AAN Speaks Out in New Jersey Open Records Case

AAN has joined 18 other organizations and companies on an amicus brief filed in the New Jersey Supreme Court. While the case pertains to the law enforcement exemption in New Jersey’s Open Public Records Act (OPRA), there is an aspect to the lower court’s decision that is quite disturbing and could potentially cause havoc at the state and local (and perhaps federal) level around the country.

The case arises from an OPRA request field by reporters for the daily newspaper The Record and the weekly South Bergenite. The reporters were seeking documents relating to the police shooting of Kashad Ashford, a 23-year-old male who had engaged police in a high speech chase through several Bergen County municipalities after a car burglary. The New Jersey Attorney General’s office issued a press release stating that more than one officer fired at Ashford after he spun his tires and allegedly backed his SUV at the officers, ramming a police vehicle. However, a Shooting Response team detective came to a slightly different conclusion (essentially that the engine was revved but Ashford did not move the vehicle toward the officers.

Reporters filed several OPRA requests with State police, Bergen County police and local police departments seeking, among other things, incident reports, operations reports, investigation reports, and offense reports, log book notations, daily bulletins, vehicle logs, audio recordings and transcripts of 911 calls, arrest reports, use of force reports, audio and video recordings from dashcams, and motor vehicle accident reports.

The state argued that the documents fall under an exception to the Open Public Records law and their release to the news media could compromise the investigation and undermine witness testimony. The names of the police officers involved also have not been released. A trial court ruled in favor of the requesters but an appellate court reversed, concluding that most of the records fell under OPRA’s criminal investigatory record exception and, further concluded that an agency can discharge its disclosure obligations under OPRA by issuing a press release in lieu of releasing records.

Our brief
makes three basic arguments:

The first section argues that the appellate court failed to take into account that the New Jersey OPRA requires agencies to err on the side of openness and access. The law actually replaced the earlier New Jersey Right to Know Act in 2001 with a specific goal of increasing public access to government records. There is even specific language directing that any limitations on the right of access “be construed in favor the public’s right of access.” But the appellate court didn’t give this expansive reading to the criminal investigatory records exemption in the NJ OPRA, even as that exemption was also specifically intended to be narrowed in the change from the New Jersey RTK to the New Jersey OPRA.

The second section gets to the more disturbing access of the lower court decision: that an agency can provide a press release in lieu of the requested records. The criminal records exemption to OPRA says that, notwithstanding anything to the contrary, certain categories of information concerning a criminal investigation must be made available to the public within 24 hours or as soon as practicable of a request for such information. However, if releasing the information might jeopardize the safety of any person or any investigation in progress, information may be withheld. But here the agency issued a press release containing “information” of the type required to be released under the exemption and said that complied. The brief argues that allowing an agency to release summary information in a press release as compliance with the exemption would undercut the entire purpose of the affirmative disclosure language, as it would prevent the press and public from engaging in independent review of the agency’s version of events. It is also inconsistent with the plain language of the exemption and with earlier court cases interpreting this and other similar exemptions.

Finally, we explain how public and press access to law enforcement records serves the public interest – now more than ever. The brief also ties those general policy arguments to this case given the inconsistent versions of events offered by the Attorney General’s office and an independent investigator.

This case may ultimately prove to be of minimal national impact. We certainly hope that’s the case. But the one issue regarding the ability of a state (or federal) agency to “fulfill” a records request by issuing a press release isn’t just wrong, it would only heighten the need for a stronger overall public records law. We definitely felt the need to speak out on that part of the holding and have it overturned.