evaluative reports of
duty imposed by law, or directed by law to policymakers; (5) whether any findings of
serve as a memorial and evidence of public misconduct have been insufficiently
something written, said, or done, or a corrected by remedial measures instituted
written memorial made by a public officer by the investigative agency; and (6)
authorized to perform that function, or a whether any agency disciplinary or
writing filed in a public office. The investigatory proceedings have arisen that
elements essential to constitute a public may circumscribe the individual's asserted
record are * * * that it be a written need for the materials.
memorial, that it be made by a public
officer, and that the officer be authorized by [S. Jersey Pub., supra, 124 N.J. at 488
law to make it. (quoting Loigman v. Kimmelman, 102 N.J.
98, 113, 505 A.2d 958 (1986)).]
[S. Jersey Pub. Co. v. N.J. Expressway
Auth., 124 N.J. 478, 487-88, 591 A.2d 921 Analysis r141
(1991) (quoting Nero v. Hyland, 76 N.J.
213, 222, 386 A.2d 846 (1978)).] Several aspects of OPRA, some novel and
others familiar, are presented for the court's
To reach this broader class of documents, consideration: (1) the proper procedure for
requestors must satisfy a higher burden than commencing an action under the statute; (2)
required under OPRA: "(1) the person [*13] whether plaintiff can utilize the DJ Act for a
seeking access must establish an interest in the declaration of a violation of OPRA when the
subject matter of the material; and (2) the requested documents have already been
citizen's right to access must be balanced produced; (3) the appropriate statute of
against the State's interest in preventing limitations for filing an action in Superior
disclosure." Mason, supra, 196 N.J. at 67-68 Court; (4) the application of the doctrine of
(quoting Keddie v. Rutgers, 148 N.J. 36, 50, mootness; and (5) whether plaintiff has
689 A.2d 702 (1997)) (internal quotations and standing to bring this action even though the
citations omitted). The Supreme Court has 2011 request was filed by a nonlegal
articulated several factors for a court to representative of plaintiffs counsel's firm. For
consider in performing its balancing: the reasons set forth below, the court grants
defendants' motion and finds the complaint
(1) [T]he extent to which disclosure will
should be dismissed.
impede agency functions by discouraging
citizens from providing information to the A. OPRA
government; (2) the effect disclosure may 1. Procedure
have upon persons who have given such
information, and whether they did so in Initially, the court notes plaintiffs complaint
reliance that their identities would not be was not filed in the statutorily required form.
Page 7 of 11
1V.J.S.A. 47:1A-6 requires OPRA actions to [N.J.S.A. 2A:16-53 [*16] (emphasis

