ROBERT HIGGINS v. TOWNSHIP OF HOPEWELL, TOWNSHIP OF HOPEWELL POLICE DEPARTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5394-05T55394-05T5

ROBERT HIGGINS,

Plaintiff-Appellant,

v.

TOWNSHIP OF HOPEWELL, TOWNSHIP

OF HOPEWELL POLICE DEPARTMENT,

Defendants,

and

MERCER COUNTY PROSECUTOR,

Defendant-Respondent.

______________________________

 

Argued April 23, 2007 - Decided May 4, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer

County, L-3159-04.

Brian M. Cige argued the cause for appellant.

Sarah G. Crowley, Deputy County

Counsel, argued the cause for respondent (Arthur R. Sypek, Jr., Mercer County Counsel, attorney; Ms. Crowley and Kenneth Skroumbelos, Assistant County Counsel, on the brief).

PER CURIAM

This case arose from a complaint filed by Robert Higgins under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The complaint was dismissed by the trial court on summary judgment. Higgins appealed and we remanded the matter to the trial court for a plenary hearing. Higgins v. Twp. of Hopewell, No. A-5490-04 (App. Div. Apr. 4, 2006). After holding the required hearing on remand, the trial court once again dismissed the complaint. We affirm.

The facts and procedural history need not be reviewed in detail here because they are set forth at length in our prior opinion. In brief, Higgins sought a security camera videotape which recorded proceedings both before and after a meeting of the Hopewell Township Committee on May 1, 2003. The videotape became part of a police investigation of an alleged theft by one committee member of property belonging to another member. At the direction of the County Prosecutor, the Township declined to release the tape on the grounds that the tape was not a government record under OPRA, N.J.S.A. 47:1A-1.1, because it was a criminal investigatory record. Shortly after Higgins filed his lawsuit on December 9, 2004, the Prosecutor's Office withdrew its objection to the release of the videotape on the grounds that the Office had determined not to prosecute the person accused of theft. Analyzing plaintiff's claim under both OPRA and the common law, the trial judge concluded that the Prosecutor's Office had acted lawfully in only keeping the records confidential as long as its investigation was ongoing. We concluded that there was a material dispute of fact as to "whether the criminal investigation was ongoing up until the time the Prosecutor's Office authorized release of the surveillance tape." Higgins, supra, slip op. at 11. Consequently, we remanded the case to the trial court for a plenary hearing on that narrow factual issue.

After holding a plenary hearing at which four defense witnesses testified, including the Mercer County Prosecutor and the First Assistant Prosecutor, the trial judge determined, based on her evaluation of the witnesses' credibility, that the Prosecutor's investigation had in fact been ongoing up until the time that the Office authorized release of the videotape. Consistent with the procedure outlined in Shuttleworth v. City of Camden, 258 N.J. Super. 573 (App. Div.), certif. denied, 133 N.J. 429 (1992), she also addressed the record's status under OPRA, concluding that for purposes of OPRA, the videotape was never a government record because it was subject to the exception for criminal investigatory records under N.J.S.A. 47:1A-1.1, as opposed to the more limited exception in N.J.S.A. 47:1A-3 which permits law enforcement agencies to keep documents that are government records confidential but only as long as needed for an ongoing investigation. She also determined that under the common law, the document was properly withheld because of the ongoing criminal investigation.

Our review of the trial court's factual findings is limited to determining whether they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We defer to the trial court's opportunity to judge the credibility of the witnesses whose testimony she heard and whose demeanor she observed. State v. Locurto, 157 N.J. 463, 474 (1999). Having reviewed the record with that standard in mind we find no basis to disturb the trial court's determination. Her factual conclusion that the investigation was ongoing until the decision was made to release the records is determinative, under either the common law or under OPRA, N.J.S.A. 47:1A-3. We, therefore, need not address defendant's claim that the records need never have been produced under OPRA because, as criminal investigatory documents, they are not government records. N.J.S.A. 47:1A-1.1. Since plaintiff is not a prevailing party, he is not entitled to counsel fees.

 
Affirmed.

(continued)

(continued)

4

A-5394-05T5

 

May 4, 2007