A Big OPRA Opinion From Chief Justice Rabner

North Jersey Media Group, Inc. v. Lyndhurst Tp., 229 N.J. 541 (2017).  Due to the amount of administrative duties that attend the office of Chief Justice of the Supreme Court of New Jersey, Chief Justices traditionally have not authored as many opinions as Associate Justices do.  But when Chief Justices write, it is often an unusually important decision and/or one with significant public policy overtones.  This decision by Chief Justice Rabner, for a unanimous Court, is an example.

As briefly mentioned here, this appeal involved a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), for government records arising out of a high-speed chase in which police officers ultimately shot and killed the chased suspect.  Reporters sought access to Use of Force reports, police dash-cam videos, activity logs, investigative reports, and other items.  When litigation came about, the Law Division ordered disclosure of the records.  The Appellate Division, citing OPRA exemptions for criminal investigatory records, N.J.S.A. 47:1A-1.1, and for records of investigations in progress, N.J.S.A. 47:1A-3, largely exempted from disclosure the materials sought.  The Supreme Court granted review, and ruled that some of the records were required to be produced, affirming in part and reversing in part the Appellate Division’s decision.

Under the language of OPRA, the investigatory records exception, Chief Justice Rabner noted, does not apply to records that are “required by law to be made, maintained or kept on file.”  He concluded that Use of Force Reports, “which the Attorney General requires officers to prepare after the use of deadly force,” are not covered by that exemption.

S to the applicability of the other exemption, OPRA’s language called for an evaluation of whether disclosure would be “inimical to the public interest.”  Chief Justice Rabner concluded that “the danger to an ongoing investigation would typically weigh against disclosure of detailed witness statements and investigative reports while the investigation is under way, under both OPRA and the common law.  Footage captured by dashboard cameras, however, presents less of a risk.  Under the common law, the public’s powerful interest in disclosure of that information, in the case of a police shooting, eclipses the need for confidentiality once once the available, principal witnesses to the shooting have been interviewed,” which normally happens “soon after an incident, while the events are fresh in mind.”

The Court’s opinion consumes 49 pages.  It contains an excellent summary of OPRA law, as well as detailed discussions of the two exemptions at the heart of the appeal, and the somewhat limited prior caselaw regarding those exemptions.  It is well worth reading in full.