"proceed in a summary or expedited manner." added).]
The appellate division has held "[t]his statutory
In this case, plaintiff is not challenging the
language requires a trial court to proceed under
construction or validity of OPRA, but rather is
the procedures prescribed in Rule 4:67."
seeking a declaration that its rights were
Courier News v. Hunterdon Cty. Prosecutor's
violated under the statute. Plaintiff, however,
Office, 358 N.J. Super. 373, 378, 817 A.2d
has failed to cite a single case supporting the
1017 (App. Div. 2003). The rule applies "to all
proposition that declaratory relief, as opposed
actions in which the court is permitted by rule
to delivery of documents, is cognizable under
or by statute to proceed in a summary manner."
OPRA. The purpose of OPRA is to promote
R. 4:67-1(a); see also Pressler, Current N.J.
transparency in government and the statute
Court r15,1 Rules, comment 2 on R. 4:67-1
makes clear government records are to be made
(2014) ("OPRA provides that a summary
available for that purpose. N.J.S.A. 47:1A-1.
proceeding is available for actions challenging
Moreover, the statute provides the exclusive
a decision withholding access to government
remedy for an aggrieved party is to file an
records."). In addition, R. 4:67-2(a) provides
action in Superior Court or a complaint with the
these actions are commenced by order to show
GRC. 47:1A-6. The court is simply not
cause supported by a verified complaint.
convinced the relief plaintiff seeks is a
Here, plaintiffs action was filed as a complaint recognized or an authorized form of relief in
in lieu of prerogative writs seeking declaratory New Jersey.
relief. Procedurally, though, this matter should 3. Timeliness
have been initiated by order to show cause
accompanied by a verified complaint. See R. In addition to the aforementioned defects, and
4:67-2(a); Courier News, supra, 358 N.J. more importantly for the purposes of this
Super. at 378. Given this procedural defect, but litigation, plaintiffs complaint is fatally time-
in the interests of a full review, the court will barred. N.J.S.A. 47:1A-6 provides a person
consider this matter as if it was properly filed. denied access to a government record by the
custodian of that record may challenge the
2. Declaratory Judgment Act
custodian's decision by filing an action in
The court finds plaintiff cannot utilize the DJ Superior Court or filing a complaint with the
Act to seek a declaration that its rights were GRC. Moreover, as noted above, these matters
violated under OPRA. The DJ Act provides, in "shall [*17] proceed in a summary or expedited
pertinent part, that: manner." Ibid. Beyond that, the Legislature
deferred to the Supreme Court to adopt court
A person ... whose rights, status or other rules "it deems necessary to effectuate the
legal relations are affected by a statute, purposes of [OPRA.]" N.J.S.A. 47:1A-12. In
municipal ordinance, contract or franchise, Mason, supra, 196 N.J. at 70, the Supreme
may have determined any question of Court held a 45-day statute of limitations
construction or validity arising under the applies to OPRA actions. Accordingly, a person
instrument, statute, ordinance, contract or who files an action in Superior Court to
franchise and obtain a declaration of rights, challenge the decision of a records custodian
status or other legal relations thereunder. must do so within 45 days of the denial. Ibid.
Page 8 of 11
The Court reasoned that period "provides courts can enlarge that period in the interest of
certainty and repose to public bodies faced with justice: See R. 4:69-6(c) ("The court may
numerous OPRA requests" and "offers the enlarge the [45-day period] where it is manifest
public ample opportunity to challenge a denial that the interest of justice so requires."). The
of access." Ibid. Court has held the "interest of justice" [*19]
exception includes "cases involving (1)
In this case, plaintiff had filed its initial OPRA
important and novel constitutional questions;
request on July 7, 2011 and the Department (2) informal or ex parte determinations of legal
responded on or about August 8, 2011. On questions by administrative officials; and (3)
August 18, 2014, counsel for plaintiff filed this important public rather than private interests
action. The main thrust of the complaint is that which require adjudication or clarification."
defendants unreasonably withheld certain Brunetti v. Borough of New Milford, 68 N.J.
documents, such as the 2011 traffic report, 576, 586, 350 A.2d 19 (1975) (footnotes
which were purportedly responsive to the 2011 omitted). This determination, however, is
request but were not produced until July 3, discretionary. See Reilly v. Brice, 109 N.J. 555,
2014. The result, according to plaintiff, is that it 557, 538 A.2d 362 (1988) (reviewing the
was deprived "of a full and fair opportunity to measure of discretion vested in courts under R.
review, utilize and rely upon such documents in 4:69-6(c) to enlarge the ordinary 45-day
municipal [*18] and County land use period); see also Pressler, Current N.J. Court
proceedings, causing it injury and harm." Rules, comment 7.3 on R. 4:69-6(c) (2014)
Plaintiffs argument, however, is without merit (same).
as its complaint was filed three years after Plaintiff relies on Newark Morning Ledger v.
defendants responded to the 2011 request. The New Jersey Sports & Expos. Auth., 423 N.J.
Supreme Court, reviewing the legislative Super. 140, 31 A.3d 623 (App. Div. 2011) in
history to the Act, has held "OPRA's support of its argument. In that case, the
framework calls for quick action in a number of complaint was filed six days after the 45-day
areas." Mason, supra, 196 N.J. at 69. Just as limit following a brief period of good faith
government agencies must respond promptly to settlement efforts between the parties. In this
record requests, disputes must proceed swiftly case, however, the court is by no means
as well. Ibid. The Court found "[t]his goal is convinced an extension of time is permitted or
consistent with a 45-day statute of limitations, warranted. Although, as plaintiff correctly
rather than an open-ended or multi-year asserts, the purpose of OPRA is to provide the
period." Ibid. Therefore, as plaintiff s public with ready access to government
application is untimely, this matter is not records, N.J.S.A. 47:1A-1, this interest must be
properly before the court. If plaintiff was balanced against "the important policy of
moved to challenge the sufficiency of repose expressed in the forty-five day rule."
defendants' response, it should have done so in Reilly, supra, 109 N.J. at 559. Here, the
or around August 2011, not August 2014. complaint was filed three years after defendants
Plaintiff argues, alternatively, even if the 45- responded to the 2011 request. Plaintiff argues
day statute of limitations applies, it should be it could not [*20] have known it was denied
enlarged. In Mason, supra, 196 N.J. at 70, the access to responsive documents until such
Supreme Court indicated, in appropriate cases, documents were actually produced. This
Page 9 of 11
reason, however, is simply insufficient to 4. Mootness

