ROBERT HIGGINS v. TOWNSHIP OF HOPEWELL, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5490-04T55490-04T5

ROBERT HIGGINS,

Plaintiff-Appellant,

v.

TOWNSHIP OF HOPEWELL, TOWNSHIP OF

HOPEWELL POLICE DEPARTMENT and

MERCER COUNTY PROSECUTOR,

Defendants-Respondents.

___________________________________

 

Argued March 20, 2006 - Decided April 4, 2006

Before Judges Lintner and Gilroy.

On Appeal from the Superior Court of

New Jersey, Law Division, Mercer County,

L-3159-04.

Brian M. Cige, argued the cause for appellant.

Steven P. Goodell argued the cause for respondents Township of Hopewell and Township of Hopewell Police Department (Herbert, Van Ness, Cayci & Goodell, attorneys; Mr. Goodell, of counsel and on the brief; Rachel U. Doobrajh, on the brief).

Sarah G. Crowley argued the cause for respondent Mercer County Prosecutor (Arthur R. Sypek, Jr., Mercer County Counsel, attorney; Ms. Crowley, Deputy County Counsel, of counsel; Kenneth A. Skroumbelos, on the brief).

PER CURIAM

Plaintiff, Robert Higgins, filed a complaint against the Township of Hopewell (Hopewell) and the Mercer County Prosecutor's Office (Prosecutor's Office), seeking a surveillance videotape recording, penalties, and counsel fees under the Open Public Records Act (the Act), N.J.S.A. 47:1A-1 to -13. Hopewell moved for summary judgment. The Prosecutor's Office joined with Hopewell, also requesting that plaintiff's complaint be dismissed or, alternatively, summary judgment be granted. Plaintiff filed a cross-motion for summary judgment asserting that he was entitled to damages and counsel fees as a matter of law. Dismissing the complaint on summary judgment, the judge found that Hopewell did not improperly deny plaintiff's request for the surveillance video because the Prosecutor's Office was pursuing criminal charges and plaintiff had no right to access it because it was part of an ongoing investigation. An order granting Hopewell's motion for summary judgment and dismissing the complaint was issued on May 31, 2005. An Amended Order dismissing plaintiff's complaint "in its entirety" and denying plaintiff's cross-motion for summary judgment was entered on June 16, 2005. Plaintiff appeals and we affirm the grant of summary judgment dismissing plaintiff's complaint against Hopewell but reverse and remand for further proceedings plaintiff's claim against the Prosecutor's Office.

The following are the relevant facts. On May 1, 2003, the Hopewell Township Committee held a public meeting at the Township Municipal Building. The meeting was advertised, the clerk took minutes, and the meeting was cablecast throughout the Hopewell Valley over the local cable television network. A surveillance camera used to allow the police to monitor building security, also recorded the proceedings.

At the close of the meeting, committee member Arlene Kemp took, apparently by mistake, a planner belonging to committee member Marylou Ferrara. Ferrara later reported the planner stolen. The Hopewell Township Police Department initiated an investigation and collected the surveillance tape as evidence. On April 15, 2004, plaintiff filled out a form, entitled "Request for Information," to the Township, asking for the surveillance tape recording. Captain George C. Meyer of the Police Department responded the same day, informing plaintiff that the videotape was part of a reported theft investigation. He indicated that Assistant County Prosecutor Angelo Onofri advised him that until the one-year statute of limitations had run the video was considered part of an ongoing police investigation and could not be released.

Plaintiff filled out a second request form on April 23, 2004, acknowledging that the statute of limitations precluded release until May 1, 2004. He asked that the tape be made available to him on May 1 or the next business day. Hopewell's municipal attorney responded on April 27, 2004, notifying plaintiff that his requests of April 15 and April 23 had been referred to the Prosecutor's Office for determination "as to whether the surveillance tape you requested can be disclosed." On April 27, municipal counsel also wrote the Prosecutor's Office, asking it to make a determination as to whether the surveillance tape fell within the exemption in the Act.

On April 30, 2004, plaintiff again wrote Hopewell, indicating that in his view, under the Act, the Prosecutor's Office should not be involved. Hopewell's counsel responded on May 10, 2004, that the question was properly before the Prosecutor as the chief law enforcement officer of the County. On May 25, 2004, the Mercer County Prosecutor, Joseph L. Bocchini, advised municipal counsel that, following a review by his office, it had been determined that the videotape requested by plaintiff was "part and parcel of a criminal investigatory record and, accordingly cannot be released." He also advised that: (1) the statutory definition of criminal investigatory records, N.J.S.A. 47:1A-1.1, "does not require that the documents pertain to a pending investigation"; (2) "there is nothing in the Act to construe that a surveillance tape is 'required' to be made by law"; and (3) "[a]ccordingly, the request for the surveillance tape should be denied." He also voiced the opinion that release of the tape would "tend to compromise security measures and techniques exempting the same from public disclosure."

On June 1, 2004, the Township Clerk wrote plaintiff, advising of the Prosecutor's opinion. On June 2, 2004, plaintiff's counsel wrote to the Township with a copy to the Prosecutor's Office advising that "[t]here is no doubt that the statute of limitations has run on any criminal investigation regarding theft charges," and, in his view, Hopewell and the Prosecutor's Office were wrongfully withholding the requested public information. Plaintiff's counsel gave both parties an opportunity to respond by July 2, 2004, or he would "draft the necessary legal complaint."

On December 9, 2004, plaintiff filed his complaint. On December 27, 2004, the Prosecutor's Office informed the Police Department that it was not pursuing charges against Kemp and no longer had any objection to the release of the videotape. On January 11, 2005, the Township informed plaintiff's counsel that access to the videotape would be granted and expressed its expectation that plaintiff would then dismiss the lawsuit. Plaintiff's counsel advised that the suit would not be dismissed and plaintiff was demanding counsel fees.

