DIGITAL FIRST MEDIA v. EWING TOWNSHIP

 

(NOTE: The status of this decision is Published.)

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5779-17T2

DIGITAL FIRST MEDIA,
d/b/a THE TRENTONIAN,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                            February 19, 2020

v.                                       APPELLATE DIVISION


EWING TOWNSHIP and
KIM J. MACELLARO, RMC,
in her capacity as Municipal
Clerk and Records Custodian
for Ewing Township,

     Defendants-Respondents.
___________________________

           Argued May 22, 2019

           Before Judges Alvarez and Mawla.

           Reargued November 21, 2019 – Decided February 19, 2020

           Before Judges Alvarez, Suter and DeAlmeida.

           On appeal from the Superior Court of New Jersey,
           Law Division, Mercer County, Docket No. L-0495-18.

           CJ Griffin argued the cause for appellant (Pashman
           Stein Walder Hayden, PC, attorneys; CJ Griffin, of
           counsel and on the briefs).

           Wade Donald Koenecke argued the cause for
           respondents (Stevens & Lee, PC, attorneys; Patrick D.
           Kennedy and Maeve Ellen Cannon, of counsel and on
           the brief; Wade Donald Koenecke and Michael A.
           Cedrone, on the briefs).

           Suzanne Marie Davies, Deputy Attorney General,
           argued the cause for amicus curiae Attorney General
           of New Jersey (Gurbir S. Grewal, Attorney General,
           attorney; Raymond R. Chance, Assistant Attorney
           General, of counsel; Suzanne Marie Davies, on the
           brief).

           Gibbons PC and American Civil Liberties Union of
           New Jersey, attorneys for amicus curiae American
           Civil Liberties Union of New Jersey (Jeanne LoCicero
           and Alexander Shalom, of counsel and on the brief;
           Sylvia-Rebecca Gutierrez, on the brief).

           Mc Cusker Anselmi Rosen & Carvelli PC, attorneys
           for amici curiae Reporters Committee for Freedom of
           the Press (Bruce S. Rosen, on the brief).

     The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

     Plaintiff Digital First Media, doing business as the Trentonian, filed a

verified complaint and order to show cause under the Open Public Records Act

of 2001 (OPRA),  N.J.S.A. 47:1A-1 to -13, and the common-law right of access

to public records, seeking to compel the production of use of force reports

(UFRs) regarding the arrest of a sixteen-year-old suspect. The defendants are

Ewing Township and the municipal clerk and records custodian, Kim

Macellaro, RMC.    Defendants denied access on the basis that the records

contained confidential information pertaining to a juvenile charged as a

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delinquent, and were therefore available only by application to the Family

Part. See Rule 5:19-2 and  N.J.S.A. 2A:4A-60. Finding that the rule and

statute preserving a juvenile's anonymity barred disclosure under OPRA, the

Law Division judge dismissed the complaint on July 18, 2018.

      We now reverse, concluding that when police employ force against a

minor charged as a delinquent, redaction of his or her name on the UFR

satisfies both the public's right to access important information regarding

police conduct and a juvenile's right to privacy, which is mandated by statute

and court rule. We remand for further proceedings to address the Trentonian's

request for counsel fees and costs.

      As the judge explained, the legislative policy protecting a juvenile's

privacy stems from the concern that public disclosure might "have a harmful

impact on the rehabilitation of a juvenile offender." See State ex rel. B.C.L.,

 82 N.J. 362, 375-76 (1980).           The judge also opined that the juvenile

confidentiality statute takes precedence over OPRA under the theory of

statutory construction that the specific supersedes the general. See State v.

Robinson,  217 N.J. 594, 609 (2014); see also State ex rel. D.M.,  451 N.J.

Super. 415, 426 (App. Div. 2017).            The public's right to know was a

"generalized interest," while the juvenile's need for privacy "comes out in the

balance."