justify a multi-year departure from the 45-day
Moreover, the complaint must be dismissed as
period, particularly as plaintiffs counsel has
moot as plaintiff received the documents in
contended the OPRA response was deficient as
question, namely, the 2011 traffic report, prior
early as October 2011. Any other result would
to initiating this lawsuit. A case is considered
cause the exception to overrun the rule and
moot when "a controversy no longer exists."
expose government entities to endless
Black's Law Dictionary 1099 (9th ed. 2009).
litigation. As such, plaintiffs argument for an
That is, the case "presents only an abstract
extension of the 45-day period is denied.
question [or issue] that does not arise from
Plaintiff further argues, indeed, artfully, the existing facts or rights." Ibid. "It is well
statute of limitations did not begin run until established that questions that have become
July 3, 2014, when it discovered, allegedly for moot or academic prior to judicial scrutiny
the first time, defendants had been withholding generally have been [*22] held to be an
documents responsive to the 2011 request. improper subject for judicial review." Anderson
Defendants contend such documents were not v. Sills, 143 N.J. Super. 432, 437, 363 A.2d 381
produced until 2014, as the initial request (Ch. Div. 1976) (citing Oxfeld v. N.J. State Bd.
sought only the site plan application materials of Ed., 68 N.J. 301, 303-04, 344 A.2d 769
and the documents at issue, namely, the 2011 (1975); In re Geraghty, 68 N.J. 209, 212-13,
traffic report, predated that application. The 343 A.2d 737 (1975); Sente v. Mayor & Mun.
court, however, need not address the scope of Council of Clifton, 66 N.J. 204, 206-07, 330
plaintiffs request other than to suggest that A.2d 321 (1974)).
gamesmanship by government bodies is
Here, plaintiff received the aforementioned
unacceptable. Moreover, if there was an
documents on July 3, 2014 after defendants
ambiguity regarding an OPRA request, it is
voluntarily produced them in response to the
hoped and expected counsel [*211 will work
2014 request. In fact, plaintiff concedes as
together to resolve the same. For present
much in its papers.1
purposes, though, the court is satisfied
Therefore, this case was rendered moot before
plaintiffs counsel knew, or reasonably should
it was even filed. The purpose of OPRA is to
have known, defendants' response to the 2011
provide public access to government records,
request was incomplete, especially given her
not to adjudicate hypothetical lawsuits or
experience handling cases of this nature. On at
vindicate hypothetical wrongs. Accordingly,
least two occasions, notably, in October 2011
plaintiffs application is dismissed.
and February 2012, counsel for plaintiff
advised defendants of their deficiency and 5. Standing
renewed the 2011 request.'
Defendants also argue plaintiff lacks standing
As such, plaintiff is charged with knowledge
to bring this action. As the complaint is
of the purported deficient production and,
dismissed on other grounds, the court need not
accordingly, should have filed suit in or around
reach this issue. Suffice it to say, however, the
August 2011.
court is by no means convinced plaintiff lacks
9 See Complaint at 8-11; see also Price Certification at T11 3(g)-(h)