On appeal, plaintiff contends that the judge improperly granted summary judgment in favor of both Hopewell and the Prosecutor's Office. He alleges that there was no discovery permitted and material questions of fact were presented sufficient to defeat both defendants' motions. Plaintiff argues alternatively that the judge should have granted his cross-motion for summary judgment because he was the prevailing party as a matter of law.

The Act permits a person who is denied access to government records to institute a summary proceeding to obtain access and collect reasonable counsel fees where access is improperly denied. N.J.S.A. 47:1A-6. The burden is placed upon the public agency to establish that the denial of access is authorized by law. Ibid. Generally, the Act provides that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . ." N.J.S.A. 47:1A-1. Government records, however, do not include "criminal investigatory records." N.J.S.A. 47:1A-1.1. A "criminal investigatory record" is defined as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." Ibid. The Act, however, is not to be "construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency." N.J.S.A. 47:1A-1.

Plaintiff places heavy reliance on Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 380 (App. Div. 2003), for the proposition that the surveillance tape was wrongfully withheld. In Courier News, it was undisputed that the 911 tapes were government records. Ibid. Unlike 911 tapes, which are "required by law to be recorded by a government agency and . . . retained for 'no less than 30 days,'" Serrano v. South Brunswick Twp., 358 N.J. Super. 352, 364 (App. Div. 2003), here, the motion judge concluded that there was no statutory or regulatory requirement mandating that the surveillance tape be made, maintained or kept as an official record.

Plaintiff's assertion that the judge failed to correctly apply the common-law balancing test is likewise unavailing. Contrary to plaintiff's contention, the motion judge found that the interest in preventing disclosure outweighed any common-law right to access. In reaching her conclusion, the judge appropriately noted that plaintiff's allegation that he was "engaged in the gathering, editing, and reporting of information regarding the conduct of an elected official" amounted to "a vague and non-compelling interest" favoring disclosure, which was clearly insufficient when weighed against defendants' interest in protecting information that was the subject of an ongoing criminal investigation.

Where we part company with the judge's decision is with her conclusion that there was no genuine issue of material fact that the criminal investigation was ongoing up until the Prosecutor's Office authorized the release. In reaching her ultimate conclusions, the judge found that the Prosecutor Office's release of the surveillance tape coincided with its determination not to pursue the criminal charges, thus ending the criminal investigation. The need for confidentiality during a law enforcement investigation does not survive the closing of the case. Keddie v. Rutgers, 148 N.J. 36, 54 (1997); Shuttleworth v. City of Camden, 258 N.J. Super. 573, 585 (App. Div.), certif. denied, 133 N.J. 429 (1992).

Here, the judge was faced with disputed evidence respecting the nature of the purported ongoing criminal investigation. Assistant Prosecutor Onofri initially advised Hopewell that the one-year statute of limitations controlled, implying that the investigation terminated as of May 1, 2004. The letter of December 27, advising that "our office will not pursue criminal charges" and "[a]s such we withdraw our office's objection to the release of the videotape" at best implies that the decision was recent. The Prosecutor's Office, however, presented no proof by either affidavit or certification expressly stating that the investigation was ongoing until December 2004, or that it was investigating charges that were subject to a longer statute of limitations.

Although plaintiff's complaint was not filed as a summary action, R. 4:67-2, the judge appropriately treated it as such in compliance with the Act, N.J.S.A. 47:1A-6. When trying a summary action under R. 4:67-5, "a court must make findings of facts, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine issues of fact in dispute, or by conducting an evidentiary hearing." Courier News, supra, 358 N.J. Super. at 378-79. By contrast, summary judgment is granted when "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To determine whether there is a genuine issue of fact, the judge must decide whether

the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party . . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We are satisfied that on this record there was a genuine issue of material fact necessitating a hearing under R. 4:67-5 to determine whether the criminal investigation was ongoing up until the time the Prosecutor's Office authorized release of the surveillance tape. By contrast, there is nothing in the record indicating that Hopewell deprived plaintiff of the requested information. At oral argument on appeal, it was conceded by all the parties that the Prosecutor's Office controlled the release of the videotape by determining that it was evidence in an ongoing criminal investigation. Indeed, within a short period of time following the prosecutor's letter to the Chief of Police, Hopewell released the tape to plaintiff, thus negating any inference that it refused to release the video based upon security considerations. Our decision that there was a sufficient issue of fact presented to withstand the grant of summary judgment necessarily renders plaintiff's contention regarding the denial of his cross-motion for summary judgment moot.

 
Accordingly, we affirm the June 16, 2005, Amended Order dismissing plaintiff's complaint against Hopewell but reverse the Order in so far as it dismissed plaintiff's complaint against the Prosecutor's Office. The matter is remanded for a plenary hearing consistent with this opinion.

The complaint also named the Hopewell Township Police Department. Because Hopewell Township Police Department is not a separate entity, but a department within the Township, we refer to both Hopewell Township and its police department collectively as Hopewell.

The appellate record does not include the Mercer County Prosecutor's motion to join Hopewell's motion for summary judgment. The judge's written opinion, however, indicates that the Mercer County Counsel requested permission, in writing, to join the motion.

There is no order granting summary judgment in favor of the Mercer County Prosecutor's Office included in the appellate appendix. Apparently, the words "in its entirety" were added to include the Prosecutor's Office. At oral argument on appeal, counsel for both Hopewell and the Prosecutor's Office argued that the judge properly granted summary judgment for each defendant.

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A-5490-04T5

April 4, 2006