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                                         3
      Further examining the Trentonian's claim under the common-law right of

access, the judge determined that the newspaper was not entitled to relief. The

judge reasoned that although the public's right to know is a paramount

consideration, since the Trentonian had the option of filing a motion in the

Family Part to obtain the UFR, a mechanism was available to advance that

interest, while preserving the juvenile's confidentiality.

      The judge also noted only the Juvenile Justice Commission (JJC) has

access to a juvenile parole officer's UFR. The JJC, within the Department of

Law and Public Safety,1 adopted N.J.A.C. 13:97-1.4, which "tracks" Rule

5:19-2 and  N.J.S.A. 2A:4-60, in order to "strictly safeguard[]" those records

"from public access." Thus, she entered judgment in favor of defendants.

                                        I.

      Some context is necessary. The Attorney General's authority to oversee

police conduct is legislatively mandated.      See  N.J.S.A. 52:17B-97 to -117.

The Attorney General's responsibilities include representation of State

agencies. See  N.J.S.A. 52:17A-4.

      The Attorney General issued use of force guidelines regulating law

enforcement in 1985 and revised them in 2000.            The guidelines defined

1
  Stating the obvious, the Department of Law and Public Safety is headed by
the Attorney General.  N.J.S.A. 52:17B-5. The JJC "is established in, but not
of, the Department of Law and Public Safety."  N.J.S.A. 52:17B-170(a).


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categories of force. Among other things, police must file a one-page UFR

"[i]n all instances when physical, mechanical or deadly force is used[]" during

a confrontation between police personnel and a civilian, 2 referred to on the

form as the "subject."    We have attached a blank copy of the Attorney

General's model UFR to this decision.        Because police departments are

required by law to file UFRs, the public is entitled to access under OPRA.

O'Shea v. Twp. of W. Milford,  410 N.J. Super. 371, 385 (App. Div. 2009).

Neither the guidelines nor the model form distinguish between UFRs filed

when force is used against minors as opposed to adults.

      Interested parties can obtain records "pertaining to juveniles charged as

delinquents" only by following the process in Rule 5:19-2(b):

            [R]ecords of the court, Probation Division, and law
            enforcement agencies pertaining to juveniles charged
            as delinquents shall be strictly safeguarded from
            public inspection and have to be made available only
            pursuant to  N.J.S.A. 2A:4A-60 to -62.           Any
            application for such records shall be made by motion
            to the court.

Read together, the rule and  N.J.S.A. 2A:4A-60 establish the limited

circumstances in which, by formal motion to the Family Part, an interested



2
   Throughout this opinion we use the phrase "adult UFR" and "juvenile UFR"
to distinguish between forms filed when the arrestee is an adult as opposed to a
juvenile. The reference, however, is to the same form.


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party may obtain otherwise protected juvenile records from "the court,

Probation Division, and law enforcement agencies . . . ."

       Confidentiality can be pierced when outweighed by other important

interests. Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 5:19-

2(b) (2020).    The statute itself,  N.J.S.A. 2A:4A-60, sets forth instances in

which records may be shared, with whom, and who may attend delinquency

hearings. It is noteworthy that, as set forth in  N.J.S.A. 2A:4A-60(f), "the

public's right to be informed" may be weighed more heavily in the balance

against a minor's privacy interests and "prospects of rehabilitation" if the

minor committed a crime of the first, second, or third degree. State ex rel.

K.B.,  304 N.J. Super. 628, 631 (App. Div. 1997);  N.J.S.A. 2A:4A-60(f). To

prevent public disclosure under subsection (f) of the statute, the juvenile "must

demonstrate a substantial likelihood that specific and extraordinary harm

would result from such disclosure in the specific case." K.B.,  304 N.J. Super.

at 631. The minor "must make a showing of significant detriments flowing to

the individual that are both sufficiently grave and person- and situation-

particular, i.e., not shared by juvenile defendants in general." Id. at 634. This

is a difficult test to meet. See id. at 632-33.