and Exhibits G, H. 10 See Complaint at 16-18; see also Response Br. at pp. 7-8.
Page 10 of 11
standing merely because the 2011 request was the complaint was filed three years after
submitted to the Department by Stop & Shop's defendants responded to the 2011 request. As
attorney, or one of its representatives, rather the Supreme Court noted in Mason, the reasons
than plaintiff itself. The request was clearly that justify quick action under OPRA should
made during counsel's representation of apply to the common law. Ibid. Therefore, as
plaintiff and on its behalf. Surely that the complaint was filed beyond the 45-day
representation is sufficient to confer standing limit, plaintiffs common law claim is
upon plaintiff to pursue this action. Other dismissed.
courts have acknowledged [*23] the same in C. Attorney's Fees
unpublished decisions, and though the court is
mindful of R. 1:36-3, the court is free to adopt Plaintiff also seeks an award of attorney's fees
the reasoning therein. See, e.g., R.O. v. pursuant to 1V.J.S.A. 47:1A-6, which provides
Plainsboro Police Dept, 2009 N.J. Super. "[a] requestor who prevails in any proceeding
Unpub. LEXIS 1560, at *9 (App. Div. June 17, shall be entitled to a reasonable attorney's fee."
2009) (noting, parenthetically, an OPRA The Supreme Court has held a requesting party
request filed by an attorney on behalf of her is entitled to fees in the absence of a judgment
client is sufficient to confer standing); Hampton or an enforceable consent decree when she can
Farm, LLC v. Borough of Hampton, 2012 N.J. demonstrate: "(1) a factual causal nexus
Super. Unpub. LEXIS 1756, at *3 (Law Div. between plaintiffs litigation and the relief
July 17, 2012) (same). Given, however, the ultimately achieved; and (2) the relief
court's decision rests on other grounds, this ultimately secured by plaintiffs had a basis in
issue is best left for another day. law." Mason, supra, 196 N.J. at 76.
B. Common Law Right ofAccess Plaintiff is not entitled to fees as Stop & Shop
Plaintiff also seeks relief under the common is not the prevailing party and this lawsuit was
law right of public access. This right depends not the catalyst for its receipt of the requested
on three requirements: "(1) the records must be documents. First, the court is ordering
common-law public documents; (2) the person plaintiffs action be dismissed as, among other
seeking access must establish an interest in the things, it is fatally time-barred. Second,
subject matter of the material; and (3) the plaintiff received the [*25] documents at issue,
citizen's right to access must be balanced namely, the 2011 traffic report, before the filing
against the State's interest in preventing of this lawsuit when defendants voluntarily
disclosure." Keddie, supra, 148 N.J. at 50 produced them in response to the 2014 request.
(internal quotations and citations omitted). As As such, plaintiff is not entitled to attorney's
with OPRA, common law actions are subject to fees under OPRA.
a 45-day statute of limitations. See Mason, Conclusion
supra, 196 N.J. at 70 (holding, parenthetically,
common law actions must be filed within 45 OPRA is intended to be construed in favor of
days of a denial). the public's right of access. The purpose of the
statute is "to maximize public knowledge about
The court need not determine whether plaintiff public affairs in order to ensure an informed
is entitled to relief under the [*24] common law citizenry and to minimize the evils inherent in a
as its claim is fatally time-barred. In this case, secluded process." Asbury Park Press v. Ocean
Page 11 of 11
Cnty. Prosecutor's Office, 374 N.J. Super 312,

