Public’s Interest in Records of Police Shooting Trumps OPRA’s Ongoing Investigation Exception

The public’s right to access government documents garnered additional support in New Jersey last week when a state trial court ruled that law enforcement records related to the police shooting of a black man who allegedly rammed officers with his vehicle must be immediately released in unredacted form to the public. The Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), generally allows members of the public to inspect government records upon request. However, there are many specific categories of documents to which the government does not have to grant public access. These categories fall outside of OPRA’s definition of the term “government records,” and include records pertaining to an ongoing investigation by a public agency if disclosure of the records is “detrimental to the public interest.” The records at issue here concern the fatal shooting of a black, 23-year-old Newark resident, who was shot by police when he allegedly struck a police car with his SUV after police had surrounded his vehicle to conclude a four-minute police pursuit. The Attorney General’s Office initiated an investigation into the shooting that day, and issued a press release. Within days of the shooting, North Jersey Media Group (“NJMG”) filed OPRA requests with the New Jersey State Police, the Bergen County Police, and the local police departments of Lyndhurst, North Arlington, and Rutherford, seeking records such as use-of-force reports, arrest reports, and various audio and video recordings. The police departments, citing the Attorney General’s investigation among other reasons, either refused to produce the records or produced redacted records after a delay. Ruling on a complaint filed by NJMG seeking release of the records under OPRA and the common law, the court held, among other things, that the police departments’ refusal to produce the records at issue disregarded the statutorily-defined duties and public policy of OPRA. Notably, the court made clear that the ongoing-investigation exemption under OPRA, which requires that disclosure be detrimental to the public interest, did not apply in light of the heightened need for public access to information related to police interaction with the public after highly publicized incidents in Ferguson (MO), Staten Island, and Brooklyn. Additionally the court ruled that the police departments had a common law obligation to disclose the records, and that the departments had waived the right to produce redacted records by failing to seek judicial review to determine whether they could withhold or redact the records in the first instance. For more information on OPRA, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.