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                                         6
      Dicta in O'Shea mentions regulations making some UFRs "'confidential'

and not subject to OPRA."  410 N.J. Super. at 384. Specifically, pursuant to

regulatory powers vested by  N.J.S.A. 52:17B-170(e)(22), the JJC

            has promulgated use-of-force policies for its juvenile
            parole officers, N.J.A.C. 13:96-3.1 to -11, and for its
            investigators, N.J.A.C. 13:97-2.1 to -11, that are
            similar to the [Attorney General's] Use of Force
            Policy. Those regulations expressly state that an
            officer regulated "shall complete a . . . Use of Force
            Report when he or she participated in, or witnessed,
            [any use of force]," N.J.A.C. 13:96-3.6 and 13:97-2.6,
            but then deem such reports "confidential" and not
            subject to OPRA. N.J.A.C. 13:96-1.4 and 13:97-1.4.

            [Id. at 384-85 (alterations in original).]

                                        II.

      On appeal, plaintiff argues that redacted UFRs do not come under the

purview of the rule and statute regarding juvenile records because they do not

"pertain" to the juvenile, but to police conduct. Amici curiae the Reporters

Committee for Freedom of the Press and 22 Other Media Organizations agree,

and add that public access to UFRs regarding juvenile arrests will better serve

the public by providing a measure of clarity and oversight in this important

arena. The American Civil Liberties Union of New Jersey, which also filed a

brief in support of plaintiff's appeal, asserts that allowing access to a juvenile

UFR advances OPRA's mandate because of the importance of public oversight




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of police conduct—but that it should have in any event been allowed under the

common-law right of access.

      Defendants counter that the rule and statutes control because the UFR at

issue pertains to juvenile records. They further argue that the complaint was

procedurally defective because the request should have been initiated through

the Family Part, balancing the public's interest in oversight of police conduct

while preserving a juvenile's privacy.

      In its amicus curiae filing, the Attorney General draws our attention to

various agency public statements highlighting the purpose of UFRs to provide

transparency regarding law enforcement conduct, not regarding criminal

activity.   See Gurbir S. Grewal, Joint Statement of New Jersey Law

Enforcement            Leaders,              (December        5,             2018),

https://www.nj.gov/oag/newsreleases18/pr20181205b.html;        see    also     S.P.

Sullivan, NJ.com probe of police force 'nothing short of incredible,' N.J.'s top

cop says.   Now, he's promising major reform, NJ.COM (Nov. 30, 2018),

http://www.nj.com/news/2018/11/njcom-probe-of-police-force-nothing-short-

of-incredible-njs-top-cop-says-now-hes-promising-major-reform.html.

      Accordingly, the Attorney General takes the position on appeal that

redacting a UFR involving a juvenile subject would readily preserve the

minor's confidentiality and the public's strong interest in transparency. At oral



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argument, we were advised that some municipalities already provide redacted

juvenile UFRs when requested.

                                      III.

      We review a trial court's decisions in OPRA matters de novo. Wronko

v. N.J. Soc'y for Prevention of Cruelty to Animals,  453 N.J. Super. 73, 79

(2018) (quoting Paff v. N.J. State Firemen's Ass'n,  431 N.J. Super. 278, 286

(App. Div. 2013); O'Shea,  410 N.J. Super. at 379).

      In North Jersey Media Group, Inc. v. Township of Lyndhurst, the Court

reiterated that OPRA embodies the principle of broad access to public records

in the public's interest.    229 N.J. 541, 555 (2017).      Limitations are to be

construed in favor of transparency, and it is the public agencies that bear the

burden of demonstrating, "a clear showing," that denial of the OPRA request is

required by law. Ibid. (quoting Asbury Park Press v. Ocean Cty. Prosecutor's

Office,  374 N.J. Super. 312, 329 (Law Div. 2004)). Government records are

accessible to the public under OPRA unless exempted by provisions within the

law or application of another statute.  N.J.S.A. 47:1A-1.