329, 864 A.2d 446 (Law Div. 2004). To
accomplish that objective, OPRA calls for swift
action in a number of areas, including a
requestor's decision whether to file suit. Mason,
supra, 196 N.J. at 69. This policy strikes the
appropriate balance between the public's right
of access and the government's need for
nondisclosure.
In this case, plaintiffs application was filed

three years after the statute of limitations for its
OPRA and common law claims had expired.
Given these claims are intended to be summary
actions, the court simply cannot allow plaintiff
to proceed with this matter. As the Supreme
Court noted in Mason, governmental agencies
are entitled to have disputes brought and
addressed in a rapid manner. Ibid. Any other
result would expose government entities [*26]
to endless and/or frivolous litigation. Further,
the utilization of a declaratory judgment action
to seek a declaration of a violation of OPRA,
for purposes other than the production of
documents, is not authorized. Accordingly,
plaintiffs complaint is dismissed.
Defendants' attorney is hereby directed to

submit the appropriate order in conformity with
this decision pursuant to the five-day rule.
Ent! of Document

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OCN-L-001513-17 08/04/2017 4:46:11 PM Pg 1 of 22 Trans ID: LCV2017100103

OCN-L-001513-17 08/04/2017 4:46:11 PM Pg 2 of 22 Trans ID: LCV2017100103

FOX ROTHSCHILD LLP

LINDA FENNELL, MARY ANNE HEINO, SUPERIOR COURT OF NEW JERSEY

Matthew S. Adams, Esq., of full age, hereby certified as follows:

FOX ROTHSCHILD LLP

1. I am an Attorney of Law of the State of New Jersey licensed to practice before

Plaintiffs' Open Public Records Act application.

10, 2017, from Diana McCracken to Matthew S. Adams.

15, 2017, from Robin La Bue to Matthew S. Adams.

24, 2017, from Robin La Bue to Matthew S. Adams.

28, 2017, from Matthew S. Adams to Robin La Bue.

11, 2017, from Robin La Bue to Matthew S. Adams.

27, 2017, from Matthew S. Adams to Robin La Bue.

31, 2017, from Robin La Bue to Matthew S. Adams

24, 2017, from Suzanne Davies to Matthew S. Adams.

25, 2017, from Suzanne Davies to Matthew S. Adams.

578 (Law Div. Mar. 16, 2012).

1560 (App. Div. June 17, 2009).

(Law Div. July 17, 2012).

LEXIS 2723 (Law Div. Nov. 18, 2014).

Date: August 4, 2017

From: Robin La Bue <rlb@gm-law.net>

Robin La Bue, Esq.

GILMORE & MONAHAN

Please reply to: ANGELA M. KOUTSOURIS

July 26, 2017

VIA HAND DELIVERY

Re: Fennell v. Little Egg Harbor Township, et al.

Dear Judge Ford:

the Township of Little Egg Harbor seeking:

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

incidents. (Exhibit B, Certification of James Hawkins)

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

officer involved, pursuant to the direction of the Attorney General's Office.

not maintain any records responsive to these request.

A public agency has a responsibility and an obligation to safeguard from

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

government." Id. at 438.

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

THE TOWNSHIP OF LITI'LE EGG HARBOR IS REQUIRED. TO

employed by county prosecutors as detectives/investigators or members of county SWAT teams and

by the Office of the Attorney General.

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

One such exemption is that the provisions of OPRA,

[s]hall not abrogate any exemption of a public record or government record

confidential by a regulation of a specific department or agency, they are also considered

4. The following records shall not be considered to be government records

(d) Records of a department of agency in the possession of another

denying access to the requested record.

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

THE REQUEST WAS NOT MADE UNDER THE COMMON LAW;

GILMORE & MONAHAN

The Honorable Marlene Lynch Ford, A.J.S.C.

may be either a "wholesome public interest or a legitimate private interest." Loigman v.

Kimmelman, 102 N.J. 98, 112 (1986).

making that determination, courts are to consider the following factors:

(1) the extent to which disclosure will impede agency functions by