      Although the language in Lyndhurst concerns exemptions to disclosure

found within OPRA itself, there is no reason to distinguish the standard from

decisions regarding exemptions found in unrelated statutes. Therefore, it is




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defendants' burden to make a clear showing that  N.J.S.A. 2A:4A-60 creates an

exemption to OPRA. No showing has been made, much less a clear showing.

      To begin, Rule 5:19-2(b) addresses information "pertaining to juveniles

charged as delinquents . . . ." The statute employs similar language, expanding

the universe of records to "be strictly safeguarded from public inspection" to

include those pertaining to "juveniles" who are "found to be part of a juvenile-

family crisis . . . ."  N.J.S.A. 2A:4A-60. Not all minors against whom police

would employ force necessarily fall into those categories.

      Additionally, the Attorney General's reading of the interplay between

OPRA and the rule and statute, although not dispositive, is more than

informative. See Shaw v. Shand,  460 N.J. Super. 592, 617-18 (App. Div.

2019).   We give it deferential consideration.      Id. at 617.   Deference is

particularly fitting in this case since the Attorney General is responsible for

issuing "guidelines, directives and policies concerning appropriate application

of the State's criminal laws." O'Shea,  410 N.J. Super. at 382. The adoption of

the UFR guidelines and the creation of the form was just such an exercise of

the Attorney General's oversight.

      The UFR promulgated by the Attorney General is designed to capture

information about police conduct, not the subject—the person against whom

force was used—in an abbreviated fashion. That the "subject" is a minor, as



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opposed to an adult, does not shift the focus of a UFR, disclosure of use of

force, in any way. In either instance, the need to record police conduct is the

same. Deleting the subject's name adequately protects the anonymity. The

remaining information is identity neutral—and provides details that aid in

assessing the reasonableness of the officer's conduct: the subject's gender,

race, and age; whether the subject was carrying a weapon; whether the subject

was injured, killed, or arrested; and the nature of any charges filed against him

or her.

      Although the parties, like the trial court, cite to the language in O'Shea

regarding juvenile parole officers' UFRs, it is not relevant. JJC regulations

apply only to UFRs produced by juvenile parole officers and investigators.

The UFRs at issue here are filed by county, municipal, or State police; are

generally available to the public; and are filed with employers and agencies

whose focus is not the arrestee—rather the focus is on the employees'

implementation of more broad-based police practices.

      The heart of the matter is that a juvenile UFR is not a record pertaining

to juveniles charged with delinquency.      It is a record pertaining to police

conduct.

      The legislative history of  N.J.S.A. 2A:4A-60, and Governor's statement

issued when the statute was enacted, both indicate that the provisions



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regarding confidentiality were intended to balance the public's right to be

informed against the rehabilitation of the juvenile, a balance readily

accomplished here by the redaction of the juvenile's name. Senate Judiciary

Committee Statement to A. 643 (L. 1982, c. 79); Governor's Conditional Veto

Message to A. 1913 (L. 2001, c. 407). Nor does a juvenile UFR fall within the

exceptions to availability of government records deemed confidential

enumerated within OPRA itself. See  N.J.S.A. 47:1A-1. The simple redaction

of the subject's name accomplishes the goal of both statutes.

      Thus, reviewing the matter de novo, we conclude defendants have not

made a clear showing that Rule 5:19-2 and  N.J.S.A. 2A:4-60 bar release of

juvenile UFRs.         Redaction when the subject is a minor preserves

confidentiality while advancing OPRA's public policy goals. However, the

Attorney General may want to consider the promulgation of a different UFR

for use when the subject is a minor, in order to ensure names are not

mistakenly released.

      We remand the matter for judgment to be entered in accord with this

decision. On remand, the court shall address the issue of plaintiff's counsel fee

application and costs, both as to the work completed in the Law Division and

on appeal.

      Reversed and remanded. We do not retain jurisdiction.



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APPENDIX